Attorney for Appellant
David M. Henn
Stowers Weddle & Henn PC
Indianapolis, IN
Attorneys for Appellee
Patrick Murphy
Anthony M. Campo & Associates
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOYCE G. CANNON,
Appellant (Petitioner below),
v.
GERALD W. CANNON,
Appellee (Respondent below).
)
) Supreme Court No.
) 49S05-0101-CV-38
)
) Court of Appeals No.
) 49A05-9908-CV-366
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Jester, Judge
Cause No. 49D01-9408-DR-827
ON PETITION TO TRANSFER
November 16, 2001
SULLIVAN, Justice.
Joyce Cannon sought “spousal maintenance” in her divorce from Gerald
Cannon, contending that she was unable to support herself due to physical
and mental incapacity. We agree with the divorce court and the Court of
Appeals that Joyce was not entitled to maintenance payments. However,
those courts should not have considered such factors as depletion of
material assets in deciding entitlement to spousal maintenance.
Background
Joyce Cannon filed a petition in 1994 for dissolution of her 25-year
marriage to Gerald Cannon. During the marriage, she had suffered from
numerous medical ailments and as part of the dissolution she sought
"spousal maintenance." The trial court entered a decree of dissolution of
marriage in 1999 which denied her request for spousal maintenance. She
then appealed this determination to the Court of Appeals. In response,
Gerald asked the Court of Appeals to order Joyce to pay his appellate
attorney fees. The Court of Appeals affirmed the determination of the
trial court with respect to spousal maintenance but denied Gerald's request
for fees. Cannon v. Cannon, 729 N.E.2d 1043 (Ind. Ct. App. 2000). Joyce
now requests that we examine her spousal maintenance claim.[1]
Discussion
I
A good place to start analyzing a claim for spousal maintenance is
this court's opinion in Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996), in
which Chief Justice Shepard comprehensively reviewed the evolution from
alimony to spousal maintenance in Indiana marital dissolution law. For our
purposes in this case, one specific lesson and one more general lesson from
Voigt are relevant.
At the specific level, Chief Justice Shepard pointed out that in
Indiana a court may order spousal maintenance in three circumstances:
(1) Incapacity maintenance: where the trial court "finds 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." Ind. Code § 31-15-7-2(1) (1998).[2]
(2) Caregiver maintenance: where the trial court finds that a
spouse must forgo employment in order to care for a child with a
physical or mental incapacity. Id. § 31-15-7-2(2).[3]
(3) Rehabilitative maintenance: where the trial court finds
that a spouse needs support while acquiring sufficient education or
training to get an appropriate job. Id. § 31-15-7-2(3).[4]
Voigt, 670 N.E.2d at 1276-77.
At the more general level, Voigt stands for the proposition that, in
the absence of an agreement between the parties, the trial court's
authority in ordering maintenance is restricted and limited to these three
statutory options. Id. at 1276. "Where none of these circumstances exist,
a court may not order maintenance without the agreement of the parties.
This policy reflects a clear legislative intent to retain fairly strict
limits on the power of courts to order maintenance without the consent of
the parties." Id. at 1277 (citations omitted).
Here Joyce seeks incapacity maintenance. As such, Voigt informs us
that determining Joyce's claim to incapacity maintenance must be evaluated
by giving a strict if not literal interpretation to the language of the
statute. That is, the trial court could only award incapacity maintenance
if it found Joyce to be physically or mentally incapacitated to the extent
that her ability to support herself was materially affected. 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.[5]
II
The trial court entered findings of fact from which it concluded that
Joyce was not entitled to incapacity maintenance in this case. Because the
statute requires findings in order to award maintenance, Ind. Code § 31-15-
7-1, we treat the court's findings as "special findings" under Indiana
Trial Rule 52(A)(3). We will not set aside such findings unless clearly
erroneous and give due regard to the opportunity of the trial court to
judge the credibility of the witnesses. Id.
As pointed out by the Court of Appeals, the trial court issued
findings on the spousal maintenance issue in response to Joyce's motion to
correct errors. In those findings, the trial court reconsidered and then
affirmed its earlier determination that Joyce's request for spousal
maintenance be denied. We summarize those revised findings as follows.
First, the trial court found the testimony of Gerald's and Joyce's
medical experts in conflict as to the degree to which she suffered from
“dermal vasculitis.” It also found that Gerald's medical expert observed
that Joyce would not be able to perform full-time work and incurred
expenses for therapy and prescriptions because she was suffering from
depression.
Second, the trial court found there to be some evidence that Joyce
had been able to earn some income by conducting “garage sales,” although it
was difficult, if not impossible, to document her earnings.
From these two findings, the trial court found that “the evidence as
to whether Joyce was disabled to the point that her ability to support
herself is materially affected is inconclusive.” (R. at 22-23.) On
appeal, Joyce argues that the trial court's findings as to her depression
were uncontroverted and that the evidence relating to garage sales all
predated the medical evidence as to incapacity. While we acknowledge these
arguments, we conclude that they go to the relative weight and credibility
of the evidence and witnesses at trial, matters within the purview of the
trial court. Because the trial court's findings in this regard are not
clearly erroneous, we sustain its conclusion that Joyce is not entitled to
incapacity maintenance.
III
After it addressed the medical and garage sale evidence, the trial
court made three additional findings. It held that during the pendency of
the divorce action, Gerald had paid, pursuant to court order, specified
amounts in “spousal maintenance,” mortgage payments, and Joyce's insurance
premiums. It further held that since separation Joyce had liquidated and
utilized specified marital assets. Lastly, it held that during the
pendency of the divorce, Joyce had spent money on home remodeling, cosmetic
surgery, and a vacation. From these three additional findings, the court
concluded that its order denying Joyce's request for spousal maintenance
“is not erroneous under the circumstances.” (R. at 24.)
The Court of Appeals referred to these three additional findings in
its opinion. Because “a maintenance award is not mandatory,” the Court of
Appeals said, “[u]nder these circumstances, we cannot say that the trial
court abused its discretion in denying [Joyce’s] request for spousal
maintenance.” Cannon, 729 N.E.2d at 1048.
We agree with the Court of Appeals that, given the language of the
statute, a maintenance award is not mandatory. But as we pointed out at
the outset of this discussion, the Legislature has narrowly circumscribed
the authority of courts to award spousal maintenance. While such factors
as payments made by one spouse to another pursuant to the terms of
provisional orders and depletion of marital assets are appropriate
considerations in dividing the marital pot, see Ind. Code §31-15-7-5
(1998), we believe that the statutory scheme for spousal maintenance does
not admit of such considerations. 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.
Because the trial court here found, irrespective of the provisional
payment and depletion of asset issues, that Joyce had not demonstrated an
entitlement to incapacity maintenance, no reversal or remand is required.
Conclusion
We grant transfer pursuant to Indiana Appellate Rule 58(A), summarily
affirm the opinion of the Court of Appeals as to the issue discussed in
footnote one, and affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] No claim is made to us concerning the appellate attorney fee issue and
we summarily affirm the opinion of the Court of Appeals on that issue.
Ind. Appellate Rule 58(A)(2).
[2] This provision has been recodified without substantive change
subsequent to Voigt. At the time of Voigt, it was codified as Ind. Code §
31-1-11.5-11(e)(1) (Supp. 1996).
[3] Previously codified as Ind. Code § 31-1-11.5-11(e)(2) (Supp. 1996).
[4] Previously codified at Ind. Code § 31-1-11.5-11(e)(3) (Supp. 1996). In
its opinion in this case, the Court of Appeals incorrectly recited that the
criteria for awarding rehabilitative maintenance under Ind. Code § 31-15-7-
2(3) were the factors to be considered when awarding incapacity maintenance
under Ind. Code § 31-15-7-2(1). Cannon v. Cannon, 729 N.E.2d 1043, 1046
(Ind. App. 2000). However, the Court of Appeals does not appear to have
actually employed the rehabilitative maintenance criteria in analyzing
Joyce's claim here. See id. at 1047-48.
[5] We shall revisit this latter concept in part III infra.