Yvonne M. Centa (Formerly Lindsey) v. William E. Lindsey

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0001-MR
YVONNE M. CENTA (FORMERLY
LINDSEY) APPELLANT
APPEAL FROM OLDHAM FAMILY COURT
v. HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 14-CI-00123
WILLIAM E. LINDSEY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Yvonne M. Centa (formerly Lindsey) appeals from the
Oldham Family Court’s order terminating the maintenance obligations due Yvonne
from her former husband William Lindsey. The dissolution decree specified that
maintenance would automatically terminate upon Yvonne’s cohabitation. At issue
is whether the family court erred by: (1) finding that Yvonne was cohabiting with
Craig Cook; (2) summarily terminating William’s maintenance obligation upon a
finding of cohabitation (rather than the family court having to determine whether
continued maintenance was unconscionable pursuant to Kentucky Revised Statutes
(KRS) 403.250); and (3) retroactively terminating William’s maintenance
obligation effective to the filing of the motion requesting termination, thus
requiring that Yvonne reimburse William. We vacate because the family court
incorrectly interpreted the relevant law by: (1) failing to apply an appropriate
definition of cohabitation and make appropriate findings pursuant to it; (2)
concluding that the automatic termination clause in the dissolution decree was
enforceable in the same way as such a clause would be, were it part of a separation
agreement; and (3) failing to consider the controlling provisions of KRS
403.250(1) as interpreted by Combs v. Combs, 787 S.W.2d 260 (Ky. 1990), to
determine if such cohabitation resulted in continued maintenance being
unconscionable. Therefore, on remand, the family court must apply a proper
definition and make appropriate findings before determining if Yvonne is
cohabiting, if so whether continuing maintenance is unconscionable, and if so
whether the termination of maintenance should be retroactive to the filing of the
motion to terminate.
Yvonne and William were married in 1986 and their divorce was
finalized in 2016. The family court was required to resolve disputed matters and
ultimately in the dissolution decree ordered William to pay Yvonne maintenance in
-2-
the amount of $5,900 per month for ten years. A clause in the decree stated that
maintenance “shall terminate upon the death of either party, or upon [Yvonne’s]
remarriage or cohabitation with [a] romantic partner[.]” The term “cohabitation”
was not defined or otherwise further explained within the court’s decree. Neither
party filed a direct appeal.
In January 2020, William requested that the family court terminate his
maintenance obligation, alleging that Yvonne was cohabiting with Craig. Yvonne
opposed the motion and denied she was cohabiting. Unfortunately, the hearing on
William’s motion was not conducted until January 2021, due at least in part to
closures and delays associated with the COVID-19 pandemic.
At the January 2021 hearing, which was conducted via
videoconference, Yvonne, Craig, and a private investigator hired by William each
testified. Yvonne and Craig admitted having been in a sexually intimate
relationship but asserted their relationship had ended and they had not cohabited.
They admitted having taken trips together but insisted they paid their own
expenses. They adamantly denied that Craig made financial contributions to
Yvonne. By contrast, the investigator testified that her observation of Yvonne’s
home showed that Craig frequently left in the early morning hours and often drove
Yvonne’s vehicles.
-3-
The family court’s order granting William’s motion to terminate
maintenance was not filed until early June 2021. The family court concluded,
despite Yvonne’s and Craig’s denials, that Yvonne had been cohabiting with Craig
as her romantic partner. The family court then proceeded to terminate William’s
maintenance obligation without any additional analysis, concluding this was
warranted due to the clause in the dissolution decree providing for automatic
termination upon cohabitation. The family court made the termination of
maintenance retroactive to the date William’s motion was filed. This had the
practical result of Yvonne owing William over $100,000 to reimburse him for the
maintenance she received during the pendency of his motion.
Yvonne filed a motion to alter, amend, or vacate under Kentucky
Rules of Civil Procedure (CR) 59.05. Among Yvonne’s arguments was that the
family court erred by not conducting an appropriate analysis under KRS 403.250 as
to whether the cohabitation made it unconscionable for her to continue to receive
maintenance. Yvonne also argued that the family court erred by terminating
maintenance retroactively.
The family court denied Yvonne’s motion in December 2021, relying
upon the automatic termination clause in the decree. The family court also held
-4-
that retroactive termination was permissible under Mudd v. Mudd, 903 S.W.2d 533(Ky.App. 1995). Yvonne then filed this appeal.1
“When a party seeks to modify a divorce decree respecting
maintenance or support pursuant to KRS 403.250, the moving party has the burden
of proving a change of circumstances so substantial and continuing as to make the
terms of the decree unconscionable.” Wilcher v. Wilcher, 566 S.W.2d 173, 175
(Ky.App. 1978). We review an order resolving a motion to modify, or terminate,
maintenance under the deferential abuse of discretion standard. See, e.g., Block v.
Block, 252 S.W.3d 156, 159 (Ky.App. 2007). We may disturb factual findings
only if they are clearly erroneous, but we review issues of law de novo. Id.While we recognize that William filed a motion to terminate, not
modify, maintenance, “KRS 403.250 expressly speaks to modification
of maintenance, without distinguishing between termination and reduction of an
existing award. Thus, a motion to terminate maintenance necessarily encompasses
all lesser relief, including a reduction or modification of an open maintenance
award.” Bickel v. Bickel, 95 S.W.3d 925, 930-31 (Ky.App. 2002).
KRS 403.250 provides in relevant part:
(1) Except as otherwise provided in subsection (6) of
KRS 403.180, the provisions of any decree respecting
maintenance may be modified only upon a showing
1
We have examined all the parties’ arguments, but we will not address those which are
redundant, irrelevant, or otherwise without merit.
-5-
of changed circumstances so substantial and
continuing as to make the terms unconscionable. . . .
(2) 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.
We begin by addressing the different types of situations when
cohabitation can result in the termination of maintenance and how KRS 403.250
does or does not apply. There are three general factual scenarios: (1) neither the
parties’ settlement agreement (if there is one) nor the family court’s judgment or
dissolution decree ever mentions that termination of maintenance will or may
result from cohabitation; (2) the parties’ settlement agreement (incorporated in the
family court’s judgment or dissolution decree) provides that cohabitation does or
can terminate maintenance; or (3) only the family court’s judgment or dissolution
decree provides that maintenance will or may be terminated by subsequent
cohabitation.
In the first scenario, epitomized by the Kentucky Supreme Court’s
opinion in Combs, neither a settlement agreement nor the dissolution decree
provided for the termination of maintenance based on cohabitation. In Combs, the
former husband filed a motion to terminate maintenance due to the former wife’s
cohabitation with another in a relationship that he claimed was the functional
equivalent of marriage, pursuant to KRS 403.250(2). Combs, 787 S.W.2d at 261.
-6-
The trial court refused to terminate maintenance pursuant to KRS 403.250(2), but
instead considered whether the cohabitation provided for a change of
circumstances pursuant to KRS 403.250(1) rendering continued maintenance
unconscionable, concluded that it did, and reduced the maintenance payments to
zero. Combs, 787 S.W.2d at 261. The Kentucky Supreme Court upheld this
decision, concluding that “a maintenance recipient’s cohabitation can render
continued maintenance ‘unconscionable’ if the nature of the cohabitation
constitutes a new ‘financial resource’ as contemplated in KRS 403.200(2)(a).” Id.
However, in doing so it explained:
We recognize that not every instance of
cohabitation constitutes a change in circumstances
making continued maintenance “unconscionable.” We
do not intend by this opinion to open the floodgates to
motions to terminate or suspend maintenance payments
in every situation in which the maintenance recipient has
begun dating, or has formed casual relationships with
persons of the opposite sex. While each case stands on
its own, the elements to consider are:
1. Duration – It should never be the intention of the
Court to allow for maintenance reduction based upon
casual “overnights” or dating. A showing of
substantially changed circumstances under KRS
403.250(1) based upon cohabitation, necessarily
involves proof of some permanency or long-term
relationship.
2. Economic Benefit – The relationship must be such to
place the cohabitating spouse in a position which
avails that spouse of a substantial economic benefit.
The scope and extent of the economic benefit should
-7-
be closely scrutinized. If the “cohabitation” does not
change the cohabitating spouse’s economic position,
then reductions should not be permitted.
3. Intent of the Parties – Does it appear that the
cohabitating spouse is avoiding re-marriage to keep
maintenance? Does it appear from the circumstances
that the cohabitating parties intend to establish a
“lasting relationship?”
4. Nature of the Living Arrangements – Does it appear
that the cohabitation is merely a space sharing
situation or is there one common household?
5. Nature of the Financial Arrangements – Is there a
“pooling of assets?” Is there actually a joint or team
effort in the living arrangement? Who pays the bills
and how are they paid?
6. Likelihood of a Continued Relationship – Does it
appear that the relationship will continue in the
future? Do the parties intend the relationship to
continue indefinitely?
Id. See also Barnett v. Wiley, 103 S.W.3d 17, 19-20 (Ky. 2003) (discussing similar
factors to determine if persons cohabited for purposes of domestic violence
statutes).
The Kentucky Supreme Court in Combs specifically clarified that it
was rejecting the supposition that cohabitation could be considered the equivalent
of marriage pursuant to KRS 403.250(2) and, thus, be subject to automatic
termination, explaining “[i]f the legislature wants to make a policy decision to
automatically terminate maintenance upon a recipient’s cohabitation, then it should
-8-
amend KRS 403.250(2) to add cohabitation as a ground[] for automatic
termination.” Combs, 787 S.W.2d at 263.
As the General Assembly has not acted, we continue to be bound by
this cautious approach in which cohabitation is not equated to remarriage. We
believe courts should rightly be cautious of terminating or reducing maintenance
whether it was the lower court or the parties themselves that agreed maintenance
was appropriate.2
In the second scenario, epitomized by the Kentucky Supreme Court’s
opinion in Cook v. Cook, 798 S.W.2d 955, 956 (Ky. 1990), and the Court of
Appeals’ opinions in Block, 252 S.W.3d at 157, and Bennett v. Bennett, 133
S.W.3d 487 (Ky.App. 2004), the property settlement agreements provided for
termination or potential termination of maintenance upon cohabitation, and
2
We recognize that when family courts incorporate settlement agreements providing for
maintenance into dissolution decrees, those courts generally do not make an independent
analysis of the propriety or amount of maintenance. Without prior findings of fact on those
issues, and without there being a full context or basis for the parties’ agreement on maintenance
such that the court would be able to presently appreciate and weigh the parties’ original
circumstances, courts must be hesitant to invade the parties’ negotiations and contractual
agreements. For example, the payment of future maintenance is often utilized in lieu of the
present payment of the full share of marital property (small businesses, pensions, social security,
etc.) or the restitution of non-marital interests. In such circumstance, before a family court
determines that an unconscionable, substantial, and continuing change has occurred, it must first
“compare the parties’ current circumstances to those at the time the court’s separation decree was
entered” in comportment with Tudor v. Tudor, 399 S.W.3d 791, 793 (Ky.App. 2013).
Negotiated maintenance awards should not be reduced if it is evident that maintenance was
provided to equitably divide the marital property or restore non-marital property rather than to
provide ongoing necessary support.
-9-
therefore rules of contract interpretation would take precedence. The specific
language agreed upon by the parties in their settlement agreement regarding
cohabitation and termination of maintenance results in different analysis and
applications of the law.
In Cook, the property settlement agreement provided that maintenance
was payable until a termination date but would end sooner if the former wife
“begins cohabitation with a non-relative adult male[.]” Cook, 798 S.W.2d at 956.
The testimony established that although the wife and her paramour had an
exclusive sexual relationship, they maintained and resided in separate residences
and paid their own living expenses; while this couple spent time together almost
every evening in the wife’s home, the paramour returned to his own home to spend
the night. Id. at 956-57. Given these facts, the Kentucky Supreme Court
considered the definition of “cohabitation” contained in the Fifth Edition of
Black’s Law Dictionary which provides: “To live together as husband and wife.
The mutual assumption of those marital rights, duties, and obligations which are
usually manifested by married people, including but not necessarily dependent on
sexual relations.” Cook, 798 S.W.2d at 957. The Court concluded the conduct of
the wife and her paramour did not satisfy this definition. Id. The Court also
opined that if the language of the contract alternatively prohibited cohabitation
-10-
defined as “living in the same house[,]” the wife’s conduct with her paramour did
not satisfy this definition, either. Id.
The Cook Court concluded that Combs was not applicable to the
situation before it because in Combs there was no issue that cohabitation had
occurred; the issue was whether such cohabitation constituted a change in
circumstances sufficient to make continuing payments “unconscionable” under
KRS 403.250(1). Conversely, the issue before the Kentucky Supreme Court in
Cook was one of contract interpretation in determining “whether there has been
‘cohabitation’ which would automatically terminate maintenance under the terms
of the contract” (i.e., the parties’ marital settlement agreement). Cook, 798 S.W.2d
at 957.
Similarly, in Bennett, 133 S.W.3d at 488, the settlement agreement
provided that the obligation to pay maintenance would terminate upon the wife’s
cohabitation. When the husband learned that the wife’s paramour was sleeping
with her in her home every night beginning in July 2001, he filed a motion to
terminate maintenance, which was granted in January 2003, effective as of July
2001. Id. at 488-89. The Court of Appeals concluded that under the undisputed
facts the paramour spent every night with the wife in her house unless he happened
to be out of town on business and she did not accompany him; therefore, the wife’s
-11-
relationship with her paramour “qualifies as cohabitation whether considered in
light of sexual involvement or living in the same house.” Id. at 490.
The Court of Appeals in Bennett further concluded that it was
appropriate for the trial court to determine that the wife and her paramour began
living together in July 2001 because the settlement agreement did not indicate that
the parties intended “cohabitation” to have any special meaning beyond the
ordinary meaning of the word, which usually means a couple living together and
not married to one another (as three dictionaries provided), rather than living
together as husband and wife. Id. at 491.
In Block, in contrast to Cook and Bennett, the settlement agreement
provided that if the former wife should ever “reside [] with a member of the
opposite sex not related to her by blood,” the court could entertain a motion to
modify maintenance as a result of the alleged cohabitation, and in such a review
“the provisions of KRS 403.250 would control.” Block, 252 S.W.3d at 157. In
Block, the wife’s paramour moved into her condominium, they then jointly
purchased a home with him advancing her money for her portion of the share of
the purchase price, she repaid him, they jointly purchased furniture and a boat, had
joint insurance on their vehicles, their written partnership agreement provided that
their joint property will devolve to the other under a right of survivorship
provision, they had a joint checking account to pay joint household expenses, and
-12-
they had a commitment ceremony. Id. at 157-58. The family court denied the
husband’s motion to modify his maintenance obligation because the family court
decided that the wife only received “some” financial benefit from her relationship,
which was insufficient to meet the Combs standard. Block, 252 S.W.3d at 159.
In reversing, the Court of Appeals in Block noted that separation
agreements3 are enforceable contracts and that it was evident “that the parties
contemplated that Mrs. Block’s cohabitation may result in modifying
maintenance.” Id. at 160 (emphasis added). The Court observed “one principle is
exceedingly clear from the caselaw: absent a provision otherwise in a separation
agreement, cohabitation is only one factor to consider in reviewing modification of
maintenance cases.” Id. at 161.
As the parties’ agreement did not contain a provision which would
cause maintenance to terminate automatically upon cohabitation, and instead stated
KRS 403.250 would control, the Court of Appeals in Block applied the Combs
factors, explaining that “[w]e believe that the holding in Combs is that each of the
factors should be considered, but that Combs requires that the cohabitation must
result in a change in the cohabiting spouse’s economic position before a
modification of maintenance is in order.” Block, 252 S.W.3d at 161-62 (footnote
3
The Court of Appeals appears to have been using the term “separation agreement” as
synonymous with “settlement agreement.” We believe that either type of agreement as
incorporated into a dissolution decree should be treated the same.
-13-
omitted). The Court rejected the family court’s conclusion that the former wife
was only enjoying “some economic benefit” where she saved money living with
her paramour and had full access to a house and boat for which she had only paid
half the cost, had a substantially reduced cost of housing, and no longer owes
mortgage payments. Id. at 162. The Court explained that all the factors favored
modification of maintenance to zero. Id. at 163.
In the third scenario, epitomized by Castle v. Castle, 266 S.W.3d 245,
247-48 (Ky.App. 2008), the circuit court itself established an open-ended
maintenance award that provided maintenance would terminate if the wife
cohabited. The Court of Appeals concluded that when it is the circuit court that
imposed a cohabitation limitation on maintenance (rather than the parties by
agreement), the award can only be modified if the circumstances evidence a
change of circumstances “so substantial and continuing as to make the terms of the
award unconscionable.” Id. at 248. The Court cited Massey v. Massey, 220
S.W.3d 700 (Ky.App. 2006), as supporting its conclusion that this interpretation is
necessary to prevent such a condition from being in contravention of KRS
403.250(1). Castle, 266 S.W.3d at 248. In Massey, the Court of Appeals
explained that “[t]he family court simply cannot impose modification terms upon
an open-ended maintenance award not authorized by KRS 403.250(1).” Massey,
220 S.W.3d at 703.
-14-
The Court of Appeals in Castle also noted with approval that the
circuit court “considered the cohabitation issue under the unconscionability
provisions of KRS 403.250(1)” and “made a specific evidentiary finding that [the
wife’s] cohabitation relationship was inequitable and specifically found the
existence of changed circumstances sufficient to make the payment of maintenance
unconscionable.” Castle, 266 S.W.3d at 248. The Court emphasized that “[w]hile
the cohabitation restriction itself may have been unenforceable absent an
agreement between the parties, the circuit court still made sufficient findings to
warrant the termination of maintenance under KRS 403.250.” Id.It is this third scenario which applies here as it was the family court
that imposed the condition that maintenance would terminate upon cohabitation.
However, other aspects of the cases in the other categories are also relevant.
Because the clause providing for automatic termination of maintenance upon
cohabitation with a romantic partner was not the result of a negotiated settlement
agreement between William and Yvonne, to avoid running afoul of KRS 403.250
the family court had to first determine whether Yvonne and Craig were
“cohabiting” and then whether such cohabitation rendered “continued maintenance
‘unconscionable’” because “the nature of the cohabitation constitutes a new
‘financial resource’ as contemplated in KRS 403.200(2)(a).” Combs, 787 S.W.2d
at 262.
-15-
Initially we address whether the family court properly concluded that
Yvonne cohabited with Craig. We are unaware of what definition the family court
applied to determine whether Yvonne was cohabiting with Craig. We believe that
the Black’s Law Dictionary definition as considered in Cook was a proper
definition to consider and is consistent with the Combs factors, but that other
dictionary definitions may have merited consideration as well as noted in Bennett.
While the Black’s Law Dictionary definition speaks of living together as husband
and wife, cohabitation is legally distinct from marriage as Kentucky does not allow
cohabitation to result in a common law marriage,4 and indeed in Combs the Court
rejected an attempt to have cohabitation be treated as marriage pursuant to KRS
403.250(2). Other definitions require living together in one residence (with or
without sexual relations).
4
There is no artificial form of marriage recognized in Kentucky and the idea of the legal
recognition of such unions has been rejected by our legislature since the advent of the Kentucky
Revised Statutes. As stated over a hundred and fifty years ago, albeit in a unique case involving
whether the cohabitation-based marriage of two former slaves was a legally binding marriage
after slavery was finally abolished, “there is now no law in Kentucky to legalize cohabitation . . .
as marriage, the common and only law to that effect having been repealed.” Estill v. Rogers, 1
Bush 62, 64 Ky. 62, 65 (1866) (enslaved parties) (emphasis original). That distinction remains
in effect, with the only exception being Kentucky’s deference to the laws of other states, where
parties previously resided, recognizing their marital status in Kentucky. Kentucky has devoted
an entire chapter, KRS Chapter 402, to defining, with particularity, each of the requirements
which must be met in order for a couple to be legally married and recognized as “united in law
for life.” KRS 402.005. We must conclude that the General Assembly has determined the
public would be better served by maintaining clarity, as shown by its statutes, between marriages
and any other form of living arrangement.
-16-
The family court in terminating William’s maintenance obligation did
not clarify whether Yvonne and Craig had a romantic relationship in which they
either essentially lived together as husband and wife or lived together at the same
residence. We believe there is a distinction between engaging in “sleepovers” and
having a shared residence. The family court held that Yvonne had cohabited
because “[Craig] spent almost every night with [Yvonne] at her residence, had
unfettered access to her home and vehicles, and the parties were in an intimate
relationship. The actions of [Craig and Yvonne] point to sharing a home, vehicles,
travel, and intimacy. All indicative of cohabitation.” It is unclear to us what
definition of cohabitation the family court was using, that it even considered what
definition should apply or simply applied its own, or whether the actions of
Yvonne and Craig conformed to such a definition or were simply assumed to do
so. Without any further definition for cohabitation contained in a decree of
dissolution, we believe it would be appropriate to conclude that the Black’s Law
Dictionary adopted by our highest court in Cook was intended to apply and
applying another definition would at the very least require some additional
analysis.
We question whether William presented sufficient evidence to show
that Yvonne and Craig cohabited under any definition of “cohabitation.” Sexual
relations, overnight visits, and occasional trips together are hallmarks of modern
-17-
dating; these actions alone do not meet either definition of cohabitation. However,
we are a court of review, not an initial factfinder. Therefore, we vacate and
remand with instructions for the family court to consider what definition of
“cohabitation” should apply, and then given that standard, determine anew if
Yvonne cohabited with Craig.
If, on remand, the family court again concludes that Yvonne cohabited
with Craig, this is only the first step needed in an analysis as to whether
maintenance should be terminated, because it is the effects of the cohabitation and
the scope of the arrangement, not the act in and of itself, which determines whether
or not maintenance should be modified pursuant to Combs and KRS 403.250(1).
As explained in Castle, the family court’s imposition of a cohabitation
maintenance termination clause cannot be treated the same as if such a clause were
negotiated between the parties. Standing alone and without the parties’ agreement,
“cohabitation is not grounds under the statute to terminate maintenance[.]”
Bennett, 133 S.W.3d at 489 (construing Combs).5 Therefore, the family court erred
by terminating maintenance based solely upon the automatic termination clause.
5
The parties each cite sundry unpublished opinions addressing the issue of whether a court may
automatically terminate maintenance based solely on cohabitation, absent agreement by the
parties, but we decline to address any unpublished opinions because the issue is sufficiently
addressed by published precedent.
-18-
The family court declined to address the Combs factors because it
viewed Cook, 798 S.W.2d 955, as controlling – thus, in its view, making Combs
irrelevant. The parties continue to disagree over whether Cook or Combs applies.
Actually, both do.
We have already discussed Cook’s applicability in determining
whether cohabitation has occurred. But Cook does not address whether
cohabitation should result in termination of maintenance because the parties in
Cook had agreed that it would under the terms of their settlement agreement.
Therefore, the family court erred by stating in its order denying Yvonne’s motion
to alter, amend, or vacate that “[t]he fact that the maintenance obligation was set
by contract in Cook is irrelevant.” To the contrary, the entire fundamental basis for
the holding in Cook is that the parties had contractually agreed to terminate
maintenance upon cohabitation. As we have explained, when it is the family court
that imposes the condition that maintenance will terminate upon cohabitation,
under Castle the family court cannot simply graft on another condition to KRS
403.250(2) but must instead determine that the cohabitation satisfies the
unconscionability provisions of KRS 403.250(1) as established by meeting the
factors set forth in the Combs test. Therefore, on remand, if the family court again
concludes that Yvonne cohabited with Craig, it must apply and discuss the Combs
-19-
factors to determine if it would be unconscionable for her to continue to receive
previously awarded maintenance.
Finally, given our decision on cohabitation and automatic termination
of maintenance, we must also vacate the family court’s secondary conclusion that
the termination would be retroactive to the date William submitted his motion.
While Yvonne’s argument that the retroactive termination was improper is now
technically moot, for the benefit of the court and parties on remand, we will briefly
address it.
The basis for Yvonne’s argument against retroactivity is the statement
in Combs that “maintenance payments are vested from the entry of a decree and
ordinarily can be modified only upon the entry of a subsequent order of the Court
to operate prospectively, from the date of entry.” Combs, 787 S.W.2d at 263.
Of course, there is inevitably a gap between the filing of a motion and
a ruling thereon. Therefore, albeit unfortunately without analyzing the language in
Combs, we have held that “our law does not prohibit a trial court from granting a
retroactive reduction of maintenance for the period of time from the filing of the
motion to the entry of judgment.” Mudd, 903 S.W.2d at 534. The decision to
reduce or eliminate maintenance retroactive to the date a motion seeking that relief
was filed is within the trial court’s discretion. Id.-20-
In other words, a family court has the ability to, after considering the
relevant facts and circumstances, amend or terminate a maintenance obligation
retroactively.6 For example, the family court could consider whether the delay in
ruling on the motion was unreasonably caused, or extended, by the payee’s actions
or inactions since a payee should not benefit from an unreasonable delay which he
or she caused.
We do not perceive our holding in Mudd to contravene Combs
because a payee does not have a right to receive payments to which he or she is not
entitled, and the filing of a motion to reduce or terminate maintenance shows – or
at least puts all concerned on notice – that it is no longer conscionable for the
payee to receive the previously ordered amount of maintenance. See Bennett, 133
S.W.3d at 488-89 (reciting that the circuit court ultimately ruled that it was
appropriate for maintenance to terminate as of the date that the wife cohabitated,
with the parties apparently not challenging this aspect of the decision).
The conclusion that retroactive termination is appropriate in certain
circumstances also aligns well with basic fairness and equity. Precedent from our
Supreme Court makes plain that a court can order maintenance payments to begin
6
While spousal maintenance and child support payments were traditionally both considered to
be vested when due, spousal maintenance is now treated differently pursuant to Mudd. As to
child support, compare with Price v. Price, 912 S.W.2d 44, 46 (Ky. 1995).
-21-
retroactively from the date a party sought such relief. Higbee v. Higbee, 89
S.W.3d 409, 410 (Ky. 2002). Since a court has the discretion to order maintenance
payments to begin retroactively, it should also have the corresponding discretion to
order maintenance payments to be terminated retroactively. See Borders Self-
Storage & Rentals, LLC v. Transportation Cabinet, Department of Highways, 636
S.W.3d 452, 456 (Ky. 2021) (“The rule of law should, in the interest of justice and
fairness, cut both ways since ‘what is sauce for the goose is sauce for the
gander.’”).
Here, the monthly maintenance payments were large and there was an
unusually lengthy gap between when William filed his motion and when it was
granted. Therefore, the retroactive nature of the family court’s ruling resulted in
Yvonne owing William a substantial sum. If the family court again terminates
William’s maintenance obligation, it shall address the relevant facts and
circumstances (such as Yvonne’s financial status and the reasons for the lengthy
delay in its issuance of a ruling) before deciding whether it is equitable for the
termination to be made retroactive.
Accordingly, we vacate the Oldham Family Court’s order terminating
William’s maintenance obligation to Yvonne and ordering her to repay him and
remand for more specific findings and rulings after applying the applicable law.
-22-
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
James L. Theiss Randall L. Wright
James Daniel Theiss Louisville, Kentucky
La Grange, Kentucky
-23-