FOR PUBLICATION

                                                     May 13 2014, 8:45 am



ATTORNEY FOR APPELLANT:

KENDRA G. GJERDINGEN
Mallor Grodner LLP
Bloomington, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

DAYLENE M. (ATCHISON) COLEMAN,               )
                                             )
     Appellant-Petitioner,                   )
                                             )
            vs.                              )     No. 90A02-1311-DR-921
                                             )
SCOTT A. ATCHISON,                           )
                                             )
     Appellee-Respondent.                    )


                    APPEAL FROM THE WELLS CIRCUIT COURT
                       The Honorable Kenton W. Kiracofe, Judge
                            Cause No. 90C01-1102-DR-22



                                    May 13, 2014


                             OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Daylene Coleman (“Wife”) appeals the trial court’s order dissolving her marriage

to Scott Atchison (“Husband”) following a final hearing. Wife presents two issues for

our review:

       1.     Whether the trial court abused its discretion when it denied her
              request for incapacity maintenance.

       2.     Whether the trial court abused its discretion when it divided the
              marital estate.

       We reverse and remand with instructions.

                         FACTS AND PROCEDURAL HISTORY

       Husband and Wife were married on September 18, 2000. The marriage was a

subsequent and childless marriage for both parties.       Husband and Wife were both

employed during the early years of the marriage, but Wife became disabled and stopped

working in 2004. Wife began receiving social security disability payments effective in

April 2006.    Husband has maintained steady employment and has children from a

previous relationship.

       On January 10, 2011, Wife filed a petition for dissolution of the marriage.

Following the final hearing on June 20, 2013, the dissolution court entered the final

decree, finding and concluding in relevant part as follows:

       28.    The Court finds that the presumption that an equal division of assets
       and liabilities between the parties is just and reasonable has been rebutted
       by relevant evidence presented by Daylene, and that a division of property
       weighted in Daylene’s favor is warranted due to the extent to which the
       property was acquired by each spouse prior to the marriage (the marital
       residence and the Exelis Salaried Retirement Plan benefit), the economic
       circumstances of each spouse at the time the disposition of the property is
       to become effective, and the earnings or earning ability of the parties as
                                            2
related to a final division of property and final determination of the
property rights of the parties.

                                    ***

31.    The parties have stipulated that Daylene is physically or mentally
incapacitated to the extent that her ability to support herself is materially
affected.

32.    Daylene currently receives Social Security disability insurance
payments pursuant to an Administrative Law Judge’s decision on January
16, 2009, as to her disability.

                                    ***

35.     In determining an incapacity maintenance issue, the Court must
make an initial factual determination whether a spouse’s self-supportive
ability is materially affected by physical or mental incapacity and, if so,
must determine propriety of a maintenance award and amount thereof by
considering such factors as financial resources of spouse seeking
maintenance, including matrimonial property apportioned to spouse,
standard of living established in marriage, duration of marriage, and ability
of spouse from whom maintenance is sought to meet his needs while
meeting those of spouse seeking maintenance. See Temple v. Temple, 328
N.E.2d 227 (Ind. Ct. App. 1975).

                                    ***

37.    At trial Scott’s attorney also contended that the Court could consider
future inheritances that Daylene might receive from her mother, arguing
that consideration of future inheritances is a legitimate consideration in
determining someone’s ability to support themselves and that the Court
should consider potential resources where Daylene “has money she can get
at.” Daylene submits that the Temple case, supra, sets out the factors the
Court is to consider in determining the amount of maintenance. Nowhere is
future inheritances mentioned. One reason would be a future inheritance is
not only speculative, but is not a vested interest. Daylene has no legal right
to access her mother’s property in order to pay for Daylene’s living
expenses. Therefore the Court does not consider any prospective
inheritance Daylene might receive for the purpose of determining spousal
maintenance.

38.    Daylene’s sister, Theresa Haneline, testified that she had paid toward
Scott’s attorney’s fees in connection with custody litigation with his former
                                      3
spouse, as well as Scott’s expenses in connection with heavy equipment
school, and the parties’ health insurance and medical bills during calendar
year 2010 when Scott was unemployed for most of the year. She also
provided financial assistance to Daylene after Scott left her the night of the
day she had a surgical procedure, and loaned her money in order to employ
counsel in connection with this proceeding.

39.    Daylene testified that she has the following monthly income and
living expenses: . . . . Total monthly bills $3,299.02; Monthly Social
Security Disability payment $1,634.00; [monthly deficit $1,665.02]

                                    ***

41.    A trial court’s finding as to whether or not a spouse’s disability
affects their [sic] ability for self support is entirely discretionary. Dillman
v. Dillman, 478 N.E.2d 86, 87 (Ind. Ct. App. 1985). But “[e]ven if a trial
court finds that a spouse’s incapacity materially affects his or her self-
supportive ability, a maintenance award is not mandatory.” Temple, 328
N.E.2d 227 (Ind. Ct. App. 1975).

42.    In the present case, the undisputed evidence indicated clearly that the
parties had a very low standard of living during the marriage. While Scott
was the primary income earner, due to the nature of his employment he
frequently endured furloughs, some of which lasted more than a year.
During the layoff periods, Daylene’s sister supported the couple financially.

43.    This was a subsequent, childless marriage for both parties and it
lasted little more than a decade. Scott’s only pre-marital assets of
significance were his pension and a truck, while Daylene had a modest
retirement account and some equity in what would become the marital
residence. But for the financial largesse of Daylene’s sister, the parties
would have not managed to eke out the modest standard of living they had
together. No clearer evidence of that can be seen than the financial
circumstances at the final hearing. Daylene, though only receiving
$1,634.00 monthly from Social Security Disability, has recently purchased
a new car, is able to pay her bills, and remains in the former marital
residence. She also has two (2) adult daughters residing with her, both of
whom are gainfully employed per Daylene’s testimony. By contrast, Scott
was forced to declare bankruptcy and lost his home; he now resides in a
small mobile home trailer with his unemployed fiancée and his teenaged
son, for whom he receives no child support.

44.   After considering such factors as financial resources of spouse
seeking maintenance, including matrimonial property apportioned to
                                      4
       spouse, standard of living established in marriage, duration of marriage,
       and ability of spouse from whom maintenance is sought to meet his needs
       while meeting those of spouse seeking maintenance, the Court finds
       Daylene should not be awarded incapacity maintenance. there [sic] are no
       extenuating circumstances that directly relate to the criteria for awarding
       incapacity maintenance and that Scott should pay Daylene incapacity
       maintenance.

       45.    With respect to payment of attorney’s fees, the Court finds that Scott
       has a vastly superior economic circumstance and earning ability, and
       accordingly, should pay a substantial portion of Daylene’s attorney’s fees
       and other litigation expenses.

Appellant’s App. at 15-20 (emphases added). And despite having found that Wife had

rebutted the presumption of an equal division of the marital pot, the dissolution court

awarded one-half of the marital pot to each party. This appeal ensued.

                            DISCUSSION AND DECISION

                                   Standard of Review

       In Trabucco v. Trabucco, 944 N.E.2d 544, 548-49 (Ind. Ct. App. 2011), trans.

denied, we set out the applicable standard of review where, as here, a party requests that

the trial court issue findings and conclusions.

       When findings and conclusions thereon are entered by the trial court
       pursuant to the request of any party to the action, 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. 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. We do not reweigh the evidence, but
              consider only the evidence favorable to the trial court’s
              judgment. Challengers must establish that the trial court’s
              findings are clearly erroneous. Findings are clearly erroneous
              when a review of the record leaves us firmly convinced a
              mistake has been made.          However, while we defer
                                              5
              substantially to findings of fact, we do not do so to
              conclusions of law. Additionally, a judgment is clearly
              erroneous under Indiana Trial Rule 52 if it relies on an
              incorrect legal standard. We evaluate questions of law de
              novo and owe no deference to a trial court’s determination of
              such questions.

Id. (quoting Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App. 2005), trans.

denied) (internal citations omitted).

       We note that Husband has not filed an appellee’s brief. When an appellee fails to

submit a brief, we do not undertake the burden of developing the appellee’s arguments,

and we apply a less stringent standard of review, that is, we may reverse if the appellant

establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006).

This rule was established so that we might be relieved of the burden of controverting the

arguments advanced in favor of reversal where that burden properly rests with the

appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002). However, we

review de novo questions of law, regardless of the appellee’s failure to submit a brief.

McClure v. Cooper, 893 N.E.2d 337, 339 (Ind. Ct. App. 2008).

                           Issue One: Incapacity Maintenance

       Wife first contends that the dissolution court abused its discretion when it denied

her request for incapacity maintenance. In particular, Wife maintains that, because the

parties stipulated that she is physically or mentally incapacitated to the extent that her

ability to support herself is materially affected, the court was “required” to award her

incapacity maintenance. Appellant’s Brief at 10.

       A dissolution court may award maintenance for only “three, quite limited”

purposes: spousal incapacity maintenance, caregiver maintenance, and rehabilitative
                                            6
maintenance. Dewbrew v. Dewbrew, 849 N.E.2d 636, 644 (Ind. Ct. App. 2006). Indiana

Code 31-15-7-2(1) provides that, 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. A trial

court’s decision to award maintenance is purely within its discretion and we will only

reverse if the award is against the logic and effect of the facts and circumstances of the

case. Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006) (citing Augspurger v.

Hudson, 802 N.E.2d 503, 508 (Ind. Ct. App. 2004)).

       In support of her contention on appeal, Wife directs us to our supreme court’s

opinion in Cannon v. Cannon, 758 N.E.2d 524 (Ind. 2001). In Cannon, our supreme

court observed as follows:

       We agree with the Court of Appeals that, given the language of the statute,
       a[n incapacity] maintenance award is not mandatory.                 But . . . the
       Legislature has narrowly circumscribed the authority of courts to award
       spousal maintenance. While such factors as payments made by one spouse
       to another pursuant to the terms of provisional orders and depletion of
       marital assets are appropriate considerations in dividing the marital pot, we
       believe that the statutory scheme for spousal maintenance does not admit of
       such considerations. Where a trial court finds that a spouse is physically or
       mentally incapacitated to the extent that the ability of that spouse to support
       himself or herself is materially affected, the trial court should normally
       award incapacity maintenance in the absence of extenuating circumstances
       that directly relate to the criteria for awarding incapacity maintenance.

758 N.E.2d at 527 (emphasis added; citation omitted).

       Here, the dissolution court acknowledged the parties’ stipulation that Wife is

physically incapacitated to the extent that her ability to support herself is materially

affected. A stipulation is binding on both the parties and the trial court, and establishes a
                                              7
particular matter as a fact. Clark v. State, 562 N.E.2d 11, 17 (Ind. 1990). Still, the

dissolution court, citing Temple v. Temple, 164 Ind. App. 215, 328 N.E.2d 227 (1975),

observed that incapacity maintenance was not mandatory despite the fact of Wife’s

disability. In Temple, this court held that,

       [i]f the spouse’s self-supportive ability is materially impaired, the propriety
       of a maintenance award and the amount thereof should then be determined
       after considering such factors as the financial resources of the party seeking
       maintenance (including matrimonial property apportioned to her), the
       standard of living established in the marriage, duration of the marriage, and
       the ability of the spouse from whom maintenance is sought to meet his
       needs while meeting those of the spouse seeking maintenance. Even
       though the court finds a spouse’s supportive ability is materially impaired, a
       maintenance award is not mandatory.

328 N.E.2d at 230.

       And here, the dissolution court made findings based on the Temple factors to

explain its decision not to award incapacity maintenance to Wife. But the dissolution

court also found, quoting Cannon without citation, that there are “no extenuating

circumstances that directly relate to the criteria for awarding incapacity maintenance and

that Scott should pay Daylene incapacity maintenance.” Appellant’s App. at 20. Thus,

while it would appear that an award of incapacity maintenance is indicated, the

dissolution court’s findings and conclusions are inconsistent on this issue.

       Twenty-six years after our opinion in Temple, our supreme court made clear in

Cannon that a trial court has limited discretion whether to award incapacity maintenance

once the court makes the requisite finding regarding disability. See 758 N.E.2d at 527.

Here, again, the parties stipulated that Wife is physically incapacitated to the extent that

her ability to support herself is materially affected, and the dissolution court is bound by


                                               8
that stipulation.   Because we cannot reconcile the inherent inconsistency in the

dissolution court’s conclusions both to grant and deny incapacity maintenance, pursuant

to Cannon we remand and instruct the dissolution court either to award Wife incapacity

maintenance or to identify specific extenuating circumstances directly related to the

statutory criteria for awarding such maintenance that would justify denying the award.

See 758 N.E.2d at 527.

                               Issue Two: Marital Estate

       Wife next contends that the trial court abused its discretion when it divided the

marital estate equally between the parties. We discussed the standard of review of the

distribution of a marital estate in Hardebeck v. Hardebeck, 917 N.E.2d 694, 699-700

(Ind. Ct. App. 2009):

       In dissolution cases, the court “shall divide the [marital] property in a just
       and reasonable manner[.]” Ind. Code § 31-15-7-4. Indiana Code Section
       31-15-7-5 governs the distribution of marital property and provides as
       follows:

              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 of 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.
                                             9
              (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.

       The division of marital assets is within the dissolution court’s discretion,
       and we will reverse only for an abuse of discretion.

(Alterations original; emphases and citations omitted).

       Here, as Wife points out, the dissolution court expressly found that Wife had

rebutted the presumption of an equal division of the marital estate and that “a division of

property weighted in [Wife]’s favor is warranted[.]” Appellant’s App. at 16. But despite

that finding, the dissolution court divided the marital estate in half. The trial court’s

judgment on this issue is not supported by its finding. This is clear error. On remand, we

instruct the dissolution court to award Wife more than fifty percent of the marital estate

consistent with its finding that Wife has rebutted the presumption of an equal division.

       Reversed and remanded with instructions.

VAIDIK, C.J., and BROWN, J., concur.




                                             10
