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NOVEMBER 5, 2004; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2002-CA-000940-MR AND NO. 2003-CA-002016-MR AND NO. 2003-CA-002079-MR

RANDY L. TURK

APPELLANT/CROSS-APPELLEE

v.

APPEALS AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE GARY D. PAYNE, JUDGE ACTION NO. 99-CI-03980

BARBARA J. TURK

APPELLEE/CROSS-APPELLANT

OPINION VACATING AND REMANDING APPEAL NO. 2002-CA-000940-MR, REVERSING AND REMANDING APPEAL NO. 2003-CA-002016-MR, AND DISMISSING CROSS-APPEAL NO. 2003-CA-002079-MR ** ** ** ** ** BEFORE: DYCHE, GUIDUGLI AND McANULTY, JUDGES. In this domestic relations action, Randy Turk

GUIDUGLI, JUDGE:

has appealed, and Barbara Turk has cross-appealed, from decisions of the Fayette Circuit Court regarding first the award of and then the modification of spousal maintenance to Barbara. In the first appeal, Randy contends that the maintenance award was incomplete, as it did not address retirement, while in the

second appeal Randy contends that Barbara's maintenance should be terminated or at least suspended due to the inheritance she received and cohabitation with another man. In her cross-appeal

from Randy's second appeal, Barbara contends that her maintenance award should not have been reduced due to her inheritance and that she was entitled to an award of attorney fees. We agree with Randy that the circuit court's original

maintenance award was incomplete, and vacate that ruling, and that the circuit court erred in finding that Barbara's cohabitation did not constitute a significant enough new financial resource to support a modification, and therefore reverse that ruling. As for Barbara's cross-appeal, we hold

that she did not preserve either issue she raised for review by this Court, and therefore dismiss her cross-appeal. Randy and Barbara were married on October 18, 1969, in Madison County, Illinois, and separated almost twenty-nine years later on August 31, 1998. Three daughters were born of the

marriage, all of whom were adults at the time the decree was entered. Barbara filed a Petition for Dissolution of Marriage

in the Fayette Circuit Court on November 12, 1999, requesting dissolution, maintenance, attorney fees, a division of marital property, and the restoration of her non-marital property. Pursuant to agreed orders entered a month later, Barbara was to retain exclusive occupancy of the marital residence, and Randy

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was to pay the house payment, the car lease and taxes, as well as $285 per month in cash to Barbara. Barbara was also to

receive $5000 as an advance against her portion of the marital estate. The matter proceeded to a contested hearing the Testimony at the hearing established that

following October.

Randy worked for the majority of the marriage, while Barbara was responsible for raising their children and maintaining the home. At the time of the hearing, Barbara had recently obtained new employment at the University of Kentucky, earning $24,934 per year. Randy, on the other hand, had earned an average salary of

$105,819 per year for the years 1998, 1999 and 2000 through his employment with Glen Springs Holdings, Inc. The circuit court eventually bifurcated the action, and entered a decree of dissolution on April 6, 2001, reserving all other issues. The circuit court then entered its Findings

of Fact, Conclusions of Law and Supplemental Decree on January 7, 2002. After finding that the parties had equally contributed

to the marriage and the accumulation of assets, the circuit court, with some exceptions not relevant to these appeals, split the considerable marital estate equally between Randy and Barbara. Additionally, the circuit court found that Barbara was

entitled to an award of maintenance in the amount of $1,500 per month. Regarding the award of maintenance, the circuit court

stated, in relevant part, as follows: "This amount will be

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payable monthly until Wife remarries or dies.

At that time Wife

will be able to also use her retirement accounts, and Husband will also be at retirement age." Randy filed a motion to alter, amend or vacate the supplemental decree, raising several issues, including the award of maintenance. In particular, Randy argued that maintenance

should terminate when Barbara reached age 59

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Kentucky Law