MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:41 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Thomas B. O’Farrell
McClure/O’Farrell
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roger Lee Kilburn, March 31, 2016
Appellant-Respondent, Court of Appeals Case No.
29A04-1502-DR-77
v. Appeal from the Hamilton
Superior Court
Deirdre V. Kilburn, The Honorable Wayne A.
Appellee-Petitioner. Sturtevant, Judge
Trial Court Cause No.
29D05-1402-DR-1226
Pyle, Judge.
Statement of the Case
[1] Roger Kilburn (“Husband”) appeals the trial court’s order upon the dissolution
of his marriage to Deidre Kilburn (“Wife”). Husband argues that the trial court
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abused its discretion by awarding rehabilitative maintenance and the marital
residence to Wife. Because Husband has not shown any abuse of discretion in
the trial court’s award of rehabilitative maintenance and because Husband’s
specific challenge regarding the marital residence is not ripe for review, we
affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion by awarding rehabilitative
maintenance and the marital residence to Wife.
Facts
[3] Husband and Wife were married in December 2011, and no children were born
from the marriage.1 At the time of their marriage, Husband was retired from
the Carmel Fire Department, where he had worked for almost twenty years.
Husband was also receiving disability benefits. Wife, who had served in the
United States Navy, worked full-time for the Indiana Bureau of Motor Vehicles.
Shortly thereafter, in October 2012, Wife was declared disabled and started to
receive disability benefits.
[4] After two years of marriage, Wife filed a petition for dissolution of the marriage
in February 2014. She also filed a petition requesting that the trial court award
1
Both spouses had previously been married and had children from those marriages.
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her spousal maintenance. The trial court held a final dissolution hearing on
September 17, 2014 and December 5, 2014.2 Thereafter, on February 9, 2015,
the trial court issued a thirty-four page decree of dissolution, which contained
extensive and thorough findings of fact and conclusions of law. The trial court
ordered, in relevant part, that:
3. The marital residence located at 16967 Southall, Westfield,
Indiana is set off to Wife as her sole and separate property,
together with the responsibility for the pay[m]ent of the mortgage
thereon.
4. Wife shall have 180 days from the date of this order to remove
Husband’s name from the mortgage associated with the [marital]
residence.
*****
18. Husband shall pay rehabilitative maintenance to Wife in the
amount of $1,000 per month for a period of 12 months
commencing on March 1, 2015.
19. The parties shall have 30 days from the date of this order to
execute all deeds, titles, sales disclosures, or other necessary
transfer documents to effectuate the Court’s distribution of the
marital estate ordered herein.
(App. 39, 41). Husband now appeals.
2
The trial court also reviewed and decided several pending motions that had been filed by the parties.
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Decision
[5] Husband challenges the trial court’s awards contained in the dissolution decree.
Specifically, he argues that the trial court abused its discretion by: (1) ordering
him to pay rehabilitative maintenance to Wife; and (2) awarding the marital
residence to Wife.
[6] Before we address Husband’s arguments, we note that Wife did not file an
appellee’s brief. When an appellee fails to submit an appellate brief, “‘we need
not undertake the burden of developing an argument on the [A]ppellee’s
behalf.’” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting
Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we
will reverse the trial court’s judgment if the appellant’s brief presents a case of
prima facie error.’” Id. (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima
facie error in this context is defined as, at first sight, on first appearance, or on
the face of it.” Id. (internal quotation marks and citation omitted).
[7] As we review Husband’s challenges to the trial court’s dissolution decree, we
observe that the trial court entered written findings and conclusions under
Indiana Trial Rule 52(A) pursuant to Husband’s request. Where the trial court
has entered such findings and conclusions, we apply a two-tiered standard of
review. See Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216
(Ind. 2012). “We first determine whether the evidence supports the findings and
then whether the findings support the judgment.” Id. We “shall not set aside
the findings or judgment unless clearly erroneous.” Ind. Trial Rule 52(A).
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When determining whether a finding or judgment is clearly erroneous, we may
neither reweigh the evidence nor reassess the credibility of the witnesses.
Sawmill Creek, 964 N.E.2d at 216. “The evidence is viewed in the light most
favorable to the judgment, and we will defer to the trial court’s factual findings
if they are supported by the evidence and any legitimate inferences therefrom.”
Id. at 216-17. A trial court’s legal conclusions, however, are reviewed de novo.
Id.
[8] We first address Husband’s challenge to the trial court’s award of spousal
maintenance to Wife. “The court’s power to award spousal maintenance is
wholly within its discretion[.]” Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct.
App. 2007). “‘The presumption that the 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), reh’g denied, trans. denied).
[9] “A trial court may award only ‘three, quite limited’ varieties of post-dissolution
maintenance: spousal incapacity maintenance, caregiver maintenance, and
rehabilitative maintenance.” Zan v. Zan, 820 N.E.2d 1284, 1287-88 (Ind. Ct.
App. 2005) (quoting Voigt v. Voigt, 670 N.E.2d 1271, 1276 (Ind. 1996) and
citing IND. CODE § 31-15-7-2). At issue in this appeal is rehabilitative
maintenance. INDIANA CODE § 31-15-7-2(3) authorizes a trial court to award
rehabilitative maintenance to a spouse for up to three years when the spouse
needs support while obtaining employment-related education or training.
Specifically, this subsection of the spousal maintenance statute provides that:
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(3) 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.
I.C. § 31-15-7-2(3).
[10] Here, the trial court ordered Husband to pay rehabilitative maintenance to Wife
in the amount of $1,000 per month for twelve months. When doing so, the trial
court made the following relevant findings:
FINDINGS REGARDING MAINTENANCE/DISABILITY/
RETIREMENT PLANS
116. Husband receives a lifetime monthly benefit from the CFD
[Carmel Fire Department] through the Indiana Public
Retirement System (“INPRS”) in the amount of $2,307.63.
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117. At age 52, per INPRS, Husband’s benefit will automatically
convert to a retirement benefit.
118. Dan Andrews, a qualified pension valuation expert,
prepared a report admitted into evidence as Petitioner’s Exhibit 5
and testified that Husband’s benefit after it is converted into a
retirement benefit at age 52, has a present value of $772,200.07.
119. Husband also receives disability benefits (“SSDI”) from the
Social Security Administration in the amount of $2,232 a month.
120. Husband’s monthly benefits therefore total approximately
$4,560.
121. Husband was in retirement or benefits status on the date of
the marriage and therefore Husband’s pension benefits were
earned entirely before the marriage.
122. Husband presented as evidence a Trial Order issued by an
administrative law judge . . . [who] acknowledged that
[H]usband suffers from post-traumatic stress disorder (PTSD).
123. In addition, Husband suffers from medical issues that have
already required two back surgeries, and he testified that
additional surgeries will be required. It was a combination of
Husband’s physical and emotional issues that caused him to
retire from the Carmel Fire Department, and the physical issues
caused him to close out his side business.
124. Wife is 45 years old and was a member of the United States
Navy prior to the marriage but did not see service overseas or in
a combat zone. She worked at the Indiana Bureau of Motor
Vehicles during the marriage.
125. Wife became disabled during the marriage and was
diagnosed with PTSD.
126. Wife is on various medications to treat her PTSD.
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127. Wife testified that she had attempted, through the Veteran’s
Administration (“VA”), to seek resources for occupational
therapy to return to work.
126. [sic] The medication and occupational therapy to this point
have not been successful.
129. Wife testified she has trouble focusing and staying on task
and therefore is unable to work.
130. The Court saw no evidence regarding Wife’s behavior
through numerous court hearings in this cause that support a lack
of focus or an inability to stay on task.
131. Wife’s sources of income are: INPRS monthly benefit in the
amount of $180.38; SSDI monthly benefit in the amount of $975;
SSDI dependent derivative monthly benefit in the amount of
$400; and child support for her minor child of $477 a month, for
a total of $2,032.38 per month.
132. Somewhat more than $850 per month of Wife’s income is
for the support of her minor son who is 16 years old, and that
portion will be reduced or eliminated after the child is 18 and/or
emancipated.
133. Similar to Husband’s INPRS benefit, Wife’s benefit will also
convert to a retirement benefit when Wife attains age 52.
134. Dan Andrews also prepared a report admitted into evidence
as Petitioner’s Exhibit 6 and testified that the present value of
Wife’s benefit, after it is converted to a retirement benefit, is
$49,641.63.
135. Wife had a retirement account with Hoosier Start valued at
$8,815 on the date of filing. With the consent of the Court, Wife
was allowed to use this account to satisfy some of her attorney’s
fees incurred in this matter.
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136. Wife requested that Husband pay $2,500 per month by the
first of the month via direct deposit into her checking account for
the next 14 years or until he has paid a total of $420,000,
whichever occurs first.
137. Wife is mentally incapacitated, and that incapacity at this
time materially affects her present ability to be self-supporting.
139. [sic] Each party shall be awarded as their sole and exclusive
property their interest in their respective PERF accounts, and
Wife shall be awarded as her sole and exclusive property the
Hoosier Start retirement account.
140. [sic] Spousal or rehabilitative maintenance is ordered in the
amount of $1,000 per month for a period of 12 months
commencing on March 1, 2015.
(App. 32-35).
[11] Husband’s challenge to the award of rehabilitative maintenance is limited to his
contention that the trial court was required to include a specific finding that
Wife “needs support while acquiring sufficient education or training to get an
appropriate job” and that the failure to include such a finding precluded the trial
court from ordering such an award. (Husband’s Br. 12). In support of his
contention, Husband cites to our supreme court’s opinion in Voigt, in which it
discussed the three statutory categories of spousal maintenance 3 and explained
that “a court may order rehabilitative maintenance for no more than three years
3
The Voigt Court discussed the categories of spousal maintenance contained in INDIANA CODE § 31-1-11.5-
11(e), which contained identical language as the categories of spousal maintenance contained in INDIANA
CODE § 31-15-7-2, the current statute.
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if it finds that a spouse needs support while acquiring sufficient education or
training to get an appropriate job.” Voigt, 670 N.E.2d at 1277. Essentially,
Husband’s argument is that the trial court’s order was erroneous because it did
not mirror the language contained in the Voigt opinion.
[12] Contrary to Husband’s contention, the Voigt Court did not hold that a trial
court must include any specific language or “magic words” in its findings when
awarding rehabilitative maintenance. While INDIANA CODE § 31-15-7-1
provides that a trial court “may order maintenance . . . after making the
findings required by section 2[,]” the plain language of the subsection of
INDIANA CODE § 31-15-7-2 relating to rehabilitative maintenance makes clear
that the trial court must first “consider[]” multiple factors before it exercises its
discretion and “find[s] that rehabilitative maintenance . . . is necessary in an
amount and for a period of time that the court considers appropriate[.]” I.C. §
31-15-7-2(3). Furthermore, the statute does not require a trial court to make
specific findings regarding the enumerated considerations before awarding
rehabilitative maintenance. See Moore v. Moore, 695 N.E.2d 1004, 1008 (Ind. Ct.
App. 1998) (discussing the requirements of awarding rehabilitative maintenance
under the prior version of the maintenance statute).
[13] Husband makes no specific argument that the trial court did not make the
necessary considerations before finding that rehabilitative maintenance in the
amount of $1,000 per month for a period of twelve months would be awarded
to Wife. Indeed, “[t]his court will presume that the trial court properly
considered the applicable statutory factors in reaching its decision” regarding an
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award of rehabilitative maintenance. Moore, 695 N.E.2d 1007. Because
Husband has not overcome the “presumption that the court correctly applied
the law in making an award of spousal maintenance” and has not shown that
the trial court abused its discretion by awarding rehabilitative maintenance to
Wife, we affirm the trial court’s award of spousal rehabilitative maintenance.
See Spivey, 876 N.E.2d at 784.
[14] Lastly, we address Husband’s challenge to the trial court’s order regarding the
marital residence, which the trial court included in the marital pot and awarded
to Wife.
[15] The division of marital property is within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d
1005, 1012 (Ind. Ct. App. 2014). “The court has discretion in its decision to
award marital property, including the marital residence.” Smith v. Smith, 854
N.E.2d 1, 7 (Ind. Ct. App. 2006). In an action for dissolution of marriage, the
trial court is required to divide the marital property in a “just and reasonable
manner.” I.C. § 31-15-7-4(b). See also Fobar v. Vonderahe, 771 N.E.2d 57, 58
(Ind. 2002). “[A]lthough the trial court must include all assets in the marital
pot, it may ultimately decide to award an asset solely to one spouse as part of its
just and reasonable property division.” Wanner v. Hutchcroft, 888 N.E.2d 260,
263 (Ind. Ct. App. 2008).
[16] Here, the trial court entered the following specific findings regarding its award
of the marital residence to Wife:
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FINDINGS REGARDING MARITAL RESIDENCE
51. The parties owned real estate located at 16967 Southall,
Westfield, Indiana (“Southall”) at the date of filing.
52. Wife owned the real estate prior [to] the marriage[,] and she
has occupied the same since the date of filing.
53. There is a Veterans Administration backed mortgage on the
property held by Freedom Mortgage, and the balance of the
mortgage at the date of filing was approximately $139,645.
54. Pursuant to a provisional order, Husband was required to pay
the mortgage and has done so since March of 2014.
55. Karey Bredemeyer, a licensed real estate broker, prepared a
Comparative Market Analysis (“CMA”) of Southall and testified
that in move-in condition, the marital residence could be listed
for sale, based on the current market, for a range of $135,000 to
$145,000.
56. Mr. Bredemeyer did not inspect the inside of the property as
part of preparing the CMA.
57. Wife testified that Southall was in need of some repairs and
updating.
58. The Hamilton County Assessor valued Southall at $120,700
for property tax purposes. This is not the fair market value of the
property.
59. Based on the evidence, including Mr. Bredemeyer’s
testimony and Wife’s testimony, the Court finds the value of
Southall to be $130,000. The parties have no equity in the
property.
60. Both Husband and Wife requested possession of Southall.
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61. Wife wants to retain the property as being her prior marital
residence and as a home for her son as he completes Westfield
High School.
62. Wife testified she had begun the process of applying to obtain
financing on Southall in her own name. Wife’s mother testified
that she would be willing to help Wife co-signing for any
mortgage.
63. Testimony indicated that although Wife brought the real
estate into the marriage, she was delinquent in her mortgage
payments and the property was near or in foreclosure when
Husband first moved in and began making the mortgage payment
at her request while she would pay “other bills”. The parties
refinanced the property so that Husband could be added to the
mortgage obligation and the payments brought current.
64. Evidence also shows that Husband made substantial
improvements to [the] property . . . .
65. Since the provisional hearing in this cause, and perhaps
before the hearing, Husband has been the sole contributor to the
mortgage payments associated with the marital residence.
66. At the time of the marriage, Wife was fully employed and
was unable to meet the mortgage obligation and other expenses
involved with the house. At the time of the preliminary hearing,
Wife was unable to afford those expenses. Since that time, her
economic circumstances have not improved.
67. If Wife is unable to refinance the mortgage and remove
Husband’s name from the mortgage and is unable to maintain
the mortgage payments going forward, this will negatively affect
the credit of both Husband and Wife.
68. Husband testified that he no longer wants to retain the
marital residence but believes that Wife is unable to afford to
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keep the home. He wants the home set off to him so that he can
sell it.
69. The house should be set off to Wife.
(App. 22-25).
[17] Husband’s challenge to the trial court’s order regarding the marital residence
does not actually involve the present award of the residence to Wife. Indeed,
he acknowledges that “this appears to be a standard property division order[.]”
(Husband’s Br. 14). Instead, his challenge is limited to what may happen in the
future in the event that Wife does not obtain a refinanced mortgage on the
house and remove him from the mortgage. He contends that if that occurs,
then he “will be compelled to write mortgage checks from his disability income
for as long as [Wife] owns the home and fails (or chooses) not to pay the
mortgage.” (Husband’s Br. 15-16). Thus, he asserts that the trial court’s award
of the marital residence to Wife would essentially result in “de facto alimony or
long-term maintenance[.]” (Husband’s Br. 16).
[18] It is clear that Husband’s argument is not ripe for appellate review. “Ripeness
relates to the degree to which the defined issues in a case are based on actual
facts rather than on abstract possibilities, and are capable of being adjudicated
on an adequately developed record.” Indiana Dep’t of Envtl. Mgmt. v. Chem.
Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). See also In re Paternity of
M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001) (“Ripeness involves the
timing of judicial review and the principle that judicial machinery should be
conserved for problems that are real and present or imminent, not squandered
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on problems that are abstract or hypothetical or remote.”), trans. denied.
Because Husband’s challenge to the trial court’s award of the marital residence
focuses on possible future ramifications that may arise if Wife fails to refinance
the mortgage on the marital residence and if Husband then makes payments on
the existing mortgage, it is not ripe for review. Thus, we affirm the trial court’s
judgment.
[19] Affirmed.
Vaidik, C.J., concurs.
Robb, J., concurs in part and dissents in part with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Roger Lee Kilburn, Court of Appeals Case No.
Appellant-Respondent, 29A04-1502-DR-77
v.
Deirdre V. Kilburn,
Appellee-Petitioner.
Robb, Judge, dissenting in part and concurring in part
The majority determines that the trial court did not abuse its discretion in
awarding rehabilitative maintenance to Wife. I disagree on two fronts.
First, I disagree that what the trial court awarded was in fact rehabilitative
maintenance. See slip op. at ¶ 9 (“At issue in this appeal is rehabilitative
maintenance,” citing Ind. Code § 31-15-7-2(3)). The trial court did state in its
order that Husband was to pay $1,000 per month in “rehabilitative
maintenance” to Wife for a period of twelve months. App. at 41. However,
the standard the trial court employed in determining whether maintenance was
warranted was that for incapacity maintenance:
To award spousal maintenance under Ind. Code § 31-15-7-2(1),
the trial court must first make a threshold determination that (1)
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a spouse is physically or mentally incapacitated, and (2) the
incapacity materially affects the spouse’s self-supportive ability.
If the trial court finds that a spouse is incapacitated, it then has
the discretion to award maintenance. Marriage of Richmond, 605
N.E.2d [226,] 228 [(Ind. Ct. App. 1992)].
App. at 19. Further, the trial court’s findings concern incapacity maintenance:
Wife became disabled during the marriage when she was diagnosed with PTSD
and is unable to work, she is on various medications to treat PTSD, and the
medications and occupational therapy have not been successful treatments
allowing her to return to work. As a result, the trial court found that “Wife is
mentally incapacitated, and that incapacity at this time materially affects her
present ability to be self-supporting.” Id. at 35; see also Exhibit 31 (summary of
Wife’s requests, asking the trial court find “Wife is unable to work due to her
disability” and order Husband to pay a certain monthly sum “as disability
maintenance”). On the other hand, there was no evidence introduced at trial
and the trial court made no findings that would support a conclusion Wife was
in need of support while acquiring sufficient education or training to get an
appropriate job. See Ind. Code § 31-15-7-2(3). Wife had appropriate
employment which she was unable to continue because she became disabled.
The trial court may not be required to use any “magic words” in its findings, see
slip op. at ¶ 12, but it must make findings that support its judgment. Therefore,
to the extent the trial court intended to award rehabilitative maintenance, the
award is unsupported by the evidence or the findings and is clearly erroneous.
Second, to the extent the trial court merely mislabeled its award of maintenance
and in fact awarded incapacity maintenance, I would hold that the trial court
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abused its discretion in doing so. When a trial court finds that a spouse is
physically or mentally incapacitated to the extent that the ability of that spouse
to support 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.” Cannon v.
Cannon, 758 N.E.2d 524, 527 (Ind. 2001). Nonetheless, such an award is not
mandatory. Id.; see also Lesley v. Lesley, 6 N.E.3d 963, 968 (Ind. Ct. App. 2014).
Moreover, the duration of an incapacity maintenance award is measured by the
duration of the incapacity. Ind. Code § 31-15-7-2(1); Spivey v. Topper, 876
N.E.2d 781, 786 (Ind. Ct. App. 2007). Limiting an incapacity maintenance
award to a finite period in the absence of evidence that the incapacity is finite is
error. Spivey, 876 N.E.2d at 786 (comparing spouse’s incapacity resulting from
bipolar and autoimmune disorders to incapacity resulting from broken bones).
The state of the record before us does not support an award of incapacity
maintenance to Wife. Although there was evidence that Wife receives
disability benefits, there was no medical evidence offered to support or explain
Wife’s claims of disability. In fact, despite Wife’s assertion she was unable to
work because she had trouble focusing and staying on task, the trial court
specifically found that it saw no evidence of that during the proceedings. See
App. at 34. Further, Husband was disabled and retired at the time of the
marriage, and the benefits which comprise his current income were earned
entirely before the marriage. As noted above, the trial court’s limited award of
maintenance bears no apparent correlation to Wife’s disability, nor does it bear
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any relation to her prior income or current financial needs. It appears that the
award of $1,000 per month for twelve months may have been based primarily
on reasons other than Wife’s incapacity, as the trial court’s findings regarding
maintenance were commingled with findings regarding the parties’ relative
disability and retirement benefits. See App. at 32-35 (“Findings Regarding
Maintenance/Disability/Retirement Plans”). In light of the facts and
circumstances of both parties’ situations, I would hold the trial court abused its
discretion in ordering Husband to pay incapacity maintenance to Wife.
I therefore respectfully dissent from the majority decision with respect to the
issue of maintenance. I concur with the decision in all other respects.
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