MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Feb 21 2017, 9:02 am
Memorandum Decision shall not be regarded as
CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Paul E. Baylor David W. Stone
Anderson, Indiana Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Schuyler, February 21, 2017
Appellant-Respondent, Court of Appeals Cause No.
48A02-1603-DR-627
v. Appeal from the Madison Circuit
Court
Donna Schuyler, The Honorable G. George Pancol,
Judge
Appellee-Petitioner.
Trial Court Cause No. 48D02-0906-
DR-519
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, Robert Schuyler (Robert), appeals the trial court’s order
denying his petition to terminate his spousal maintenance obligation to the
Appellee–Respondent, Donna Schuyler (Donna).
[2] We affirm.
ISSUE
[3] Robert raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by not terminating his spousal maintenance obligation.
FACTS AND PROCEDURAL HISTORY
[4] Robert and Donna were married for several years, and on June 13, 2011, they
dissolved their marriage. No children were born to the marriage. At the time
of the parties’ divorce, Donna suffered from several illnesses including; Crohn’s
disease, Barret’s Esophagus, GERD, sensitive bladder, spells of dizziness,
depression, and anxiety. In the order dissolving the marriage, the trial court
determined that Donna’s health problems materially affected her ability to
support herself, and it ordered Robert to pay Donna spousal maintenance of
$175 per week beginning on June 17, 2011.
[5] On November 20, 2015, Robert filed a petition seeking to terminate the spousal
maintenance order on grounds that Donna had become eligible for social
security benefits and because he was newly married and had new
responsibilities. A hearing was conducted on February 16, 2016. In support of
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his petition, Robert introduced evidence that Donna was now receiving an
annual income of $18,000 from her social security benefits, and was also
working part-time at a daycare. No evidence was presented regarding a change
in Donna’s health issues. At the close of the evidence, the trial court took the
matter under advisement. On February 25, 2016, the trial court issued an
order, stating that there had been no substantial and continuing change to
warrant the termination of the maintenance order.
[6] Robert now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[7] Robert argues that the trial court should have either terminated, or, at least,
reduced the spousal support that he pays to Donna. We initially note that
Robert’s petition and relief sought during the modification hearing was limited
to terminating his spousal maintenance obligation. To the extent that he now
claims that the trial court should have reduced his obligation, we decline to
address this argument as it was never raised before the trial court, but rather, is
being presented for the first time on appeal. See McKibben v. Hughes, 23 N.E.3d
819, 828-29 (Ind. Ct. App. 2014) (an appellant who presents an issue for the
first time on appeal waives the issue for purposes of an appellate review), reh’g
denied.
[8] A trial court has broad discretion to modify a spousal maintenance award, and
we will reverse only upon an abuse of that discretion. In re Marriage of Erwin,
840 N.E.2d 385, 389 (Ind. Ct. App. 2006). An abuse of discretion will be found
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if the trial court’s decision is clearly against the logic and effect of the facts or
reasonable inferences to be drawn therefrom, if the trial court misinterprets the
law, or if the trial court disregards evidence of factors in the controlling statute.
Lowes v. Lowes, 650 N.E.2d 1171, 1174 (Ind. Ct. App. 1995). “The burden is on
the party moving for modification to show changed circumstances so
substantial and continuing as to make the previous maintenance order
unreasonable.” Id.
[9] In determining whether a substantial change of circumstances has occurred
which renders the original award of maintenance unreasonable, a trial court
should consider the factors underlying the original award. Roberts v. Roberts,
644 N.E.2d 173, 178 (Ind. Ct. App. 1994). Those factors include the financial
resources of the party seeking to continue the maintenance, the standard of
living established in the marriage, the duration of the marriage, and the ability
of the spouse from whom the maintenance is sought to meet his or her needs
while meeting those of the other spouse seeking maintenance. Lowes, 650
N.E.2d at 1174. In the instant case, in order to determine whether there has
been a substantial and continuing change that would warrant termination of
Robert’s maintenance obligation, we must determine whether Donna’s
financial position has changed such that she is able to financially support
herself. We conclude that it has not.
[10] In support of his petition to terminate the maintenance order issued in 2011,
Robert introduced Exhibit 2 itemizing Donna’s monthly income and monthly
expenses, and without factoring his monthly spousal maintenance obligation.
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That exhibit indicated Donna’s gross income as $1,635.31, and her average
take-home pay after deducting taxes and insurance as $1,498.84. Donna’s
monthly living expenses were then listed as follows:
Rent $740.00
Food $300.00
Clothing $100.00
Utilities $160.00
Telephone $135.00
Insurance (life, auto) $30.00
Gasoline $80.00
Med 1 Solutions $50.00
Premiere Credit $25.00
Urology Assoc $25.00
Central IN Gastro $68.00
Indiana Dept. of Revenue $76.37
Medicine $100.00
License Plates $5.85
Cable $80.00
Trash pickup $25.00
Christmas presents $41.66
Birthday presents $20.83
Dry Cleaning/Laundry expenses $60.00
Total Expenses $2,123.46
Total Income $1,498.84
Total Expenses $2,123.46
($624.62)
(Appellant’s Exh. 2).
[11] In his appellate brief, Robert’s arguments are centered on his belief that Donna
is living an extravagant lifestyle. Robert argues that Donna has “made no
attempt to receive Medicaid or Medicare, HUD, or any other government
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assistance.” (Appellant’s Br. p. 5). Robert further claims that Donna has not
made any “attempt to economize. She pays $135 just for cell phone. She
spends $80 a month on cable.” (Appellant’s Br. p. 7). Robert also faults Donna
for not applying for social security disability benefits based on her numerous
health problems.
[12] Notwithstanding Robert’s arguments on appeal, Robert did not provide any
evidence at the modification hearing that the alleged government subsidized
programs or assistance were available to Donna. Moreover, at the modification
hearing, Donna explained that during the divorce proceedings, she was living
rent-free with her sister and brother-in-law. At the time, her living expenses
were low and she was able to survive with Robert’s maintenance. However,
after the divorce was finalized, and owing to her health problems, she moved to
Plainfield and got an apartment that was fifteen minutes away from her
daughter’s house. Donna indicated that her lifestyle changed and her expenses
increased after the move. Donna specified that her rent of $740 was reasonable
based on her apartment’s location. Further, Donna stated that in 2011, she had
once applied for social security disability benefits in light of her health
problems, was denied, and never reapplied. When questioned why she had not
sought a $10 government phone, Donna testified that “I just always kept my
phone.” (Tr. p. 33). With respect to her health insurance cost, Donna stated
that she had kept the same policy with Blue Cross Blue Shield Insurance for
years and it never occurred to her to apply for “Obama Care.” (Tr. p. 32).
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[13] The standard of living established in the marriage, the duration of the marriage,
and the ability of the spouse from whom the maintenance is sought to meet his
or her needs while meeting those of the other spouse seeking maintenance, are
pertinent factors in determining maintenance. See Lowes, 650 N.E.2d at 1174.
As noted, Robert’s weekly maintenance to Donna is $175 per week; thus, his
monthly spousal obligation is $700. Even with her new income comprising of
social security benefits and working part-time at a daycare, Donna is still unable
to meet her monthly living expenses and has a shortfall of $624.62.
[14] In his appellate brief, Robert relies on Pala v. Loubser, 943 N.E.2d 400, 404 (Ind.
Ct. App. 2011), where a former wife moved to terminate former husband’s
incapacity maintenance. On appeal, we affirmed the trial court’s decision’s to
terminate the maintenance award by concluding that although former husband
was an achondroplastic dwarf, there was evidence that former wife’s income
had decreased from about $200,000 a year at the time of the dissolution to less
than $130,000 at the time of former wife’s motion; former husband’s social
security benefits had increased; former husband at the time of the modification
hearing had approximately $50,000 in his bank account; former husband’s
physical condition had improved by the time of the modification hearing;
former husband had not seen a physician for two years; and former husband
was capable of performing some physical labor. Id. at 405-407.
[15] Unlike the fact pattern in Pala, Donna has no such financial assets and her
medical conditions have not changed since the time of the parties’ divorce.
During the divorce proceedings, Donna was unemployed and living rent-free
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with her sister and brother-in-law; however, after the divorce was finalized, she
relocated from Greenfield to Plainfield to be close to her daughter. Based on
the move to Plainfield, Donna has incurred rental and other living expenses.
[16] We note that for a modification, it is enough to show changes are substantial
and continuing to make the existing award unreasonably excessive or
inadequate, and the opportunity remains open for future modifications. See In
re Marriage of Gertiser, 45 N.E.3d 363, 369 (Ind. 2015). However, “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. Here, we conclude
that it would not be unreasonable to continue the spousal maintenance order.
When the maintenance order was entered, Robert was residing with his father,
paying $200 in rent, and his annual salary was about $65,000. It is undeniable
that Robert continues to be financially able to make the maintenance payments
to Donna, and although his annual income has slightly increased since the
parties’ divorce, it not a substantial decrease. As for Donna’s financial position,
Donna’s annual income from her social security benefits, and working part-time
at a daycare amounted to approximately $18,000. Donna’s medical issues have
not changed since the parties’ divorce and they continue to limit her ability to
work full time.
[17] Even though Donna now receives an income, those funds are insufficient to
support her needs each month. As we stated above, the standard of living
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established in the marriage, and the ability of the spouse from whom the
maintenance is sought to meet his or her needs while meeting those of the other
spouse seeking maintenance, are relevant factors in determining maintenance.
See Lowes, 650 N.E.2d at 1174. While we empathize with Robert’s claims that
his living expenses have gone up after marrying again, we must conclude that in
order for Donna to continue living the lifestyle to which she was accustomed
during the marriage, and also considering that Donna is still incapacitated due
to her health problems, maintenance from Robert is still required. Accordingly,
based upon our review of the record, we cannot say that the evidence leaves us
with the firm conviction that a mistake has been made or that the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it.
CONCLUSION
[18] In light of the foregoing, we conclude that the trial court was within its
discretion by not terminating Robert’s spousal maintenance obligation.
[19] Affirmed.
[20] Crone, J. and Altice, J. concur
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Robert Schuyler v. Donna Schuyler (mem. dec.)
Combined Opinion