RENDERED: JANUARY 12, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0806-MR

APRIL D. PERGREM APPELLANT 

v. 

APPEAL FROM MADISON FAMILY COURT

HONORABLE JEFF C. MOSS, SPECIAL JUDGE

ACTION NO. 14-CI-50198

CLARK D. PERGREM APPELLEE 

OPINION

REVERSING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT, 

JUDGES.

LAMBERT, JUDGE: This is a post-dissolution appeal in which April D. Pergrem 

seeks review of the Madison Family Court’s order terminating her maintenance

award and the order ruling on her motion to alter, amend, or vacate that order and 

setting a new retroactive termination date. We reverse.

April and Clark D. Pergrem were married in June 1996 in Madison 

County, Kentucky, and three children were born of the marriage. April and Clark 
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separated on February 21, 2014, and Clark filed a petition to dissolve the marriage 

in the Madison Family Court on April 28th of that year. During the marriage, 

April was a homemaker and stayed home to raise the children while Clark’s 

substantial income and assets provided the family with a luxury lifestyle. At the

time the petition was filed, April estimated her expenses to be in excess of 

$24,000.00 per month. The parties also litigated the validity of a prenuptial 

agreement; the court found it was not unconscionable and, therefore, was valid and 

enforceable. The parties entered into a partial separation and property settlement 

agreement that was filed in December 2015. April was awarded the marital real 

estate in Richmond (including the residence and 19 acres of property), which had 

been appraised in 2012 to be worth $2.8M. April was to assume the indebtedness 

on the property and pay Clark $100,000.00. She was also awarded all of the 

personal property, household possessions, and furnishings in the residence, with 

the exception of Clark’s personal items and clothes. Several issues, including 

maintenance, custody, and child support, remained to be decided. 

The court held a hearing on January 19, 2016,1related to child support 

and maintenance. The court ruled on these issues by order entered February 19, 

2016. In the order, the court stated that April owned non-marital interests in two 

rental property entities; she owned 99% of AKP, LLC, and 50% of W&A. She did 

1 The video recording of this hearing is not in the certified record.
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not receive a paycheck or funds from these entities in 2015, and only a small 

amount of personal expenses was paid from them, if any. April’s adjusted gross 

income in 2014 was $31,801.00. Since entering into the property settlement 

agreement, April had refinanced the marital residence in her name with her father’s 

assistance; the monthly mortgage payment was $3,400.00, and she was receiving 

assistance from her father in paying the mortgage until she sold the home. April 

had been helping her parents with the family businesses and had not been looking 

for work. While she was not earning any income from this work at the time, she 

said she might draw a paycheck in the future. April continued to spend in excess 

of $19,000.00 per month, as was common during the marriage. The court went on 

to mention Clark’s testimony regarding the losses he had incurred in the coal 

industry. To calculate child support, the court used annual gross incomes of 

$150,000.00 for Clark and $31,800.00 for April, and it ordered Clark to pay April 

$1,428.00 per month in child support.

Regarding maintenance, the court found as follows:

As to permanent maintenance the Court makes a 

finding that [April] lacks sufficient property, including 

marital property apportioned to her, to provide for her 

reasonable needs in accordance with the standard of 

living the parties have known throughout their 19 year 

marriage. The Court further states that [April] is unable 

to support herself through appropriate employment to the 

standard of living she has become accustomed. Based on 

these findings the Court directs [Clark] to pay the amount 

of $4,500.00 per month to [April] effective March 1, 
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2016 as maintenance. This amount will be paid for five 

(5) years or until February 1, 2021 at which point the 

monthly maintenance shall be reduced to $3,000.00 per 

month beginning March 1, 2021. This payment shall 

continue until February 1, 2026 at which time 

maintenance shall cease. Maintenance shall also cease 

prior to the above described schedule in the event [April] 

remarries, or cohabitates with a non-relative male. In the 

event either party should die prior to the termination of 

maintenance as described by the schedule above the court 

may review maintenance payments upon request of either 

party or the estate of either party to determine if the 

maintenance should continue. All other payments 

[Clark] was previously required to make to [April] for the 

benefit of [April] and/or children shall terminate March 

1, 20[2]6 with the exception of child support, 

maintenance, children’s health insurance and Lexington 

School tuition for Ryder as described above.

Clark moved the court to alter, amend, or vacate the child support and 

maintenance order based upon evidence of gifts April had received from her 

parents (including the payment of the $3,400.00 per month mortgage and property 

tax payment) and upon his argument that she should be imputed income from the 

work she did, without pay, for the family businesses. Clark also argued that he 

was not financially able to pay the maintenance as ordered because his coal 

businesses were not doing well. He would have to liquidate his businesses and sell 

off his property in order to make the payments for maintenance, tuition, and health 

insurance. He used the $100,000.00 he received as his interest in the marital 

residence to meet his support obligations and to keep his businesses afloat. He had 

not received a paycheck in 2016. 
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The court held a hearing on March 30, 2016, to consider the pending 

motions, including Clark’s motion to alter, amend, or vacate. The parties 

discussed April’s income and work. While Clark argued that she was receiving 

gifts from her father, April pointed to her previous testimony that this was a loan 

that would have to be repaid. The court asked April questions about the mortgage 

payments. She said her father had made all of the payments (there had been three 

at that point). April testified that this was a loan that she would have to repay once 

she sold the house. There was documentary proof that this was a loan (such as 

“loan” being written on a check to the bank for the payment). Her father also paid 

the property taxes (around $15,000.00) at the time of the closing on the 

refinancing, which was also a loan. She continued to help out with the family 

businesses, including taking in the rent and making deposits. She did not receive 

any compensation for this. April stated that she did not receive any other type of 

compensation (utility bill payments, etc.) for the time she put into the family 

business. April had interests in two businesses, and she believed 25% of her work 

spent at the family businesses was related to her own businesses. April indicated 

that she still intended to sell the marital residence. 

Clark’s attorney stated that April’s father had testified at the original 

hearing and in a deposition regarding other money he had given to her. Her father

testified that the money he gave her was a loan but did not have any documents to 
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support this. He said that if she did not have the money to pay him, he would 

forgive it. For this reason, Clark argued that she should be imputed income for the 

time that she was working for no pay. The court discussed the issue and stated that 

when April sold the house, the loan issue could be looked into via a discovery 

request to see if she paid her father back at that point. If the loan had been 

forgiven, that might be a suitable ground for recalculation. There was also 

testimony from Clark that he purchased a $30,000.00 car for his son’s 16th

birthday with a bank loan (he told the bank the only things that had changed related 

to his finances were that he no longer had the house and was divorced) and at the 

same time signed his children up for Medicaid through Kynect, Kentucky’s health 

insurance marketplace. The family court recognized and expressed its concern that 

Clark could not have provided the same financial information to obtain approval 

for both applications. 

The court entered an amended child support and maintenance order on 

April 4, 2016. The court modified the amount of child support to $974.00 per 

month, and Clark was no longer credited with the payment of $579.00 per month

for health insurance for the children. Accordingly, the court modified the 

maintenance schedule and ordered Clark to pay April $5,000.00 per month for five 

years beginning March 1, 2016, and then $3,500.00 per month for five years, until 
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February 1, 2026. The other conditions as to remarriage or cohabitation and the 

death of a party remained. 

The court held a final hearing on July 27, 2016, on the remaining 

issues, and the court entered its findings of fact, conclusions of law, and decree 

dissolving the marriage on October 11, 2016. The court reaffirmed the amended 

maintenance order in the decree.2 

Just over three years later, on January 27, 2020, Clark moved the

family court to terminate maintenance. As grounds, Clark stated that he had proof 

that April had begun cohabitating with Clay Fuller, her boyfriend of four years, in

August of 2018. He said April had been acting in bad faith to conceal their 

cohabitation to ensure that maintenance payments would continue. Clark went on 

to detail the evidence that he and a hired private detective had collected through 

photographs, social media, conversations, mail, and documents. He requested that 

maintenance be terminated as of the date she and Fuller began cohabitating. In her 

response, April denied that she was cohabitating with a non-relative male, although 

she stated that she was in a dating relationship with Fuller, who maintained his 

separate residence in Lexington and was responsible for his own and his child’s 

2 Clark filed a notice of appeal from the October 11, 2016, decree (Appeal No. 2016-CA-1690-

MR). April moved to dismiss the appeal due to Clark’s failure to file a brief. This Court granted 

the motion based upon Clark’s failure to prosecute the appeal in substantial compliance with the 

Kentucky Rules of Civil Procedure and dismissed the appeal on August 17, 2017. 
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expenses. April also stated that the court had not defined cohabitation in the order 

and that the court should look to the economic impact of any alleged cohabitation 

before reaching a decision. Clark had not presented proof of a new financial 

resource that would render continued maintenance unconscionable. 

The court held a hearing on May 20, 2020, to determine what standard 

was to be applied. And by order entered June 17, 2020, it determined that Clark 

would have to make a showing at the hearing on his motion to terminate 

maintenance that April’s alleged cohabitation impacted her finances; proof of 

cohabitation alone would not be sufficient. A contentious period of discovery 

followed, including litigation regarding Fuller’s personal financial documents that 

resulted in a separate appeal in which Fuller was successful (Appeal No. 2021-CA1009-MR). This Court concluded that until cohabitation had been established, 

Clark was not entitled to Fuller’s personal financial documents. While Fuller’s 

appeal was pending, the discovery disputes between Clark and April continued

through motions to compel filed by Clark related to bank and credit card 

information. 

On July 7, 2021, Clark filed a second motion to terminate 

maintenance on the basis that April now had the financial resources she had 

testified she lacked during the dissolution proceedings in 2016. She was being 

paid by the family companies, he believed a loan from her father had been 
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forgiven, and her bills and expenses were being paid from her two LLC business 

accounts. He also discussed the value of April’s residence; she testified in 2016 

that it was worth $1.8M but it was currently listed for sale for $3.9M. Clark 

maintained that April had minimized her income at the final hearing in 2016 to 

obtain a maintenance award and that, based upon her new financial resources, it 

was appropriate for the court to terminate the award. 

The court held an evidentiary hearing on August 10, 2021, where the 

court heard testimony to determine whether Clark was entitled to credit card 

statements through discovery. April testified about her businesses and her credit 

card use. She stated that she used the W&A credit card for work purposes. April

bought groceries for the employees in the Park Place office, set up catering, did the 

deposits, and bought all of the office and cleaning supplies. Some of the items she 

purchased might have been for herself; she would even it out later with other 

purchases using her personal funds. It was an informal tradeoff. She said it was 

not anyone’s business how she ran her business. She used the card at Lowe’s, 

Office Depot, Meijer, Kroger, Walmart, and gas stations. The court indicated that 

if there was a co-mingling, that would be information needed to determine whether 

Clark was entitled to the credit card records. 

April then testified about a second American Express card owned by 

Ramsey & Ramsey LLC, a family company that she was not part of. She 
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explained that her father bought her brother/his son out of the business a month 

before he passed away. She then had to step in to help run the business. 

Ownership never changed hands, but the company went to the father’s trust upon 

his death. Her mother was the trustee, and April was a beneficiary of the trust. 

April used the credit card for the first month after her father passed away, but it 

had been put into a safety deposit box six months later, where it had been for a 

year. April stated that she similarly used this credit card for personal use like the 

other one, in a minority fashion. 

Clark questioned April about her testimony at the original trial that 

her father was not giving her money on a monthly basis. She did not remember 

that testimony because it was six years ago. Her father had testified that he had 

been giving her money every month. She said her father paid her because Clark 

had cut up the credit cards before they were even divorced; her father wanted to 

help her and the children. April testified here that the money her father gave her 

could have been a loan. Her father was providing money for the mortgage to the 

bank. April testified that she had not paid her father back and that this was a gift. 

Clark’s current wife, Tracey Pergrem, testified that she would collect 

April’s trash every week or so early in the morning and that a detective she and 

Clark hired had installed a camera across from Fuller’s house. 
-11-

By order entered September 7, 2021, the family court ordered April to 

produce credit card statements for two American Express accounts (the first from 

June 1, 2018, to present, and the second from January 1, 2020, to present). April 

filed a letter from an attorney for Ramsey & Ramsey stating that the sole member 

of the LLC was the Estate of James William Ramsey and that April was not 

authorized to access the account information for one of the American Express 

accounts. 

The court scheduled a hearing for January 25, 2022, on the motion to 

terminate maintenance. It later directed that this hearing would not address any 

issues related to Fuller or his impact on April’s income and/or expenses because of

his pending appeal.

At the January 25, 2022, hearing, the court heard testimony from 

April, Clark, and Tracey. April testified first on cross-examination. Her current 

monthly expenses totaled around $24,000.00. Her total monthly income was 

$13,027.00 (or around $11,500.00 post-tax). She received $3,500.00 in 

maintenance, $975.00 in child support, $5,000.00 from Ramsey & Ramsey, 

$726.00 in health insurance from Ramsey & Ramsey, and $2,826.00 from ARP, 

LLC. When asked about how she met the monthly shortfall of more than 

$12,000.00, April stated that her parents had helped her out and that it was not 

anyone’s business if it was a gift or a loan. April then testified that the money she 
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had received from her father was a loan as set forth in a 2015 promissory note, 

which Clark produced. April also denied that she met the shortfall through pre-tax 

dollars from her businesses, after which Clark went through business accounts and 

credit card statements with her. April admitted that she had paid some personal 

expenses out of her business accounts, including property taxes, attorney fees, 

utility bills, house painting, landscaping, clothing, and personal trainer fees. She 

maintained that the credit card purchases for gas and groceries were for the 

businesses. 

Clark testified next. He thought his net worth in 2016 was $36M, not

$45M. He stated that he had been having problems paying maintenance for the last 

six years and that he had sold assets to maintain his business and pay maintenance. 

Clark’s total annual income was between $100,000.00 and $110,000.00. He had 

not received a paycheck for the last three years. His expenses included the electric 

bill, food, clothing, child support, auto insurance, car loans, and payments to the 

IRS. His salary from Onyx was $75,000.00 per year. He stated that his money 

was not liquid, but in equipment, and that he had $5M or $6M in assets. He also 

had a subdivision from which he had sold a total of 18 lots. Clark said his income 

had not changed very much in the last six years and that he had to sell most of his 

assets. Clark agreed that since 2016, he had purchased a ring for his new wife, had 

a three-day destination wedding, paid support, drove a Maserati (he said he got a 
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good deal on it), traveled to Florida to visit his current wife’s parents, and 

belonged to a country club. He and his wife, Tracey, had also been building a 

house on his farm property for three and a half years. 

Clark stated that he had told the court six years ago he did not have 

the money to pay April, but the court instructed him to sell assets in order to make 

the maintenance payments, which he did. He would not have been able to pay 

maintenance without selling his assets. Clark believed that April should be able to 

meet her reasonable and necessary expenses with $20,500.00 per month and that 

he should not be required to pay maintenance. He resented having to pay 

maintenance for April and her boyfriend. 

April testified on direct examination that her income in 2016 at the 

time of the dissolution was less than it was currently because she had not been 

working outside of the home but had been taking care of the children, which 

included several hours of transporting them to school and activities each day. 

Clark worked out of town four days a week and had made millions of dollars after 

selling his businesses. During the dissolution proceedings, April was working to 

an extent through her family’s businesses but did not get a paycheck. Her father 

was helping because Clark had canceled the credit cards. Post-dissolution, her 

expenses had increased. Her property taxes went up, and she paid for the mortgage 

and maintenance of the property. 
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When asked how she met her shortfall in expenses, April stated that 

she paid for some things on the credit card. She needed to take care of their three 

children, and while the older two had jobs, she supplemented their income. She 

was currently receiving $3,500.00 per month in maintenance and had been since 

March 2021. She had to adjust her spending when the amount of maintenance she 

received decreased by $1,500.00. She said it would be tight to live without the 

maintenance payment. 

April began being paid by Ramsey & Ramsey about two years after 

the divorce. Once the children got older and could transport themselves, she had 

more time to spend in the office. She had told the court during the dissolution 

proceedings in 2016 that she would begin working once the children were older. 

She earned $5,000.00 per month beginning in 2018. 

When the decree was entered, April received no assets; she purchased 

the marital residence, which was 17,000 square feet and on 20 acres of land, by 

taking on the debt and paying Clark $100,000.00. The house was the only asset 

put in her name during the marriage. The house had appraised at $2.9M at the time 

of the divorce six years ago. She owed $970,000.00 when she took over the loan, 

meaning there was close to $2M in equity. April had been trying to sell the marital 

residence for several years; she wanted to sell the property because it was too 

expensive and big for her and the youngest child. She also wanted to move away 
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from where Clark and his wife currently lived. She had it listed on the market for 

$3.6M, but there had not been a formal offer to purchase it. As to the promissory 

note with her father, April said it had not been collected. She would pay the debt if 

necessary once she sold the house. April did not know exactly how much money 

her father had provided related to mortgage and other payments, but that could be 

calculated. She stated that she and her father had taken out a second loan on the 

house, taken over the debt, and paid Clark $100,000.00. 

April testified that her monthly expenses had increased by about 

$6,000.00 while her income had only increased by $5,000.00 per month. She 

asked the court to continue the $3,500.00 in maintenance. 

The court directed the parties to file post-trial memoranda. In April’s 

memorandum, filed March 4, 2022, she stated that she was currently receiving the 

reduced amount of $3,500.00 per month, which would continue through February 

2026. She indicated that there was no evidence of an overall decrease in Clark’s 

income. She stated:

Clark continues to own millions in assets which generate 

income for him and while April has begun to earn an 

income she remains to have only one asset, the marital 

residence, which generates no income for her, but rather 

has an increased post divorce debt as a result of 

refinancing the mortgage into her own name and 

payment to Clark of $100,000.00. The property 

continues to be listed for sale with no offers to 

purchase. . . . [The court’s maintenance schedule] 

provided April with funds to assist with her living 
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expenses for a period of time determined by the court [to 

be] necessary to become self reliant and to compensate 

April for the lack of assets awarded to her.

April described her sources of income as well as Clark’s post-divorce lifestyle. 

April asserted that “Clark remains a multi-millionaire capable of continuing his 

maintenance obligation of $3,500.00 for the next four years with same not being an 

unconscionable, unfair, or an inequitable obligation.” April argued that, in 

lowering the amount of her maintenance award after five years, the family court 

had anticipated that she would obtain employment and that she should not be 

penalized for doing so. She still relied on maintenance to meet her monthly needs. 

In his response, filed a few days later, Clark listed April’s known 

financial resources at the time he filed his second motion to terminate maintenance 

as 1) a $60,000.00 per year job at the family business (where she had been working 

without pay in 2015 and 2016); 2) increased income from her two businesses; and 

3) proof that April had been paying her personal expenses out of the businesses. 

Clark also discussed the promissory note between April and her father that he had 

found in her trash and whether it had been forgiven. The testimony established 

that April had income in the amount of $13,027.00 per month, along with help 

from her parents, and monthly expenses of approximately $24,000.00. Clark 

argued that $24,000.00 per month for expenses was not reasonable or necessary 

and that it was manifestly unjust to require him to continue paying her 
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maintenance. He also stated that April had hidden the facts and confused the 

issues. He believed his own financial circumstances were irrelevant. Clark 

requested that the court terminate maintenance with a retroactive date of January 

24, 2020, the date he filed his first motion and put April on notice that he was 

contesting the continued payment of maintenance. Based on April’s fraud, 

however, he suggested it would be proper to require her to repay the maintenance 

she had received from March 2016 through January 2020. 

On May 3, 2022, the court entered an order granting Clark’s motion to 

terminate maintenance. The court stated:

At the initial hearing in this matter, and the later

hearing regarding [Clark’s] Motion to Alter, Amend or 

Vacate on March 30, 2016, [April] established that she 

was working for her family’s businesses but was not 

being paid for her efforts. She also testified that her 

father was making her house payment at the rate of 

$3,400 per month and had paid her most recent property 

taxes of approximately $15,000. [April] testified that the 

amounts were not gifts from her father but were a loan 

that she would be forced to repay. On or about August 

10, 2021, [April] testified that the funds she received 

from her father were in fact a gift from her father. 

[Clark] produced an original note between [April] and 

her father dated in 2015. This note was found in 

[April’s] garbage.

[April] testified that she currently has income of 

$5,000 per month from Ramsey and Ramsey and $2,826 

per month from ARP, LLC. She also has her health 

insurance paid by Ramsey and Ramsey at the rate of 

$726 per month. After including child support at $975 

per month and maintenance at $3,500 per month, [April] 
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has post-tax income of approximately $11,500. She also 

claims current expenses of just under $24,000 per month. 

In explaining how she covers the deficit, [April] 

explained that her family helps her financially. This too 

was different from her testimony at the initial hearing.

During the January 25, 2022 hearing, much time 

was given to the expenses paid for [April] through the 

family businesses. Proof was offered that property taxes, 

attorney fees, utilities, painting and landscaping, clothes, 

and a personal trainer were all paid for by [April] through 

the various family businesses to which she has access. It 

was difficult for the Court to assess what expenses were 

valid business expenses and what expenditures were for 

[April’s] personal expenses and therefore a contribution 

to [April’s] household. The Court has sympathy for 

[April’s] accountant, but when the proof is combined 

with [April’s] admission of help from her family to make 

ends meet, the Court is comfortable in asserting that 

[April] receives many financial benefits from the family 

businesses with which she is associated. These benefits 

are in addition to her salary.

[April] originally offered approximately $19,000 

per month in expenses and now offers approximately 

$24,000 per month in expenses. While [April] initially 

offered that she had no income other than child support 

and maintenance, she now acknowledges she has

personal income of at least $11,500 per month. What is 

most troubling to the Court is the source of [April’s] 

income. All the sources of income that [April] has 

currently, other than child support and maintenance, are 

related to her family businesses. At the time of the 

original maintenance order, [April] was doing similar 

activities to what she is doing now for those businesses. 

The only difference is she is now being paid, whereas 

previously, she was “volunteering.” [April’s] testimony 

in response to [Clark’s] Motion to Terminate 

Maintenance leads the Court to believe that her testimony 

earlier in this matter was either less than truthful or her 
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earlier practice was a ruse in anticipation of her 

testimony in this divorce case. [April] specifically stated 

that over $100,000 of payments for her mortgage and her 

property taxes was a loan. Later, [April] testified that it 

was in fact a gift. There can be no doubt that the size of 

this gift, as well as [April’s] acknowledgement that she 

receives approximately $12,000 per month in financial 

assistance from her mother in addition to an annual salary 

and benefits of approximately $100,000, should alter the 

Court’s calculations regarding maintenance. 

The Court finds that [April’s] financial 

circumstances have changed drastically from her initial 

testimony in this matter that led the Court to order 

[Clark] to pay [April] maintenance. Based on the 

increase in income of [April] and her access to gift 

income from her family, the Court finds that the prior 

maintenance award is unconscionable, as [April] can 

provide for her reasonable needs through her 

employment and other access to gift income. The Court 

terminates [Clark’s] obligation to pay maintenance to 

[April] effective the date of the filing of the original 

motion on January 24, 2020. Any funds paid by [Clark] 

to [April] after the filing of said motion shall be refunded 

to [Clark]. [Clark] is directed to file an affidavit detailing 

any and all amounts paid as maintenance since January 

24, 2020, within ten (10) days of the entrance of this 

order by the Madison Circuit Clerk. The Court will then 

enter a schedule by which [April] will repay [Clark]. 

Clark filed an affidavit on May 12, 2022, stating that, since January 24, 2020, he 

had paid $114,000.00 in maintenance to April.

April moved the court to alter, amend, or vacate its order pursuant to

CR 59.05, regarding the retroactive date for the termination of maintenance. Clark 

had based his first motion upon her alleged cohabitation with Fuller, not any 
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additional financial resources April received. After the court ruled in June 2020 

that Clark also needed to establish a change in her financial situation, Clark shifted 

his focus to her alleged financial support from Fuller. Clark did not file his second 

motion until July 2021, when he focused on her own financial circumstances. 

April contended that she should not have to reimburse Clark for the total amount 

he requested but only for those payments from the date he filed his second motion 

to terminate maintenance. She was entitled to notice of the allegations and the 

basis for Clark’s request to terminate maintenance so that she could defend against 

his motion, which did not happen until July 2021. Clark objected to the motion. 

The court entered its order ruling on the motion on June 24, 2022, 

after hearing argument from counsel. It agreed with April that the retroactive date 

should be changed, but it only moved it to June 10, 2020, the date on which it 

entered the order addressing the financial impact of her cohabitation.3 “From that 

point forward [April] knew or should have known that her finances would be 

discussed.” This appeal from the orders terminating maintenance now follows.

Before we address the merits of the appeal, we shall consider April’s 

motion to strike Clark’s appellee brief for his failure to comply with the Kentucky 

Rules of Appellate Procedure (RAP), which was passed to the merits panel. In her 

motion, April contends that Clark failed to adequately cite to the appellate record 

3 This order was entered on June 17, 2020.
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(including to the video record), that he made statements of fact that were not in the 

record (such as claims regarding the sale of the residence and where she was 

living), that he failed to cite any law in support of his legal argument that the 

family court’s decision was proper, and that the font and font size changed 

throughout the brief. In his response, Clark argues that he appropriately cited to 

the record where necessary, that the font size was appropriate, and that April could 

and should have raised his failure to cite to any legal authority in a reply brief as 

opposed to in a motion to strike. He concedes that he made statements of fact not 

in the record when he discussed the sale of April’s residence but states that this 

was in response to the statement in April’s brief that the residence had not yet been 

sold. 

RAP 31 addresses the formatting and number of briefs required to be 

filed. It specifically requires in subsection (A)(1)(c) that the text be in “black type 

no smaller than 12 point set at standard width.” Subsection (H) provides for 

penalties, including that “[a] brief may be stricken for failure to substantially 

comply with the requirements of these rules.” RAP 31(H)(1). If an appellee fails 

to file a brief within the permitted time, “the court may: (a) accept the appellant’s 

statement of the facts and issues as correct; (b) reverse the judgment if appellant’s 

brief reasonably appears to sustain such action; or (c) regard the appellee’s failure 
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as a confession of error and reverse the judgment without considering the merits of 

the case.” RAP 31(H)(3). 

RAP 32, in turn, addresses the organization and contents of briefs and 

provides, in relevant part, as follows:

(A) Appellant’s Opening Brief. An appellant’s opening 

brief must contain the following sections, in the 

following order.

. . . .

(3) A statement of the case consisting of a 

summary of the facts and procedural events 

relevant and necessary to an understanding 

of the issues presented by the appeal, with 

ample references to the specific location in 

the record supporting each of the statements 

contained in the summary.

(4) An argument conforming to the 

statement of points and authorities, with 

ample references to the specific location in 

the record and citations of authority 

pertinent to each issue of law and which 

shall contain at the beginning of the 

argument a statement with reference to the 

record showing whether the issue was 

properly preserved for review and, if so, in 

what manner.

. . . .

(B) Appellee’s Response Brief. An appellee’s response 

brief must contain the following sections:

. . . .
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(3) A counterstatement of the case stating 

whether the appellee accepts the appellant’s 

statement of the case and, if not, setting 

forth the matters the appellee considers 

essential to a fair and adequate statement of 

the case in accordance with the requirements 

for appellant’s statement of the case.

(4) An argument conforming to appellee’s 

counterstatement of points and authorities 

and to the requirements for appellant’s 

argument.

Here, we do not find any issue with the font size as that appears to be 

a printing issue, although counsel should review documents to ensure that they are 

printed properly. The remaining matters are problematic. We disagree with Clark 

that he “appropriately cited the record where necessary” as his brief contains at 

least 5 pages containing quotes and testimony from the August 10, 2021, and 

January 25, 2022, hearings that do not include any reference to the video record. 

However, because April also failed to include references to the video record in her

brief, we decline to strike Clark’s brief for this reason. In addition, we decline to 

strike his brief for failure to cite to any legal authority throughout his brief; rather, 

that shall go to the weight we afford his brief as we review April’s legal 

arguments. Finally, we agree with April that Clark’s references to the sale of the 

marital residence and her current living arrangements are not in the appellate 

record. Therefore, we shall not consider the passage on pages 11 and 12 of Clark’s 
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brief referencing same. We shall enter a separate order this day ruling on the 

passed motion to strike as set forth above.

Turning to the merits of April’s appeal, we must determine whether 

the family court properly terminated her maintenance award. 

We review the family court’s determination 

regarding a motion to modify maintenance for an abuse 

of discretion. See Bickel v. Bickel, 95 S.W.3d 925, 927-

28 (Ky. App. 2002). We cannot substitute our judgment 

for the family court’s if there is substantial evidence 

supporting that court’s decision. Id. at 928. Further, we 

may not set aside the family court’s factual findings 

unless they are clearly erroneous. See Wheeler v. 

Wheeler, 154 S.W.3d 291, 296 & n.16 (Ky. App. 2004). 

However, we review questions of law de novo. See 

Western Ky. Coca-Cola Bottling Co. v. Revenue Cabinet, 

80 S.W.3d 787, 790 (Ky. App. 2001).

Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007). With this standard in mind, 

we shall consider April’s arguments.

In Kentucky Revised Statutes (KRS) 403.200, the General Assembly 

set forth the considerations a court must make in determining whether an award of 

maintenance is appropriate. A court must first determine whether a spouse is 

entitled to maintenance by considering whether that spouse lacks sufficient 

property to provide for his or her reasonable needs and is unable to support himself

or herself through appropriate employment. KRS 403.200(1). If a spouse is 

entitled to maintenance, the family court must then determine the appropriate 
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amount and duration to award, considering all relevant facts set out in KRS 

403.200(2):

The maintenance order shall be in such amounts and for 

such periods of time as the court deems just, and after 

considering 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.

In Mays v. Mays, 541 S.W.3d 516 (Ky. App. 2018), this Court made it clear that

the purpose of maintenance is rehabilitation:
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[T]he underlying purpose of maintenance [is] 

rehabilitation. Maintenance 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. Gripshover v. Gripshover, 

246 S.W.3d 460, 469 (Ky. 2008). The goal of a 

maintenance award is to facilitate one’s transition from 

dependence upon her former spouse to independence. 

This is consistent with another goal of the dissolution 

process which is to sever all ties as much as possible as 

soon as possible. Light v. Light, 599 S.W.2d 476, 479 

(Ky. App. 1980) (“Since ongoing maintenance ties the 

parties together, it should be avoided except as 

circumstances of need and fairness demand.”).

Mays, 541 S.W.3d at 527. 

In the present case, the family court made detailed findings in its 

February 19, 2016, order about April’s need for maintenance:

[April] testified that she had graduated from 

Eastern Kentucky University with a Public Relations 

degree and had been working for the Madison County 

Emergency Operations Center prior to marriage. After 

her marriage to [Clark] she became a housewife and 

remained a housewife throughout the parties’ 19 year 

marriage. [April] owns a non-marital interest in two 

entities that own rental properties. She owns 99% of 

AKP and 50% of W&A. For the tax year 2014 [April] 

showed adjusted gross income of $31,801.00. [April] 

stated to the best of her knowledge in 2015 she received 

no paychecks or funds from either of these entities and if 

any personal expenses were paid they were in very small 

amounts.

Prior to [the January 19, 2016,] hearing the parties 

entered into a partial property settlement agreement 

providing [April] would receive the marital home which 
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she intends to sell. [Clark] received $100,000.00 cash to 

equalize the transaction. [April] also received all 

personal property located within the marital residence. 

[April] has since refinanced the home in her name only 

with the assistance of her father. She has a $3,400.00 per 

month mortgage payment until the home sells and she is 

receiving assistance in making this payment from her 

father. [Clark’s] Exhibit #2 is a copy of the partial 

property settlement agreement.

[April] testified she has been helping out with her 

mother and father’s family businesses and is not looking 

for other work. She also testified she may draw a check 

in the future but is not drawing a check currently.

Upon questioning by her own attorney [April] 

testified that the monthly spending in excess of 

$19,000.00 was common during the marriage and has 

continued since the marriage. [April] also testified under 

questioning from each attorney as to [Clark’s] Exhibit #5, 

the mediated agreement as to temporary child support 

and maintenance. [April] testified that both mortgages, 

the property taxes and the homeowner’s insurance that 

were [Clark’s] responsibility under the mediated 

agreement are now [April’s] responsibility as a result of 

the partial property settlement agreement. [April] further 

testified that the parties’ son Ryder, ten years of age, 

attends the Lexington School. . . . Cost of the Lexington 

School is currently $2,864.00 per month.

[Clark] testified between 2012 and 2014 he had 

lost approximately $10.5 million in coal businesses due 

to the overall economic downturn within that industry. 

[Clark] stated that his 2014 tax return shows gross 

income of $335,000.00 and does not take into account his 

expenses. [Clark] refers the Court to page 1 of said 

return which shows his adjusted gross income of 

$42,397.00 for tax year 2014. [Clark] testified that he is 

refinancing personal businesses in [an] effort to maintain 

his lifestyle and has sold off various portions of his coal 
-28-

business over the last few years. [Clark] testified he had 

put several hundred thousand dollars of his own money 

into various coal companies the past two years and that 

25% of the money he received from the partial property 

settlement involving the marital residence went to 

business payroll. [Clark] further testified that he had not 

paid the parties’ health insurance nor the $4,500.00 per 

month maintenance as agreed to by the [parties’] 

mediation agreement for the month of February. Upon 

questioning from opposing counsel [Clark] testified 

about Hunter’s Trace, Arrowhead Holdings, Champ 

Properties and March Holdings, which appear to be 

entities that own real estate. Upon further questioning as 

to the 2014 tax return, while the coal companies showed 

individual losses they maintain over $50 million in 

assets.

Upon further questioning by both counsel, [April] 

acknowledged her family’s real estate businesses own 

approximately 450 units with some additional units 

currently being built. She estimated the value of her 

work at $10 to $15 per hour. [April] further stated she 

did not see a problem working for no income.

After calculating and awarding child support, the family court 

concluded that April was entitled to maintenance. It found that April “lacks 

sufficient property, including marital property apportioned to her, to provide for 

her reasonable needs in accordance with the standard of living the parties have 

known throughout their 19 year marriage. The Court further states that [April] is 

unable to support herself through appropriate employment to the standard of living 

she has become accustomed.” The court limited the award to 10 years and reduced 

the payment from $5,000.00 to $3,500.00 after five years. The court incorporated 
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the maintenance order in the October 11, 2016, decree. While Clark did appeal

from the decree, he failed to file a brief, and his appeal was subsequently dismissed

on April’s motion. Therefore, Clark had the opportunity to raise such issues as to 

whether April was entitled to maintenance and whether the family court’s factual 

findings in this regard were supported by substantial evidence, but he failed to do 

so. Instead, Clark has sought to terminate maintenance for a variety of reasons.

In KRS 403.250, the General Assembly provided for the modification

or termination of a maintenance award:

(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 of 

changed circumstances so substantial and continuing as 

to make the terms unconscionable. The provisions as to 

property disposition may not be revoked or modified, 

unless the court finds the existence of conditions that 

justify the reopening of a judgment under the laws of this 

state.

(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.

“Maintenance becomes unconscionable if it is manifestly unfair or inequitable. To 

determine whether the circumstances have changed, we compare the parties’

current circumstances to those at the time the court’s separation decree was 

entered.” Tudor v. Tudor, 399 S.W.3d 791, 793 (Ky. App. 2013) (internal 

quotation marks and citations omitted).
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The family court found that April’s financial circumstances had 

drastically changed from her original testimony that had led to an award of 

maintenance. The court noted that she was currently receiving income from the 

family businesses that she had once worked for without receiving a paycheck 

(stating that her earlier testimony was either “less than truthful or her earlier 

practice was a ruse in anticipation of her testimony in this divorce case”), and it 

noted the differing testimony about whether the money she received from her 

father was a gift or a loan. The court did not address April’s alleged cohabitation 

with Fuller. 

April spends a large portion of her brief addressing the cohabitation 

issue, but that question is not before this Court as the family court did not make 

any findings that she had been cohabitating with Fuller or that there was any 

financial impact due to cohabitation. Rather, the family court only addressed 

Clark’s second motion to terminate maintenance, which was based solely on a 

change in April’s financial circumstances, separate from anything to do with 

Fuller. Therefore, we shall not address anything related to cohabitation and 

whether maintenance could properly be terminated for that reason.

April’s second argument addresses the merits of the family court’s 

ruling, and we agree with her that the family court abused its discretion in 

terminating maintenance. The family court essentially based its ruling on its belief 
-31-

that April’s testimony in 2016 was less than truthful, discrepancies in testimony 

regarding funds April’s father paid her or on her behalf, and Clark’s assertion that 

her personal expenses were being paid through her and her family’s businesses in 

addition to the salary she received. Clark contends that the amount of her monthly 

expenses was not reasonable or necessary. But as April points out, the court did 

not make any findings as to what her reasonable needs were or whether these needs 

could be met through employment. We note that April and Clark led a luxury 

lifestyle during their 19-year marriage. And the court was aware in 2016 that 

April’s father had been making the mortgage payments for her until she could sell 

the marital residence. In addition, April testified in 2016 that she might begin 

receiving a paycheck rather than volunteering her services to the family businesses, 

meaning that it could not have been a surprise when she began receiving an income 

from Ramsey & Ramsey following the entry of the decree. In decreasing the 

amount of maintenance she would receive after five years and terminating it after 

10 years, the family court surely contemplated that April would be increasing her 

income over that period of time. 

We also recognize that the family court did not make any findings 

related to Clark’s ability to pay. Throughout these proceedings, Clark has 

unsuccessfully tried to persuade the family court that even though his net worth is

in the millions of dollars, he could not afford to pay maintenance to April. The 
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court properly rejected these attempts, most notably after he obtained a loan to 

purchase a $30,000.00 truck for his son’s 16th birthday but at the same time signed 

his children up for Medicaid. His motion to terminate maintenance is merely 

another attempt to avoid paying maintenance to his former wife. 

We cannot hold that Clark has made “a showing of changed 

circumstances so substantial and continuing as to make the terms unconscionable.” 

KRS 403.250. We agree with April that the family court awarded her maintenance 

for 10 years, with a built-in reduction after five years, to provide her “with funds to 

assist with her living expenses for a period of time determined by the court 

necessary to become self reliant and to compensate April for the lack of assets 

awarded to her.” Although April’s monthly expenses are substantial, this is in 

keeping with the marital lifestyle. Finally, whether the funds April received from 

her father constituted a loan or a gift has yet to be determined, and April 

specifically testified that she planned to pay her father back once she sold the 

marital residence. At the time the family court entered its ruling, there was no 

evidence in the record that the residence had been sold.

Even if we were to hold that the family court did not abuse its 

discretion in terminating maintenance, we would hold that it abused its discretion 

in making the termination retroactive to June 2020 when it ordered that Clark 

would have to establish that April’s alleged cohabitation with Fuller had a financial 
-33-

impact on her to justify termination. The court reasoned that April would have 

been on notice at that time that her finances would be an issue. However, the 

family court’s order terminating maintenance had nothing to do with cohabitation

or the financial impact of cohabitation, but rather it was based upon April’s own 

finances as raised in Clark’s second motion to terminate maintenance filed on July 

7, 2021. April could not have been on notice that solely her own finances were at 

issue until that time, and the court abused its discretion in setting the date more 

than a year prior.

For the foregoing reasons, the orders of the Madison Family Court 

terminating April’s maintenance award are reversed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Martha A. Rosenberg

Lexington, Kentucky

BRIEF FOR APPELLEE:

Seth R. Thomas

Nicholasville, Kentucky