Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                        Dec 10 2013, 9:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

KRISTINA KEENER YEAGER                             JON P. McCARTY
Indianapolis, Indiana                              Covington, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHERYL A. PAYNE,                                   )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )        No. 23A01-1305-DR-204
                                                   )
THOMAS L. PAYNE,                                   )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE FOUNTAIN CIRCUIT COURT
                        The Honorable Robert M. Hall, Special Judge
                              Cause No. 23C01-1202-DR-73



                                        December 10, 2013


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       Appellant-Petitioner Sheryl A. Payne (“Wife”) and Appellee-Respondent Thomas L.

Payne (“Husband”) were married on November 26, 1982. The parties divorced in November

of 1999 but subsequently remarried. On February 21, 2012, Wife again sought to dissolve

the parties’ marriage. In doing so, Wife requested, among other things, spousal maintenance.

On February 12, 2013, the trial court issued an order dissolving the parties’ marriage,

dividing the parties’ assets and debts, and denying Wife’s request for spousal maintenance.

Wife subsequently filed a motion to correct error, which was denied. Wife appeals from the

trial court’s denial of her motion to correct error. Concluding that the trial court did not

abuse its discretion in denying Wife’s motion to correct error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       Husband and Wife have been married to each other twice. Husband and Wife were

initially married on November 26, 1982. The parties divorced in November of 1999 but

subsequently remarried. On February 21, 2012, Wife again sought to dissolve the parties’

marriage.

       On October 5, 2012, the trial court conducted an evidentiary hearing on Wife’s

dissolution petition, during which the trial court heard testimony from both Husband and

Wife regarding their financial positions. At the time of the evidentiary hearing, Husband had

been employed as a truck driver for Federal Express for approximately nine years. Husband

earned a net monthly income of approximately $4000.00 and had regular monthly expenses

of approximately $3950.00. In addition to ordinary living expenses, Husband’s monthly



                                             2
expenses included post-secondary education expenses for the parties’ daughter, medical

expenses for Husband and the parties’ daughter, and credit card payments for debt incurred

for family expenses during the parties’ marriage.

       With respect to Wife, at the time of the evidentiary hearing, Wife was not working but

received $998.00 in disability benefits from the Social Security Administration. In addition

to this monthly award, Wife was awarded a $14,000.00 lump sum payment, which

represented Wife’s lost income from January 1, 2010, to the date of payment in January of

2012. Wife claimed that she did not contribute any of this lump sum payment to household

expenses because she was “getting ready to leave” for Florida where she planned to reside

with or near her mother. Tr. p. 47. Wife filed for dissolution three weeks after receiving this

lump payment. Wife included an estimate of the living expenses that she claimed she would

incur once she moved to Florida. The $1735.00 monthly estimate included $650.00 in rent,

$205.00 in cable and utilities, $240.00 in automobile expenses, $320.00 in groceries, $200.00

in cigarettes, $20.00 in dog food, and $50.00 in pharmacy expenses. Wife acknowledged,

however, that these claimed expenses merely represented an estimate and that she could not

provide a list of actual monthly expenses. Wife also acknowledged that she planned to reside

with her mother, at least temporarily, once she moved to Florida.

       On February 12, 2013, the trial court issued a dissolution decree in which it divided

the marital estate. In this decree, the trial court awarded Wife (1) a 1998 Jeep Cherokee,

subject to the indebtedness thereon; (2) all of the personal property requested by Wife during

the evidentiary hearing, including a pop-up trailer; (3) the proceeds of any bank accounts in



                                              3
Wife’s name; (4) half of Husband’s 401(k) retirement account; and (5) the full lump sum

disability payment that she received in January of 2012. The trial court ordered that Wife

shall hold Husband harmless on the debt associated with Wife’s vehicle.

       The trial court awarded Husband (1) the marital residence, subject to the indebtedness

thereon;1 (2) a 1997 Nissan Altima automobile; (3) the remaining personal property that was

not included in Wife’s requested personal property; (4) the proceeds of any bank accounts in

Husband’s name; (5) the proceeds of Husband’s FedEx PPA account; and (6) the remaining

half of Husband’s 401(k) retirement account. The trial court ordered that Husband shall hold

Wife harmless on the debt associated with the marital residence. In addition, the trial court

ordered Husband responsible for virtually all of the marital debt, including (1) approximately

$28,000.00 in college loans for the parties’ daughter; (2) approximately $24,000.00 in credit

card debt incurred during the marriage; (3) approximately $5500.00 for all of Wife’s

outstanding medical bills through the date of October 5, 2012; (4) all medical bills for the

parties’ daughter; and (5) the outstanding Edward’s Heating & Cooling bill. The trial court

also ordered Husband to pay $3950.00 of Wife’s attorney’s fees and denied Wife’s request

for spousal maintenance.

       On March 11, 2013, Wife filed a motion to correct error in which she alleged that the

trial court erroneously denied her request for spousal maintenance. The trial court denied

Wife’s motion to correct error on April 11, 2013. This appeal follows.

                                 DISCUSSION AND DECISION


       1
            At the time of the evidentiary hearing, the marital residence had negative equity in excess of
$7000.00.

                                                    4
         Initially, we note that Wife appeals following the denial of her motion to correct

error.

         A trial court is vested with broad discretion to determine whether it will grant
         or deny a motion to correct error. Volunteers of America v. Premier Auto
         Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. App. 2001). A trial court has
         abused its discretion only if its decision is clearly against the logic and effect
         of the facts and circumstances before the court or the reasonable inferences
         therefrom. Id. The trial court’s decision comes to us cloaked in a presumption
         of correctness, and the appellant has the burden of proving that the trial court
         abused its discretion. Id. In making our determination, we may neither
         reweigh the evidence nor judge the credibility of witnesses. Id.

Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007).

         Upon reviewing a motion to correct error, this court also considers the standard of

review for the underlying ruling. Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346, 349 (Ind. Ct.

App. 2011) (citing Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct. App.

2007)). Here, with respect to the issue of spousal maintenance, the trial court concluded that

an award of spousal maintenance was not warranted. The trial court supported its conclusion

by making a number of findings regarding Wife’s ability to support herself.

                 When a trial court enters findings of fact and conclusions of law
         pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of
         review. First, we determine whether the evidence supports the findings, and
         second, whether the findings support the judgment. Smith v. Smith, 938
         N.E.2d 857, 860 (Ind. Ct. App. 2010). In deference to the trial court’s
         proximity to the issues, we disturb the judgment only where there is no
         evidence supporting the findings or the findings fail to support the judgment.
         Id. We do not reweigh the evidence, but consider only the evidence favorable
         to the trial court’s judgment. Id. Those appealing the trial court’s judgment
         must establish that the findings are clearly erroneous. Id. Findings are clearly
         erroneous when a review of the record leaves us firmly convinced that a
         mistake has been made. We do not defer to conclusions of law, however, and
         evaluate them de novo. Id.



                                                 5
Clokey v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011).

                 I. Denial of Wife’s Request for Spousal Maintenance

       Wife contends that the trial court abused its discretion in denying her request for

spousal maintenance. Specifically, Wife claims that she was entitled to an award of spousal

maintenance because she is disabled and is unable to work due to her incapacity. The

occasions under which a trial court may order spousal maintenance payments are limited. Id.

(citing Marriage of Erwin, 840 N.E.2d 385, 390 (Ind. Ct. App. 2006)). One circumstance,

which is referred to as “incapacity maintenance,” is illustrated in Indiana Code section 31-15-

7-2(1), which provides:

       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 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.

Stated another way, “[t]he trial court may make an award of spousal maintenance upon the

finding that a spouse’s self-supporting ability is materially impaired.” Bizik v. Bizik, 753

N.E.2d 762, 768 (Ind. Ct. App. 2001) (citing Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1174

(Ind. Ct. App. 1995), trans. denied).

               The trial court’s power to make an award of maintenance is wholly
       within its discretion, and we will reverse only when the decision is clearly
       against the logic and effect of the facts and circumstances of the case.
       [Fuehrer, 651 N.E.2d at 1174.] However, even if a trial court finds that a
       spouse’s incapacity materially affects her self-supportive ability, a
       maintenance award is not mandatory. In re Marriage of Richmond, 605
       N.E.2d 226, 228 (Ind. Ct. App. 1992). Nevertheless, in determining whether a
       trial court has abused its discretion in a spousal maintenance determination,
       this court will presume that the trial court properly considered the applicable
       statutory factors in reaching its decision. Moore v. Moore, 695 N.E.2d 1004,
       1007 (Ind. Ct. App. 1998). The presumption that the trial court correctly


                                              6
       applied the law in making an award of spousal maintenance is one of the
       strongest presumptions applicable to the consideration of a case on appeal.
       Fuehrer, 651 N.E.2d at 1174.

Bizik, 753 N.E.2d at 768-69.

       With regard to Wife’s claim for spousal maintenance, the trial court found as follows:

       The issue of spousal maintenance is before the court. The court has considered
       the provisions of IC 31-15-7-2 and finds that spousal maintenance should not
       be awarded. Wife has been awarded Social Security Disability which is
       subject to review with there being an indication that the disability may not be
       permanent. This is also the component that there is a voluntary creation of the
       inability to work at the present time. The court finds that the burden of proof
       has not been met to the satisfaction of the court.

Appellant’s App. p. 6. Wife claims that the trial court’s factual findings relating to its denial

of an award of spousal maintenance are not supported by the record. Specifically, Wife

argues that the record does not support the finding that her disability may not be permanent.

Wife also argues that the record does not support the finding that there is a voluntary

component to her current inability to work. We disagree.

                            A. Permanent Nature of Disability

       In arguing that the trial court erroneously found that her disability may not be

permanent, Wife asserts that there is undisputed evidence that she is mentally and physically

incapacitated. While it is true that at the time of the dissolution hearing, Wife appeared to be

incapacitated, the decision of the Social Security Administration to award Wife disability

benefits, which was entered into evidence below, specifically stated that “Medical

improvement is expected with appropriate treatment. Consequently, a continuing disability

review is recommended in 36 months.” Appellant’s App. p. 26. The trial court appears to



                                               7
have relied on the Social Security Administration’s determination in finding that Wife’s

disability may not be permanent, and we conclude that this determination supports the trial

court’s finding in this regard.

       Wife also argues that the trial court abused its discretion in basing its denial of spousal

maintenance on the potential temporary nature of her disability because permanency is not a

statutory requirement for an award of maintenance following a finding of incapacity. Wife’s

argument, however, overlooks the clear statutory language stating that the trial court “may”

order maintenance upon finding a spouse incapable of self-support, regardless of whether

such incapacity is temporary or permanent. This court has held that “[e]ven if a spouse’s

incapacity materially affects [her] self-supportive ability, an award of maintenance is not

mandatory.” Riddle v. Riddle, 566 N.E.2d 78, 82 (Ind. Ct. App. 1991); see also Ind. Code §

31-15-7-2(1); Bizik, 753 N.E.2d at 769; Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct. App.

2007); Clokey, 956 N.E.2d at 718. The trial court considered evidence of Wife’s incapacity

but determined that an award of spousal maintenance was, nonetheless, not warranted.

Wife’s argument in this regard amounts to little more than an invitation to reweigh the

evidence, which we will not do. See Clokey, 956 N.E.2d at 718.

                              B. Voluntary Inability to Work

       Wife also argues that the trial court erroneously found that there is a voluntary

component to her inability to work. Wife claims that her mental and physical impairments

were uncontested by Husband and that the trial court “does not elaborate on what voluntary

acts [she] might be doing to ‘create the inability to work.’” Appellant’s Br. p. 17. She



                                                8
asserts that “nothing can be found” in the record to support the inference that she was doing

anything to voluntarily create an inability to work. Appellant’s Br. p. 20.

       Upon review, we observe that despite Wife’s assertion to the contrary, the record

contains evidence which would tend to support the trial court’s finding that there is a

voluntary component to Wife’s current inability to work. During the evidentiary hearing,

Wife testified that she had not worked since sometime in 2010, when she decided not to work

while awaiting notification as to whether she would be found to be disabled and consequently

eligible to receive disability benefits. Wife’s decision not to work, while based in part on her

mental and physical incapacities, was a pragmatic decision made by Wife while awaiting

notification regarding her disability status. Wife does not point to any substantial change in

her status that would eliminate the voluntary component to this decision. As such, Wife’s

decision indicates a voluntary component to her unemployment.

       In addition, in requesting spousal maintenance, Wife listed a $200.00 monthly

cigarette expense. Wife acknowledged during the evidentiary hearing that she continued to

smoke cigarettes despite the fact that she suffered from high blood pressure, diabetes, COPD,

heart problems, asthma, severe emphysema, and other health problems.                Wife also

acknowledged that smoking was not “good” for her health. Tr. p. 34. Nothing in the record

suggests that Wife has tried but has been unable to stop smoking. Instead, the record

suggests that Wife merely chose not to. Furthermore, we are unpersuaded by Wife’s claim

that her smoking habit could or would not adversely affect her employability. Wife’s alleged

inability to support herself financial was based upon both her mental and physical incapacity.



                                               9
Wife’s choice to continue to put her health at risk, arguably furthering her alleged physical

incapacity, by continuing to smoke cigarettes also supports a finding that Wife’s alleged

inability to work had a voluntary component. Again, Wife’s argument in this regard amounts

to little more than an invitation to reweigh the evidence, which we will not do. See Clokey,

956 N.E.2d at 718.

       In sum, having concluded that the trial court’s findings relating to Wife’s request for

spousal maintenance were supported by the record, we conclude that the trial court did not

abuse its discretion in denying Wife’s request for spousal maintenance.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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