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                    Jan 27 2014, 6:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

CASEY D. CLOYD                                     MERLE B. ROSE
Indianapolis, Indiana                              Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA
NANCY KRIEL,                                       )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 49A04-1304-DR-195
                                                   )
RICHARD KRIEL,                                     )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable David J. Dreyer, Judge
                            Cause No. 49D10-1109-DR-35891

                                        January 27, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
      Nancy Kriel appeals the denial of her request for an award of incapacity maintenance.

As the trial court did not abuse its discretion, we affirm.

                       FACTS AND PROCEDURAL HISTORY

      Nancy and Richard Kriel were married in 1981 and Nancy petitioned for dissolution in

2011. Until 2004, both worked outside the home, but Nancy stopped because of chronic

back and leg problems. Nancy received social security disability payments and had long-

term disability insurance coverage from a former employer. At the time of the final

dissolution hearing on March 1, 2013, her net income from those sources was $2,056.49 per

month. Richard lost his job in 2009 and returned to school. He obtained a bachelor’s degree

in 2011 and found work in 2012. At the time of the final hearing his net monthly income was

$2,819.60.

      Nancy asked for an incapacity maintenance order, which the trial court denied. It

noted her net income was sufficient to meet her personal needs, she had been able to

maintain the mortgage payments on the marital residence, and she had medical insurance. It

determined she “does not meet the statutory restrictions for maintenance.” (App. at 13.)

                            DISCUSSION AND DECISION

      The trial court did not abuse its discretion in declining to award maintenance. Ind.

Code § 31-15-7-2 provides in pertinent part:

      A court may make the following findings concerning maintenance:
      (1) 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.

                                               2
The trial court’s decision whether to award 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. Augspurger v. Hudson, 802 N.E.2d 503, 508 (Ind. Ct. App. 2004).

The presumption that the trial court correctly applied the law in deciding whether to award

spousal maintenance is one of the strongest presumptions applicable to the consideration of a

case on appeal. Id.

        The language of the statute indicates a maintenance award is not mandatory, even if a

trial court finds a spouse’s incapacity materially affects her self-supportive ability. Bizik v.

Bizik, 753 N.E.2d 762, 769 (Ind. Ct. App. 2001), trans. denied. Still, where a trial court finds

a spouse is physically or mentally incapacitated1 to the extent that the ability of that spouse to

support herself is materially affected, the trial court “should normally” award incapacity

maintenance. Cannon v. Cannon, 758 N.E.2d 524, 527 (Ind. 2001).

        Our legislature has evinced “a clear legislative intent to retain fairly strict limits on the

power of courts to order maintenance without the consent of the parties.” Voigt v. Voigt, 670

N.E.2d 1271, 1277 (Ind. 1996). As such an award is designed to help provide for a spouse’s

sustenance and support, the essential inquiry is whether the incapacitated spouse has the




1
  Nancy asserts “The trial court’s first error was that it did not find Nancy incapacitated.” (Appellant’s Br. at
6.) But Nancy directs us to no such explicit finding regarding her incapacity vel non, and we can find none.
Rather, its decision was premised on her ability to satisfy her personal needs or obligations despite her medical
issues. We therefore decline to address that allegation of error.
   Nancy then asserts “The trial court’s second error was applying the doctrine of necessities.” (Id. at 12.) The
trial court explicitly found “the doctrine of necessities does not apply,” (App. at 12) (emphasis added), and it
did not in fact apply that doctrine.
                                                       3
ability to support himself or herself. Alexander v. Alexander, 980 N.E.2d 878, 881 (Ind. Ct.

App. 2012). We will not reverse a judgment merely because we might have, on the same

evidence, reached a different conclusion. Id.

       As there was evidence before the trial court that Nancy could support herself, we

cannot find an abuse of discretion. The statute creates a “flexible standard” that allows a trial

court to consider whether any incapacity significantly affects a spouse’s ability to support

herself. In re Marriage of Dillman, 478 N.E.2d 86, 88 (Ind. Ct. App. 1985). The trial court

heard evidence Nancy has medical coverage from a prior employer and was on Medicare; she

had been paying the mortgage on her house without any contribution by Richard; she

received Social Security disability payments; and she had a net income over $2,000.00 per

month. In light of the trial court’s broad discretion in applying this “flexible” standard, we

cannot find an abuse of discretion in the trial court’s decision not to award Nancy incapacity

maintenance. See, e.g., Bizik, 753 N.E.2d at 769 (a maintenance award is not mandatory

even if a trial court finds a spouse’s incapacity materially affects her self-supportive ability).

We accordingly affirm.

       Affirmed.

BAILEY, J., and BRADFORD, J., concur.




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