      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                  FILED
      regarded as precedent or cited before any                          Feb 28 2017, 6:29 am
      court except for the purpose of establishing                           CLERK
      the defense of res judicata, collateral                            Indiana Supreme Court
                                                                            Court of Appeals
      estoppel, or the law of the case.                                       and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Norman L. Reed                                           Maria Matters
      The Law Office of Norman Reed                            Maria Matters Attorney at Law
      Indianapolis, Indiana                                    LLC
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Reta M. Hollowell,                                       February 28, 2017
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               49A02-1605-DR-985
              v.                                               Appeal from the Marion Superior
                                                               Court
      Donald Hollowell,                                        The Honorable Christopher Haile,
      Appellee-Respondent.                                     Magistrate
                                                               Trial Court Cause No.
                                                               49D11-1504-DR-12821



      Pyle, Judge.


                                       Statement of the Case
[1]   Reta Hollowell (“Wife”) appeals the trial court’s denial of her motion to correct

      error filed with respect to a dissolution decree that ordered Donald Hollowell

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017    Page 1 of 10
      (“Husband”) to pay her $500.00 per month in incapacity maintenance and

      equally divided the parties’ property. Concluding that the trial court did not

      abuse its discretion in determining the amount of incapacity maintenance or in

      dividing the parties’ marital property, we affirm the trial court’s judgment.


[2]   We affirm.


                                                    Issues
              1. Whether the trial court abused its discretion in determining
                 the amount of incapacity maintenance it ordered Husband to
                 pay Wife; and


              2. Whether the trial court abused its discretion in equally
                 dividing the parties’ property.


                                                     Facts
[3]   Husband and Wife were married in June 1973. They are the parents of two

      adult children. Wife became disabled in 1979 as the result of a back injury and

      began receiving Social Security disability benefits. Husband is a financial

      analyst for Defense Financing and Accounting Service.


[4]   Wife filed a petition for dissolution in April 2015. Testimony at the November

      2015 dissolution hearing revealed that sixty-three-year-old Wife received $8,684

      per year in Social Security disability benefits, and sixty-four-year-old Husband

      earned $82,524 per year. The parties owned a house, and each party owned a

      car. They agreed on the items to be included in the marital pot.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 2 of 10
[5]   During the hearing, Wife asked the trial court to award her the marital

      residence, her car, and the parties’ three dogs. She never argued that she should

      receive more than the fifty percent of the marital pot. Instead, she asked the

      trial court to “divide the [home] equity equally.” (Tr. 9). Wife also asked the

      trial court to order Husband to pay her $500.00 per week in spousal

      maintenance.


[6]   Husband testified that Wife was not capable of maintaining the house and the

      large lot. He also explained that the house was currently financed through a

      Veteran’s Administration loan that was in his name. He did not believe that

      Wife would be able to secure a new loan on the house. Husband further

      testified that the two youngest dogs belonged to him and that all three dogs

      were too much for Wife to currently handle. He asked the trial court to award

      him the house, the two youngest dogs, and his vehicle. Husband also offered to

      pay Wife $500.00 per month in spousal maintenance.


[7]   At the end of the hearing, Husband asked the trial court if it wanted the parties

      to submit proposed orders. The trial court responded that it did not. In

      January 2016, the trial court issued an order, finding that Wife was disabled

      and ordering Husband to pay her $500.00 per month in spousal maintenance.

      The trial court also concluded that the statutory presumption of an equal

      division of property had not been rebutted, and it awarded each party an equal

      division of the joint property. Husband was awarded the house and the two

      youngest dogs, and the trial court equalized the property division by awarding

      Wife a $34,628.00 distribution from Husband’s deferred compensation account.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 3 of 10
[8]   Wife filed a Motion to Correct Error wherein she accused Husband and the trial

      court of a possible ex parte communication and violation of the Indiana Rules

      of Professional Conduct. Specifically, Wife alleged that Husband’s counsel had

      tendered a proposed order to the trial court and had not provided her with a

      copy of this order. Wife further alleged that the trial court had ultimately

      approved Husband’s tendered order without any revisions. Wife alleged that

      the trial court “simply trusted opposing counsel to divide the assets properly,

      and rubber stamped [Husband’s] proposed decree unintentionally.” (App. 19).

      Wife further argued that the trial court should have ordered Husband to pay her

      $500.00 per week, rather than $500.00 per month, in spousal maintenance and

      awarded her more than fifty percent of the marital estate.


[9]   In a motion in opposition to Wife’s motion, Husband’s counsel stated she had

      not submitted a proposed order to the trial court and argued that Wife’s

      “reckless disregard for the truth in pleadings [was] subject to Rule 11 sanctions .

      . . .” (App. 14). At the March 2016 hearing on her motion, Wife apologized

      for her allegations of misconduct. She explained that “[i]t just appeared as

      though . . . virtually everything [H]usband [had] asked for he [had] received. . .

      . The Court gave . . . the dogs to husband. . . . [Wife] asked for $500.00 a

      week [in maintenance]. He asked for $500.00 a month. The Court gave

      $500.00 a month. . . .” (Tr. 56-57). In response, the trial court explained as

      follows regarding its decision to award Wife $500.00 per month in spousal

      maintenance and to equally divide the parties’ property:




      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 4 of 10
                 I looked at the entire record, okay? I listened to the hearing. I
                 went back and listened to the hearing. I looked at my notes. I
                 looked at everything in the record in this Court in making this
                 decision. I get that [Wife] isn’t happy with the decision, but, you
                 know, I’m looking for you to point me to an error that the Court
                 made in making some valuation or some decision other than the
                 fact that you don’t like the way things were divided or you don’t
                 like the amount of maintenance.


       (Tr. 61). Following the hearing, the trial court issued an order accepting Wife’s

       apology, declining to order sanctions against Wife’s counsel that would have

       been warranted under Rule 11 of the Indiana Rules of Trial Procedure, and

       denying Wife’s motion to correct error. Wife now appeals.


                                                   Decision
[10]   Wife appeals the trial court’s denial of her motion to correct error. Our

       standard of review in such cases is well-established. We review a trial court’s

       ruling on a motion to correct error for an abuse of discretion. Old Utica School

       Preservation, Inc. v. Utica Tp., 7 N.E.3d 327, 330 (Ind. Ct. App. 2014), trans.

       denied.


       1. Incapacity Maintenance

[11]   Wife first argues that the trial court erred in awarding her $500.00 per month in

       spousal maintenance. She specifically contends that the “amount of spousal

       maintenance is excessively low and constitutes an abuse of discretion.”

       (Appellant’s Br. 13).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 5 of 10
[12]   The trial court has broad discretion to make an award of spousal maintenance,

       and we will reverse only upon an abuse of that discretion. Bizik v. Bizik, 753

       N.E.2d 762, 768-69 (Ind. Ct. App. 2001), trans. denied. Discretion is a privilege

       afforded a trial court to act in accord with what is fair and equitable under the

       facts of each case. Pala v. Loubser, 943 N.E.2d 400, 405 (Ind. Ct. App. 2011),

       trans. denied. We will find an abuse of discretion only where the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id. In determining whether a trial court abused its discretion in a

       spousal maintenance determination, this Court will presume that the trial court

       properly followed the applicable statutory factors in reaching its decision. Bizik,

       753 N.E.2d at 769. The presumption that the trial court correctly 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. Id.


[13]   A court may order spousal maintenance under INDIANA CODE § 31-15-7-2 in

       three circumstances:          (1) incapacity maintenance for a spouse who cannot

       support himself or herself; (2) rehabilitative maintenance for a spouse who needs

       additional education or training before seeking a job; and (3) caregiver

       maintenance for a spouse who must care for an incapacitated child. Balicki v.

       Balicki, 837 N.E.2d 532, 542 (Ind. Ct. App. 2005), trans. denied. At issue in this

       appeal is incapacity maintenance.


[14]   INDIANA CODE § 31-15-7-2(1) governs incapacity maintenance and provides that

       “[i]f the court finds a spouse to be physically or mentally incapacitated to the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 6 of 10
       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.” 1

       However, even if a trial court finds that a spouse’s incapacity materially affects

       her self-supportive ability, a maintenance award is not mandatory. Bizik, 753

       N.E.2d at 769.


[15]   Here, after viewing the parties’ courtroom demeanor and hearing their

       testimony, the trial court determined that Wife was disabled. Although this

       determination did not require the court to award Wife spousal maintenance, see

       Bizik, 753 N.E.2d at 769, the court nevertheless ordered Husband to pay Wife

       $500.00 per month. Wife challenges the amount of maintenance awarded but

       fails to show how it constituted an abuse of discretion. Our review of the facts

       in this case reveal that the trial court’s decision is not clearly against the logic

       and effect of the facts and circumstances before it, or the reasonable, probable,

       and actual deductions to be drawn therefrom. The trial court did not abuse its

       discretion in awarding Wife $500.00 per month in spousal maintenance.2




       1
         Wife mistakenly directs us to INDIANA CODE. § 31-15-7-2(3), which governs rehabilitative maintenance
       rather than incapacity maintenance. Specifically, the statute provides that a “court may find that
       rehabilitative 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.”
       2
         Despite Wife’s claim to the contrary, Pham v. Pham, 650 N.E.2d 1212 (Ind. Ct. App. 1995), simply does not
       state that there is a presumption that spousal maintenance should be 35% of the payor’s weekly adjusted
       gross income. Rather, Pham holds only that “an award of spousal maintenance requiring Husband to pay
       Wife virtually all of his earnings [is] unreasonable.” Pham, 650 N.E.2d at 1214.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017             Page 7 of 10
       2. Property Division


[16]   Wife also argues that the trial court erred in equally dividing the parties’

       property. We note, however, that Wife did not ask the trial court to deviate

       from the statutory presumption and award her more than 50% of the marital

       property at the dissolution hearing. Rather, she did not raise this issue until she

       filed her motion to correct error. A party cannot raise a previously available

       issue for the first time in a motion to correct error. Yater v. Hancock Cty. Bd. of

       Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997). Failure to raise errors that

       existed at trial may not be remedied in a post-trial motion to correct error or on

       appeal. Id. The issue is therefore waived. See id.


[17]   Waiver notwithstanding, we find no error. The division of marital assets is a

       matter within the sound discretion of the trial court. Harris v. Harris, 42 N.E.3d

       1010, 1017 (Ind. Ct. App. 2015). By statute, the trial court must divide the

       property of the parties in a just and reasonable manner, and that includes

       property owned by either spouse prior to the marriage, acquired by either

       spouse after the marriage and prior to the final separation of the parties, or

       acquired by their joint efforts. Id. (citing IND. CODE § 31-15-7-4(A)). There is a

       statutory presumption that an equal division of property between the parties is

       just and reasonable. Id. (citing I.C. § 31-15-7-5). Specifically, INDIANA CODE §

       31-15-7-5 provides:


               The court shall presume that an equal division of the marital
               property between the parties is just and reasonable. However,
               this presumption may be rebutted by a party who presents

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 8 of 10
               relevant evidence, including evidence concerning the following
               factors, that an equal division would not be just and reasonable:

               (1) The contribution of each spouse to the acquisition of the
               property, regardless of whether the contribution was income
               producing.

               (2) The extent to which the property was acquired by each
               spouse:

                        (A) before the marriage; or

                        (B) through inheritance or gift.

               (3) The economic circumstances of each spouse at the time the
               disposition of the property is to become effective, including the
               desirability of awarding the family residence or the right to dwell
               in the family residence for such periods as the court considers just
               to the spouse having custody of any children.

               (4) The conduct of the parties during the marriage as related to
               the disposition or dissipation of their property.

               (5) The earnings or earning ability of the parties as related to:

                        (A) a final division of property; and

                        (B) a final determination of the property rights of the
                        parties.

[18]   A party seeking to rebut the presumption of an equal division of marital

       property bears the burden in so doing. Harris, 42 N.E.3d at 1017. The party

       challenging a trial court’s division of marital property must overcome a strong

       presumption that the court considered and complied with the applicable statute.

       Id. This presumption is one of the strongest presumptions applicable to our

       consideration on appeal. Id. Although the facts and reasonable inferences

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 9 of 10
       might allow for a different conclusion, we will not substitute our judgment for

       that of the trial court. Id.


[19]   Here, our review of the evidence reveals that the only mention of property

       division at the dissolution hearing was when Wife asked the trial court to

       “divide the [home] equity equally.” (Tr. 9). Based her lack of evidence and

       arguments at the dissolution hearing, Wife has failed to overcome the strong

       presumption that the trial court properly divided the marital estate.

       Accordingly, the trial court did not abuse its discretion in equally dividing the

       parties’ property, and we find no error.


[20]   Affirmed.


       Baker, J., and Mathias, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017   Page 10 of 10
