RENDERED: AUGUST 19, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1342-MR
MARTIN ALAN WILLINGER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 18-CI-501111
RHONDA KAY WILLINGER AND HONORABLE LINDA JEAN NOLL APPELLEES
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Martin Willinger appeals from orders of the Jefferson
Circuit Court which reduced his maintenance obligation, ordered him to pay
Rhonda Willinger’s attorney fees, and ordered that Ms. Willinger’s maintenance
award was no longer taxable. Mr. Willinger argues that the trial court should have
reduced the amount of maintenance even further, that he should not be held liable for Ms. Willinger’s attorney fees, and that Ms. Willinger’s maintenance should be
deemed taxable income. We conclude that the amount of maintenance Mr.
Willinger is required to pay Ms. Willinger is appropriate. We also believe the trial
court did not err in ordering Mr. Willinger to pay Ms. Willinger’s attorney fees.
Finally, we believe the court erred in declaring Ms. Willinger’s maintenance as
non-taxable. We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
Mr. and Mrs. Willinger were married on June 13, 1992. Mr.
Willinger filed a petition for dissolution of marriage on April 23, 2018. The
parties entered into a marital settlement agreement on September 5, 2018. Part of
the agreement stated that Mr. Willinger was to pay Ms. Willinger maintenance in
the amount of $3,000 per month. The agreement stated that the maintenance
amount could be modified.
At the time the parties entered into the agreement, Mr. Willinger was
working for Ford Motor Company as an engineer and was making approximately
$220,000 a year. In 2020, Mr. Willinger’s income was drastically impacted by the
COVID-19 pandemic. A large portion of Mr. Willinger’s income came from
working overtime. Once the pandemic began, the production of Ford automobiles
declined and Mr. Willinger lost the ability to work overtime. In addition, the plant
at which Mr. Willinger worked shut down several times due to the pandemic.
-2- In late 2020, Mr. Willinger unilaterally began lowering his monthly
maintenance payments. At first, he began paying Ms. Willinger $2,000 per month,
but eventually settled on paying only $1,500 per month. On March 23, 2021, Ms.
Willinger filed a motion to hold Mr. Willinger in contempt for failing to pay the
full amount of maintenance. That same day Mr. Willinger filed a motion seeking
to reduce his monthly maintenance obligation amount to $1,500.
On October 11, 2021, a hearing was held regarding the contempt and
maintenance reduction motions. On October 14, 2021, the trial court entered an
order which found that Mr. Willinger’s income had been greatly reduced and that
he was on track to make around $130,000 for 2021. The court ordered that his new
maintenance obligation would be $2,000 per month. The court also ordered that he
should pay the maintenance arrearage and should pay Ms. Willinger’s attorney
fees. The court also declined to hold Mr. Willinger in contempt.
Both parties then filed Kentucky Rules of Civil Procedure (CR) 59.05
motions to alter, amend, or vacate the judgment. Ms. Willinger argued that the
trial court erred in calculating the amount of Mr. Willinger’s maintenance
arrearage, that the court should not have reduced the maintenance amount, and that
the court should order that the amounts she receives in maintenance should not be
-3- deemed taxable income.1 Mr. Willinger’s CR 59.05 motion asked the court to
reduce his maintenance obligation to $1,500 and requested that he not be liable for
Ms. Willinger’s attorney fees.
The trial court denied Mr. Willinger’s motion to amend, but granted
Ms. Willinger’s motion in part. The court agreed that it made an error in the
amount of maintenance arrearage owed by Mr. Willinger. The court also ordered
that Ms. Willinger’s maintenance award was non-taxable. This appeal followed.
ANALYSIS
Mr. Willinger’s first argument on appeal is that the trial court erred by
not reducing his maintenance obligation to $1,500. He argues that he was only
going to make $110,000 to $115,000 in 2021, not $130,000 as the trial court found;
therefore, his maintenance obligation should be reduced further.
We review the family court’s determination regarding a motion to modify maintenance for an abuse of discretion. We cannot substitute our judgment for the family court’s if there is substantial evidence supporting that court’s decision. Further, we may not set aside the family court’s factual findings unless they are clearly erroneous.
Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007) (citations omitted).
1 The Internal Revenue Service (IRS) regulations at the time the marital settlement agreement was entered into stated that maintenance awards were taxable income. After 2018, the IRS changed the regulations and maintenance awards did not have to be taxed if so ordered by a court.
-4- During the maintenance reduction hearing, Mr. Willinger testified that
he believed he would only make around $110,000 to $115,000 in 2021. Also
provided during the hearing were some of Mr. Willinger’s paystubs. Those
paystubs indicated that at the end of September 2021, Mr. Willinger had made
$98,050 worth of income. That would indicate that he was making an average of
approximately $10,894.44 a month.2 Using this average amount, it would indicate
that he would make around $130,733.28 in 2021.3
Although the trial court did not indicate how it concluded that Mr.
Willinger was on track to make $130,000 in 2021, the above calculations based on
Mr. Willinger’s paystub supports the trial court’s finding. Mr. Willinger’s
testimony regarding an expected income of $110,000 to $115,000 was seemingly
based on his base pay amount and did not take into account bonuses and overtime
hours.4 The trial court did not abuse its discretion in reducing Mr. Willinger’s
maintenance obligation to $2,000 per month and the reduction amount is supported
by substantial evidence.
Mr. Willinger’s next argument on appeal is that the trial court erred by
awarding Ms. Willinger attorney fees. Mr. Willinger argues that the proof
2 $98,050 divided by 9 months equals approximately $10,894.44 per month. 3 $10,894.44 multiplied by 12 months equals $130,733.28. 4 Testimony indicated that Mr. Willinger was able to work some overtime hours in 2021, but not as much as before the pandemic.
-5- indicates his income has been greatly reduced and he cannot afford to pay Ms.
Willinger’s attorney fees.
Kentucky Revised Statute (KRS) 403.220 gives a trial court the
authority to award attorney fees in divorce actions. We review a decision to award
attorney fees under the abuse of discretion standard. Smith v. McGill, 556 S.W.3d
552, 556 (Ky. 2018). Here, Ms. Willinger’s income comes solely from the
maintenance she receives and from a monthly disability payment of $852. She has
no independent income. Based on the disparity of the financial resources of the
parties, the trial court held that Mr. Willinger should pay Ms. Willinger’s attorney
fees.
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RENDERED: AUGUST 19, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1342-MR
MARTIN ALAN WILLINGER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 18-CI-501111
RHONDA KAY WILLINGER AND HONORABLE LINDA JEAN NOLL APPELLEES
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Martin Willinger appeals from orders of the Jefferson
Circuit Court which reduced his maintenance obligation, ordered him to pay
Rhonda Willinger’s attorney fees, and ordered that Ms. Willinger’s maintenance
award was no longer taxable. Mr. Willinger argues that the trial court should have
reduced the amount of maintenance even further, that he should not be held liable for Ms. Willinger’s attorney fees, and that Ms. Willinger’s maintenance should be
deemed taxable income. We conclude that the amount of maintenance Mr.
Willinger is required to pay Ms. Willinger is appropriate. We also believe the trial
court did not err in ordering Mr. Willinger to pay Ms. Willinger’s attorney fees.
Finally, we believe the court erred in declaring Ms. Willinger’s maintenance as
non-taxable. We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
Mr. and Mrs. Willinger were married on June 13, 1992. Mr.
Willinger filed a petition for dissolution of marriage on April 23, 2018. The
parties entered into a marital settlement agreement on September 5, 2018. Part of
the agreement stated that Mr. Willinger was to pay Ms. Willinger maintenance in
the amount of $3,000 per month. The agreement stated that the maintenance
amount could be modified.
At the time the parties entered into the agreement, Mr. Willinger was
working for Ford Motor Company as an engineer and was making approximately
$220,000 a year. In 2020, Mr. Willinger’s income was drastically impacted by the
COVID-19 pandemic. A large portion of Mr. Willinger’s income came from
working overtime. Once the pandemic began, the production of Ford automobiles
declined and Mr. Willinger lost the ability to work overtime. In addition, the plant
at which Mr. Willinger worked shut down several times due to the pandemic.
-2- In late 2020, Mr. Willinger unilaterally began lowering his monthly
maintenance payments. At first, he began paying Ms. Willinger $2,000 per month,
but eventually settled on paying only $1,500 per month. On March 23, 2021, Ms.
Willinger filed a motion to hold Mr. Willinger in contempt for failing to pay the
full amount of maintenance. That same day Mr. Willinger filed a motion seeking
to reduce his monthly maintenance obligation amount to $1,500.
On October 11, 2021, a hearing was held regarding the contempt and
maintenance reduction motions. On October 14, 2021, the trial court entered an
order which found that Mr. Willinger’s income had been greatly reduced and that
he was on track to make around $130,000 for 2021. The court ordered that his new
maintenance obligation would be $2,000 per month. The court also ordered that he
should pay the maintenance arrearage and should pay Ms. Willinger’s attorney
fees. The court also declined to hold Mr. Willinger in contempt.
Both parties then filed Kentucky Rules of Civil Procedure (CR) 59.05
motions to alter, amend, or vacate the judgment. Ms. Willinger argued that the
trial court erred in calculating the amount of Mr. Willinger’s maintenance
arrearage, that the court should not have reduced the maintenance amount, and that
the court should order that the amounts she receives in maintenance should not be
-3- deemed taxable income.1 Mr. Willinger’s CR 59.05 motion asked the court to
reduce his maintenance obligation to $1,500 and requested that he not be liable for
Ms. Willinger’s attorney fees.
The trial court denied Mr. Willinger’s motion to amend, but granted
Ms. Willinger’s motion in part. The court agreed that it made an error in the
amount of maintenance arrearage owed by Mr. Willinger. The court also ordered
that Ms. Willinger’s maintenance award was non-taxable. This appeal followed.
ANALYSIS
Mr. Willinger’s first argument on appeal is that the trial court erred by
not reducing his maintenance obligation to $1,500. He argues that he was only
going to make $110,000 to $115,000 in 2021, not $130,000 as the trial court found;
therefore, his maintenance obligation should be reduced further.
We review the family court’s determination regarding a motion to modify maintenance for an abuse of discretion. We cannot substitute our judgment for the family court’s if there is substantial evidence supporting that court’s decision. Further, we may not set aside the family court’s factual findings unless they are clearly erroneous.
Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007) (citations omitted).
1 The Internal Revenue Service (IRS) regulations at the time the marital settlement agreement was entered into stated that maintenance awards were taxable income. After 2018, the IRS changed the regulations and maintenance awards did not have to be taxed if so ordered by a court.
-4- During the maintenance reduction hearing, Mr. Willinger testified that
he believed he would only make around $110,000 to $115,000 in 2021. Also
provided during the hearing were some of Mr. Willinger’s paystubs. Those
paystubs indicated that at the end of September 2021, Mr. Willinger had made
$98,050 worth of income. That would indicate that he was making an average of
approximately $10,894.44 a month.2 Using this average amount, it would indicate
that he would make around $130,733.28 in 2021.3
Although the trial court did not indicate how it concluded that Mr.
Willinger was on track to make $130,000 in 2021, the above calculations based on
Mr. Willinger’s paystub supports the trial court’s finding. Mr. Willinger’s
testimony regarding an expected income of $110,000 to $115,000 was seemingly
based on his base pay amount and did not take into account bonuses and overtime
hours.4 The trial court did not abuse its discretion in reducing Mr. Willinger’s
maintenance obligation to $2,000 per month and the reduction amount is supported
by substantial evidence.
Mr. Willinger’s next argument on appeal is that the trial court erred by
awarding Ms. Willinger attorney fees. Mr. Willinger argues that the proof
2 $98,050 divided by 9 months equals approximately $10,894.44 per month. 3 $10,894.44 multiplied by 12 months equals $130,733.28. 4 Testimony indicated that Mr. Willinger was able to work some overtime hours in 2021, but not as much as before the pandemic.
-5- indicates his income has been greatly reduced and he cannot afford to pay Ms.
Willinger’s attorney fees.
Kentucky Revised Statute (KRS) 403.220 gives a trial court the
authority to award attorney fees in divorce actions. We review a decision to award
attorney fees under the abuse of discretion standard. Smith v. McGill, 556 S.W.3d
552, 556 (Ky. 2018). Here, Ms. Willinger’s income comes solely from the
maintenance she receives and from a monthly disability payment of $852. She has
no independent income. Based on the disparity of the financial resources of the
parties, the trial court held that Mr. Willinger should pay Ms. Willinger’s attorney
fees. We agree that this was appropriate and not an abuse of discretion.
We also acknowledge that one of the terms of the marital settlement
agreement indicated that if one of the parties violated the agreement, that person
would be responsible for the attorney fees of the other party. Here, Mr. Willinger
reduced the amount he was paying in maintenance without going through the court.
This would be a breach of the settlement agreement and would entitle Ms.
Willinger to attorney fees.
Mr. Willinger’s final argument is that the trial court erred in ordering
Ms. Willinger’s maintenance award to be non-taxable. He argues that if the
maintenance cannot be taxable to Ms. Willinger, he will no longer be able to
-6- deduct the maintenance amounts from his income taxes, thereby causing him
additional financial hardship.
We believe this issue should not have been ruled upon by the trial
court. The issue was not raised during the maintenance hearing and Mr. Willinger
was not given the opportunity to make an argument regarding it. The issue was
first raised in Ms. Willinger’s CR 59.05 motion to alter, amend, or vacate. “A
party cannot invoke CR 59.05 to raise arguments and to introduce evidence that
should have been presented during the proceedings before the entry of the
judgment.” Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005) (footnote and
citation omitted). Seeing as this issue was improperly raised, we reverse and
remand.
CONCLUSION
Based on the foregoing, we affirm in part, reverse in part, and remand.
We affirm the trial court’s judgment regarding the maintenance reduction and the
attorney fees. We reverse the court’s decision making Ms. Willinger’s
maintenance non-taxable because it was not properly raised. On remand, the trial
court shall order that Ms. Willinger’s maintenance award is taxable income.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE RHONDA WALLINGER: Allison S. Russell Shanna R. Ballinger Linda J. Noll Louisville, Kentucky Louisville, Kentucky
-8-