MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 16 2016, 9:08 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Preston T. Breunig Angela B. Swenson
Martha L. Westbrook Swenson & Associates PC
Buck Berry Landau & Breunig, P.A. Carmel, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard R. Hogshire, February 16, 2016
Appellant-Petitioner, Court of Appeals Case No.
06A01-1506-DR-676
v. Appeal from the Boone Circuit
Court
Ursula Hoover, The Honorable J. Jeffrey Edens,
Appellee-Respondent. Judge
Trial Court Cause No.
06C01-1401-DR-7
Najam, Judge.
Statement of the Case
[1] Richard R. Hogshire (“Husband”) appeals the trial court’s order awarding
temporary maintenance to Ursula Hoover (“Wife”). Husband presents a single
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issue for our review, namely, whether the trial court abused its discretion when
it ordered him to pay Wife temporary maintenance in the amount of $523 per
week, including in-kind payments.
[2] We affirm.
Facts and Procedural History
[3] We previously set out the facts and procedural history in this case as follows:
On January 5, 2012, Husband filed a petition to dissolve his
fourteen-year marriage to Wife. In response, Wife filed a
counter-petition for divorce on January 13, 2012. Husband and
Wife, who are seventy-seven and seventy-five years old,
respectively, do not have any children together. The lion’s share
of the marital assets consists of the marital residence in
Indianapolis, Indiana, as well as several businesses in Husband’s
name.
Following the parties’ cross-petitions for dissolution, on April 30,
2012, the trial court conducted a provisional hearing and received
evidence regarding the financial circumstances of both Husband
and Wife. The next day, the trial court issued a provisional order
(Provisional Order # 1), which awarded temporary possession of
the marital residence to Husband. Provisional Order # 1 also
required, in part, that Husband pay $300 per month to Wife in
temporary maintenance and that he provide her with $5,000 in
order to retain a business valuation expert.
On October 9, 2012, Wife filed a petition for emergency relief
and modification of Provisional Order # 1. On November 16,
2012, after a second provisional hearing, the trial court issued a
modified provisional order (Provisional Order # 2), which
extinguished Husband’s obligation to make monthly
maintenance payments. Instead, the trial court awarded Wife
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temporary possession of the marital residence and ordered
Husband to pay all of the expenses related thereto, including the
mortgage payment. In addition to maintaining its initial order
that Husband pay $5,000 for a business valuation expert, the trial
court, acting sua sponte, also ordered Husband to pay $10,000
toward Wife’s attorney fees. On November 21, 2012, Husband
filed a motion for the trial court to reconsider its ruling, which
the trial court denied on November 30, 2012.
On December 17, 2012, Husband filed his first interlocutory
appeal, challenging the trial court’s award of $15,000 in
preliminary fees and costs. See Hogshire v. Hoover (“Hogshire I”),
2013 WL 6198238 (Ind. Ct. App. Nov. 27, 2013). On January 7,
2013, Husband asked for a stay of Provisional Order # 2 pending
appeal, which the trial court granted on February 4, 2013, subject
to the condition that Husband post a $7,500 bond. Husband
concedes that he never posted this bond.
At some point after the issuance of Provisional Order # 2,
Husband and Wife sold the marital residence and deposited the
proceeds into an escrow account for division at the final hearing.
No longer able to live in the marital residence at Husband’s
expense, Wife filed a petition to modify Provisional Order # 2 on
May 16, 2013. Following a third provisional hearing on June 24,
2013, the trial court issued Provisional Order # 3 on September
6, 2013. In Provisional Order # 3, the trial court ordered
Husband to pay weekly maintenance of $750 to Wife, as well as
to pay all of the outstanding fees for the completion of the
business valuation. Ten days later, Husband filed his second
interlocutory appeal to challenge the rulings of Provisional Order
# 3. See Hogshire v. Hoover (“Hogshire II”), 2014 WL 2927270
(Ind. Ct. App. June 27, 2014). Again, Husband requested a stay
pending appeal, which the trial court denied on October 1, 2013.[]
On September 24, 2013, following Husband’s failure to remit his
first two maintenance payments, Wife filed a motion for rule to
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show cause, alleging Husband to be “willfully and intentionally
in contempt of” Provisional Order # 3. (Appellant’s App. p. 21).
Then, on October 3, 2013, Wife filed a second petition for
contempt, claiming that Husband never posted the $7,500 cash
bond required to stay his obligation to pay $15,000 per
Provisional Order # 2. In addition to requesting that the court
enforce Husband’s compliance with the terms of both Provisional
Orders, both of Wife’s petitions included a demand for attorney
fees incurred as a result of prosecuting the contempt. On October
25, 2013, the trial court conducted a hearing, during which both
parties testified regarding their financial circumstances. Husband
stipulated to the fact that he has not made payments in
accordance with either of the Provisional Orders but asserted that
his actions did not constitute contempt based on his financial
inability to comply. Wife, however, insisted that Husband’s
financial declaration fails to reflect the full extent of his available
funds and that he is capable of making the maintenance, attorney
fee, and business valuation payments as ordered.
On November 5, 2013, the trial court entered its Judgment. In
holding Husband in contempt, the trial court determined that
“[h]e is willfully rejecting his responsibility to pay for [W]ife’s
[business valuation] expert and to pay her maintenance.”
(Appellant’s App. p. 15). As a result, the trial court ordered
Husband to pay $4,000 for the attorney fees Wife incurred in
bringing the contempt action. Also, the trial court ordered that
the escrowed proceedings from the sale of the marital residence
be used to satisfy Husband’s obligation under Provisional Order
# 2 in the amount of $15,000, as well as for any maintenance
payments owing under Provisional Order # 3.
On November 27, 2013, our court rendered its decision in
Hogshire I, holding that[,] although it is permissible for a trial
court to sua sponte award $10,000 in attorney fees, the trial court
had abused its discretion by doing so in Provisional Order # 2
without first hearing evidence on Husband’s financial
circumstances. We remanded to the trial court for an
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examination of the parties’ resources. Seven months later, we
issued our decision in Hogshire II. There, we reversed the portion
of Provisional Order # 3 requiring Husband to pay $750 in
weekly maintenance “and remand[ed] with instructions to
modify the maintenance award taking into account Husband’s
earnings, living expenses, and other obligations imposed by the
court’s provisional orders.” Hogshire II, 2014 WL 2927270, at *4.
We further concluded that the trial court had abused its
discretion by ordering Husband to pay for the outstanding and
future fees of the business valuation expert based, in part, on
Husband’s inability to pay.
Hogshire v. Hoover, 2014 WL 5089291, at *1-2 (Ind. Ct. App. Oct. 9, 2014)
(“Hogshire III”).1 In Hogshire III, we affirmed the trial court’s order finding
Husband in contempt, but remanded with instructions to the trial court to revise
its judgment “such that the stated amounts of maintenance and other fees are
consistent with our remand instructions in Hogshire I and Hogshire II.” Id. at *8.
[4] Pending our memorandum decision in Hogshire III, on July 16, 2014, Wife filed
a verified emergency petition for provisional maintenance. Following a hearing
on that petition, on May 18, 2015, the trial court entered its order finding and
concluding in relevant part as follows:
Wife’s Income and Expenses
Wife’s Employment
1
Husband filed his appeal in Hogshire III from the trial court’s order finding him in contempt prior to the
date this court issued its memorandum decision in Hogshire II.
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8) Wife is seventy-six (76) years of age.
9) Wife is unemployed.
10) Wife claims to suffer from a number of physical ailments,
including heart problems, uncontrolled anxiety and depression.
11) Wife claims to suffer from the side effects of her
medications.
12) Wife is currently not under a physician’s care.
13) Wife’s claims regarding her medical conditions are
unsubstantiated by medical evidence.
14) Wife is not seeking employment.
15) Wife claims that she is unable to work due to her medical
conditions.
16) Wife’s claim that she is unable to work due to her medical
conditions is unsubstantiated by vocational evidence.
Wife’s Income
17) Wife receives monthly social security payments of $860.
Wife’s Expenses
18) Wife has the monthly expenses of $2967 . . . .
19) Wife has expenses for car maintenance which vary.
20) Wife has ongoing credit card expenses for credit cards
taken out after this matter was filed.
Husband’s Income and Expenses
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21) Husband is seventy-eight (78) years of age.
Husband’s Business Interests
22) Husband is the owner of two businesses.
***
33) In spite of $25,000 having been paid for a business
evaluation, a business evaluation had not been completed.
***
Husband’s income
***
39) Husband’s net income from Mr. Dan’s in 2014 was
$34,971.05 for the year or $2,914.25 per month.
***
42) In 2014 Husband received monthly distributions [as sole
shareholder of Fresh Grill, LLC] of $4115.
***
44) In prior years, Husband took a salary from his
corporations.
45) In 2014 Husband chose to take corporate distributions,
when income is available, in lieu of salary.
46) In prior years, his salary was greater than his 2014 annual
distributions.
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47) As sole shareholder of Fresh Grill, Husband has sole
control over its net income.
48) Husband receives a monthly social security retirement
benefit of $2112.
***
53) Husband pays Wife’s medical insurance in the monthly
amount of $219 and Husband pays Wife’s prescription insurance
in the monthly amount of $45.
54) Husband also pays minimum monthly payment on the
parties’ credit cards.
55) One of the cards is the Chase Freedom card.
56) The Court previously ordered both parties not to charge
against this card.
57) However, Wife continues to use the card to pay her
personal expenses.
58) The Court finds that husband has monthly income of
$9167 as follows:
a. Social Security $2112
b. Mr. Dan’s (net income) $2914
c. Fresh Grill distributions $4115
d. In-kind $26
Husband’s Expenses
59) Husband has ongoing monthly expenses [that] are $7434[.]
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60) The Court does not include husband’s maintenance
payments previously ordered as it will be re-calculating the
amount in this order.
61) Husband states that he owes $140,000 in attorney fees in
this matter.
***
81) . . . [A]s sole shareholder of Fresh Grill, the Court notes
that Husband has sole control over the payment of corporate
expenses.
82) One of Fresh Grill’s expenses is a bi-weekly salary paid to
its bookkeeper of $2038 or almost $53,000 per year.
CONCLUSIONS OF LAW
83) The Court understands that, on its face, Wife’s age would
make it difficult for her to find employment.
84) [Indiana Code Section] 31-15-7-2 makes no provision for
maintenance based on age.
***
Method of Calculating Maintenance
93) The Indiana Court of Appeals, in Pham v. Pham, 650
N.E.2d 1212 (Ind. Ct. App. 1995), reversed the trial court’s
award of maintenance with instructions to modify the
maintenance award taking into account Husband’s earnings,
living expenses, and other obligations imposed by the court’s
provisional order.
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94) In Pham, the Court of Appeals refers to Indiana Child
Support Guideline 2 as being a useful reference point in
determining the appropriate amount of award for spousal
maintenance. 650 N.E.2d at 1215.
95) Child Support Guideline 2 provides, in part, that
“Temporary maintenance may be awarded by the Court not to
exceed thirty-five percent (35%) of the obligors[’] weekly adjusted
income . . . . Temporary maintenance and/or child support may
be ordered by the court either in dollar payments or ‘in-kind’
payments of obligations.”
96) Commentary to Indiana Child Support Guideline 2
provides that “it is recommended that temporary maintenance
not exceed thirty-five (35%) of [the] obligor’s weekly adjusted
income. The maximum award should be reserved for those
instances where the custodial spouse has no income or means of
support, taking into consideration that spouse’s present living
arrangement (i.e., whether or not he or she lives with someone
who shares or bears the majority of the living expenses, lives in
the military residence with little or no expense, lives in military
housing, etc.)”
97) Further, the commentary to Child Support Guideline 2
provides, “In computing temporary maintenance, in-kind
payments, such as the payment of utilities, house payments, rent,
etc. should also be included in calculating the percentage
limitations.”
98) Here, as in Pham, the parties have no un-emancipated
children.
99) The Court concludes that it should look to Indiana Child
Support Guideline 2 as a reference point in determining the
appropriate amount of award for temporary spousal
maintenance.
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100) However, the Court also concludes that it need not
exclusively look to Child Support Guideline 2 in determining
temporary spousal maintenance.
The Parties’ Adjusted Gross Income
101) In doing so, the Court first looks at the adjusted gross
income of each party.
102) Wife’s only source of income is social security payments of
$860.00 per month.
103) Husband’s adjusted monthly income is $7312. ($9167 -
$1855 tax estimates).
104) The parties have total adjusted gross income of $8172.
105) Wife has 10.5% of the parties’ adjusted gross income.
106) Husband has 89.5% of the parties’ adjusted gross income.
The Percentage of Husband’s Adjusted Gross Income to
Initially be Included in Awarding Temporary Maintenance
107) The Court next determines the percentage of Husband’s
adjusted gross income it will initially award Wife as temporary
maintenance.
108) Child Support Guideline 2 recommends that the
maximum award be reserved where a spouse has no means of
support.
109) In this case, Wife has some means of support. However,
she only received 10.5% of the parties’ adjusted gross income.
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110) Because Wife has some means of support, the Court
concludes that an award of maintenance based on 35% of
Husband’s adjusted gross income is not appropriate.
111) To account for Wife’s adjusted gross income, the Court
will reduce the 35% maximum percentage of husband’s adjusted
gross income it should consider by 10.5% (Wife’s percentage of
the parties’ adjusted gross income).
112) Accordingly, the Court concludes that it should consider
31% of husband’s adjusted gross income in determining an award
of maintenance. (35% x 89.5% rounded down).
Initial Temporary Maintenance Award
113) Initially, Wife should receive temporary maintenance in
an amount equal to 31% of Husband’s adjusted gross income.
114) Initially, Wife should be awarded weekly temporary
maintenance in the amount of $523. ($7312 x 31% = $2267 x 12
= $27,204 divided by 52 weeks = $523 rounded down).
Reduction of Temporary Maintenance Award Based on In-
Kind Payments Made by Husband and Based on Credit Card
Minimum Payments
115) Husband makes certain in-kind payments to Wife.
116) Child Support Guideline 2 provides, “In computing
temporary maintenance, in-kind payments, such as the payment
of utilities, house payments, rent, etc. should also be included in
calculating the percentage limitations.”
117) Instead of reducing the percentage of Husband’s adjusted
gross income considered in calculating temporary maintenance,
the Court concludes that it is more equitable to simply give
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Husband a credit against Wife’s initial maintenance award for
the in-kind payments he makes.
Wife’s Insurance Premiums Husband Pays
118) Husband pays Wife monthly in-kind payments of $259 for
Wife’s insurance payments.
119) The Court concludes that Wife’s maintenance award of
$523 should be reduced by $60 per week to account for these
payments. ($259 x 12 = $3108 divided by 52 = $60 rounded up).
Chase Freedom Card Minimum Payments Husband Pays
120) In addition, Husband pays $300 on the Chase Freedom
card which Wife continues to use to pay her monthly expenses.
121) Husband requests that the Court order that the Chase
Freedom account be closed.
122) However, the Court [herein] is ordering that the account
remain open and is ordering that Wife be allowed to charge the
$300 minimum on the account with Husband being ordered to
pay the minimum amount each month.
123) In determining maintenance the Court concludes that
Husband’s $300 payment should also be considered as in-kind
income paid to Wife.
124) The Court considered adding this to Wife’s income in
figuring out the income percentages of the parties.
125) However, the Court concludes that it is more equitable to
simply give Husband a credit against Wife’s initial maintenance
award for the $300 payment he makes each month.
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126) The Court concludes that Wife’s maintenance award of
$523 should be reduced by $69 per week to account for this $300
in-kind payment. ($300 x 12 = $3600 divided by 52 = $69
rounded down).
Other Minimum Credit Card Payments Husband Pays
127) Finally, in awarding maintenance, the Court also takes
into consideration that Husband is making all the minimum
payments on the parties’ credit cards in addition to the Chase
Freedom card.
128) Excluding the Chase Freedom card, Husband pays $1552
in minimum monthly credit card payments.
129) The Court concludes that Husband should be given some
credit for these payments against Wife’s maintenance award.
130) The Court concludes that Husband should be given a
credit against Wife’s temporary maintenance award in an
amount equal to 10.5% of the monthly minimum credit card bills
Husband pays, excluding the Chase Freedom card.
131) The Court concludes that Wife’s maintenance award of
$523 should be reduced by $38 per week to account for the
monthly minimum credit card payments. (Total monthly
expenses of $1552 x 10.5 = $163 x 12 = $1956 divided by 52
weeks = $38 rounded up).
132) In doing so, the Court makes clear that it is not determining that
Wife is only responsible for 10.5% of the credit card debt.
133) The Court is simply using the 10.5% figure as a basis for reducing
Wife’s initial maintenance award.
134) The percentage of the marital assets and debt will be determined
at final hearing.
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Wife’s Maintenance Award
135) After making reductions from Wife’s initial maintenance
award of $523, the Court concludes that Wife’s weekly
temporary maintenance award should be $362. ($523 - $60 - $69
-$38 = $362).
136) With a monthly maintenance award of approximately
$1569, with Wife’s monthly social security payment of $860 and
with Wife’s ability to charge $300 per month on the Chase
Freedom charge card, Wife still has a monthly income deficit of
-$238.
137) The Court understands that, although the amount is not
significant monetarily, it is significant to Wife given her small
fixed income.
138) With an additional monthly expense for maintenance,
Husband has positive monthly income of $164.
139) The Court understands that this amount is not significant.
140) Sadly, the parties’ financial situation at the end of the
month, more than anything else, reflects the realities of divorce in
general and the realities of this divorce, which has been pending
now for over three years, in particular.
141) However, it is significant to the Court in reaching its
conclusion that Husband, unlike Wife, has variable income that
is within his control.
142) As sole shareholder, Husband has the ability to control his
distribution income.
143) Particularly, Husband, as the sole shareholder, has the
ability to reduce his business expenses such as the annual
payment of $53,000 for the services of a full time bookkeeper and
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annual business deductions of over $98,000, significant expenses
for a small corporation.
144) A reduction of business expenses could result in greater
distribution income to Husband which would help offset, among
other things, the attorney fees that he owes.
145) Reductions in Fresh Grill’s business expenses might result
in less income.
***
147) Reductions in Fresh Grill’s business expenses may not be
palatable to Husband in a perfect world.
148) However, his world is not perfect at this moment. It is in
crisis.
149) Again, the crisis is an unfortunate reality of this prolonged
divorce.
CHASE FREEDOM ACCOUNT
150) Husband requests that the Court order that the Chase
Freedom credit card be closed.
151) The Court concludes that it is not equitable to do so at this
time.
152) Given Wife’s limited income and given her expenses, she
needs an ability to have some credit available to her in case of an
emergency.
153) The Court concludes that Husband should continue to
make minimum monthly payments of $300 on the Chase
Freedom card.
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154) The Court concludes that Wife should be able to charge up
to $300 per month on the Chase Freedom card.
155) However, the Court also concludes that any charges Wife
makes on the Chase Freedom card, after the date of this order,
should be subject to allocation at final hearing.
ORDER
156) The Court ORDERS Husband to pay Wife temporary
maintenance in the weekly amount of $355 commencing Friday
May 22, 2015 and a like amount each Friday thereafter until
further order.
157) The Court further ORDERS Husband to continue to pay
Wife’s insurance premiums considered as in-kind payments in
determining temporary maintenance.
158) The Court further ORDERS Husband to continue to make
the $300 minimum Chase Freedom card payments.
***
160) The Court further ORDERS Husband to continue making
the monthly minimum payments of the parties’ other credit
cards.
Appellant’s App. at 30-45 (emphasis added). This appeal ensued.2
2
An order requiring one party to pay temporary support and maintenance to another party is an order for
the payment of money. Burbach v. Burbach, 651 N.E.2d 1158, 1162 (Ind. Ct. App. 1995). Consequently, the
trial court’s order awarding Wife temporary maintenance is an appealable interlocutory order as of right. Id.
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Discussion and Decision
[5] Husband contends as follows:
The evidence in this cause included the statutory presumption
that an equal division of the marital property between the parties
is just and reasonable. Ind. Code § 31-15-7-5. The findings in
this cause do not support the trial court’s judgment that the Wife
overcame the presumption and that marital debt should be
divided 89.5% to Husband and 10.5% to Wife.
Appellant’s Br. at 17.3 Husband maintains that the trial court should
“recalculate temporary maintenance crediting the Husband with 50% of the
payments of the marital debt, thus reducing Wife’s award of temporary
maintenance to $183 per week retroactive to May 18, 2015.” Id. at 24. We
cannot agree.
[6] Indiana Code Section 31-15-4-84 provides in relevant part as follows:
(a) The court may issue an order for temporary maintenance or
support in such amounts and on such terms that are just and
proper. However, the court shall require that the support
payments be made through the clerk of the circuit court as trustee
for remittance to the person entitled to receive benefits, unless the
court has reasonable grounds for providing or approving another
method of payment.
3
We note that Husband makes no contention that Wife is not entitled to temporary maintenance.
4
Neither party cites this statute on appeal.
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A trial court’s award of temporary maintenance is reviewable only for an abuse
of discretion. See Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). An abuse
of discretion occurs when the trial court’s decision is against the logic and effect
of the facts and circumstances before it. Fort Wayne Lodge, LLC v. EBH Corp.,
805 N.E.2d 876, 882 (Ind. Ct. App. 2004).
[7] Here, Husband makes no cogent argument to show that the temporary
maintenance award is not just and reasonable under Indiana Code Section 31-
15-4-8 or that the trial court otherwise abused its discretion in making the
award. Rather, Husband appears to contend that the trial court was obliged to
calculate the temporary maintenance award based upon a division of the
marital estate pursuant to Indiana Code Section 31-15-7-5, which presumes that
an equal division of the marital property between the parties is just and
reasonable. But, in awarding temporary maintenance to Wife, the trial court
had no reason to divide the marital estate, and Indiana Code Section 31-15-7-5
is inapplicable. Rather, the trial court shall divide the marital estate in the final
decree, which has yet to be entered. Indeed, in its order, the trial court
explicitly stated that it was “not determining that Wife is only responsible for
10.5% of the credit card debt” and that the “percentage of the marital assets and
debt will be determined at final hearing.” Appellant’s App. at 42.
[8] We observe that the trial court has discretion to determine how to treat the
temporary maintenance at the final distribution. Rodgers v. Rodgers, 503 N.E.2d
1255, 1258 (Ind. Ct. App. 1987), trans. denied. Accordingly, we have held that a
trial court did not abuse its discretion when it accounted for the temporary
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maintenance in the final distribution, Fiste v. Fiste, 627 N.E.2d 1368, 1372 (Ind.
Ct. App. 1994), disapproved on other grounds by Moyars v. Moyars, 717 N.E.2d 976,
979 n.2 (Ind. Ct. App. 1999), trans. denied, but we have also held that a trial
court did not abuse its discretion when it refused to credit temporary support
payments against a final distribution, Rodgers, 503 N.E.2d at 1258. But these
are matters for the final hearing and the final decree.
[9] We hold that the trial court did not abuse its discretion when it calculated
Husband’s temporary maintenance obligation. Husband has not shown that
the award is unjust or improper. I.C. § 31-15-4-8. Indeed, the trial court’s
findings and conclusions are exhaustive and illustrate the court’s deep
understanding of the parties’ assets and liabilities, as well as the parties’
respective abilities to pay their monthly expenses.
[10] Affirmed.
Riley, J., and May, J., concur.
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