Antonio Melo v. Emma Mead Melo

RENDERED: APRIL 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1272-MR
ANTONIO MELO APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 19-CI-500677
EMMA MEAD MELO; DIANA L.
SKAGGS; EMILY T. CECCONI; AND
DIANA L. SKAGGS + PARTNERS,
PLLC APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Antonio Melo (“Antonio”) appeals from the Jefferson Family
Court’s findings of fact, conclusions of law, and judgment, following a bench trial
held on March 4, 2020, awarding Emma Mead Melo (“Emma”) maintenance and
attorney fees. Finding no error, we affirm.
Antonio and Emma were married on October 7, 2000 in New York,
New York and moved to Kentucky in 2004. After almost nineteen years of
marriage, they separated on March 2, 2019. At that time, both Antonio and Emma
were forty-five years old. Two children were born of the marriage, one of whom is
now emancipated.
Throughout their marriage, Emma took care of the home and children
while Antonio was the family’s primary financial provider. At the time of trial,
Antonio was employed as a vice president for Humana, earning $298,893.27 in
2019. Emma was employed as a preschool teacher at Highland Presbyterian
Nursery, earning $16,000.00 in 2019, although she had recently accepted a full-
time position at the school beginning August 2020, earning $39,353.44 per year.
At trial, Emma testified that in November 2017, she began
experiencing numbness in her legs and a “minty” feeling in her arms, feet, back of
her neck, and right side of her face. Later she experienced other symptoms, such
as body twitches and exhaustion. These symptoms come and go, and no definitive
diagnosis has been made. Emma stated her fear is that she might have MS and that
severe symptoms could develop in the future impairing her ability to work.
Dr. Roy Meckler, a neurologist who has been seeing Emma as a
patient for two years, testified that her symptoms are the same as those sometimes
seen in patients with multiple sclerosis (“MS”). He further testified that there is no
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cure for MS and its symptoms are unpredictable. Dr. Meckler, however, testified
that Emma has not been diagnosed with MS, is not currently disabled, and is able
to work.
Based upon her undiagnosed condition, Emma requested maintenance
that was open ended and modifiable in the amount of $6,000 per month. Emma’s
monthly expenses are estimated at $8,081.20 and her monthly income is $3,329.
Anthony’s monthly expenses are estimated at $12,400 and his monthly income is
around $25,000.
Following the evidence, the trial court entered findings of fact,
conclusions of law, and an order of judgment awarding Emma $614,200.80 in
marital assets and $9,700 in non-marital assets. Antonio was awarded $605,675.80
in marital assets and $529,059.39 in non-marital assets. Emma was further
awarded monthly spousal maintenance of $3,562 and Antonio was ordered to pay
80% of Emma’s $51,112.02 attorney fee total. Antonio appealed, challenging the
amount and duration of Emma’s maintenance award, as well as the award of
attorney fees. Further facts will be set forth as necessary below.
“The amount and duration of maintenance are within the sound
discretion of the trial court.” Bailey v. Bailey, 246 S.W.3d 895, 897 (Ky. App.
2007), as modified (Feb. 15, 2008) (citation omitted). “It is well-settled that we
will not disturb a trial court’s award of maintenance unless the court ‘abused its
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discretion or based its decision on findings of fact that are clearly erroneous.’” Id.(citing Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003)). Abuse of discretion
occurs when the circuit court’s decision is “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Artrip v. Noe, 311 S.W.3d 229, 232 (Ky.
2010) (citation omitted).
In determining the appropriate amount and duration of maintenance,
the trial court must consider 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;
(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.
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KRS1 403.200(2).
Antonio’s primary argument concerns the trial court’s award of open-
ended maintenance. He contends “[t]he Family Court Order on maintenance
hinges on Emma’s claim that she suffers from multiple sclerosis[.]” Antonio
apparently believes the trial court’s finding as to duration was based solely on
Emma’s undiagnosed condition. However, this is inaccurate. The trial court found
that Emma’s marital assets would not provide enough income for her to “properly
support herself in the manner established during the marriage.” As to Antonio, the
court determined he was “well situated to provide for his own needs,” based upon
his monthly income of nearly $25,000.00 and estimated expenses of $12,400.00. It
further found Emma “earns significantly less than Antonio and her future earning
potential is also significantly less due to the years she spent as a homemaker.”
The court did consider “Emma’s unknown medical condition” and
found that “it impacts her daily life and may impact her ability to earn future
income.” Based upon the above findings, the court concluded: “Emma lacks
sufficient property to meet her needs [sic] reasonable needs and is unable to
support herself consistent with the standard of living established during the parties’
marriage.”
1
Kentucky Revised Statutes.
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Therefore, contrary to Antonio’s assertion, the trial court’s award of
open-ended maintenance does not “hinge[] on Emma’s claim that she suffers from
multiple sclerosis[.]” The trial court properly considered the factors set forth in
KRS 403.200(2), including Emma’s financial resources and her ability to meet her
needs independently, the standard of living established during the marriage,
Emma’s physical condition, and Antonio’s ability to meet his own needs while
meeting Emma’s.
While Antonio is correct that “KRS 403.200 seeks to enable the
unemployable spouse to acquire the skills necessary to support himself or herself
in the current workforce so that he or she does not rely upon the maintenance of
the working spouse indefinitely[,]” Powell, 107 S.W.3d at 224 (citation omitted),
“in situations where the marriage was long term, the dependent spouse is near
retirement age, the discrepancy in incomes is great, or the prospects for self-
sufficiency appears dismal, our courts have declined to follow that policy and have
instead awarded maintenance for a longer period or in greater amounts.” Id.
(internal quotation marks and citation omitted).
Here, the trial court appears to have placed great weight on the
discrepancy in the parties’ incomes and the standard of living established during
the marriage, as it was entitled to do. See id. (“KRS 403.200 specifically states
that the trial court should consider the standard of living to which the parties are
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accustomed in determining the . . . duration of the award.”). “It is especially
acceptable for the trial court to consider the impact of the divorce on the
nonprofessional’s standard of living and award an appropriate amount that the
professional spouse can afford.” Id. (citation omitted).
Further, “[w]hen the evidence regarding entitlement to and amount of
future benefits is speculative, it is better practice to enter an open-ended award that
can be reduced or eliminated pursuant to KRS 403.250.” Naramore v. Naramore,
611 S.W.3d 281, 290 (Ky. App. 2020). While there was some evidence that
Emma’s income may increase in the future, it is uncertain when this might occur
and to what degree. This uncertainly is even greater in light of Emma’s
undiagnosed condition.
Antonio argues the court’s open-ended maintenance award creates an
insurmountable barrier to modification because if circumstances stay the same, he
must pay maintenance and if circumstances change, and Emma receives an MS
diagnosis, he still must pay maintenance. However, Antonio’s argument is again
based upon the flawed premise the trial court awarded maintenance solely because
of Emma’s physical condition. KRS 403.250(1) provides a mechanism whereby
an award of maintenance can be modified “upon a showing of changed
circumstances so substantial and continuing as to make the terms unconscionable.”
The open-ended maintenance award was based in part upon the standard of living
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established during Antonio and Emma’s marriage and the discrepancy between
their incomes. Emma testified that she believes her current job offers opportunities
for career advancement that could be “very lucrative” in the future. Should either
parties’ financial circumstances change, Antonio may pursue modification
pursuant to KRS 403.250(1).
Antonio next challenges the amount of the maintenance award,
arguing the trial court should have reduced the award by certain adjustments to
Emma’s income and expenses. For instance, he notes that while Emma’s monthly
income increased in August 2020 from $1,656 to $3,329, the court only reduced
her monthly maintenance award by $564. Essentially, Antonio appears to argue
that the trial court must follow a formula in determining the amount of
maintenance, granting a one-for-one reduction for any adjustments to income or
expenses.
However, Kentucky courts do not apply a mathematical formula in
determining the amount of maintenance. See Age v. Age, 340 S.W.3d 88, 95 (Ky.
App. 2011) (“no particular formula has ever been held as the method for
establishing maintenance.”). Instead, trial courts are given very broad discretion.
Id. (citation omitted). The only requirement is that the trial court consider the
statutory factors in KRS 403.200(2).
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From our review of the record, it is evident the trial court considered
the factors set forth in KRS 403.200(2) when it awarded open-ended maintenance
of $3,562 per month to Emma. The court’s order references the parties 18 year
marriage, Emma’s financial resources and her inability to meet her needs
independently considering the standard of living established during the marriage,
Emma’s physical condition, and Antonio’s ability to meet his needs while paying
maintenance. We find no abuse of discretion by the trial court.
Finally, Antonio argues the trial court erred 1) in awarding Emma
attorney fees that were already paid out of marital assets and 2) in awarding
attorney fees without requiring supporting documentation. As to Antonio’s first
argument, he claims that by requiring him to pay for attorney fees previously paid
out of marital funds, he essentially will be paying those fees twice, resulting “in
double-dipping and a windfall to Emma.” Antonio has cited no law in support of
his argument.
Pursuant to KRS 403.220, a trial court is authorized to award a
“reasonable amount” for attorney fees in a divorce action after considering “the
financial resources of both parties[.]” “An award of fees is reviewed by this court
under an abuse of discretion standard.” Allison v. Allison, 246 S.W.3d 898, 909
(Ky. App. 2008) (citation omitted).
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We disagree the trial court’s attorney fee award amounts to “double-
dipping.” In effect, by requiring Antonio to pay Emma’s attorney fees already paid
from marital funds, the trial court reimbursed Emma for her share of marital funds
expended to maintain the divorce action. As Emma notes in her appellee brief, the
trial court merely “shifted the burden of those fees to Antonio in an effort to restore
to Emma her portion of the marital estate that was diminished.” In awarding
attorney fees, the trial court found “a substantial disparity in income and assets”
between the parties and ordered Antonio to pay 80% of Emma’s current and past
attorney fees. The court clearly intended for Antonio to shoulder most of the
attorney fee expense. We find no abuse of discretion.
Antonio also contends the trial court erred in awarding attorney fees
without requiring supporting documentation. Following trial, Emma’s counsel
submitted an affidavit containing the total number of hours expended on the case
with corresponding hourly rates. Antonio argues this affidavit is insufficient to
support an attorney fee award and violates the Jefferson Circuit Court local rules of
practice, which require an affidavit to set forth, among other things, the nature of
the services rendered. Emma rightly responds that JRP2 101 explicitly provides
that the rules are not enforceable in family court. Further, Emma notes that her
total attorney fees were $9,355.58 less than Antonio’s.
2
Jefferson Rules of Practice.
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KRS 403.220 authorizes an award of attorney fees “after considering
the financial resources of both parties[.]” Financial disparity is a factor to consider
when looking “at the parties’ total financial picture.” Smith v. McGill, 556 S.W.3d
552, 556 (Ky. 2018). Here, the trial court considered both parties’ financial
resources, finding a “substantial disparity” in income and assets. It then awarded
attorney fees based upon its consideration. This is all the statute requires. We find
no abuse of discretion with respect to the award or its amount.
Therefore, for all the foregoing reasons, the judgment of the Jefferson
Family Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE EMMA
MEAD MELO:
Mark W. Dobbins
Sandra F. Keene Diana L. Skaggs
Louisville, Kentucky Emily T. Cecconi
Louisville, Kentucky
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