                                                  Mar 25 2014, 6:23 am



FOR PUBLICATION
ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

CYNTHIA L. GARWOOD                            MARCEL KATZ
Lafayette, Indiana                            Law Offices of Marcel Katz
                                              Lafayette, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

MARJORIE O. LESLEY,                           )
                                              )
     Appellant-Respondent/Cross-Appellee,     )
                                              )
            vs.                               )      No. 79A02-1305-DR-472
                                              )
ROBERT T. LESLEY,                             )
                                              )
     Appellee-Petitioner/Cross-Appellant.     )


                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                         The Honorable Thomas H. Busch, Judge
                            Cause No. 79D02-1008-DR-264



                                    March 25, 2014


                           OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Marjorie O. Lesley (“Wife”) and Robert T. Lesley (“Husband”) obtained a divorce. In

the final dissolution decree, the trial court found that Wife did not present sufficient evidence

to establish that she was entitled to incapacity maintenance, but indicated that it would

reevaluate the issue if the Social Security Administration (“SSA”) determined that she was

disabled. Subsequently, the SSA found that Wife was disabled, and she filed a petition with

the trial court to revisit the issue of incapacity maintenance. The trial court then issued an

order finding that Wife was entitled to rehabilitative maintenance from the time of the

dissolution until the emancipation of the parties’ youngest child. Wife filed a motion to

correct error, arguing that the trial court erred in granting her rehabilitative maintenance

rather than incapacity maintenance. The trial court denied her motion.

       Wife appeals the denial of her motion to correct error, arguing that the trial court erred

in finding that she was entitled to rehabilitative maintenance rather than incapacity

maintenance. Husband cross-appeals, arguing that the trial court did not have the authority to

reevaluate its original decision not to grant Wife maintenance. We conclude that the Indiana

Code requires the trial court to make a maintenance determination at the time that the final

dissolution decree is entered. We further conclude that because the trial court found in the

final dissolution decree that Wife failed to carry her burden to show that she was

incapacitated, it did not have the authority to revisit the issue based upon a postdissolution

decision from the SSA. Accordingly, we reverse the portion of the trial court’s order




                                               2
granting Wife maintenance and remand for further proceedings consistent with this opinion,

including all necessary recalculations.

                              Facts and Procedural History

       Husband and Wife were married in December 1991, and had two children: T.L. born

in August 1992, and M.L., born in November 1993. Husband has been employed as a

registered nurse since 1993. Wife worked at Subaru Indiana Automotive for eighteen years.

By October 2009, Wife had been diagnosed with lupus, fibromyalgia, degenerative disc

disease, irritable bowel syndrome, depression, and anxiety disorder. In October 2009, Wife

went on short-term disability with her employer and then long-term disability. Wife filed an

application for disability insurance benefits with the SSA. Her application was denied, and

she appealed.

       In August 2010, Husband filed a petition for marriage dissolution. Wife filed a

counterpetition, asking for incapacity maintenance. The trial court held a hearing on the

petitions, and in May 2011, issued a dissolution decree, which provided in relevant part,

              10.    The Court is unable to conclude from the evidence presented
       whether the Wife is entitled to receive maintenance from the Husband under
       Indiana Law. To-date, the Wife’s request for Social Security Disability
       benefits, based on her medical records, and her claims of inability to maintain
       employment due to her medical condition, have been denied by the [SSA]
       which has had an opportunity to review all of the medical records relevant to
       Wife’s case and make a determination based on those records. Further, the
       Wife testified that her own physician had concluded in April 2010 that the
       Wife was physically and medically able to return to work, which opinion when
       expressed to her employer, formed the basis for the denial of any further
       disability benefits [] which she had been receiving from her employer. No
       medical evidence has been presented on the Wife’s behalf to support her
       request for determination that she is medically physically unable to be
       employed.

                                             3
             11.    Upon a determination by the Social Security Administration that
       the Wife is disabled, the Court will re-evaluate issues of child support,
       maintenance, and educational expenses, retroactively.

Appellant’s App. at 26-27.

       Wife filed a motion to correct error, arguing in relevant part that the trial court erred in

failing to award incapacity maintenance. The trial court issued an order granting in part and

denying in part Wife’s motion to correct error, which in relevant part denied her motion as to

incapacity maintenance and entered a corrected dissolution decree, which reiterated

paragraphs 10 and 11 above.

       In November 2011, the SSA issued its ruling on Wife’s appeal of the denial of

disability benefits, determining that she had been disabled from October 26, 2009, to

November 21, 2011. The SSA recommended a disability review in two years, as medical

improvement was expected with appropriate treatment.

       In May 2012, Wife filed a petition for retroactive reevaluation of maintenance and

child support, to which she attached the SSA’s determination that she was disabled. Husband

filed a response to Wife’s petition and a petition for modification of child support and

property division.

       In December 2012, the trial court held a hearing on all pending matters. Husband

argued that the trial court had already determined in the dissolution decree that Wife was not

entitled to incapacity maintenance and that it did not have the authority to reevaluate the

issue. In January 2013, the trial court issued an order, which provided in relevant part:

       6.     The Court finds that [Wife] is entitled to rehabilitative maintenance
       from the period of dissolution until the date of [M.L.’s] majority. The Court

                                                4
        finds that the three years between the date of her disability and [M.L.’s]
        majority is sufficient time for [Wife] to have obtained adequate retraining to
        obtain employment within her physical capabilities.

        7.     The Court finds that maintenance shall be calculated as if [Wife] was an
        additional child requiring support, but in no event greater than $500.00 per
        month.

Id. at 11. The trial court found that T.L. reached the age of majority on July 1, 2012, and

M.L. reached the age of majority on November 15, 2012. The trial court recalculated the

support and maintenance that Husband owed Wife from May 6, 2011 through November 15,

2012.

        Wife filed a motion to correct error, arguing in relevant part that the trial court erred in

awarding her rehabilitative maintenance when she was actually entitled to incapacity

maintenance because the SSA had found that (1) Wife was disabled; (2) suffers from lupus,

fibromyalgia, degenerative disc disease, depression, and anxiety; (3) the demands of her past

relevant work exceed her residual functioning capacity; (4) she is unable to perform any work

related to her vocational work history; and (5) the national economy did not contain a

significant number of jobs that she could perform for her to obtain employment with her

disabilities. Id. at 62-63. Following a hearing, the trial court denied Wife’s motion to correct

error regarding rehabilitative maintenance.

                                    Discussion and Decision

        Wife appeals the trial court’s decision to award her rehabilitative maintenance rather

than incapacity maintenance. Husband cross-appeals, arguing that the trial court did not have

the statutory authority, as a matter of law, to reevaluate its decision not to grant Wife


                                                 5
postdissolution maintenance when it issued the dissolution decree. This is a question of first

impression. Based on the statutory framework governing dissolution and maintenance, we

agree with Husband.

         Our goal in statutory interpretation is to ascertain, give effect to, and implement the

legislature’s intent as expressed in the plain language of its statutes. State v. Prater, 922

N.E.2d 746, 749 (Ind. Ct. App. 2010), trans. denied. “The first rule of statutory construction

is that ‘[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense.’” Id.

(quoting Ind. Code § 1-1-4-1(1)) (alteration in Prater). “The Court presumes that the

legislature intended for the statutory language to be applied in a logical manner consistent

with the statute’s underlying policy and goals.” Cubel v. Cubel, 876 N.E.2d 1117, 1120 (Ind.

2007).

         Indiana Code Title 31, Article 15 governs the dissolution of marriage. Indiana Code

Section 31-15-2-16(b) provides that a “dissolution decree is final when entered, subject to the

right of appeal.” (Emphasis added.) Indiana Code Section 31-15-7-1 provides that the “court

may order maintenance in final dissolution of marriage decrees entered under IC 31-15-2-

16.” (Emphasis added.) The parties may provide for maintenance in settlement agreements,

but in the absence of such an agreement, a trial court may award only “three, quite limited”

varieties of postdissolution maintenance: spousal incapacity maintenance, caregiver

maintenance, and rehabilitative maintenance. Dewbrew v. Dewbrew, 849 N.E.2d 636, 644

(Ind. Ct. App. 2006). Indiana Code Section 31-15-7-2 provides,

                 (1) If the court finds a spouse to be physically or mentally incapacitated
         to the extent that the ability of the incapacitated spouse to support himself or

                                                 6
      herself is materially affected, the court may find that maintenance for the
      spouse is necessary during the period of incapacity, subject to further order of
      the court.

             (2) If the court finds that:

             (A) a spouse lacks sufficient property, including marital property
             apportioned to the spouse, to provide for the spouse’s needs; and
             (B) the spouse is the custodian of a child whose physical or mental
             incapacity requires the custodian to forgo employment;

      the court may find that maintenance is necessary for the spouse in an amount
      and for a period of time that the court considers appropriate.

             (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.

(Emphases added.) Indiana Code Section 31-15-7-3 provides that an award of maintenance

may be modified if certain conditions are met:

      Provisions of an order with respect to maintenance ordered under section 1 of
      this chapter … may be modified or revoked. Except as provided in IC 31-16-
      8-2, [which governs modification of support orders providing medical support
      for a child] modification may be made only:


                                             7
       (1) upon a showing of changed circumstances so substantial and continuing as
       to make the terms unreasonable.

       Reading these statutes together, it is clear that a trial court is to determine whether a

spouse is entitled to maintenance at the time the dissolution decree is entered. Ind. Code §§

31-15-7-1, -2. Indiana Code Section 31-15-7-2(1) and (2) require the court to make certain

findings, before it considers whether maintenance is necessary. The spouse seeking

maintenance has the burden of proving that he or she is entitled to maintenance. Matzat v.

Matzat, 854 N.E.2d 918, 921 (Ind. Ct. App. 2006). If, at the time of dissolution, the trial

court finds that a spouse has not satisfied the statutory criteria entitling him or her to

maintenance, then that is the end of the matter. The dissolution decree is final. Ind. Code §

31-15-2-16(b). There is no statutory authority for the trial court to reevaluate, postpone, or

defer its determination of whether a spouse meets the statutory criteria in Indiana Code

Section 31-15-7-2 based on a decision or act of an outside entity that occurs after the final

dissolution decree has been entered. If, at the time of dissolution, the trial court finds that a

spouse has met the burden to establish the statutory criteria in Indiana Code Section 31-15-7-

2, then the trial court “may” find that maintenance is necessary. The trial court’s power to

award spousal maintenance is not mandatory but is wholly within the trial court’s discretion.

Clokey v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011). If the trial court finds in

the final dissolution decree that spousal maintenance is necessary, then the trial court retains

statutory authority to modify or revoke maintenance. Ind. Code § 31-15-7-3.

       Turning to the facts at hand, Wife requested incapacity maintenance pursuant to

Indiana Code Section 31-15-7-2(1). It was her burden to prove that she was physically or

                                               8
mentally incapacitated to the extent that her ability to support herself was materially affected.

However, she failed to carry her burden. The trial court concluded that the evidence

presented did not support a finding that Wife was entitled to receive maintenance from

Husband and that “[n]o medical evidence has been presented on the Wife’s behalf to support

her request for determination that she is medically physically unable to be employed.”

Appellant’s App. at 26. In the final dissolution decree, the trial court found that Wife’s

evidence was insufficient to establish that she was physically or mentally incapacitated to the

extent that her ability to support herself was materially affected, and that determination is

final. As a matter of law, the trial court could not retain authority to reevaluate, postpone, or

defer that determination based on a subsequent decision from the SSA. Accordingly, we

reverse the trial court’s award of rehabilitative maintenance to Wife and remand for further

proceedings consistent with this opinion, including all necessary recalculations.

       Reversed and remanded.

NAJAM, J., concurs.

BAKER, J., concurs with separate opinion.




                                               9
                               IN THE
                    COURT OF APPEALS OF INDIANA

MARJORIE O. LESLEY,                                )
                                                   )
       Appellant-Respondent/Cross-Appellee,        )
                                                   )
              vs.                                  )     No. 79A02-1305-DR-472
                                                   )
ROBERT T. LESLEY,                                  )
                                                   )
       Appellee-Petitioner/Cross-Appellant.        )
                                                   )




BAKER, Judge, concurring.

       I agree with the majority that the issue of spousal maintenance could not be revisited

once the trial court entered the final dissolution decree. However, I write separately to

explain how the trial court’s intent could have been properly effected.

       Here, in the May 2011 decree, the trial court noted that Wife “obtained a degree in

Occupational Leadership.” Appellant’s App. p. 39. The trial court also noted that Wife had

not attempted to secure other employment and seemed dismissive of testimony that Wife

could not find work that she could perform on a regular basis. Id. at 39-40. Therefore, I



                                              10
believe that the trial court attempted to reserve its right to reevaluate maintenance upon a

determination by the Social Security Administration that Wife was disabled because it

wanted access to the amount that Wife would receive in monthly benefits.

       In the trial court’s order on Wife’s petition for maintenance, it ordered that Wife’s

weekly Social Security disability payments of $425 be used as her weekly income for child

support calculations. Id. at 11. Additionally, the trial court found that Wife was only

entitled to three years of rehabilitative maintenance. Id.

       Taking the decree and subsequent order together, it appears that rehabilitative

maintenance is what the trial court continuously intended. That said, the better approach

would have been for the trial court to have continued the May 2011 hearing until after there

was a determination regarding Wife’s Social Security disability payments. I believe that the

trial court attempted to reserve its rights to reevaluate maintenance upon a determination by

the Social Security Administration because it wanted to know the amount that Wife would

receive in monthly benefits. However, as the majority points out, the trial court forfeited

such a reservation by entering the final decree when it did. Thus, while I concur with the

majority, I write separately to discourage similar situations in the future.




                                              11
