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
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

DAN J. MAY                                          KATHERINE J. NOEL
Kokomo, Indiana                                     Noel Law
                                                    Kokomo, Indiana
                                                                            FILED
                                                                         Oct 23 2012, 9:33 am

                               IN THE                                             CLERK
                                                                                of the supreme court,

                     COURT OF APPEALS OF INDIANA                                court of appeals and
                                                                                       tax court




DAVID A. YOUNG,                                     )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )   No. 34A04-1204-DR-222
                                                    )
GLADYS C. YOUNG,                                    )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                         The Honorable William C. Menges, Judge
                             Cause No. 34D04-1104-DR-20


                                         October 23, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                       Case Summary

       David Young (“Husband”) appeals the deemed denial of a motion to correct error,

which challenged the division of marital property in the dissolution of his marriage to Gladys

Young (“Wife”). We reverse and remand with instructions.

                                             Issues

       Husband presents five issues, which we consolidate and restate as two issues:

       I.     Whether the trial court erred in its division of property; and

       II.    Whether the trial court abused its discretion by awarding incapacity
              maintenance to Wife.

                               Facts and Procedural History

       The parties were married on October 5, 1998. In contemplation of their marriage, they

executed an Antenuptial Agreement dated September 24, 1998 (“the prenuptial agreement”).

Its terms provided in relevant part that, “in the event the marriage of the parties is dissolved,

G. Christine Brannon shall be entitled to $35,000.00 as a return for her funds used as a down

payment for the purchase of a house by the parties, which entitlement shall be made a part of

any property settlement or award by the court having jurisdiction over the dissolution.” (Pet.

Ex. 1.) The prenuptial agreement also provided that all property owned or after-acquired

should remain the separate individual property of the party owning the same.

       During the marriage, Wife was not employed outside the home. She was awarded a

lump sum Social Security disability payment and began to receive monthly disability

payments of $1,097.00. Husband retired from General Motors, began to receive monthly

retirement benefits of $2,928.95 per month, and obtained other full-time work as an

                                               2
electrician.

        Over a period of several years, the parties purchased and sold a house in Indiana,

purchased and sold two houses in Missouri, and purchased another house in Indiana. They

also incurred substantial joint debt.

        Husband and Wife separated on March 10, 2011. At that time, the marital residence

was worth approximately $94,000.00 and was encumbered by first and second mortgages

totaling nearly $83,000.00. In addition to jointly-acquired household furnishings and a small

balance in a joint bank account, the parties had some individually-owned property. This

consisted of Husband’s retirement accounts, Wife’s investment account of approximately

$6,737.001, Wife’s three rings, Husband’s Jeep, and Wife’s Buick (each having a loan nearly

equal to the vehicle value).

        On October 4, 2011, the parties appeared for a final hearing. Wife asked that the trial

court find the prenuptial agreement binding and award her $35,000.00 and the marital

residence. However, she also requested that the appreciation of Husband’s retirement

accounts be included as part of the marital pot. Finally, she sought an award of incapacity

maintenance, attorney’s fees, and an order that Husband pay the majority of the marital debt.

        On January 17, 2012, the trial court entered an order dissolving the parties’ marriage.

Wife was awarded incapacity maintenance of $750.00 per month. Each party was ordered to

pay his or her own attorney’s fees.

        In pertinent part, the court found the prenuptial agreement to be valid and binding.

1
 Just prior to the marriage, after Wife had sold a convenience store and before she made the $35,000 down
payment, the investment account was worth around $100,000.00.

                                                   3
Wife was awarded the marital residence and was ordered to hold Husband harmless for the

first mortgage. Husband was ordered to pay the second mortgage and to pay to Wife the sum

of $11,700.00 “in order to equalize the division of property divisible after application of the

provisions of the Pre-Nuptial Agreement.” (App. 10.)

       Each party was to retain his or her respective vehicle and pay the loan. Husband was

to pay his individual tax liabilities from 2010 and a small family loan. Husband was also

ordered to pay off a loan for furniture ($2,639.48), a jewelry account ($1,423.50), a personal

finance account ($3,841.40), a Chase Master Card balance ($13,135.29), and a Lowe’s

account ($968.96). Wife was to pay some department store accounts, aggregating to

approximately $2,500.00.

       Husband filed a motion to correct error, which was deemed denied. He now appeals.

                                  Discussion and Decision

                                     Standard of Review

       Indiana law favors antenuptial agreements. In re Marriage of Boren, 475 N.E.2d 690,

693 (Ind. 1985). Such agreements are legal contracts entered into prior to a marriage,

whereby the parties attempt to settle the interest of each spouse in the property of the other,

both during the marriage and upon its termination. Brackin v. Brackin, 894 N.E.2d 206, 210

(Ind. Ct. App. 2008). We will uphold antenuptial agreements as valid contracts so long as

they are not unconscionable and are entered into freely and absent fraud, duress, or

misrepresentation. Id. “Such contracts will be liberally construed to effect, so far as is

possible, the parties’ intentions.” Boren, 475 N.E.2d at 693.


                                              4
       As for marital property not covered by a contractual agreement, Indiana Code section

31-15-7-5 provides in relevant part:

       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 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[.] . . .
       (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.

Marital property includes both assets and liabilities. McCord v. McCord, 852 N.E.2d 35, 45

(Ind. Ct. App. 2006), trans. denied. A trial court may determine that an unequal division of

marital property would be warranted, but must state its reasons for deviating from the

presumptive fifty-fifty split. Helm v. Helm, 873 N.E.2d 83, 90 (Ind. Ct. App. 2007).

       Here, the court sua sponte entered findings with its judgment. When the court makes

specific findings on its own motion, a general judgment will control as to issues upon which

the court has not found and the specific findings control only as to issues they cover. Blazek

v. Blazek, 631 N.E.2d 518, 520 (Ind. Ct. App. 1994).

                                    Division of Property

       Husband contends that the trial court engaged in “selective application” of the

prenuptial agreement in Wife’s favor. Appellant’s Brief at 9. According to Husband, it is

                                              5
apparent that the trial court included his pension in the marital pot contrary to the prenuptial

agreement, while also enforcing the $35,000.00 payment provision. Husband then argues

that awarding Wife both the residence and a money judgment results in a double recovery to

her. He also argues that the trial court inequitably allocated the debt.

       The trial court’s limited findings with regard to the property division do not permit

meaningful review. It is unclear whether the trial court included in the marital pot pension

funds that were subject to the exclusion provision of the prenuptial agreement. Although

there are references to individual assets (without assigned values), the aggregate value of the

divisible marital estate is not specified. It is unclear how the trial court determined that an

“equalization judgment” of $11,700.00 was payable by Husband. Moreover, to the extent

that the trial court intended to effect an unequal division of non-excluded marital property, or

an unequal distribution of marital debt, there is an absence of supporting findings addressed

to the applicable statutory factors. We therefore find it necessary to remand the matter for

more particularized findings.

       Because it will no doubt arise on remand, we address Husband’s contention that an

award of the marital residence plus a cash sum to Wife to ensure that she receives the return

of her $35,000.00 initial investment constitutes double recovery. At issue are the following

provisions of the Dissolution Decree:

       5. Pursuant to the Pre-Nuptial Agreement, the Petitioner is awarded thirty-five
       thousand dollars ($35,000.00)[.] . . .

       6. The Petitioner is awarded the real estate of the parties, subject to the first
       mortgage thereon, in favor of PNC Bank, which the Petitioner is to assume,
       pay, and hold the Respondent harmless therefrom.

                                               6
(App. 9.) Husband first claims that Wife, through commingling cash funds into successive

residences, lost the right to claim the return of her investment. We disagree, inasmuch as the

prenuptial agreement specifically contemplates commingling of Wife’s cash into real estate

and the purchase of successive marital residences does not contravene this contractual intent.

       According to Wife’s testimony, not contradicted by Husband, the last home in Indiana

was purchased with a down payment of approximately $35,000 “from selling the home in

Missouri” but recent economic conditions had “destroyed the equity.” (Tr. 24, 67.) The

essential difficulty is that the value of the real estate investment declined and, assuming the

validity of the prenuptial agreement, the divisible marital pot has a negative value. The

question becomes, who bore the risk of loss in the prenuptial agreement. Husband asserts

that the trial court imposed upon him the entire risk of loss, by giving Wife the residence and

a money judgment.

       Indiana courts can only enforce the terms of a contract as agreed upon and have no

authority to make a new and different contract. Workman v. Douglas, 419 N.E.2d 1340,

1346 (Ind. Ct. App. 1981). Here, the parties contemplated only that real estate would

continue to have value such that Wife’s initial investment would always be sheltered. This

did not prove true. However, Wife has the opportunity to recover her investment through

future appreciation of the residence. It is in this manner that she is receiving the benefit of

her bargain, the “return for her funds used as a down payment.” (Pet. Ex. 1.) We agree with

Husband that awarding Wife both the residence and a cash judgment (where the marital

estate lacks liquid assets) would amount to double recovery.

                                              7
                                         Maintenance

       Husband first claims that Wife waived any claim to spousal maintenance because she

agreed, in the prenuptial agreement, to forego any claim upon Husband’s after-acquired

property and that his future earnings constitute “property” as contemplated by the agreement.

Husband did not present this argument to the trial court, and may not present it for the first

time on appeal. Kappel v. Kappel, 946 N.E.2d 58, 59 n.1 (Ind. Ct. App. 2011). We turn to

our consideration of the statutory award of spousal maintenance.

       “The occasions under which a trial court may order spousal maintenance payments are

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

circumstance, referred to as “incapacity maintenance,” is addressed by Indiana Code section

31-15-7-2(1), which provides that a dissolution court may find “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” and may find “that maintenance for the spouse is

necessary during the period of incapacity, subject to further order of the court.”

       The dissolution court’s power to award maintenance is not mandatory, but is wholly

within the trial court’s discretion. Clokey, 956 N.E.2d at 718. We will reverse only when the

decision is clearly against the logic and effect of the facts and circumstances of the case. Id.

Such an award is designed to help provide for a spouse’s sustenance and support;

accordingly, the essential inquiry is whether the incapacitated spouse has the ability to

support himself or herself. Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006).

       Husband challenges the incapacity maintenance award to Wife as unsupported by the


                                               8
evidence and unsupported by a specific finding that her ability to support herself is materially

affected such that maintenance is necessary. He points to the lack of medical testimony that

Wife is disabled and asks that we “set aside the order for permanent maintenance.”

Appellant’s Brief at 20. However, Husband makes no claim that such expert testimony is

required to support an award. Indeed, in Paxton v. Paxton, 420 N.E.2d 1346, 1348 (Ind. Ct.

App. 1981), we held that medical testimony was not required to support an award where the

wife testified that she was receiving Social Security disability benefits due to her rheumatoid

arthritis and uncontrolled hypertension and that she was unable to hold a job because of her

disability.

       Here, Wife testified that she was receiving Social Security disability benefits, suffered

from Crohn’s disease, had only one kidney, and had previously been diagnosed with cervical

cancer. She testified there was not “any way to rejoin the work force.” (Tr. 49.) Without a

specific citation to the record, Husband asks us to vacate the award of incapacity

maintenance because of Wife’s alleged testimony at a provisional hearing that she was

performing some work for her daughter, who owns a convenience store. We decline to do so.

       Nonetheless, while there is evidence of Wife’s disabling conditions, the trial court

made no finding that she would be unable to support herself without an incapacity

maintenance award. Rather, the court simply stated that “[t]he Petitioner became disabled

during the course of the marriage, and the Respondent should be, and he hereby is, ordered to

pay, as maintenance, the sum of seven hundred fifty dollars ($750.00) per month,

commencing in January, 2012, and continuing each month thereafter, until further order of


                                               9
the court, or until the Petitioner’s death or re-marriage.” (App. 10.)

       We reverse the award of incapacity maintenance and remand for a factual

determination of whether or not Wife’s ability to support herself is materially affected such

that a maintenance award is necessary.

                                         Conclusion

       We reverse the order dividing the assets of the parties and remand with instructions to

equally divide the marital estate, consisting of assets and liabilities not subject to the

prenuptial agreement, or to provide reasons for deviation from the statutory presumption of

an equal division. We reverse the order awarding incapacity maintenance and remand with

instructions to determine whether Wife has the ability to support herself absent an award.

       Reversed and remanded with instructions.

RILEY, J., and CRONE, J., concur.




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