John v. John

893 S.W.2d 373, 1995 Ky. App. LEXIS 5, 1995 WL 10456
CourtCourt of Appeals of Kentucky
DecidedJanuary 13, 1995
DocketNo. 93-CA-1769-MR
StatusPublished
Cited by6 cases

This text of 893 S.W.2d 373 (John v. John) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5, 1995 WL 10456 (Ky. Ct. App. 1995).

Opinion

OPINION

McDonald, judge.

Maurice John has appealed from the post-dissolution judgment of the Jefferson Circuit Court which denied his request to terminate the required maintenance payments to his former wife, the appellee, Sandra Grider. The parties were married in 1965, the same year Maurice entered medical school. They supported themselves with Sandra’s earnings and by significant contributions from Sandra’s family. During the twenty-two-year marriage the couple amassed a substantial marital estate attributable to Maurice’s successful ophthalmology practice and sums Sandra received from a family trust fund. Sandra also contributed by keeping the books for her husband’s practice.

In 1987 Maurice filed a petition for dissolution of the parties’ marriage. In February [374]*3741989, a decree of dissolution was entered reserving all issues of custody, visitation and support concerning the two infant children, division of property, maintenance, assignment of non-marital property and debts, and allocation of attorneys’ fees and costs. Shortly before the trial on these issues was to commence, the parties executed a marital settlement agreement resolving all matters attendant to their dissolution.

Under this agreement, Sandra received the proceeds from the sale of the marital residence amounting to $1,128,000. Maurice received free of any claim from Sandra his medical practice, from which he earned over $1,000,000 annually, the real property where ■ the practice is located and an adjacent piece of income-producing realty. The building housing Maurice’s practice, the John Eye Clinic and the John-Kenyon Center for Eye Surgery, and the office building on the adjacent lot were constructed during the marriage with loans from Sandra’s father, Ronald Kenyon. The agreement does not recite the value of the practice or the realty Maurice received; however, in his financial disclosure statement he valued the realty at $1,240,000. His expert appraised the medical practice as being worth $1,075,000. Sandra obtained two appraisals for the practice, one for $3,900,000; the other $3,815,953.

In addition to the proceeds of the sale of the marital home, half the personalty and an automobile, the agreement provided that Sandra would receive $1,320,000 in maintenance. It is the maintenance provision, following in its entirety, that is the source of this post-dissolution litigation:

III.
MAINTENANCE
Petitioner shall pay as maintenance to the Respondent the total sum of $1,320,-000, over the 10 year period commencing May 1, 1989 as follows:
1. Commencing May 1, 1989, and until April 30, 1991, Petitioner shall pay to Respondent as spousal maintenance a total of $100,000 per 12 month period, in equal monthly installments of $8,333.33 per month due on or before the first day of each month;
2. Commencing May 1, 1991, and through April 30,1999, Petitioner shall pay to Respondent as spousal maintenance the total amount of $140,000 per 12 month period, in equal monthly installments of $11,666.67 per month due on or before the first day of each month.
The parties intend that all monies paid by Petitioner to Respondent pursuant to this Section III shall be includable as income by Respondent and shall be deductible as spousal maintenance by Petitioner. The parties further agree that the provisions of this Section III shall terminate upon the death of Respondent.
Petitioner agrees to apply for and to undergo a physical examination, if required, to purchase term life insurance on his life sufficient to cover the amount of maintenance which he has agreed to pay herein. Respondent shall be responsible for making all premium payments to secure and maintain said life insurance.

Maurice complied with this provision by making the scheduled payments through September 1992. He has made no maintenance payments since then, contending that Sandra’s remarriage in February 1992 relieves him of his contractual obligations. Sandra moved to have Maurice held in contempt; Maurice moved to have his obligation terminated and sought the reimbursement of the $90,919.80 he had paid since Sandra’s remarriage. On May 28, 1993, the court entered its judgment concluding that KRS 403.250(2) had no application in this case, as the parties’ agreement called for lump-sum maintenance not subject to modification under the authority contained in Dame v. Dame, Ky., 628 S.W.2d 625 (1982). Further, the court held that Maurice could not escape his contractual obligation to pay the “total sum of $1,320,000” because the contract itself made no provision for termination of maintenance payments upon Sandra’s remarriage as follow:

[KRS 403.250(2) ] itself provides that maintenance will terminate upon death or marriage “... unless otherwise agreed in writing. ...” In the case at bar, the parties [375]*375otherwise agreed in writing that the payments shall terminate upon death of [Sandra], Period. The matter was expressly addressed by the parties in the agreement and the Court will not and cannot infer that which was obviously omitted. (Emphasis not added).

In his appeal, Maurice continues to argue that his obligation to pay maintenance to Sandra was terminated as a matter of law upon her remarriage. This argument is totally without merit. KRS 403.250(2), upon which Maurice relies, provides:

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance. (Emphasis added).

As the trial court found, the parties “agreed in writing.” The terms of this writing called for Maurice to pay Sandra “the total sum of $1,320,000” in installment payments over ten years. The only condition expressed in the parties’ written and executed agreement that would excuse payment by Maurice was Sandra’s death. The parties did not mention in their agreement the possibility of Sandra’s remarriage and the document does not provide that or any other contingency as having any impact on the appellant’s obligation to pay Sandra $1,320,000.

Maurice criticizes the trial court for relying on Dame v. Dame, supra. However, we believe the Dame case is controlling in this circumstance. Dame unequivocally holds, noting the purposes of KRS 403.110 and particularly the need for finality between divorcing parties, that lump-sum maintenance awards, paid in one installment or many installments, are not subject to modification. 628 S.W.2d at 625. Counsel for Maurice argued before the trial court that the maintenance at issue was not lump-sum maintenance but periodic maintenance.

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Bluebook (online)
893 S.W.2d 373, 1995 Ky. App. LEXIS 5, 1995 WL 10456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-v-john-kyctapp-1995.