Laure Ryan (Formley Known as Laure Whiteley) v. James Whiteley, Jr.

• Court: Court of Appeals of Kentucky
• Decided: October 6, 2022
• Docket: 2021 CA 000129
• Status: Unknown

Opinion

RENDERED: OCTOBER 7, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0129-MR

LAURE RYAN (FORMERLY KNOWN AS LAURE WHITELEY) APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 19-CI-501893

JAMES WHITELEY, JR. APPELLEE

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Laure Ryan, formerly known as Laure Whiteley,

(“Appellant”), appeals from findings of fact, conclusions of law, and decree of

dissolution of marriage entered by the Jefferson Circuit Court, and from an order

denying her motion to alter, amend, or vacate. She argues that the circuit court erred in limiting the award of maintenance to 8 years. She also asserts that the

court made erroneous findings. After careful review, we conclude that the circuit

court erred in limiting the duration of the award. Accordingly, we affirm in part,

reverse in part, and remand the findings of fact, conclusions of law, and decree of

dissolution of marriage on appeal.

FACTS AND PROCEDURAL HISTORY

Appellant and James Whiteley, Jr. (“Appellee”) were married in 1997.

Appellant, who is now approximately 52 years old, was a registered nurse prior to

the marriage and has maintained her nursing license. During the marriage, she

worked limited hours, but for most of the marriage was a stay at home mother.

She has not worked outside the home in 13 years. Appellant suffers from a myriad

of debilitating medical conditions, including a congenital defect of the chest which

compresses her heart and lungs. At age 14 she underwent reconstructive surgery

for the condition, which was not successful. She also suffers from scoliosis, which

has caused life-long back pain. As an adult, she was in a car accident which

fractured her hip, pelvis, and foot. Appellant suffers from severe migraine

headaches, post traumatic stress disorder, depression, and anxiety, and as of 2020

was taking 22 medications per day.

Appellee is an approximately 53-year-old surgeon. In 2019, he earned

over $500,000.

-2- The parties separated in 2019, and Appellant filed a petition for

dissolution of marriage in Jefferson Circuit Court. The Jefferson Circuit Court

rendered findings of fact, conclusions of law, and decree of dissolution on

December 7, 2020. The decree addressed all pending issues, including the

disposition of marital assets and debts, the parties’ living expenses, custody and

parenting time, child support and maintenance, and the parties’ competing motions

for contempt which were both denied.

On the issue of maintenance, the court recounted Appellant’s serious,

chronic health issues, and noted that though she retained a nursing license and

earned some income during the marriage, for the most part she was primarily

engaged in the upbringing of the parties’ children. The court found that Appellant

had not worked outside the home for 13 years.

Regarding Appellant’s ability to work, Appellant was evaluated by

Linda Jones, a certified rehabilitation counselor and vocational expert. Jones’

report stated her belief that Appellant was not able to work outside the home at this

time nor in the foreseeable future due to Appellant’s severe medical conditions.

Jones noted that the field of nursing has substantially changed since Appellant last

worked as a nurse. Jones also stated that under Social Security guidelines, nursing

is categorized as requiring “medium” physical activity which requires standing or

-3- walking most of the day and lifting up to 50 pounds. Jones opined that Appellant

was not able to meet this level of exertion.

Robert Tiell is also a vocational expert. He did not examine

Appellant, but considered Jones’ report just prior to trial. Tiell opined that

Appellant has “a few medical issues” and no functional impairment rating.

In determining whether to award maintenance to Appellant, the circuit

court relied on the elements set out in Kentucky Revised Statutes (“KRS”) 403.200

and Browning v. Browning, 551 S.W.2d 823, 825 (Ky. App. 1977). The court

found that Appellant has monthly expenses of $9,000, and income from a trust

account of $870 per month, resulting in a deficit of $8,130 per month. It

recognized that Appellant suffers from a myriad of debilitating medical conditions,

and did not find her to be voluntarily unemployed. The court found that it could

not predict whether Appellant could return to work in the future, as it was possible

she could have successful medical treatment restoring her ability to return to the

workforce. The court ordered Appellee to pay $8,130 per month in maintenance to

Appellant for a period of 8 years. It noted that the maintenance was modifiable in

the future per KRS 403.250 if Appellant’s health did not improve. Maintenance

was to terminate on either party’s death, or Appellant’s remarriage. The court

denied Appellant’s motion to alter, amend, or vacate the findings of fact,

conclusions of law, and decree, and this appeal followed.

-4- STANDARD OF REVIEW

We review the circuit court’s award of maintenance for an abuse of

discretion. Browning, supra; McGregor v. McGregor, 334 S.W.3d 113, 118-19

(Ky. App. 2011). To constitute an abuse of discretion, the circuit court’s decision

must be “arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The

circuit court’s findings of fact will not be disturbed unless they are clearly

erroneous. Kentucky Rules of Civil Procedure (“CR”) 52.01. “Findings of fact are

not clearly erroneous if supported by substantial evidence.” Janakakis-Kostun v.

Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999) (citation omitted). Substantial

evidence is evidence which, when taken alone or in light of all the evidence, has

sufficient probative value to induce conviction in the minds of reasonable

people. Id. The circuit court’s conclusions of law are reviewed de novo. Stipp v.

St. Charles, 291 S.W.3d 720, 723 (Ky. App. 2009).

ARGUMENTS AND ANALYSIS

Appellant argues that the Jefferson Circuit Court committed reversible

error in limiting the award of maintenance to 8 years. She argues that the award’s

limited duration conflicts with the circuit court’s findings, is unsupported by the

record, and is therefore arbitrary. Appellant contends that the circuit court

improperly placed the burden on her to modify maintenance in the future to extend

-5- its duration, when the evidence requires an open-ended award to be modified in the

future, if at all, by Appellee. Appellant also argues that the court made erroneous

findings adversely impacting the amount and duration of the award. She seeks an

opinion reversing the order of maintenance and remanding the matter for an award

of permanent maintenance.

KRS 403.200 states,

(1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:

(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

-6- (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(c) The standard of living established during the marriage;

(d) The duration of the marriage;

(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and

(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

In examining the issue of maintenance, the Jefferson Circuit Court

directly or indirectly considered each of the factors set out in KRS 403.200(2).

The court examined the financial resources of the parties, their marital resources,

ability of each party to meet his or her needs independently, and child support.

KRS 403.200(2)(a). It considered Appellant’s ability to find suitable employment,

and noted that she had not worked outside the home in at least 13 years and her

physical maladies greatly impacted her ability to work. KRS 403.200(2)(b). The

court considered the standard of living during the marriage and its duration,

including the parties’ assets, the value of the marital home, and Appellee’s income.

KRS 403.200(2)(c) and (d). The court acknowledged the medical evidence which

demonstrated that Appellant is “severely symptomatic,” “has difficulty breathing

with exertion,” and is “disabled from a cardiac standpoint . . . due to severe

-7- restrictive lung disease.” It expressly found that Appellant’s “prognosis is poor.”

KRS 403.200(2)(e). Lastly, the court found that Appellee possessed the ability to

meet his own needs while providing maintenance to Appellant. The court

calculated that Appellee would have a net monthly income in the amount of

$19,167, after paying maintenance. KRS 403.200(2)(f).

After considering the factors set out in KRS 403.200(2), the circuit

court concluded that it could not, nor was it required to, predict whether Appellant

could return to work after successful medical treatment and what impact that might

have on her financial circumstances. It was on this basis that the court limited the

duration of the award to 8 years, and ruled that it would be modifiable in the future

per KRS 403.250 if she were not able to provide for herself through appropriate

employment.

The question for our consideration is whether the Jefferson Circuit

Court properly limited the award of maintenance to 8 years, subject to later

modification upon changed circumstances. After closely examining the record and

the law, and with due regard to the circuit court’s sound discretion in the

application of KRS 403.200, McVicker v. McVicker, 461 S.W.3d 404, 420 (Ky.

App. 2015), we conclude that the court’s limitation of the duration of the

maintenance award is arbitrary, unreasonable, unfair, or unsupported by sound

legal principles per English, supra.

-8- We base this conclusion primarily on two factors. First, the record

demonstrates, and the circuit court so found, that Appellant suffers from a myriad

of serious, intractable health issues which adversely affect her ability to participate

in gainful employment. The uncontested medical evidence indicates that Appellant

is severely symptomatic and suffers from acute restrictive lung disease and several

other severe conditions. The circuit court found that Appellant is

now severely symptomatic with significant . . . disabilities affecting more than 50% of her neurologic, cardiac, pulmonary, and emotional systems. She has difficulty breathing with exertion, tachycardia and heart palpitations, dizziness, numbness, swelling, and discoloration of her extremities. Her cardiologist has determined that she is disabled from a cardiac standpoint, while her pulmonologist has determined that she is disabled due to severe restrictive lung disease.

Ms. Whiteley was also born with scoliosis which has caused life-long back pain. In 1995, she was involved in a serious car accident and broke her back in three locations (T4, T9, and L3). She also fractured her left hip, right pelvis, and right foot. She required a full body cast to heal. Ms. Whiteley’s back problems have also progressed. Her orthopedic specialist, Joseph Werner, M.D., has advised her to avoid heavy lifting, twisting, and bending. He says that she can expect increased pain in her neck and lumbar region with sitting or sedentary work. Ms. Whiteley was referred for back surgery in September 2020, which she has not yet scheduled.

Ms. Whiteley also suffers from severe migraine headaches, which require monthly injections. She also suffers from post-traumatic stress disorder, anxiety, and

-9- depression. In total, she takes 22 different medications for treatment of her various medical conditions.

(Internal quotation marks and footnotes omitted.)

A medical evaluation conducted in 2015 found that Appellant has

“severely disabling symptoms, severe deformity, and significant right heart

compression.” This affliction is congenital and progressive, having affected

Appellant since childhood. The circuit court found that “Ms. Whiteley’s recent

medical records show that her condition has progressed[,]” and that “her prognosis

is poor.” Because the medical record does not predict a recovery sufficient to

sustain employment, there is no reasonable basis for limiting the maintenance

award to 8 years.

Second, vocational expert Jones evaluated Appellant, and concluded

that Appellant was not able to work outside the home at this time nor in the

foreseeable future due to her severe medical conditions. Jones hypothesized that

Appellant might engage in sedentary employment if she had surgery and her health

improved. Appellant, however, had unsuccessful reconstructive surgery in the

past, and the record indicates that any additional surgery implicated a significant

risk of pulmonary failure and death. Vocational expert Robert Tiell gave a more

favorable opinion of Appellant’s prospects, going so far as to opine that she could

return to work immediately despite her medical conditions, though he did not

evaluate Appellant and only considered Jones’ report shortly before trial.

-10- The facts of this case somewhat parallel those of Powell v. Powell,

107 S.W.3d 222 (Ky. 2003). Powell was a dissolution proceeding where

maintenance was contested. Husband was a medical doctor who earned almost

$600,000 per year, and wife was a former nurse who took care of the children and

did not work outside the home. Wife, who was around 50 years old, suffered from

back injuries which limited her ability to work outside the home, but was found to

have the ability to return to the workforce making $45,000 per year after

completing continuing education. The circuit court awarded maintenance to the

wife in the amount of $3,000 per month for three years, which it believed gave her

sufficient time to become reestablished in the workforce. The Court of Appeals

affirmed upon finding that the award did not constitute an abuse of discretion. On

appeal, the Kentucky Supreme Court concluded that both the amount and duration

of the award constituted an abuse of discretion. It based its conclusion in part on

the 18-year duration of the marriage, the disparity in the respective incomes, and

the standard of living established during the marriage.

Appellant herein has chronic medical conditions far more severe than

those of the wife in Powell; Appellant’s marriage was 5 years longer than the

marriage in Powell; and, unlike the wife’s ability to return to the workforce within

one year in Powell, Appellant’s prospects of reemployment are poor. While

-11- Powell is not controlling under the instant facts, it provides guidance in the

application of KRS 403.200 to the facts before us.

Alternatively, Appellant argues that if we find that the circuit court

correctly applied KRS 403.200, it improperly found that Appellant has a monthly

income of $870 from her nonmarital account, with monthly expenses totaling

$9,000. Appellant contends that the circuit court also failed to clarify its finding

on the family’s monthly spending prior to the filing of the petition, and should

have found the parties enjoyed a high standard of living and spent approximately

$26,540.50 a month. Appellant argues that the circuit court improperly considered

the 5-year average of her nonmarital account rather than its current interest and

dividends, and did not consider current gains and losses in its calculations. She

also asserts that even with the maintenance award of $8,130 per month, she is in a

much less advantageous financial position than is Appellee who the circuit court

found has an income of over $500,000 per year. Appellant contends that had the

circuit court undertaken a correct analysis of the record, it would have found her

monthly expenses to be $11,023 per month. She maintains that Appellee could

have afforded a higher maintenance obligation, and even if he paid 35% of his net

income in maintenance, he would still retain over $20,000 per month after taxes.

Appellant submitted several pages of arguments and calculations

detailing why she believes she is entitled to more than $8,130 per month in

-12- maintenance. The question for our consideration on this issue is not whether the

record would support a higher award, but rather whether the circuit court’s award

constitutes an abuse of discretion. Browning, supra. The circuit court conducted a

thorough examination of the parties’ employment histories, assets and liabilities,

Appellant’s medical conditions, and reasonable living expenses both before and

after dissolution. These findings are memorialized in the findings of fact,

conclusions of law, and judgment on appeal. The court was also well aware of the

property and assets awarded to Appellant, including half of the assets of the marital

home after the mortgages, IRAs of about $300,000, a Roth IRA valued at about

$25,000, a life insurance policy, money market funds, child support of $3,300 per

month, $50,000 in attorney fees, and none of the marital debt. Based on the

totality of the record and the law, we cannot conclude that the amount of the

maintenance award was erroneous, and find no error on this issue.

CONCLUSION

Given the medical evidence and the circuit court’s findings that

Appellant’s condition is worsening and her prognosis is poor, and in light of the

factors set out in KRS 403.200 and the Kentucky Supreme Court’s application of

those factors in Powell, it is unreasonable per English to limit the award of

maintenance to 8 years. At the conclusion of that 8 year period, Appellant will be

about 60 years old, and it is more likely than not that her severe, debilitating

-13- medical conditions will not have substantially improved. Should Appellant be able

to rejoin the workforce after additional surgery or other treatment, or if the parties’

circumstances otherwise change, Appellee may move to reduce or eliminate the

award per KRS 403.250. We find no error in the amount of the award.

For these reasons, we reverse the findings of fact, conclusions of law,

and decree of dissolution of marriage on the issue of maintenance, and remand the

matter for an award of maintenance consistent with this Opinion. The findings of

fact, conclusions of law, and decree of dissolution of marriage are in all other

respects affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Allen McKee Dodd Corey Shiffman Louisville, Kentucky Christine Shiffman Louisville, Kentucky

-14-