Tammara Lea Stricklett v. Kevin Robert Stricklett ( 2022 )

RENDERED: NOVEMBER 10, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1161-MR
TAMMARA LEA STRICKLETT APPELLANT
APPEAL FROM MASON CIRCUIT COURT
v. HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 20-CI-00144
KEVIN ROBERT STRICKLETT APPELLEE
AND
NO. 2021-CA-1359-MR
KEVIN ROBERT STRICKLETT CROSS-APPELLANT
CROSS-APPEAL FROM MASON CIRCUIT COURT
v. HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 20-CI-00144
TAMMARA LEA STRICKLETT CROSS-APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Tammara Lea Stricklett (“Tammara”) appeals the August
30, 2021 order of the Mason Circuit Court awarding her maintenance. Her former
spouse, Kevin Robert Stricklett (“Kevin”), cross-appeals the same order. After
careful review, we affirm in part, reverse in part, and remand.
BACKGROUND
The parties were married in 1996 and separated in 2020. Tammara
petitioned for dissolution of the marriage and, after failing to reach a settlement,
the parties were referred to the domestic relations commissioner (“DRC”). After
an evidentiary hearing, the DRC made recommendations as to division of marital
property and debts. The trial court entered findings of fact, conclusions of law, and
a decree of dissolution adopting the DRC’s recommendations and reserving the
issue of maintenance. The matter was again referred to the DRC to determine
whether Tammara was entitled to maintenance and, if so, in what amount and for
what duration.
The DRC conducted an evidentiary hearing on the issue of
maintenance and recommended Tammara be awarded $615.00 per month in
maintenance until she reaches retirement age, sixty-five years old. Tammara
-2-
objected to the DRC’s recommendation, arguing she was entitled to indefinite
maintenance in the amount of $2,000.00 per month. The trial court adopted in part
and modified in part the DRC’s recommendations, awarding Tammara
maintenance in the amount of $1,000.00 per month until she turns sixty-six years
old. The court reasoned that Tammara would then be able to support herself using
her social security and retirement income.
This appeal and cross-appeal followed. Additional facts will be
developed as needed in our analysis below.
STANDARD OF REVIEW
Determinations of whether to award maintenance, as well as the
amount and duration of the award, are within the sound discretion of the trial court.
See Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003). We will not disturb a trial
court’s findings of fact unless they are clearly erroneous. CR1 52.01. Findings of
fact are not clearly erroneous if supported by substantial evidence. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). If factual findings are
supported by substantial evidence and KRS[2] 403.200 is correctly applied, we will
not disturb the trial court’s maintenance decision. See Maclean v. Middleton, 419
S.W.3d 755, 765 (Ky. App. 2014).
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
-3-
ANALYSIS
On appeal, Tammara argues the trial court erred by failing to award
her open-ended maintenance in the amount of $2,000.00 per month. On cross-
appeal, Kevin alleges the trial court abused its discretion in modifying the DRC’s
recommended maintenance award. Specifically, he raises the following issues: (1)
the trial court erroneously determined his income; (2) Tammara’s expenses
inappropriately include funds she provides to support the parties’ adult child; (3)
Tammara’s income is erroneously based on her voluntary underemployment; (4)
Tammara is not entitled to additional maintenance funds for retirement savings;
and (5) the trial court erred in awarding Tammara maintenance beyond the
retirement age. Kevin does not challenge the determination that Tammara is
entitled to maintenance, only the amount and duration thereof.
After a trial court decides the requesting party is entitled to
maintenance under KRS 403.200(1), the court must determine the amount and
duration of the award under KRS 403.200(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 . . . [;]
-4-
(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.
KRS 403.200(2).
Herein, the trial court adopted most of the DRC’s findings of fact.
Under KRS 403.200(2)(a), the DRC determined Tammara had financial resources,
including proceeds from the sale of the marital residence and income from her
employment as a certified nursing assistant (“CNA”) sufficient to cover all but
approximately $615.00 of her monthly expenses. Tammara’s expenses totaled
$3,282.00 per month. The DRC determined she could earn $2,047.14 per month
working full-time as a CNA and an additional $167.00 per month from oil and gas
leases. Tammara was also awarded half of the proceeds from the sale of the
marital residence, totaling $32,687.64, which the DRC determined she could use at
a rate of $454.00 per month to contribute to her expenses. Although the trial court
determined Tammara was “not earning much more than to eke out a living,” it did
-5-
not modify the DRC’s calculation of her income or expenses. Record (“R.”) at
282.
Next, the DRC determined KRS 403.200(2)(b) was inapplicable to
this matter because Tammara had been employed as a CNA throughout the
marriage and she was unlikely to seek additional education or retraining in the
future.
Regarding KRS 403.200(c), the DRC found the parties enjoyed a
“modest standard of living during the marriage.” R. at 254. This was evidenced
by the fact that their largest assets were the marital residence and retirement
accounts. Any expenses beyond necessary costs of living, such as vacations, were
charged to credit cards. The parties accrued $15,000.00 in credit card debt which
was paid from the sale of the marital residence. On this basis, the DRC determined
only Tammara’s “normal monthly household expenses” needed to be considered in
determining the amount and duration of the maintenance award.
The trial court modified the DRC’s findings because it determined the
parties lived above a modest standard of living because they were able to save
substantial funds for retirement. At the time of dissolution, Kevin’s retirement
account totaled $677,200.91. The DRC noted Tammara was awarded more than
$300,000.00 from his account and $2,300.00 from her retirement account. She will
also receive social security income upon retirement but did not testify to how much
-6-
she expected to receive each month. The trial court found, after dissolution, Kevin
would have the continued ability to save for retirement, but Tammara would not be
able to do so without additional funds.
The parties were married for twenty-four years. KRS 403.200(2)(d).
Tammara was fifty-nine years old at the time the DRC made
recommendations. There is no evidence that she suffers from any physical or
emotional condition which would prohibit her from working full-time and
providing for herself. KRS 403.200(2)(e).
The DRC determined, based on Kevin’s June 11, 2021 paystub, he
earns $4,707.65 per month in net income and has expenses of $3,820.00 per
month. This leaves him with $487.65 per month in excess income, which would
be insufficient to provide Tammara with the $615.00 per month in maintenance.
However, the DRC also found Kevin’s budgeted allowances for dining and
entertainment excessive. Kevin also routinely worked overtime, which would give
him additional income. Based on these facts, the DRC determined Kevin would be
able to meet his own needs while also paying $615.00 per month to Tammara in
maintenance.
The trial court modified the DRC’s findings by using Kevin’s 2019
and 2020 income to determine his ability to meet his needs while also meeting
Tammara’s needs. In 2020, Kevin’s net income was $7,107.00 per month, which
-7-
the court calculated by including the $750.00 and $225.00 per month he
contributed to his retirement and health savings accounts (“HSA”), respectively.
The trial court chose to exclude Kevin’s overtime income from its calculation.
Using $7,107.00 for Kevin’s income and $3,820.00 for his expenses, Kevin has an
excess of $3,287.00 per month in funds.
Based primarily on its calculation of Kevin’s net income using his
2020 earnings and its finding that Tammara would no longer be able to save for
retirement without additional funds, the trial court modified the DRC’s
recommendation of $615.00 in monthly maintenance until Tammara reaches sixty-
five years old to $1,000.00 per month in maintenance until she reaches sixty-six
years old.
First, we will consider the parties’ arguments regarding the amount of
the maintenance award. Kevin argues the trial court erred in its calculation of his
income. Weighing evidence is in the exclusive province of the trial court. Moore,
110 S.W.3d at 354 (footnote omitted). Kevin submitted both his recent paystubs
and evidence of his yearly income for 2019 and 2020. The DRC used a single
paystub to calculate Kevin’s income, but the trial court determined Kevin’s most
recent yearly earnings provided a more accurate depiction of his earnings. This is
not an abuse of discretion.
-8-
Relatedly, Kevin argues the trial court erred in including his HSA
contributions as income for purposes of calculating maintenance. Kevin elected to
make these contributions at the beginning of the year. He is not required to do so
by his employer. Kevin cites to no authority which indicates such contributions
should not be included as income when awarding maintenance. Therefore, we find
no abuse of discretion by the trial court.
Next, Kevin argues Tammara used her support for one of the parties’
adult children to inflate her expenses. While it is true that Tammara submitted a
budget which included $500.00 per month in funds used to support the child, the
DRC did not include this amount in its calculation of her expenses and the trial
court did not modify the DRC’s determination to include those expenses.
Furthermore, Kevin argues the DRC’s calculation of Tammara’s
income is based on her voluntary underemployment. The record refutes this
assertion. Both the DRC and the trial court found Tammara was capable of full-
time work and the DRC imputed her income using a forty-hour work week. The
trial court’s adoption of the DRC’s calculation of Tammara’s potential full-time
income was not an abuse of discretion.
Kevin argues Tammara is not entitled to additional maintenance funds
to allow her to save for retirement. He asserts he is not required to save for
retirement but only elects to do so. He further argues there is no guarantee
-9-
Tammara will save any additional funds from the maintenance award for
retirement. The trial court determined retirement savings was a significant factor
in the parties’ lifestyle prior to divorce under KRS 403.200(2)(c). It further
determined Tammara would have no ability to save based on her income if she
received only $615.00 per month in maintenance. On the other hand, based on the
trial court’s calculation of Kevin’s income, he would have $2,287.00 in excess
funds after his expenses and the $1,000.00 maintenance award which he could
choose to save for retirement. It is not an abuse of discretion for the trial court to
determine saving for retirement was a factor in the parties’ pre-dissolution lifestyle
under KRS 403.200(2)(c) and for the court to use this as the basis for awarding
Tammara additional maintenance funds.
Tammara argues she is entitled to $2,000.00 per month in
maintenance. She bases this argument on her history of part-time employment.
However, both the DRC and trial court determined she is capable of working full-
time as a CNA. This would require no additional training or education. Tammara
presents no evidence of any health condition under KRS 403.200(2)(e) which
would inhibit her from full-time employment in her current field. Tammara cannot
simply choose not to work full-time and then demand Kevin make up the
difference with additional maintenance.
-10-
Based on the parties’ respective incomes and expenses, as determined
by the DRC and trial court, as well as the trial court’s determination of the
importance of retirement savings under KRS 403.200(2)(c), the trial court’s award
of $1,000 per month to Tammara is not an abuse of discretion.
We turn now to the parties’ arguments regarding the duration of the
award. Kevin argues the trial court should not have extended the award past the
date on which Tammara reaches sixty-five years old. Here, like in Weldon v.
Weldon, 957 S.W.2d 283, 286 (Ky. App. 1997), the trial court abused its discretion
by awarding Tammara maintenance beyond retirement age. The court provides no
explanation for modifying the award from the DRC’s recommendation to grant
maintenance until Tammara reaches sixty-five years old. As noted by this Court in
Weldon, at the time the parties reach retirement, their incomes will be more equal
because Tammara was awarded approximately half, or more than $300,000.00, of
Kevin’s retirement fund. Id. Therefore, the decision to modify the DRC’s
recommendation as to the duration of the maintenance award was clearly
erroneous.
Furthermore, given Tammara’s ability to gain full-time employment
without any additional training or education, as well as her lack of any condition
impeding her ability to work, the trial court did not abuse its discretion by
declining to award her indefinite maintenance. The duration of a maintenance
-11-
award must directly correlate with the period during which the requesting spouse is
in need. Combs v. Combs, 622 S.W.2d 679, 680 (Ky. App. 1981). It is reasonable
to award maintenance until such time when Tammara reaches retirement age and
gains access, without penalty, to her portion of Kevin’s retirement fund, her own
retirement fund, and social security income.
CONCLUSION
Based on the foregoing, the order of the Mason Circuit Court is
affirmed in part and reversed in part. This matter is remanded to the trial court for
entry of an order awarding Tammara $1,000.00 per month in maintenance until she
reaches sixty-five years of age.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE: APPELLANT:
Jeffrey L. Schumacher Rebekah J. Rice
Maysville, Kentucky Maysville, Kentucky
-12-