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.




Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017      Page 1 of 9
                                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

      Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 2 of 9
      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

      Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 3 of 9
       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.

       Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 4 of 9
       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


       Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 5 of 9
       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).




       Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 6 of 9
[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

       Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 7 of 9
       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

       Court of Appeals of Indiana | Memorandum Opinion 48A02-1603-DR-627 | February 21, 2017   Page 8 of 9
       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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