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CourtListener opinion 4765652

Date unknown · US

Extracted case name
MR CHARLES F. MAHL APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE GINA KAY CALVERT
Extracted reporter citation
168 S.W.2d 738
Docket / number
2019-CA-0874-MR CHARLES F. MAHL APPELLANT
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
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Machine-draft public headnote: CourtListener opinion 4765652 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to QDRO procedure / domestic relations order issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: QDRO procedure / domestic relations order issues

Evidence quotes

QDRO

rial court found that Charlie had about $1.84 million in an IRA trust account. And it ordered that Louanne receive $764,117 from Charlie's IRA trust account "[t]o equalize the division of the retirement accounts" and that the IRA trust account be divided by a Qualified Domestic Relations Order ("QDRO") to be drafted by Louanne's attorney. (p. 11 of Findings of Fact and Conclusions of Law entered August 1, 2007, attached as Appendix D to Appellee's Brief, also Record ("R."), p. 1041). The parties later agreed that the IRA funds would be transferred into another account without needing to prepare a QDRO, but the transfer apparently was delayed due

retirement benefits

son Family Court also ultimately ordered Charlie to pay Louanne $6,000 a month in maintenance, terminating upon Louanne's remarriage or cohabitation or either party's death or Charlie's turning 65 years old in 2017, whichever happened first. 2 Individual Retirement Account. 3 In the August 2007 divorce decree, the trial court found that Charlie had about $1.84 million in an IRA trust account. And it ordered that Louanne receive $764,117 from Charlie's IRA trust account "[t]o equalize the division of the retirement accounts" and that the IRA trust account be divided by a Qualified Domestic Relations Order ("QDRO") to be draft

domestic relations order

found that Charlie had about $1.84 million in an IRA trust account. And it ordered that Louanne receive $764,117 from Charlie's IRA trust account "[t]o equalize the division of the retirement accounts" and that the IRA trust account be divided by a Qualified Domestic Relations Order ("QDRO") to be drafted by Louanne's attorney. (p. 11 of Findings of Fact and Conclusions of Law entered August 1, 2007, attached as Appendix D to Appellee's Brief, also Record ("R."), p. 1041). The parties later agreed that the IRA funds would be transferred into another account without needing to prepare a QDRO, but the transfer apparently was delayed due

Source and provenance

Source type
courtlistener_qdro_opinion_full_text
Permissions posture
public
Generated status
machine draft public v0
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gold label pending
Jurisdiction metadata
US
Deterministic extraction
reporter: 168 S.W.2d 738 · docket: 2019-CA-0874-MR CHARLES F. MAHL APPELLANT
Generated at
May 14, 2026

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Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

RENDERED: AUGUST 6, 2021; 10:00 A.M.
 NOT TO BE PUBLISHED

 Commonwealth of Kentucky
 Court of Appeals

 NO. 2019-CA-0874-MR

CHARLES F. MAHL APPELLANT

 APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE GINA KAY CALVERT, JUDGE
 ACTION NO. 05-CI-500770

LOUANNE MAHL APPELLEE

 OPINION
 REVERSING AND REMANDING

 ** ** ** ** **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

CALDWELL, JUDGE: This is an appeal from a Jefferson Family Court judgment

modifying maintenance.1 For the reasons stated herein and in light of the unique

1
 Although the propriety of an attorney fee award was also challenged in the Appellant's brief,
we do not reach this issue as it is not properly before us. The trial court's order required that the
award be paid directly to the attorney, who could then enforce the judgment in his own name.
But this attorney was not named as a party in the notice of appeal, leading to the filing of a
motion to dismiss the appeal for failure to name an indispensable party. Although declining to
dismiss the entire appeal, another panel of this Court has previously ruled that the attorney fee
issue "fails for want of jurisdiction" by order dated June 30, 2020. Thus, we express no opinion
on the attorney fee award.
 facts of this case, we conclude that the trial court abused its discretion in granting

the motion to modify maintenance rather than allowing the maintenance award of

$6,000 per month to terminate in 2017 in accordance with terms in the 2007

divorce decree. Thus, we reverse and remand with directions to issue an order

denying the motion to modify maintenance.

 FACTS AND PROCEDURAL HISTORY

 Appellant Dr. Charles Mahl ("Charlie") and Appellee Louanne Mahl

("Louanne") divorced in 2007 after about twenty-nine years of marriage.

Although Charlie had previously worked as an eye surgeon and Louanne as a

surgical nurse, neither was working at the time of their divorce and the trial court

found both to be disabled. Charlie was then receiving about $28,000 per month in

disability benefits, which would terminate when he turned 65 in the fall of 2017.

 Despite the argument in Louanne's brief that the entire appeal should be dismissed for
failure to name her attorney as an indispensable party, we decline to dismiss the appeal of those
parts of the judgment other than the award to be paid directly to the attorney. See Hutchinson v.
Hutchinson, 293 Ky. 270, 168 S.W.2d 738, 739 (1943) (award of a fee directly to an attorney
makes the attorney "a party in interest to the litigation" so that "such part of the judgment
[awarding fee directly to the attorney] cannot be vacated or modified unless he be treated as a
party and on appeal to this court be expressly made so." (emphasis added)). Furthermore, this is
consistent with more recent unpublished opinions (albeit with no binding authority) in which this
Court has reached other issues and has not dismissed the entire appeal, but has declined to
review attorney fee issues where the attorney fee award is to be paid directly to the attorney and
the attorney can enforce the judgment in his/her own name, but such attorney is not named as a
party in the notice of appeal. See P.L.U. v. A.D.H., No. 2019-CA-000293-ME, 2019 WL
4896843, at *4 (Ky. App. Oct. 4, 2019); Taylor v. Taylor, No. 2004-CA-002054-MR & No.
2004-CA-002164-MR, 2006 WL 1195910, at *3 (Ky. App. May 5, 2006). We note these
unpublished cases as there is no recent published case that adequately addresses this issue.

 -2-
 The trial court divided the marital property approximately equally

with each party receiving about four-and-a-half million dollars' worth of assets.

The trial court ordered, inter alia, that $764,117 from Charlie's IRA2 trust account

be transferred to Louanne to equalize the amounts of the parties' IRAs. Also, the

trial court ordered that Louanne receive $59,368 from the parties' joint West End

Opportunity Fund account3 to equalize distributions taken by the parties. The

Jefferson Family Court also ultimately ordered Charlie to pay Louanne $6,000 a

month in maintenance, terminating upon Louanne's remarriage or cohabitation or

either party's death or Charlie's turning 65 years old in 2017, whichever happened

first.

2
 Individual Retirement Account.
3
 In the August 2007 divorce decree, the trial court found that Charlie had about $1.84 million in
an IRA trust account. And it ordered that Louanne receive $764,117 from Charlie's IRA trust
account "[t]o equalize the division of the retirement accounts" and that the IRA trust account be
divided by a Qualified Domestic Relations Order ("QDRO") to be drafted by Louanne's
attorney. (p. 11 of Findings of Fact and Conclusions of Law entered August 1, 2007, attached as
Appendix D to Appellee's Brief, also Record ("R."), p. 1041). The parties later agreed that the
IRA funds would be transferred into another account without needing to prepare a QDRO, but
the transfer apparently was delayed due to settlement negotiations during the appeal and
unfortunately all the funds in the IRA were lost in the Ponzi scheme before Louanne ever
received the transfer. (See pages 18-19 of order dated 3/28/2019, attached as Appendix 2 to
Appellant's brief).

 In a late September 2007 order, the trial court amended the divorce decree to reflect that
the parties had $103,688 in the joint West End Opportunity fund account and that Charlie had
withdrawn $50,000 but could only account for $34,931.80 used to pay the marital expense of
property taxes. So, the trial court ordered that Louanne "shall receive the first $15,068.20 from
the account, and the remaining $88,599.80 in the account shall be divided equally." (p. 1 of
9/28/2007 order, attached as Appendix E to Appellee's brief). $15,068.20 plus half of
$88,599.80 equals approximately $59,368.

 -3-
 Charlie filed an appeal and Louanne filed a cross-appeal. Both parties

raised, inter alia, various issues about the trial court's division of marital property

and/or about its valuation of various marital assets. Charlie contended that the trial

court erred in awarding maintenance. Louanne argued that the trial court erred in

ordering that maintenance cease when Charlie turned 65 in 2017. This Court

rendered an unpublished decision affirming the Jefferson Family Court's judgment

in July 2009. Mahl v. Mahl, No. 2007-CA-002160-MR & No. 2007-CA-002344-

MR, 2009 WL 1884375 (Ky. App. Jul. 2, 2009).

 Unfortunately, in early 2009 and while the appeal was pending, the

parties received notification that their West End Financial accounts had been

frozen. Ultimately, the parties lost millions of dollars from these West End

financial accounts in a Ponzi scheme.4 Both parties lost significant amounts of

4
 BLACK'S LAW DICTIONARY (11th ed. 2019) defines a Ponzi scheme as follows:

 A fraudulent investment scheme in which money contributed by
 later investors generates artificially high dividends or returns for
 the original investors, whose example attracts even larger
 investments. • Money from the new investors is used directly to
 repay or pay interest to earlier investors, usu. without any
 operation or revenue-producing activity other than the continual
 raising of new funds. This scheme takes its name from Charles
 Ponzi, who in the late 1920s was convicted for fraudulent schemes
 he conducted in Boston. Cf. PYRAMID SCHEME; GIFTING
 CLUB.

The funds lost in the Ponzi scheme in this case had been invested with a family friend, William
Landberg, at West End Financial. Landberg was criminally prosecuted. By the time the
proceedings below concluded in 2019, apparently neither Charlie nor Louanne had yet succeeded
in recovering any assets lost in the Ponzi scheme.

 -4-
 money, including the funds in Charlie's IRA account and the $59,368 from the

joint West End Financial Opportunity Fund account which had been awarded to

Louanne in the divorce decree.

 In December 2016, Louanne filed a motion to modify maintenance.5

As grounds, she alleged changed circumstances including: 1) Charlie having

returned to active medical practice despite being disabled at the time of the 2007

divorce decree, 2) her not having received $764,117 equalization payment due to

her from Charlie's IRA trust account, and 3) her loss of her own sums in the Ponzi

scheme.

 After a hearing, the trial court issued an order in June 2018 finding

substantial and continuing changes in circumstances which it concluded rendered

the original maintenance award unconscionable. Specifically, it found a

substantial and continuing change in circumstances because Louanne did not

receive the $764,117 from Charlie's IRA trust account nor the $59,368 from the

joint West End Financial Opportunity Fund account nor expected interest income

5
 Along with her motion to modify maintenance, she also filed a motion for a show cause hearing
and motion to compel payment of the funds due to her from Charlie's IRA trust account. And
she filed a motion for a refund and payment of funds from the joint West End Financial
Opportunity Fund account. She alleged that she had never received the funds due to her from
these accounts under the divorce decree, and further alleged that Charlie had improperly
withdrawn $25,000 from the West End Financial Opportunity Fund account while the first
appeal was pending. From our review of the record, it is not clear that the trial court ever ruled
upon these motions before entering its order modifying maintenance.

 -5-
 from these funds.6 Additionally, it found another substantial and continuing

change in circumstance in Charlie's return to medical practice.

 The trial court further determined that these substantial and continuing

changes in circumstances resulted in making the original maintenance award—

implicitly including the term that maintenance would terminate at the latest upon

Charlie's reaching the age of 65 in 2017 (ten years after the decree)—

unconscionable. It found that Louanne, unlike Charlie, lacked financial stability in

large part due to her not receiving sums due to her under the decree as well as

inability to work and earn money. In doing so, it issued somewhat conflicting

findings acknowledging that the Ponzi scheme losses were not either party's fault

but also seemingly casting some blame on Charlie for transferring funds from

another institution to West End.

 The trial court also rejected Charlie's argument that Louanne's motion

for modification was barred by laches, and it concluded that the divorce decree

"created an enforceable judgment" against Charlie to pay the sums of $764,117

and $59,368 to Louanne. After another hearing, the trial then issued a final and

appealable order in March 2019 requiring that Charlie pay $8,688.00 per month

maintenance until Louanne's "remarriage, cohabitation or death, or until she

6
 The trial court noted that the divorce decree had estimated that Louanne would be able to earn
interest of 9.81% on the funds in these accounts.

 -6-
 collects on the 2007 enforceable judgment created in the Decree for the

$764,117.00 and $59,368.00 payments, whichever comes first."

 Trial Court Abused Its Discretion in Allowing Modification of
 Maintenance to Extend Past Original Termination Date

 We review the trial court's ruling on the motion to modify

maintenance for abuse of discretion. Tudor v. Tudor, 399 S.W.3d 791, 793 (Ky.

App. 2013). Kentucky Revised Statutes (KRS) 403.250(1) provides that

maintenance may be modified "only upon a showing of changed circumstances so

substantial and continuing as to make the terms unconscionable."

"Unconscionable" means "manifestly unfair or inequitable." Shraberg v.

Shraberg, 939 S.W.2d 330, 333 (Ky. 1997); Wilhoit v. Wilhoit, 506 S.W.2d 511,

513 (Ky. 1974). The policy of the statute is for relative stability; therefore,

evidence for the movant must be compelling for the trial court to grant the relief

requested. Bickel v. Bickel, 95 S.W.3d 925, 927-28 (Ky. App. 2002). A trial court

abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or

unsupported by sound legal principles." Artrip v. Noe, 311 S.W.3d 229, 232 (Ky.

2010).

 Although we do not necessarily disagree with the trial court's finding

that substantial and continuing changes in circumstances had occurred since the

divorce decree, we conclude that the trial court abused its discretion in determining

that these changes rendered the terms of the original maintenance award

 -7-
 unconscionable. The terms of the original maintenance award provided that,

barring certain circumstances not applicable here,7 Louanne would receive $6,000

per month ($72,000 per year) during the ten-year period between the 2007 divorce

decree and Charlie turning 65 in 2017, when maintenance would terminate.

Louanne does not deny receiving about $720,000 in maintenance payments over

this ten-year period. Louanne further admitted, under cross-examination, that she

had received more than one million dollars' worth of marital assets under the

divorce decree which were not lost in the Ponzi scheme.

 We do not minimize the losses suffered by Louanne, including the

loss of other funds which she chose to invest with West End and lost in the Ponzi

scheme, in addition to her not receiving the equalization amounts due to her under

the decree which were also lost in the same Ponzi scheme. Nor can we ignore that

Charlie also suffered many of these same losses. Unfortunately, like many others,

Louanne has lost some assets, been unable to earn substantial interest income, and

failed to make a profit on some real estate investments in the wake of the 2008

financial crisis.

7
 Alternate circumstances for termination, which are not applicable here, were death of either
party or Louanne's remarriage. Another circumstance for termination would be Louanne's
cohabitation with an intimate partner. Charlie argued to the trial court that Louanne was
cohabiting with a partner, but the trial court accepted Louanne's testimony that she was only
dating the man in question and spending the occasional night at his house. The trial court's
finding that Louanne was not cohabiting with the man was supported by substantial evidence.

 -8-
 But, unlike many others, Louanne received about $720,000 in

maintenance payments over a ten-year period. And, by her own admission, she

received over one million dollars' worth of assets which were not lost in the Ponzi

scheme. Presumably, she could have achieved some degree of financial stability

with proper management of the assets and maintenance payments she received—

albeit perhaps not being able to enjoy forever the opulent lifestyle the parties had

become accustomed to prior to their divorce.8

 Given the assets and approximately $720,000 in maintenance

payments which Louanne did receive, her lack of financial stability by the time of

the modification proceedings appears to stem mostly from a combination of bad

luck and less than optimal decision-making on her part—as the trial court

implicitly acknowledged. For example, the trial court noted how Louanne allowed

8
 The parties' standard of living during the marriage must certainly be considered when resolving
maintenance issues—particularly determining the amount of the original maintenance award.
See generally Casper v. Casper, 510 S.W.2d 253, 255 (Ky. 1974); KRS 403.200(2)(c). But it is
often practically impossible for both parties to maintain or improve upon the lifestyle they
enjoyed during a marriage when one household is split into two households upon divorce.
Powell v. Powell, 107 S.W.3d 222, 226-27 (Ky. 2003) (Keller, J., concurring in part and
dissenting in part). Further, some lifestyle adjustments must often be made upon reaching
retirement age and/or actually retiring—one cannot always enjoy the same lifestyle while both
ex-spouses refrain from working to earn income. See Bickel v. Bickel, 95 S.W.3d 925, 929 (Ky.
App. 2002) (recognizing that just as married couples often experience reduced income when
retiring, recipients of maintenance upon divorce cannot necessarily expect the same level of
support when the obligor ex-spouse retires); Barbarine v. Barbarine, 925 S.W.2d 831, 832-33
(Ky. App. 1996) (discussing how obligor spouse's decision to take early retirement did not
necessarily entitle him to termination or reduction of his maintenance obligation, given his
awareness of his existing maintenance obligation and of the recipient's age and inability to
support herself).

 -9-
 a condominium which she owned (Smithfield Greene) to sit unoccupied for four

years, without trying to rent it out or otherwise derive income from it. It

acknowledged Charlie's assertion that Louanne sold a house she owned (Sallee

property) for less than fair market value to her boyfriend and Louanne's claim that

she could not have sold it for a higher amount. Louanne ended up netting about

$46,700 in proceeds from the sale of the Sallee house according to the trial court's

findings. The trial court also took note that Louanne was paying about $750 per

month in veterinary expenses for a horse, which she could not ride but said was her

pet, and that Louanne was receiving food stamps.

 In the original divorce decree, the trial court found that Charlie's

$28,000 monthly disability payments (then his primary source of income) would

terminate when he turned 65 and the trial court determined that maintenance would

terminate when Charlie turned 65 unless other events (such as a party's death)

occurred earlier. We affirmed the termination of maintenance when Charlie

reached 65 in the prior appeal despite Louanne's challenge to this provision,

expressly concluding that terminating maintenance upon Charlie's turning 65 was

reasonable "as his disability payments will, likewise, terminate" at that same point

in time. Mahl, 2009 WL 1884375, at *8.

 Regardless of whether Charlie is able or willing to work to earn

money now or in the future, these disability payments—which were the source of

 -10-
 his income for paying the original maintenance award—have stopped. It is

manifestly unfair under these facts to essentially require him to keep working well

past traditional retirement age in order to pay maintenance to Louanne. This is

especially true since an essential foundation of the original maintenance award was

that it would cease when Charlie reached the age of 65, and no longer would

receive the $28,000 monthly disability payments to use for paying maintenance

and other expenses.

 We also note that Louanne will be able to receive an alternate source

of income, though in much more modest amounts than the maintenance payments

she previously received, as she has become eligible to receive Social Security

benefits. Louanne turned 65 in 2018. And from our review of the record, she

could receive roughly $1,100 to $1,700 in monthly Social Security benefits

depending on the age at which she elects to start receiving such benefits. Further,

Louanne owned her residence9 with no mortgage, but with monthly homeowners'

association fees of $350. Thus, although we do not suggest that Louanne will

easily enjoy a luxurious lifestyle at traditional retirement age, she has income and

9
 The trial court noted in its March 28, 2019 order that Louanne failed to present a professional
appraisal of her current residence (the Smithfield Greene condominium) in the present
proceedings. But it also had noted earlier in the order that the 2007 divorce decree referenced
the Smithfield Greene condominium being then valued at about $379,000. The trial court also
noted that Louanne claimed the condominium was only worth $379,000 presently despite a
nearby condominium selling for $420,000 and that Louanne complained that her condominium
needed extensive repairs which she could not afford. This appears to be the same condominium
which the trial court noted Louanne allowed to sit unoccupied for a four-year period.

 -11-
 assets which—if properly managed—should allow her financial stability despite

the termination of maintenance.

 Under the facts noted here, the trial court abused its discretion in

awarding further maintenance, thus forcing Charlie to bear the brunt of the bad

luck and questionable choices made by Louanne after the parties' divorce. Those

choices are responsible for Louanne's lack of financial stability now, despite the

ample assets and maintenance payments which she had already received. Our

Supreme Court in Woodson v. Woodson, 338 S.W.3d 261 (Ky. 2011), overturning

Dame v. Dame, 628 S.W.2d 625 (Ky. 1982), restored to the trial court discretion to

decide when modification outweighs the virtue in finality, and expressly stated that

in so doing it was not belittling the compelling need for finality in all divorce

cases. One of the goals of the dissolution process is, "to sever all ties as much as

possible as soon as possible." Mays v. Mays, 541 S.W.3d 516, 527 (Ky. App.

2018). Further, where a former spouse who is obligated to pay maintenance cannot

rely on there being a reduction in that obligation for imprudent decisions that have

reduced their financial resources, neither then should they have to be concerned

with imprudent decisions of their former spouse increasing those obligations. See

Barbarine, 925 S.W.2d 831.

 -12-
 Furthermore, if Louanne has not received funds under the terms of

any enforceable judgment,10 to the extent there may be one from the divorce

decree, nothing in this opinion shall prevent Louanne from seeking recovery of

such funds via appropriate motion in the Jefferson Family Court on remand or

through filing a separate action to enforce any such judgment subject to applicable

time limitations as provided by law.11 But under the facts here, we stand firm that

modification to allow for further maintenance past the original termination date

after ten years of $6,000 monthly payments was unwarranted and an abuse of

discretion.12 Further issues and arguments raised by the parties which we have not

10
 There may be issues about whether the original divorce decree's provisions requiring that
Louanne should receive certain funds actually required that Charlie (rather than some other
person or entity) pay such funds. There may also be issues about whether any judgment against
Charlie is enforceable if such assets were not actually in existence at the time of the judgment.
(For example, Charlie argued to the trial court that some funds awarded in the divorce decree
may not have actually been in existence at the time of the divorce decree despite paper
statements to the contrary due to misleading accounting practices which were an inherent part of
the Ponzi scheme.) We express no opinion on the merits of these types of issues here, which are
better suited for resolution by a trial court upon proper motion or action to enforce a judgment.
11
 As discussed previously herein, it appears that Louanne previously filed motions in the trial
court to compel payment of certain sums which have not yet been resolved. And as the trial
court noted, KRS 413.090(1) provides for a fifteen-year limitations period for actions to enforce
a judgment.
12
 We do not reach whether the trial court erred in finding the modification motion not barred by
laches. Generally, some Kentucky precedent suggests that questions about maintenance are not
particularly susceptible to application of the doctrine of laches. See Woodson, 338 S.W.3d at
263 (despite the showings which are statutorily required to modify maintenance and "the
compelling need for finality in all divorce cases[,] . . . the statute [KRS 403.250] does not divest
trial judges of the discretion to decide when modification outweighs the virtue of finality in
seeking fairness and equity in what many times may be dire consequences and complicated
options."). See also Heisley v. Heisley, 676 S.W.2d 477, 477-78 (Ky. App. 1984) (laches not

 -13-
 discussed herein have been determined to lack merit or relevancy to our resolution

of this appeal.

 CONCLUSION

 For the reasons stated herein, we reverse and remand with directions

to issue an order denying the motion to modify maintenance.

 ALL CONCUR.

 BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

 Allison S. Russell Jonathan E. Breitenstein
 Louisville, Kentucky Louisville, Kentucky

available as a defense on suit to collect maintenance and child support. arrearages in case in
which obligor also argued that maintenance should have been modified).

 But we need not determine whether the trial court erred in finding the modification
motion not to be barred by laches under the unique facts here, as we conclude that the trial court
abused its discretion in modifying the maintenance award to permit additional maintenance
payments past the original 2017 termination date on other grounds—even assuming arguendo
that the motion was not barred by laches despite the modification motion being filed in late 2016
and indications of trouble with West End accounts dating back to at least early 2009.

 -14-