FOR PUBLICATION
FILED
Dec 14 2012, 8:44 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
KRISTINA KEENER YEAGER DEBORAH M. AGARD
Indianapolis, Indiana Law Office of Deborah M. Agard
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF )
BRENDA ALEXANDER, )
)
Appellant-Petitioner, )
)
vs. ) No. 32A05-1108-DR-417
)
DONALD ALEXANDER, )
)
Appellee-Respondent. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Robert W. Freese, Judge
Cause No. 32D01-0910-DR-134
December 14, 2012
OPINION – FOR PUBLICATION
BAILEY, Judge
Case Summary
Brenda Alexander (“Wife”) appeals the denial of her motion to correct error,
which challenged the omission of an award of incapacity maintenance in the decree
dissolving her marriage to Donald Alexander (“Husband”). She presents the sole issue of
whether she is entitled to an award of incapacity maintenance.1 We affirm.
Facts and Procedural History
The parties were married on November 2, 1996. Two children were born of the
marriage. On October 28, 2009, Wife filed a petition for dissolution of the marriage,
which included a request for spousal incapacity or rehabilitative maintenance.
On December 14, 2010 and March 22, 2011, the trial court conducted evidentiary
hearings. In support of her request for maintenance, Wife offered testimony that she had
been injured in 1987 and had since continuously received disability payments from her
former employer. She also offered the testimony of a vocational therapist, who opined
that Wife’s ability to support herself was materially impaired.2
On June 10, 2011, the trial court entered its “Dissolution Decree and Judgment” in
which it dissolved the parties’ marriage, divided the marital assets, made findings on
child custody and support, and ordered Husband to pay $25,000 of Wife’s attorney’s fees.
(App. 12.) The trial court did not award Wife either incapacity or rehabilitative
maintenance.
1
Although Wife requested an award of either incapacity or rehabilitative maintenance, she confines her
argument on appeal to the propriety of an award of incapacity maintenance.
2
Wife has herniated discs, degenerative disc disease, and carpal tunnel syndrome.
2
On July 5, 2011, Wife filed her “Verified Motion for Clarification and/or Motion
to Correct Error Pursuant to Trial Rule 59.” (App. 23.) Wife asserted that the trial court
had made findings that would have supported an award of incapacity or rehabilitative
maintenance, but then “did not rule on [Wife’s] request.” (App. 23.) On July 20, 2011,
the trial court issued the following order:
The Court clarifies Dissolution Decree and Judgment Order as follows:
1. The Court considered the findings set forth; The Motion to Clarify as
well as other findings, including Wife’s disability payments.
2. The Court declined to award Wife rehabilitative maintenance or
Disability payments from Husband.
DECIDED.
(App. 26.) This appeal ensued.
Discussion and Decision
I. Standard of Review
A trial court is vested with broad discretion to determine whether it will grant or
deny a motion to correct error. Williamson v. Williamson, 825 N.E.2d 33, 44 (Ind. Ct.
App. 2005). In the decree challenged by Wife’s motion to correct error, the trial court
entered findings of fact sua sponte.3 In Cannon v. Cannon, 758 N.E.2d 524, 526 (Ind.
2001), the Court reviewed findings of fact from which the trial court had concluded that a
wife was not entitled to incapacity maintenance and observed that, because Indiana Code
section 31-15-7-1 required findings in order to award maintenance, the findings
supporting denial would be treated as “special findings” under Indiana Trial Rule
3
Neither party made a written request for findings and conclusions pursuant to Indiana Trial Rule 52(A).
Findings are required by statute in order to support an award of incapacity maintenance, but there is no
statutory requirement that special findings be entered where incapacity maintenance is denied.
3
52(A)(3).
The reviewing Court will not set aside such findings unless they are clearly
erroneous. Id. Due regard must be given to the opportunity of the trial court to judge the
credibility of the witnesses. Id. The relative weight and credibility of the evidence and
witnesses at trial are within the purview of the trial court. Id. at 527.
Where, as here, a party had the burden of proof and appeals from a negative
judgment, she must show that the evidence points unerringly to a conclusion different
from that reached by the trier of fact, or that the judgment is contrary to law. Wilder-
Newland v. Kessinger, 967 N.E.2d 558, 560 (Ind. Ct. App. 2012), trans. denied. “This
means that even if we might have taken a different course of action than that which a trial
court took, we are bound to review the order, and findings and conclusions for clear error
only.” Id.
II. Analysis
In limiting an award of spousal maintenance to three narrow circumstances –
incapacity, caregiver, or rehabilitative – 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.” Voight v. Voight, 670 N.E.2d 1271, 1277 (Ind. 1996).
“Incapacity maintenance” is addressed by Indiana Code section 31-15-7-2(1), which
provides that a dissolution court may find “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” and may find “that maintenance for the spouse is
necessary during the period of incapacity, subject to further order of the court.” Such an
4
award is designed to help provide for a spouse’s sustenance and support; accordingly, the
essential inquiry is whether the incapacitated spouse has the ability to support himself or
herself. Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006).
A claim for incapacity maintenance is to be “evaluated by giving a strict if not
literal interpretation to the [statutory] language[.]” Cannon, 758 N.E.2d at 526. That is, a
trial court can award incapacity maintenance only if it finds a spouse to be physically or
mentally incapacitated to the extent that his or her ability to support himself or herself
was materially affected. Id. “And, although the language of the statute appears to give
the trial court some discretion not to award maintenance even where it makes such
finding, we believe the strict construction principles applicable in this area narrowly limit
that discretion as well.” Id. Although it reiterated that a maintenance award is not
mandatory, the Court observed in dicta:
Where a trial court finds that a spouse is physically or mentally
incapacitated to the extent that the ability of that spouse to support himself
or herself is materially affected, the trial court should normally award
incapacity maintenance in the absence of extenuating circumstances that
directly relate to the criteria for awarding incapacity maintenance.
Id. at 527.
Wife relies upon the foregoing language to support her claim of entitlement to
incapacity maintenance. According to Wife, the trial court made special findings of her
incapacity as contemplated by the relevant statute and identified no relevant extenuating
circumstances, but inexplicably failed to award her incapacity maintenance.
The trial court found that Wife had suffered past injuries, has present medical
conditions, receives disability payments, and is college-educated as an accountant. The
5
trial court also acknowledged the testimony of Wife’s vocational expert that her ability to
financially support herself is materially impaired, but did not adopt that opinion. This
recitation of the evidence is not equivalent to entering a requisite statutory finding. See
Parks v. Delaware Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. App.
2007) (observing that the trier of fact must adopt the testimony of the witness before the
ostensible finding may be considered a finding of fact). Even if we were to construe the
Cannon dicta as requiring an award of incapacity maintenance absent extenuating
circumstances once the requisite statutory finding is made, here no such finding was
made.
Indeed, the trial court clarified upon motion to correct error that an award of
incapacity maintenance was not inadvertently omitted from the dissolution decree; the
trial court intended to deny the maintenance request. The evidence before the trial court
did not point solely to a conclusion opposite that reached. Although there was evidence
that Wife had physical limitations and received disability payments, there was also
evidence that she was college-educated, that she had recently provided child care for pay,
and that her limitations would not entirely preclude sedentary work. We will not reverse
a judgment merely because we might have, on the same evidence, reached a different
conclusion. Wilder-Newland, 967 N.E.2d at 560. The denial of Wife’s request for
incapacity maintenance is not clearly erroneous.
Affirmed.
CRONE, J., concurs.
RILEY, J., dissents with separate opinion.
6
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF )
BRENDA ALEXANDER, )
)
Appellant-Petitioner, )
)
vs. ) No. 32A05-1108-DR-417
)
DONALD ALEXANDER, )
)
Appellee-Respondent. )
RILEY, Judge, dissenting
I respectfully dissent from the majority’s decision to affirm the trial court’s denial
of incapacity maintenance. In essence, the majority relies on two express reasons to
uphold the trial court’s denial of incapacity maintenance. These are 1) there is “no
statutory requirement [under Ind. Code § 31-15-7-1] that special findings be entered
where incapacity maintenance is denied;” and 2) and the trial court’s special finding
regarding testimony from Brenda’s vocational expert amounted to a “recitation of
evidence” that did not rise to the level of a statutory finding. Slip op. pp. 3 n.3, 6. While
7
sound enough propositions, the majority has inappropriately applied them here to affirm a
result unsupported by the trial court’s special findings.
In its Dissolution Decree and Judgment, the trial court sua sponte entered findings
of fact from which it ultimately concluded that Brenda was not entitled to incapacity or
rehabilitative maintenance. I.C. § 31-15-7-1 requires the trial court to issue findings in
order to award maintenance. Cannon v. Cannon, 758 N.E.2d 524, 526 (Ind. 2001).
These findings constitute “special findings” under Ind. Trial Rule 52(A)(3). See id. A
judgment inconsistent with the special findings is clearly erroneous. See In re Marriage
of Jackson, 682 N.E.2d 549, 551 (Ind. Ct. App. 1997).
Brenda had the burden of proof on her claim for maintenance. See Matzat v.
Matzat, 854 N.E.2d 918, 921 (Ind. Ct. App. 2006). As the trial court decided against her,
Brenda appeals from a negative judgment. See Wilder-Newland v. Kessinger, 967 N.E.2d
558, 560 (Ind. Ct. App. 2012), trans. denied. To prevail, she must show that the evidence
points unerringly to a conclusion different from that reached by the trier of fact, or that
the judgment is contrary to law. Id. A judgment is contrary to law if it is contrary to the
trial court’s special findings. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind. Ct. App.
1991), reh’g denied, trans. denied. The trial court’s judgment here is unsupported by its
special findings and is thus contrary to law.
The reluctance of the majority to recognize that the trial court’s judgment is
inconsistent with its special findings perhaps arises from the trial court’s statutory
discretion to award maintenance. An award of maintenance is wholly within the trial
court’s discretion. Clokey v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011),
8
aff’d on reh’g, 957 N.E.2d 1288 (Ind. Ct. App. 2011). Even if a trial court finds that a
spouse’s incapacity materially affects such spouse’s self-supportive ability, a
maintenance award is not mandatory. Bizik v. Bizik, 753 N.E.2d 762, 769 (Ind. Ct. App.
2001), trans. denied. However, the trial court abuses its discretion when its decision is
clearly against the logic and effect of the facts and circumstances of the case. Clokey,
956 N.E.2d at 718.
In determining whether a trial court has abused its discretion in a spousal
maintenance determination, this court will presume that the trial court properly
considered the applicable statutory factors in reaching its decision. Bizik, 753 N.E.2d at
769. Those factors are 1) the spouse’s physical or mental incapacity; 2) which incapacity
materially impairs the spouse’s self-supporting ability. See I.C. § 31-15-7-2(1). The
Decree contained the following relevant special findings: 1) Brenda was injured in 1988;
2) that injury was exacerbated by two subsequent automobile accidents; 3) Brenda’s pain
includes herniated discs in her back and neck, degenerative disc disease, as well as carpel
tunnel syndrome; 4) “[a]s a result of her physical issues, [Brenda] experiences severe
pain and cannot sit, stand, walk or look down for long periods of time;” 5) her vocational
expert testified that he believed Brenda’s ability to “financially support her[self] is
materially impaired;” 6) Brenda’s physical limitations prevented her from working after
receiving her accounting degree in 1997; 7) Brenda had received disability payments
from General Motors since 1988 “and currently receives $600.00 per month;” and 8)
Brenda “has physical limitations and has been out of the workforce since 1988.”
(Appellant’s App. pp. 15-16). These special findings establish that Brenda has a physical
9
incapacity and that such incapacity materially impairs her ability to support herself. The
special findings therefore authorize an award of incapacity maintenance under I.C. § 31-
15-7-2(1).
The majority attempts to downplay the significance of the special findings by
characterizing the trial court’s “acknowledgement” of vocational expert testimony as
mere recitation of evidence rather than a finding. However, even without this finding, the
remaining special findings authorize an award of incapacity maintenance. The majority
acknowledges this infirmity by citing the familiar refrain that it might have reached a
different conclusion on the same evidence. This misses the point. “The essential inquiry
is whether the incapacitated spouse has the ability to support himself or herself.”
McCormick v. McCormick, 780 N.E.2d 1220, 1224 (Ind. Ct. App. 2003). Although the
trial court awarded Brenda a majority of the marital estate and later cited Brenda’s receipt
of disability payments in support of its denial of incapacity maintenance, it made no
explicit finding on how these relate to her self-supportive ability.
In light of these special findings and without a determination of the effect of such
disability payments on Brenda’s ability to support herself, I cannot conclude that the trial
court properly exercised its discretion to deny Brenda an award of incapacity
maintenance when its special findings would otherwise authorize an award. See Cannon,
758 N.E.2d at 527. Thus, the trial court’s denial of incapacity maintenance under these
circumstances was contrary to law and an abuse of discretion. I would therefore remand
to the trial court with instructions to determine the propriety of Brenda’s request for
incapacity maintenance.
10