MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 19 2020, 10:15 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Andrea Ciobanu Matthew L. Kelsey
Ciobanu Law, P.C. DeFur Voran LLP
Indianapolis, Indiana Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nancy Jo Coles, February 19, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-DR-2627
v. Appeal from the Delaware Circuit
Court
Robert Nelson Coles, Jr., The Honorable Kimberly S.
Appellee-Petitioner. Dowling, Judge
Trial Court Cause No.
18C02-1303-DR-130
Najam, Judge.
Statement of the Case
[1] Nancy Jo Coles (“Wife”) appeals the dissolution court’s grant of Robert Nelson
Coles, Jr.’s (“Husband’s”) petition to terminate an award of spousal
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maintenance. Wife raises one issue for our review, namely, whether the trial
court abused its discretion when it terminated the maintenance payments.
[2] We affirm.
Facts and Procedural History
[3] On September 29, 2014, the dissolution court dissolved the parties’ marriage.
At that time, Husband earned $135,000 per year. Wife was disabled and unable
to work. Accordingly, the court ordered Husband to pay Wife $2,000 per
month in incapacity maintenance for a period of two years. The court also
evenly divided the parties’ assets.
[4] Wife appealed the dissolution court’s order and asserted in relevant part that the
court had abused its discretion when it restricted the maintenance payments to
two years. Coles v. Coles, No. 18A02-1410-DR-767, 2015 WL 3766897, at *2
(Ind. Ct. App. June 16, 2015). On appeal, this Court stated that there is “no
dispute” that Wife is “totally and permanently disabled” such that her ability to
support herself is materially affected. Id. at *3. Accordingly, this Court held
that Wife “is entitled to receive spousal maintenance for an indefinite period of
time, subject to future modification upon [Husband’s] retirement or other
changed circumstances.” Id.
[5] On January 22, 2019, Husband filed a petition to terminate the maintenance
payments. In that petition, Husband asserted that the maintenance should be
terminated “for [three] separate and independent reasons.” Appellant’s App.
Vol. II at 26. Specifically, Husband asserted that: Wife had received a
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“substantial inheritance” from her mother, Wife had started receiving Medicare
and social security benefits, and Husband “intends to retire in the near future.”
Id.
[6] The dissolution court held a hearing on Husband’s petition. During the
hearing, Husband testified that his current salary is $166,000 but that he could
receive up to $194,785.88 if he received a bonus from his employer. He also
testified that he is currently collecting $3,559 per month in social security
benefits. Husband then testified that he planned to retire soon. But he stated
that he was unable to “nail down” a retirement date until the question of
maintenance is resolved because his income after retirement will consist only of
his social security benefits, which he estimated will be $2,500 or $2,700 per
month after taxes. Tr. Vol. II at 9.
[7] Husband additionally testified that, at the time their marriage was dissolved,
Wife had to pay $500 per month in order to receive insurance benefits from
Husband’s employer. But Husband stated that Wife now receives Medicare
benefits and no longer has to pay that monthly insurance premium.
[8] Wife then testified that she receives $1,025 per month in social security benefits
but that her Medicare premium of $134 is deducted from that amount. Wife
also testified that she spends $1,323.06 per year on prescriptions plus a
premium of $31 per month for her prescription coverage benefits. But Wife
stated that, due to worsening health conditions, she has recently been prescribed
a new medication that costs $2,330 per shot, which shot she will need to take
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twice in the first month and then once each month thereafter. And Wife
testified that, in addition to her medical expenses, her living expenses total
$4,258.24 per month.
[9] Wife then testified about her inheritance. Specifically, Wife stated that she had
inherited an investment account that was currently valued at $848,562.00. Wife
also testified that she inherited a lake house, which she estimated was worth
between $200,000 and $220,000. In addition, Wife testified that she had
received two bank accounts from her mother, which contained a total of
$80,000 to $115,000. However, Wife testified that she only withdraws $1,000
per month from her investment account for living expenses because she does
not “want to lose the principal at all.” Id. at 28.
[10] Following the hearing, the dissolution court entered the following findings of
fact and conclusions thereon:
15. At the time of the dissolution, [Wife] was purchasing
COBRA insurance through [Husband’s] employer at the
approximate cost of $500/mo.
16. [Wife] began receiving her social security retirement income
at age 62 and at age 65 she received Medicare, so she no longer
purchases COBRA.
17. [Wife] receives $1025.00/month from Social Security, less
her Medicare premium of $134.00/month.
18. [Wife’s] mother passed away approximately one year ago.
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19. [Wife] was the only heir.
20. There was testimony presented by [Wife] that her mother
intended to leave some property to the adult child of the parties.
However, her mother never completed the changes to her will
and all of the property was left to [Wife].
21. [Wife] received an investment account, her mother’s home
which has been sold, and a van which has also been sold. All of
those proceeds now exist in the investment account and total
approximately $850,000.00 as of February 7, 2019. That amount
adjusts with the market. [Wife] also inherited a lake house from
her mother which she believes is worth approximately $200,000
to $220,000. [Wife] plans to give that property to the parties’
child. [Wife] also received two bank accounts from her mother
totaling approximately $80,000 to $115,000. The total value of
[Wife’s] inheritance is approximately $1,160,000.
22. [Wife] receives approximately $1,000.00 per month for living
expenses from the investment account.
23. [Wife] is 67 years of age.
24. Both parties agree that [Wife] is completely disabled.
25. [Wife’s] prescription costs are $1,323.06 annually and she
pays $31/month for Express Scripts.
26. [Wife] has recently been prescribed Cosentyx which is not
included in her plan. Her cost is $2,330 per shot after insurance
coverage. She will receive two shots the first month and then one
each month thereafter.
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27. Since the dissolution, Wife’s health has worsened. Post
dissolution she has had a heart procedure, a stroke, memory
recall issues, pacemaker, psoriatic arthritis (Cosentyx
prescription), oral surgery, cataract surgeries, depression/anxiety
and lung issues.
28. [Wife] believes that costs needed to repair and upgrade her
home to accommodate her health issues would be approximately
$54,000.00
29. [Wife] believes her monthly expenses (in addition to medical
care set out above) are approximately $4,250.00.
30. The Court finds that [Wife’s] estimate of her monthly
expenses is exaggerated. [Wife] included sums such as $600.00
monthly for food for one person, savings to purchase a new van,
$100 monthly for personal care items, $100 monthly for
household products, $250 yearly for ten times per year of snow
plowing. These are all excessive amounts.
31. [Wife] alleges that she is unable to afford her expenses
because she does not want to spend any of the principal of her
inheritance.
32. The Court finds that [Wife’s] position is unreasonable.
33. The Court finds that there has been a substantial and
continuing change of circumstances such that the prior order of
maintenance is unreasonable. While [Wife’s] health has
deteriorated since the maintenance order, her financial position
has changed substantially and to the point that she is able to now
support herself.
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Appellant’s App. Vol. II at 44-45. Based on those findings, the dissolution
court terminated the maintenance order. This appeal ensued.
Discussion and Decision
[11] Wife appeals the dissolution court’s order granting Husband’s petition to
terminate the spousal maintenance award. As the Indiana Supreme Court has
previously stated:
Trial courts have broad discretion in ruling on petitions to modify
maintenance, and we will reverse their decisions only for abuse
of discretion. That is, we review whether the decision is clearly
against the logic and effects of the facts and circumstances before
the court, or the reasonable, probable, and actual deductions to
be drawn therefrom; whether the court misinterpreted the law or
disregarded evidence of factors listed in a controlling statute; or
whether it applied the wrong legal standard to properly found
facts.
Gertiser v. Gertiser (In re Marriage of Gertiser), 45 N.E.3d 363, 368-69 (Ind. 2015)
(quotation marks and citations omitted).
[12] Further, where, as here, the dissolution court enters findings of fact and
conclusions thereon, we
shall not set aside the findings or judgment unless clearly
erroneous and shall give due regard . . . to the opportunity of the
trial court to judge the credibility of the witnesses. Rather, we
look only to whether the evidence supports the findings, and then
whether the findings support the judgment, without reweighing
the evidence or reassessing witness credibility. The findings are
controlling unless the record contains no facts to support them
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either directly or by inference. Legal conclusions, though, are
reviewed de novo.
Id. (quotation marks and citations omitted).
[13] In Indiana, a trial court can award spousal maintenance under “three narrow
circumstances—incapacity, caregiver, or rehabilitative.” Alexander v. Alexander,
980 N.E.2d 878. 880 (Ind. Ct. App. 2012). Here, the dissolution court awarded
incapacity maintenance to Wife, which requires “both a physical or mental
incapacity and a resulting financial necessity.” In re Marriage of Gertiser, 45 N.E.3d
at 367 (emphases in original).
[14] Once a court enters an order for spousal maintenance, that order can be
modified only “upon a showing of changed circumstances so substantial and
continuing as to make the terms unreasonable[.]” Ind. Code § 31-15-7-3(1).
Our Supreme Court has recently stated:
In Haville v. Haville, we accepted that statutory language at face
value—observing in a footnote that the statute “expressly
declares that provisions of an order for maintenance authorized
by statute ‘may be modified or revoked’ upon specified grounds,
one of which is ‘a showing of changed circumstances so
substantial and continuing as to make the terms unreasonable.’”
825 N.E.2d 375, 378 n.2 (Ind. 2005). Nothing in that statutory
language limits the “circumstances” to the incapacity itself. To
the contrary, it permits revocation under precisely the same terms
as modification—when the award has become unreasonable
under the circumstances.
In re Marriage of Gertiser, 45 N.E.3d at 376-68.
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[15] As a “practical matter” though, that standard is “more daunting” for revoking a
maintenance order rather than merely modifying it, especially where, as here,
the underlying incapacity is permanent. Id. at 368. For a modification, the
opportunity remains open for future modifications, so “it is enough to show
that the changes are ‘substantial and continuing’ enough to make the existing
award unreasonably excessive or inadequate[.]” Id. But because revoking an
award means extinguishing it forever, “it necessarily entails proving that the
change is ‘so substantial and continuing’ that the very existence of the award has
become unreasonable—not only in the present, but under any reasonably
foreseeable future circumstances as well.” Id. (emphasis in original).
[16] On appeal, Wife contends that the dissolution court abused its discretion when
it terminated the maintenance award because the parties’ financial
circumstances have not changed so substantially or continuing as to make the
existence of the award unreasonable. Specifically, Wife contends that
Husband’s income has increased since the court dissolved their marriage while
her earning capacity has remained the same, that Husband has been unable to
establish a date for retirement, and that his “future financial income is too
speculative and incomplete” to support the termination of the maintenance
award. Appellant’s Br. at 14. Wife further contends that, while she received an
inheritance from her mother, her inheritance “is not sufficient to support her for
the rest of her life” because her condition has worsened such that she “will need
certain services” that “may be more expensive” and because the investment
account is subject to market fluctuations. Id. at 19, 21.
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[17] We acknowledge that Wife is totally and permanently disabled and that her
condition has worsened since the dissolution of the parties’ marriage.
However, as discussed above, “our role is not to reweigh the evidence or
substitute our judgment for the court’s.” In re Marriage of Gertiser, 45 N.E.3d at
369. Rather, our role is “only to determine whether the evidence supports the
findings and whether those findings support the judgment.” Id.
[18] Here, Husband testified that he would like to retire “soon” but that he could not
“nail down” a retirement date until the issue of maintenance had been resolved.
Tr. Vol. II at 9. Specifically, Husband testified that his income after retirement
will only consist of his social security benefits, which he estimated to be $2,500
to $2,700 per month after taxes.1
[19] The evidence further demonstrates that Wife’s financial position has also
changed. Indeed, Wife inherited $1,160,000 from her mother in the form an
investment account, two bank accounts, and a lake house. Additionally, since
the date of the dissolution decree, Wife has begun receiving social security and
1
Wife briefly states that Husband “was awarded seven separate retirement accounts in the dissolution.”
Appellant’s Br. at 14. However, the parties did not present any evidence of Husband’s retirement accounts
during the hearing on Husband’s petition to terminate spousal maintenance. Further, Wife makes no
argument on appeal that the court erred when it did not consider Husband’s retirement accounts in
terminating the maintenance order.
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Medicare benefits, which means she is no longer required to pay $500 per
month for insurance coverage through Husband’s employer. 2
[20] The evidence supports the dissolution court’s findings, and the findings support
the conclusion that there has been a change of circumstances so substantial and
continuing that the existence of the maintenance order has become
unreasonable. 3 See In re Marriage of Gertiser, 45 N.E.3d at 368. Accordingly, the
trial court did not abuse its discretion when it granted Husband’s petition to
terminate the spousal maintenance payments. We affirm the dissolution court’s
order.
[21] Affirmed.
Vaidik, J., and Tavitas, J., concur.
2
Wife also asserts that her inheritance is not enough to preclude “all foreseeable need” for future spousal
maintenance payments because her inheritance will only last for twenty-one years since her living expenses
are $54,000 per year. However, the dissolution court found that Wife’s estimate of her living expenses was
“exaggerated” and “excessive.” Appellant’s App. Vol. II at 45. And it is not our role to substitute our
judgment for the dissolution court’s. See In re Marriage of Gertiser, 45 N.E.3d at 369.
3
Wife contends that the court erred when it terminated the maintenance award because the dissolution
court’s original equal division of the property was premised on Wife receiving spousal maintenance.
However, the dissolution court did not contemplate an indefinite period of maintenance when it divided the
property equally. Rather, the court only awarded maintenance to Wife for a period of two years when it
divided the marital assets.
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