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10/31/95 MARRIAGE JO ELLA M. OFFER

October 31, 1995

IN RE: THE MARRIAGE OF JO ELLA M. OFFER, PETITIONER-APPELLANT, AND KENNETH WAYNE OFFER, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Macon County. No. 90D218. Honorable Warren A. Sappington, Judge Presiding.

Released for Publication December 4, 1995. As Corrected December 6, 1995.

Justices: Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Concurring, Honorable Frederick S. Green, J., Specially Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In April 1990, petitioner, Jo Ella M. Offer, filed a petition for dissolution of her marriage with respondent, Kenneth W. Offer. In February 1991, the trial court entered an amended judgment of dissolution of marriage, which provided in part for Kenneth to pay $600 per month as rehabilitative maintenance to Jo Ella, starting January 1991 and ending after December 1994.

In December 1994, Jo Ella filed a petition to extend maintenance due to alleged changes of circumstances. She also asked the trial court to order Kenneth to pay her attorney fees for that proceeding. The court conducted a hearing on that petition and denied it. Jo Ella appeals, and we reverse.

I. BACKGROUND

The trial court entered its initial judgment of dissolution in this case in December 1990, ordering Kenneth to pay $400 per month in temporary maintenance and an additional $300 per month as permanent maintenance (until Jo Ella attained the age of 65, Kenneth retired, or further order of the court). Kenneth filed a post-trial motion, which the court granted in part by its docket order of February 1991, changing the maintenance order to $600 in rehabilitative maintenance, payable monthly in two $300 installments for four years. The only explanation the court provided for this change was the following:

"One reason for this modification is the fact that [Jo Ella] testified that she smokes two (2) to three (3) packages of cigarettes a day and it is this Court's decision that [Kenneth] should not be subjected to a contingent liability for maintenance during a period of time when [Jo Ella] is destroying her health and possibly her ability to work."

No appeal was taken.

In November 1994, Kenneth filed a petition to terminate the order for withholding, asserting that because his maintenance payments would soon cease, the trial court should terminate the withholding order through which Kenneth made those payments. Jo Ella responded with a petition to extend maintenance.

Kenneth subsequently filed a motion for summary judgment on his petition to terminate, arguing that maintenance could not be extended because the February 1991 judgment order stated the following:

"Excepting for those payments set forth in paragraph 3 of this Judgment [(the paragraph setting forth the terms and amount of the rehabilitative maintenance order)], each of the parties is forever barred from claiming maintenance from the other."

The trial court denied Kenneth's motion for summary judgment, ruling that Jo Ella was not barred from seeking to modify the rehabilitative maintenance order.

The court then conducted a hearing on the merits of both Kenneth's petition to terminate the order for withholding and Jo Ella's petition to extend maintenance. Our review of the evidence presented at that hearing supports Jo Ella's claim that since the end of her 28-year marriage to Kenneth, she has lived at a subsistence level compared to the standard of living she enjoyed during the marriage. Meanwhile, Kenneth's income has increased. His average net income for 1991 through 1994 was $32,800. The $600 per month he was paying in rehabilitative maintenance to Jo Ella, totaling $7,200 per year, left Kenneth an income of $25,600, or $2,100 per month on average. That sum amounts to $700 more per month than Kenneth's financial affidavit showed he needed to meet his basic monthly expenses. Since the divorce, Kenneth had also taken vacations to Hawaii and Oklahoma.

The record further shows that Jo Ella has no assets and no discretionary income. She testified that she had been in poor health for some time and was unable to obtain health insurance. She claimed to be without sufficient funds to pay for prescribed medicine for her problems with her blood pressure, depression, and her throat. Since the divorce, Jo Ella has had two major surgeries, one removing part of her cervix because of cancer, and the other removing throat polyps.

Jo Ella was cross-examined about the extent of her smoking, and she denied that she smoked four cartons of cigarettes a week in 1990, claiming she smoked at most two cartons a week. However, she did admit that she still smoked and that she was overweight. She claimed to have cut back on smoking because of her throat condition.

At the conclusion of the hearing, Kenneth's counsel argued to the court against extending Jo Ella's rehabilitative ...


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