Jeffery Thomas Maxwell v. Shirley Sue Maxwell (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 10 2018, 5:21 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Mark J. Roberts John L. Davis
Maggie L. Smith Pritzke & Davis LLP
Frost Brown Todd LLC Greenfield, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery Thomas Maxwell, August 10, 2018
Appellant-Petitioner, Court of Appeals Case No.
30A01-1712-DR-2768
v. Appeal from the Hancock Circuit
Court
Shirley Sue Maxwell, The Honorable Richard D. Culver,
Appellee-Respondent. Judge
Trial Court Cause No.
30C01-1611-DR-1635
Barnes, Senior Judge.
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Case Summary
[1] Jeffery Maxwell (“Husband”) appeals the trial court’s dissolution of his
marriage to Shirley Maxwell (“Wife”). We affirm in part, reverse in part, and
remand.
Issues
[2] Husband raises several issues, which we restate as:
I. whether the trial court committed reversible
error by deviating from the presumption of an
equal division of marital property without
explaining the deviation;
II. whether the trial court erred by ordering that
Wife receive sixty percent of Husband’s gross
military pension;
III. whether the trial court erred when it ordered
Husband to pay for Wife’s vehicle in the future
to transport their son;
IV. whether the trial court erred when it valued
Husband’s Eli Lilly pension; and
V. whether the trial court erred when it ordered
Husband to pay rehabilitative maintenance to
Wife.
Facts
[3] The parties had a child, C.M., in April 2002. They married in May 2004, while
Husband was in the military. After they married, they had another child, S.M.,
in September 2005, and D.M. in October 2006. D.M. was born prematurely
and has cerebral palsy, which affects his ability to use his legs and arms. D.M.
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is learning to walk with a walker, but he uses a manual wheelchair except at
school, where he uses a motorized wheelchair. Husband retired from the
military in 2012 after twenty-one years of service, and he receives a monthly
veterans’ disability payment. Husband has worked at Eli Lilly in finance and
accounting for fifteen years. Wife worked in retail prior to the parties’ marriage
but stopped working after the marriage. She worked again in retail for a short
time in approximately 2006 before D.M.’s birth. After D.M.’s birth, Wife did
not return to work.
[4] Husband filed a petition for dissolution in November 2016. At this time, Wife
found employment as an instructional assistant with a school corporation. She
works thirty-five hours a week and is paid $10.50 an hour. This position allows
her to be home with the children after school and on school breaks. In late
2017, Eli Lilly notified Husband that his department was being moved to
Ireland. At the time of the hearing, Husband anticipated losing his job in
March 2018.1 The parties reached agreements on most issues regarding the
children, leaving mainly issues regarding division of the marital estate and
maintenance. Husband proposed that he “take on all liabilities associated with
the marital estate.” Tr. Vol. II p. 33. Husband has a 401K through his
employment with Eli Lilly, a pension with Eli Lilly, and a military pension.
Wife requested caretaker maintenance to care for D.M. and rehabilitative
1
Husband asserts that he has lost his job since the trial court’s order. However, we cannot consider evidence
not in the record.
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maintenance to complete her college degree online through Ball State
University.
[5] The trial court entered findings of fact and conclusions thereon. The trial court
adopted Wife’s proposed division of marital property, resulting in a 60%/40%
split in favor of Wife. The trial court ordered that the parties sell the marital
residence with Wife receiving the first $8,050.00 of the proceeds and the
remaining proceeds split 60%/40% in favor of Wife. The trial court awarded
Wife, in part, her vehicle and certain furniture; sixty percent of Husband’s gross
military pension payment when “such is received by [Husband] or when
[Husband] is eligible to receive same;” rehabilitative maintenance in the
amount of $750.00 per month for thirty-six months; $7,500 in attorney fees;
$44,500.00 from Husband’s Eli Lilly 401K, which was valued at $44,500.00; a
property settlement judgment in the amount of $68,953.00 payable at the rate of
$500.00 per month plus eight percent interest with the payments beginning after
the completion of the rehabilitative maintenance payments. Appellant’s App.
Vol. II p. 21. Husband was awarded, in part, his Eli Lilly pension; the
remainder of his military pension; any remainder of his Eli Lilly 401K; his
automobile, tools, firearms, and certain furniture; and the remainder of his 2016
Eli Lilly bonus. Husband was ordered to pay the parties’ debts and a portion of
a handicapped accessible van in the future for Wife’s use. Husband now
appeals.
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Analysis
[6] Husband raises several issues regarding the trial court’s division of marital
property. Where, as here, a party requested findings and conclusions pursuant
to Trial Rule 52, we cannot set aside the findings or judgment unless clearly
erroneous. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App. 2016). “First,
we determine whether the evidence supports the findings, and second, whether
the findings support the judgment.” Id. We affirm the trial court’s findings
unless no facts or inferences from the record support them, but we review legal
conclusions de novo. Id.
[7] The division of marital property is within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. Kendrick v. Kendrick, 44
N.E.3d 721, 724 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion
occurs if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the trial court has misinterpreted
the law or disregards evidence of factors listed in the controlling statute. Id.
When we review a claim that the trial court improperly divided marital
property, we must consider only the evidence most favorable to the trial court’s
disposition of the property. Id. Although the facts and reasonable inferences
might allow for a different conclusion, we will not substitute our judgment for
that of the trial court. Id.
[8] The trial court’s division of marital property is highly fact sensitive. Id. A trial
court’s discretion in dividing marital property is to be reviewed by considering
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the division as a whole, not item by item. Id. We will not weigh evidence, but
will consider the evidence in a light most favorable to the judgment. Id. A trial
court may deviate from an equal division so long as it sets forth a rational basis
for its decision. Id. A party who challenges the trial court’s division of marital
property must overcome a strong presumption that the court considered and
complied with the applicable statute. Id. Thus, we will reverse a property
distribution only if there is no rational basis for the award. Id.
I. Division of Property
[9] Father first argues that the trial court erred by failing to make findings to
support the unequal division of marital property. Indiana subscribes to a “one-
pot” theory of marital property. Morey v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct.
App. 2016) (citing Ind. Code § 31-15-7-4). Under Indiana Code Section 31-15-
7-4(a), in a dissolution action, the court shall divide the property of the parties,
whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
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“Property” means “all the assets of either party or both parties . . . .” I.C. § 31-
9-2-98(b).
“The requirement that all marital assets be placed in the marital
pot is meant to insure that the trial court first determines that
value before endeavoring to divide the property.” Montgomery v.
Faust, 910 N.E.2d 234, 238 (Ind. Ct. App. 2009). Indiana’s “one-
pot” theory prohibits the exclusion of any asset in which a party
has a vested interest from the scope of the trial court’s power to
divide and award. Falatovics [v. Falatovics, 15 N.E.3d 108, 110
(Ind. Ct. App. 2014)]. Although the trial court may decide to
award a particular asset solely to one spouse as part of its just and
reasonable property division, it must first include the asset in its
consideration of the marital estate to be divided. Id. The
systematic exclusion of any marital asset from the marital pot is
erroneous. Id.
Quinn, 62 N.E.3d at 1223.
[10] After determining what constitutes marital property, the trial court must then
divide the marital property under the presumption that an equal split is just and
reasonable. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004),
trans. denied. Indiana Code Section 31-15-7-5 provides:
The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However,
this presumption may be rebutted by a party who presents
relevant evidence, including evidence concerning the following
factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of
the property, regardless of whether the contribution
was income producing.
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(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time
the disposition of the property is to become effective,
including the desirability of awarding the family
residence or the right to dwell in the family residence
for such periods as the court considers just to the
spouse having custody of any children.
(4) The conduct of the parties during the marriage as
related to the disposition or dissipation of their
property.
(5) The earnings or earning ability of the parties as related
to:
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
I.C. § 31-15-7-5. “If the trial court deviates from this presumption, it must state
why it did so.” Thompson, 811 N.E.2d at 912-13; see also Morey, 49 N.E.3d at
1072 (“If the trial court determines that a party has rebutted the presumption of
an equal division of the marital pot and decides to deviate from an equal
division, then it must state its reasoning in its findings and judgment.”).
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[11] The trial court here deviated from the presumption that an equal division of the
marital property between the parties is just and reasonable by awarding Wife
sixty percent of the marital estate. Although the trial court made findings on
various subjects, the trial court then simply adopted Wife’s balance sheet with a
few changes and did not explain its reasoning or make specific findings on the
factors discussed in Indiana Code Section 31-15-7-5. Given the lack of specific
findings on the relevant factors, we conclude that remand for either an equal
division of the marital property or an explanation of the reason for deviation is
necessary.
II. Military Pension
[12] The trial court here awarded Wife sixty percent of Husband’s gross military
pension payment when “such is received by [Husband] or when [Husband] is
eligible to receive same.” Appellant’s App. Vol. II p. 21. Husband argues that
the trial court should have applied a coverture formula instead. Husband also
argues that federal law prevented the trial court from awarding Wife more than
fifty percent of his net retirement pay from his military pension.
[13] Wife argues that Husband waived the issue by failing to raise the argument to
the trial court. However, during the evidentiary hearing, Husband specifically
argued that the trial court should apply a coverture formula and argued that the
trial court could not order the payments through a qualified domestic relations
order (“QDRO”) because the parties were not married for ten years during his
military service. Husband testified that they were married for eight years during
his twenty-one years of military service, and his Petitioner’s Exhibit 2 requested
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a coverture factor of 49.98%. Given Husband’s proposed equal division of the
marital property, Wife would have received half of the coverture factor of the
military pension under Husband’s proposal. The trial court declined to apply a
coverture factor and, instead, awarded Wife sixty percent of Husband’s gross
military pension. Husband clearly argued for the application of a coverture
formula and did not waive that issue.
[14] On appeal, however, Husband cites no authority that the trial court was required
to apply a coverture formula. Husband cites Williams v. Williams, 252 P.3d 998,
1006 (Alaska 2011), which applied the coverture formula, but noted that the
formula was “typically used.” All property, whether acquired before or during
the marriage, is generally included in the marital estate for property division.
See Ind. Code § 31-15-7-4(a). This Court has explained,
The “coverture fraction” formula is one method a trial court may
use to distribute pension or retirement plan benefits to the
earning and non-earning spouses. Under this methodology, the
value of the retirement plan is multiplied by a fraction, the
numerator of which is the period of time during which the
marriage existed (while pension rights were accruing) and the
denominator is the total period of time during which pension
rights accrued.
In re Marriage of Fisher, 24 N.E.3d 429, 433 (Ind. Ct. App. 2014) (quoting Hardin
v. Hardin, 964 N.E.2d 247, 250 (Ind. Ct. App. 2012). We noted in In re Marriage
of Nickels, 834 N.E.2d 1091, 1098 (Ind. Ct. App. 2005), that the parties had cited
no authority for the proposition that a trial court was required to use a coverture
fraction formula to distribute a pension or retirement plan. We further noted
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that, “while a trial court may set aside to one party the value of a marital asset
where the other party made no contribution to its acquisition, it is not required
to do so.” Nickels, 834 N.E.2d at 1098; see also Morey, 49 N.E.3d at 1071-72
(noting that the coverture fraction formula was “just one method that allows the
spouse who acquired the asset to segregate what might otherwise be considered
marital property from the marital pot” and that it was within the trial court’s
discretion to determine whether a given asset should be segregated from the
marital pot for application of the coverture fraction formula”). Given
Husband’s failure to cite authority that the trial court was required to apply a
coverture formula, we cannot say that the trial court abused its discretion by
failing to do so.
[15] As for the second part of Husband’s argument, 10 U.S.C.A. § 1408(e)(1)
provides that “[t]he total amount of the disposable retired pay of a member
payable under all court orders pursuant to subsection (c) may not exceed 50
percent of such disposable retired pay.”2 Although Husband did not raise this
2
10 U.S.C.A. § 1408(4)(A) provides:
The term “disposable retired pay” means the total monthly retired pay to which
a member is entitled less amounts which--
(i) are owed by that member to the United States for previous
overpayments of retired pay and for recoupments required by law
resulting from entitlement to retired pay;
(ii) are deducted from the retired pay of such member as a result of
forfeitures of retired pay ordered by a court-marital or as a result of
a waiver of retired pay required by law in order to receive
compensation under title 5 or title 38;
(iii) in the case of a member entitled to retired pay under chapter 61 of
this title, are equal to the amount of retired pay of the member
under that chapter computed using the percentage of the member’s
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statute to the trial court, he was arguing that Wife would receive much less than
fifty percent of his military pension. Consequently, it would have been
unnecessary for him to make this argument. Under these circumstances, we
decline to find that Husband waived the argument.
[16] In her Appellee’s Brief, Wife concedes the following:
Wife does concede that 10 U.S.C.A. § 1408 does limit the total
amount of the disposable retired pay to 50% of the disposable
retired pay.
If the amount to be paid is appropriately based upon the net
disposable pay, then, absent a waiver caused by a failure to bring
this provision of Federal law to the attention of the Trial Court,
such an order to require Husband to pay 50% of his net
disposable retirement to Wife would be appropriate.
Appellee’s Br. p. 26. Consequently, Wife concedes that, if the issue is not
waived, remand for revision of the order for Husband to pay fifty percent of his
net disposable pay is appropriate. We have determined that Husband did not
waive the issue. Given Wife’s concession, we express no opinion on the
disability on the date when the member was retired (or the date on
which the member’s name was placed on the temporary disability
retired list); or
(iv) are deducted because of an election under chapter 73 of this title to
provide an annuity to a spouse or former spouse to whom payment
of a portion of such member’s retired pay is being made pursuant to
a court order under this section.
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legitimacy of Husband’s argument. We remand for revision of the order related
to Husband’s military pension in a manner consistent with Wife’s concession.3
III. Van
[17] Husband argues that the trial court abused its discretion by ordering him to pay
sixty-five percent of the cost of a new van for Wife. The trial court ordered the
following:
It is undisputed that the present Honda van being set off to
Mother cannot transport the motorized wheelchair [D.M.] uses
at school and other places. The Honda van has in excess of
$100,000 miles of use and logic dictates that it will have to be
replaced at some time. When it is replaced, the purchase of a
van that is equipped to or capable of transporting the motorized
wheelchair is necessary as treatment or care for a chronic health
condition of [D.M.]. Mother will have private use of the new
vehicle. Mother shall pay twenty-five percent (25%) of the cost
of the new vehicle and the balance shall be shared by the parties
based upon their percentage share of the total income as set forth
in the CSOW effective as of the date of purchase.
Appellant’s App. Vol. II p. 26. Husband argues that Wife did not establish a
need for the van because the parties have transported D.M. for years without
the use of a handicapped accessible vehicle. Further, Husband contends that
the trial court’s order fails to provide guidance on the timing of the purchase,
the cost of the van, financing of the van, insurance regarding the vehicle, and
3
See Wooster, Ann K., Construction and Application of Federal Uniformed Services Former Spouse Protection Act in
State Court Divorce Proceedings, 59 A.L.R. 6th 433 (2010), for an overview of these issues.
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ability of Husband to use the van when he has physical custody of D.M. forty
percent of the time. Finally, Husband argues that the trial court’s order does
not take into account his future financial situation.
[18] The trial court’s order regarding the future van is more in the nature of a child
support obligation. We review decisions regarding child support for an abuse of
discretion. Mitten v. Mitten, 44 N.E.3d 695, 699 (Ind. Ct. App. 2015). An abuse
of discretion occurs when a trial court’s decision is against the logic and effect
of the facts and circumstances before the court or if the court has misinterpreted
the law. Id. When reviewing a decision for an abuse of discretion, we consider
only the evidence and reasonable inferences favorable to the judgment. Id.
[19] The child support guidelines do not directly address this issue. However,
Indiana Code Section 31-16-6-2(a)(2) provides that a child support order may
include, “where appropriate . . . special medical, hospital, or dental expenses
necessary to serve the best interests of the child.” Although the handicapped
accessible van is not technically a medical expense, it does appear necessary to
serve D.M.’s best interest due to his medical conditions. Although D.M. is
young now, it will become more difficult to transport D.M. without a
handicapped accessible van as he gets older. Consequently, we cannot say that
the trial court abused its discretion by ordering Husband to contribute to the
costs of the van. However, Husband’s concerns regarding guidance on the
timing of the purchase, the cost of the van, financing of the van, insurance
regarding the vehicle, and ability of Husband to use the van when he has
physical custody of D.M. forty percent of the time are well taken. We remand
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for the trial court to consider those issues. We also note that perhaps a more
feasible solution would be to address the issue through a modification of child
support when it is necessary to purchase the van.
IV. Eli Lilly Pension
[20] Next, Husband argues that the trial court abused its discretion when it valued
his Eli Lilly pension. Husband argues that the trial court assigned the wrong
value to the pension, improperly failed to apply a coverture factor, and failed to
use a QDRO to transfer Wife’s interest. The trial court here accepted Wife’s
value of $174,148.00, awarded the pension to Husband, and ordered Husband
to pay a property settlement judgment in the amount of $68,953.00 at the rate of
$500 per month with eight percent interest until paid in full.
[21] We first address the trial court’s valuation of the pension. Wife’s valuation of
the pension was determined by Dan Andrews, who the trial court found “is a
recognized expert in the field of calculating present values of defined benefit
pensions.” Appellant’s App. Vol. II p. 21. According to Husband, Andrews
used the wrong “discount rate,” the wrong age of eligibility, and improperly
added an administrative load. According to Husband, these alleged errors
would make the value of the pension unrealistically higher. Husband testified
that he does pension valuations as the course of his business and proposed a
current pension value of $25,920. The trial court was presented with Andrews’s
valuation of the pension and Husband’s valuation of the pension. Husband is
merely requesting that we reweigh the evidence and judge the credibility of the
witnesses, which we cannot do. See Pitman v. Pitman, 721 N.E.2d 260, 264
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(Ind. Ct. App. 1999), trans. denied. Given our standard of review, we cannot say
that the trial court abused its discretion in valuing the pension based upon
Wife’s expert’s opinion.
[22] Next, we address Husband’s coverture argument. Husband contends that the
trial court should have applied a coverture factor of 85.78% because Husband
and Wife were not married during all of Husband’s employment at Eli Lilly.
Although the trial court specifically refused to apply the coverture factor to
Husband’s military pension, the trial court did not address the application of a
coverture factor to the Eli Lilly pension and included the total value of the
pension in its distribution of marital assets. As with his argument concerning
his military pension, see supra, Husband cites no authority for the proposition
that the trial court was required to apply a coverture factor to his Eli Lilly
pension. See Nickels, 834 N.E.2d at 1098 (holding that “while a trial court may
set aside to one party the value of a marital asset where the other party made no
contribution to its acquisition, it is not required to do so”); Morey, 49 N.E.3d at
1071-72 (noting that the coverture fraction formula was “just one method that
allows the spouse who acquired the asset to segregate what might otherwise be
considered marital property from the marital pot” and that it was within the
trial court’s discretion to determine whether a given asset should be segregated
from the marital pot for application of the coverture fraction formula”).
Although it was within the trial court’s discretion apply a coverture formula in
effectuating its division of marital property, the trial court was not required to
do so.
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[23] Finally, Husband argues that the trial court should have transferred the Eli Lilly
pension to Wife through a QDRO rather than a property settlement judgment.
We begin by noting the following explanation of the division of pension
benefits in a dissolution proceeding:
Courts utilize a number of methods for distributing pension
benefits, including an immediate offset method, a deferred
distribution method, or a variation or combination of the
methods. Under the immediate offset method, the court
determines the present value of the retirement benefits and
awards the nonowning spouse his or her share of the benefits in
an immediate lump sum award of cash or property equal to the
value of his or her interest. Under the deferred distribution
method, the court makes no immediate division of the retirement
benefits but determines the future benefits to which the
nonowning spouse is entitled. Traditionally, the benefits have
been stated as a share of the owning spouse’s future benefit, and
payment can be made directly to the nonowning spouse by the
plan administrator under certain circumstances or payment can
be ordered to come directly from the owning spouse.
Several fact situations may favor the use of an immediate offset
method, including where the present value of the pension is
relatively modest, the parties are highly litigious, the separating
parties are relatively young, and the receiving spouse has
immediate and substantial financial need. Other fact situations
may favor a deferred distribution method, including where there
is not sufficient other tangible property remaining in the marital
estate so that a present award is possible, there is an unusually
substantial risk that benefits will never be received, the present
value of benefits is difficult to compute with reasonable accuracy,
and both spouses have no other steady source of income for their
retirement years.
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It is also possible to apply both the deferred distribution and
immediate offset methods in a single case. One such way to
combine the methods is to order an offsetting cash award payable
in installments. Such an award can give the benefits of
immediate offset in a case where there are not sufficient funds
available for an immediate cash payment. Like the immediate
offset method, deferred offset awards are limited by the liquid
funds available in the marital estate. However, the limitation is
not as severe as with an immediate offset award, because a
deferred award is spread out over time, but the payor must still
have sufficient liquid funds to make the installment payments.
Kendrick, 44 N.E.3d at 726-27 (internal citations omitted).
[24] Here, the trial court utilized the immediate offset method, and Husband
advocates using the deferred distribution method through a QDRO. State
courts are “authorized in dissolution actions to order a pension plan
administrator to distribute pension benefits to an alternate payee pursuant to a
QDRO.” Ryan v. Janovsky, 999 N.E.2d 895, 898 (Ind. Ct. App. 2013), trans.
denied. “A QDRO has been characterized as any order made pursuant to a state
domestic relations law which ‘creates or recognizes the existence of an
alternative payee’s right’ to pension benefits.” Id. (quoting Hogle v. Hogle, 732
N.E.2d 1278, 1280 n.3 (Ind. Ct. App. 2000), trans. denied).
[25] Wife had an immediate and substantial financial need given the lack of cash
marital assets, her lack of recent employment history, her new employment at a
school, her need to care for D.M., and her need to locate housing suitable for
D.M. On the other hand, the lack of cash marital assets resulted in an
extremely lengthy repayment schedule for the property settlement judgment.
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Combined with Husband’s other obligations under the dissolution decree,
Husband claims that he is left in a dire financial situation. The trial court here
was presented with a difficult situation. Neither the immediate offset method
nor the deferred distribution method through a QDRO would result in an ideal
situation for both parties. Given the options here, we simply cannot say that
the trial court abused its discretion in ordering the property settlement judgment
rather than a deferred distribution of the pension through a QDRO.
V. Rehabilitative Maintenance
[26] Next, Husband argues that the trial court erred by ordering him to pay
rehabilitative maintenance to Wife. The trial court here ordered Husband to
pay $750 per month to Wife for thirty-six months as rehabilitative maintenance.
According to Husband, Wife offered no evidence to support her personal belief
that she needed a college degree to obtain a position similar to the one she held
before staying home to care for the children. Husband also points out that Wife
only asked for $500 per month in rehabilitative maintenance.
[27] “The trial court’s power to award spousal maintenance is wholly within its
discretion, and we will reverse only when the decision is clearly against the
logic and effect of the facts and circumstances of the case.” Spivey v. Topper,
876 N.E.2d 781, 784 (Ind. Ct. App. 2007). “‘The presumption that the trial
court correctly applied the law in making an award of spousal maintenance is
one of the strongest presumptions applicable to the consideration of a case on
appeal.’” Id. (quoting Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1174 (Ind. Ct. App.
1995), trans. denied). “A trial court may award only ‘three, quite limited’
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varieties of post-dissolution maintenance: spousal incapacity maintenance,
caregiver maintenance, and rehabilitative maintenance.” Zan v. Zan, 820
N.E.2d 1284, 1287 (Ind. Ct. App. 2005) (quoting Voigt v. Voigt, 670 N.E.2d
1271, 1276 (Ind. 1996)). Indiana Code Section 31-15-7-2(3) governs the award
of rehabilitative maintenance, which is at issue here, and provides:
After considering:
(A) the educational level of each spouse at the time of
marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or
employment of a spouse who is seeking maintenance
occurred during the marriage as a result of
homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including
educational background, training, employment skills,
work experience, and length of presence in or absence
from the job market; and
(D) the time and expense necessary to acquire sufficient
education or training to enable the spouse who is
seeking maintenance to find appropriate employment;
a court may find that rehabilitative maintenance for the spouse
seeking maintenance is necessary in an amount and for a period
of time that the court considers appropriate, but not to exceed
three (3) years from the date of the final decree.
[28] The trial court’s findings regarding rehabilitative maintenance follow:
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10. Mother was a “stay-at-home-mom,” except for a short
time at the beginning of the marriage. Mother, prior to
staying home with the children, worked in retail. Her
uncontroverted testimony is that a college degree
would now be necessary for her to secure the same
retail job she worked in the early years of the marriage.
Mother does not have a college degree. During the
marriage, Mother did contribute, besides her work as a
“stay-at-home mom” by doing yard sales and
refurnishing furniture and working part-time at Kohl’s.
Father told her to quit the Kohl’s job and she never
returned to work outside the home.
11. Retail work can include working late into the evening
and weekends. Hours vary based upon the employer.
12. Once this cause was filed, Mother obtained a job with
the Mt. Vernon School Corporation as an Instructional
Assistant (“IA”). As an IA, she works closely with
children with disabilities.
13. The hours she works as an IA mirror the times that the
children are in school. The children also attend the Mt.
Vernon School Corporation. She does not work
evenings or weekends, goes into work at approximately
the same time the children do and gets off work at close
to the same time as the children are released from
school.
14. Mother has been the parent who has assumed the
responsibility with regard to [D.M.’s] therapy and
IEPs.
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15. Father testified he had flexibility in his job at Eli Lilly
& Co. with regard to whether he could work at home
and control his hours.
16. Mother makes $10.50 per hour and works the 180
school-day calendar. Her pay, annualized, is Two
Hundred Sixty-eight Dollars and Fifty-six Cents
($268.56) per week.
17. Father earns One Hundred Five Thousand Dollars
($105,000.00) per year at Eli Lilly and further earns
One Thousand Three Hundred Twenty-three Dollars
($1,323.00) per month from a Veteran’s disability
payment. For 2016, payable in 2017, he earned a gross
bonus from Lilly of Twenty Thousand Seven Hundred
Thirty-three Dollars and eighty-four Cents
($20,733.84). Father has a Bachelor’s degree in
Biochemistry and a Bachelor’s degree in Finance and
has worked at Lilly for a number of years.
*****
28. Mother has investigated taking classes at Ball State
University and knows the present tuition is
approximately Three Hundred Four Dollars ($304.00)
per credit hour. She also knows that tuition will
increase, probably in 2020 but she cannot predict the
amount of increase.
29. Mother needs 24 to 30 hours to obtain an Associate
degree in Business. [H]er teaching degree would be
obtained after the Associate degree. The time to obtain
the appropriate degrees could exceed thirty-six (36)
months.
Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018 Page 22 of 24
*****
33. Mother qualifies for Rehabilitative Maintenance as
defined by Indiana statute.
*****
20. Mother is entitled to rehabilitative maintenance and
Father shall pay one [sic] Seven Hundred and Fifty
Dollars ($750.00) per month for thirty-six (36) months
as rehabilitative maintenance. Said payments shall be
paid beginning on the 1st day of the first month
following the entry of this Decree.
Appellant’s App. Vol. II pp. 19-22, 28.
[29] Husband does not specifically challenge any of these findings. Rather, he
argues that Wife did not submit actual evidence other than her opinion in
support of her assertion that she needed a college degree. Husband’s argument
is largely a request to reweigh the evidence and judge the credibility of the
witnesses, which we cannot do. See Pitman, 721 N.E.2d at 264. The trial court
gave credit to Wife’s testimony, and we cannot say that the findings on this
issue are clearly erroneous. Consequently, we cannot say that the trial court’s
award of rehabilitative maintenance is erroneous. We do, however, have
concerns over the trial court’s sua sponte award of $750 per month where Wife
was only requesting $500 per month in rehabilitative maintenance. Tr. Vol. II
p. 198. We reverse that portion of the order and, on remand, direct the trial
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court to reduce the rehabilitative maintenance to $500 per month for thirty-six
months.
Conclusion
[30] We remand for the trial court to enter either an equal division of the marital
property or an explanation of the reason for a deviation. Given Wife’s
concession regarding Husband’s military pension, we reverse and remand for
an order requiring Husband to pay fifty percent of his disposable retired pay of
the military pension. We affirm the trial court’s order that Husband contribute
to the cost of a van to transport D.M. However, we remand for the trial court
to clarify the details regarding such purchase. We affirm the trial court’s
decisions regarding the Eli Lilly pension valuation. Finally, we affirm the trial
court’s award of rehabilitative maintenance, but remand for the trial court to
reduce the rehabilitative maintenance award to $500 per month for thirty-six
months. We affirm in part, reverse in part, and remand.
[31] Affirmed in part, reversed in part, and remanded.
Vaidik, C.J., and Pyle, J., concur.
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