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Lockhart v. Lockhart

Court of Appeals of Kentucky

November 30, 2018

PHILLIP WAYNE LOCKHART APPELLANT
v.
MARY DENIA LOCKHART APPELLEE

         TO BE PUBLISHED

          APPEAL FROM JEFFERSON FAMILY COURT HONORABLE JUDITH BARTHOMEW, JUDGE ACTION NO. 06-CI-502652

          BRIEFS FOR APPELLANT: Kerri A. Ripperger Louisville, Kentucky

          BRIEF FOR APPELLEE: Melinda Wandzilak Louisville, Kentucky

          BEFORE: D. LAMBERT, MAZE, AND NICKELL, JUDGES.

          OPINION

          MAZE, JUDGE.

         Phillip 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.

         On June 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.

         On 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.

         The 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[1] 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, 2013).

         While 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 arrearage.

         Phillip 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.

         On 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.

         Thereafter, 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 ...


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