FROM JEFFERSON FAMILY COURT HONORABLE JUDITH BARTHOMEW, JUDGE
ACTION NO. 06-CI-502652
FOR APPELLANT: Kerri A. Ripperger Louisville, Kentucky
FOR APPELLEE: Melinda Wandzilak Louisville, Kentucky
BEFORE: D. LAMBERT, MAZE, AND NICKELL, JUDGES.
Wayne Lockhart (Phillip) appeals from a post-decree order of
the Jefferson Family Court denying his motion to modify or
terminate his maintenance obligation to Mary Denia Lockhart
(Mary). We agree with the family court that the parties'
settlement agreement specifically precludes modification
based on unconscionability. Since that matter was decided in
a prior appeal and no new factual or legal grounds have been
raised in this motion, the family court properly held that
the agreement was not subject to modification on this basis.
However, we disagree with the family court that Mary's
cohabitation was not a basis for termination of maintenance
under the terms of the Agreement. Hence, we affirm in part,
reverse in part, and remand for additional findings of fact
and conclusions of law on this issue.
22, 2009, the parties entered into a Marital Settlement
Agreement (the Agreement) which resolved the disputed issues
relating to the dissolution of their marriage. In pertinent
part, Phillip agreed to pay maintenance to Mary in the amount
of $3, 000 per month for eleven years or until Mary's
remarriage. The Agreement further provided, "There shall
be no modification of this Agreement except by written
agreement of the parties with respect to issues of property
division, maintenance or payment of child expenses." The
trial court found that the terms of the Agreement were not
unconscionable and incorporated them into the decree entered
on June 26, 2009.
October 31, 2011, Phillip filed a motion to terminate his
maintenance obligation due to a material and continuing
change in his financial circumstances. He stated that both of
his businesses failed due to the economic downturn. As a
result, Phillip states that his income had been reduced from
approximately $8, 000 per month to around $2, 000. At the
time, Phillip was more than $90, 000 behind on his
maintenance obligation and was also responsible for
significant marital and business debt. Based upon this change
in circumstances, he argued that his current maintenance
obligation should be terminated as unconscionable.
family court denied the motion, noting that the Agreement
expressly provided that it was not subject to modification.
On appeal, this Court affirmed, noting that KRS 403.180(6)
permits enforcement of a non-modification clause in a
property settlement agreement. However, this Court noted that
Phillip may still be able to assert an impossibility defense
to any motion for contempt arising from his failure to pay
maintenance. Lockhart v. Lockhart, No.
2012-CA-000219-MR, 2013 WL 5969839, at *2 (Ky. App. Nov. 8,
that appeal was pending, Mary filed a motion to hold Phillip
in contempt for failure to pay maintenance required under the
Agreement. Following a hearing, the family court found
Phillip in contempt and sentenced him to serve 180 days in
jail. The court withheld the sentence and allowed him to
purge the contempt with the completion of several conditions,
including payment of $500 per month toward his maintenance
did not appeal from this order, but he did comply with its
conditions. But since he did not make any payments toward his
current maintenance obligations, his arrearage continued to
increase, rising to nearly $226, 000. In May 2016, Mary again
moved to hold Phillip in contempt for his failure to comply
with the terms of the Agreement.
August 29, 2016, the family court found Phillip in contempt
for violation of the Agreement and the 2012 contempt order.
The court sentenced Phillip to serve the 180-day sentence. In
the alternative, the court directed that he could purge his
contempt by paying a lump sum of $25, 0000, $2, 000 per month
toward the arrearage, and the $3, 000 per month for his
ongoing maintenance obligation.
Phillip again moved to modify maintenance based on his
inability to pay. He also argued that the Agreement should be
set aside based on Mary's cohabitation. In denying
Phillip's motion to modify maintenance, the family court
found that his obligation and its non-modifiability was
res judicata based upon the prior appeal. The court
also found that Agreement provided for termination of
maintenance only upon Mary's remarriage, and not upon her
cohabitation. Consequently, the family court upheld the ...