Leitsch v. Leitsch

839 S.W.2d 287, 1992 Ky. App. LEXIS 209, 1992 WL 281694
CourtCourt of Appeals of Kentucky
DecidedOctober 16, 1992
Docket91-CA-2222-S (DIRECT), and 91-CA-2238-S (CROSS)
StatusPublished
Cited by8 cases

This text of 839 S.W.2d 287 (Leitsch v. Leitsch) 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
Leitsch v. Leitsch, 839 S.W.2d 287, 1992 Ky. App. LEXIS 209, 1992 WL 281694 (Ky. Ct. App. 1992).

Opinions

McDonald, judge.

The parties to this appeal, William Leitsch and Sharon Lowry, were married in 1978, at which time both were in college. They separated in 1989. The appellant, William, has suffered since birth from muscular dystrophy. At the time of the marriage he was confined to a wheel chair and Sharon admits she was aware then of the degenerative nature of this condition. Sharon performed many caretaking services for William during their eleven-year marriage not normally required by a spouse, including dressing and bathing William, moving him in and out of his wheel chair, cutting up his food, turning him over several times at night and percussing him frequently to prevent pneumonia.

Both parties finished college. William was able to work full-time as a claims adjuster for an insurance company for about ten years. Sharon worked also and additionally obtained two graduate degrees. Eventually, as was anticipated by both, William’s condition progressed to the extent that he was prevented from working. It is not disputed that William is totally disabled and unemployable.

At the time Sharon filed for dissolution she was employed as a medical administrator at the Daniel Boone Clinic with annual earnings of $38,000. William’s income consisted of $552 from social security disability and $445 from a disability insurance policy he had acquired from his employer. His monthly income totaled $997, or slightly under $12,000 annually.

William did not request maintenance in his response to the petition for dissolution; however, the case was practiced as though he had. He offered proof on the issue prior to the decree without objection. The decree of dissolution was entered October 9,1989, and specifically reserved for future resolution William’s claim for maintenance. The parties had almost no liquid assets to divide. Their household items, furniture and vehicles were fairly equally divided. William was awarded the marital home which the parties had purchased for $50,-000 and had customized in certain respects to accommodate his physical condition. The decree also provided that he be required to assume the $45,000 outstanding mortgage on the property.

In September, 1990, William moved the court to decide the issue of maintenance. Sharon objected on the ground that William had not raised the issue in his pleadings. The court nevertheless heard further testimony of the parties’ financial situation since the decree. William testified he had monthly income of $1,301 which, in addition to his disability benefits, included rental income of $265 per month. This rental income, he testified, was temporary. His necessary monthly expenses were nearly $1,900. His budget was fairly barebones with his biggest monthly expenditure, $600, going to attendant care. He testified that [289]*289he needed assistance around the clock on an at-call basis. The only “luxuries” in William’s expenses included $19 for cable television, $14 for the newspaper, $104 representing his tithe to the church, and $78 for life insurance, items the parties had enjoyed during the marriage.

William testified that his situation was desperate and that the deficit in his income and expenses for essentials was being taken care of from gifts from relatives and friends, and assistance from church members. In addition, William informed the court that he had other financial needs not included in his budget that he could not afford including more frequent attendant services due to his worsened condition, counseling, and upkeep and repairs on his specially equipped vehicle which had been driven over 100,000 miles. He had no way of saving for emergencies or to replace his vehicle.

Sharon’s employment at the Daniel Boone Clinic ended on November 2, 1990, and she immediately secured similar employment with better wages at Alliant Health System in Louisville earning $50,-000 per year. Sharon, who had remarried, listed monthly expenses of $2,525, including a house payment of $1,016 monthly. The record does not disclose whether any or all of the expenses are hers alone or whether her current spouse shares responsibility for maintaining their household.

Sharon did not challenge the reasonableness of William’s expenses. She did argue that he was procedurally prohibited from seeking maintenance, alleging his pleadings to be inadequate, and in her brief before the trial court argued that William did not need maintenance, as follows:

He [William] requested the house and voluntarily assumed the payments; other obligations have been paid in full, outside help apparently continues, and his overall financial situation appears to be quite sufficient, and, in fact, significantly better than that of petitioner [Sharon].

Despite the overwhelming disparity between the parties’ financial situation and physical condition, the trial court agreed with Sharon’s assessment of their respective situations. In denying William any maintenance, the court found that his “necessary living expenses, including mortgage payment and attendant care due to his muscular dystrophy” to be within his income of $1,301. The court, in so finding, reasoned that the $104 in William’s budget for contribution to his church and the $78 for life insurance were not necessary expenses. The court also relied on the fact that William “receives a variety of assistance from friends, relatives and neighbors.”

In his appeal William asserts the trial court abused its discretion. We agree that the failure to award William a sum sufficient to allow him to meet his needs without requiring that he depend on the generosity of family and friends was plainly an abuse of discretion. It has long been the law in this jurisdiction that the test to determine entitlement to maintenance set out in KRS 403.200(1) is not absolute but must be applied against the standard of living established during the marriage. Combs v. Combs, Ky.App., 622 S.W.2d 679 (1981); Casper v. Casper, Ky., 510 S.W.2d 253 (1974); McGowan v. McGowan, Ky. App., 663 S.W.2d 219 (1983); and Atwood v. Atwood, Ky.App., 643 S.W.2d 263 (1982).

The evidence in this record established that, while the parties did not build up a large marital estate, they did earn sufficient sums to finish college, to allow Sharon to attend graduate school for five years and to lead a comfortable life. They were able to afford a house, furnish the house, and to make improvement to the house to accommodate William’s special needs. More importantly, the parties maintained a standard of living that allowed William to maintain his dignity despite his deteriorating and disabling physical condition.

The record discloses that since the dissolution William is barely getting by and is doing so only because of the charity of others. Even if one subtracts from William’s budget items enjoyed during the marriage such as his life insurance premi-[290]*290urns, newspapers and cable television, William’s expenses for the basics, that is, housing, utilities, food, clothing and attendant care, exceed his fixed income. William was not awarded income producing property nor any liquid assets to speak of.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anthony Schick v. Theresa Louise Brown
Court of Appeals of Kentucky, 2024
Gregory Wayne Smith v. Kayla Michele Smith
Court of Appeals of Kentucky, 2022
Kevin Neal v. Tonya A. Neal
Court of Appeals of Kentucky, 2021
Douglas Saville v. Patricia Saville
Court of Appeals of Kentucky, 2021
Valarie Ann Naramore v. David Downey Naramore
Court of Appeals of Kentucky, 2020
Clark v. Clark
236 S.W.3d 616 (Court of Appeals of Kentucky, 2007)
Russell v. Russell
878 S.W.2d 24 (Court of Appeals of Kentucky, 1994)
Leitsch v. Leitsch
839 S.W.2d 287 (Court of Appeals of Kentucky, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
839 S.W.2d 287, 1992 Ky. App. LEXIS 209, 1992 WL 281694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leitsch-v-leitsch-kyctapp-1992.