Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Jan 27 2014, 6:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
CASEY D. CLOYD MERLE B. ROSE
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NANCY KRIEL, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1304-DR-195
)
RICHARD KRIEL, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge
Cause No. 49D10-1109-DR-35891
January 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Nancy Kriel appeals the denial of her request for an award of incapacity maintenance.
As the trial court did not abuse its discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
Nancy and Richard Kriel were married in 1981 and Nancy petitioned for dissolution in
2011. Until 2004, both worked outside the home, but Nancy stopped because of chronic
back and leg problems. Nancy received social security disability payments and had long-
term disability insurance coverage from a former employer. At the time of the final
dissolution hearing on March 1, 2013, her net income from those sources was $2,056.49 per
month. Richard lost his job in 2009 and returned to school. He obtained a bachelor’s degree
in 2011 and found work in 2012. At the time of the final hearing his net monthly income was
$2,819.60.
Nancy asked for an incapacity maintenance order, which the trial court denied. It
noted her net income was sufficient to meet her personal needs, she had been able to
maintain the mortgage payments on the marital residence, and she had medical insurance. It
determined she “does not meet the statutory restrictions for maintenance.” (App. at 13.)
DISCUSSION AND DECISION
The trial court did not abuse its discretion in declining to award maintenance. Ind.
Code § 31-15-7-2 provides in pertinent part:
A court may make the following findings concerning maintenance:
(1) If the court finds a spouse to be physically or mentally incapacitated to the
extent that the ability of the incapacitated spouse to support himself or herself
is materially affected, the court may find that maintenance for the spouse is
necessary during the period of incapacity, subject to further order of the court.
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The trial court’s decision whether to award 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. Augspurger v. Hudson, 802 N.E.2d 503, 508 (Ind. Ct. App. 2004).
The presumption that the trial court correctly applied the law in deciding whether to award
spousal maintenance is one of the strongest presumptions applicable to the consideration of a
case on appeal. Id.
The language of the statute indicates a maintenance award is not mandatory, even if a
trial court finds a spouse’s incapacity materially affects her self-supportive ability. Bizik v.
Bizik, 753 N.E.2d 762, 769 (Ind. Ct. App. 2001), trans. denied. Still, where a trial court finds
a spouse is physically or mentally incapacitated1 to the extent that the ability of that spouse to
support herself is materially affected, the trial court “should normally” award incapacity
maintenance. Cannon v. Cannon, 758 N.E.2d 524, 527 (Ind. 2001).
Our legislature has evinced “a clear legislative intent to retain fairly strict limits on the
power of courts to order maintenance without the consent of the parties.” Voigt v. Voigt, 670
N.E.2d 1271, 1277 (Ind. 1996). As such an award is designed to help provide for a spouse’s
sustenance and support, the essential inquiry is whether the incapacitated spouse has the
1
Nancy asserts “The trial court’s first error was that it did not find Nancy incapacitated.” (Appellant’s Br. at
6.) But Nancy directs us to no such explicit finding regarding her incapacity vel non, and we can find none.
Rather, its decision was premised on her ability to satisfy her personal needs or obligations despite her medical
issues. We therefore decline to address that allegation of error.
Nancy then asserts “The trial court’s second error was applying the doctrine of necessities.” (Id. at 12.) The
trial court explicitly found “the doctrine of necessities does not apply,” (App. at 12) (emphasis added), and it
did not in fact apply that doctrine.
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ability to support himself or herself. Alexander v. Alexander, 980 N.E.2d 878, 881 (Ind. Ct.
App. 2012). We will not reverse a judgment merely because we might have, on the same
evidence, reached a different conclusion. Id.
As there was evidence before the trial court that Nancy could support herself, we
cannot find an abuse of discretion. The statute creates a “flexible standard” that allows a trial
court to consider whether any incapacity significantly affects a spouse’s ability to support
herself. In re Marriage of Dillman, 478 N.E.2d 86, 88 (Ind. Ct. App. 1985). The trial court
heard evidence Nancy has medical coverage from a prior employer and was on Medicare; she
had been paying the mortgage on her house without any contribution by Richard; she
received Social Security disability payments; and she had a net income over $2,000.00 per
month. In light of the trial court’s broad discretion in applying this “flexible” standard, we
cannot find an abuse of discretion in the trial court’s decision not to award Nancy incapacity
maintenance. See, e.g., Bizik, 753 N.E.2d at 769 (a maintenance award is not mandatory
even if a trial court finds a spouse’s incapacity materially affects her self-supportive ability).
We accordingly affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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