      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Feb 19 2020, 10:15 am

      court except for the purpose of establishing                                CLERK
      the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Andrea Ciobanu                                           Matthew L. Kelsey
      Ciobanu Law, P.C.                                        DeFur Voran LLP
      Indianapolis, Indiana                                    Muncie, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Nancy Jo Coles,                                          February 19, 2020
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-DR-2627
              v.                                               Appeal from the Delaware Circuit
                                                               Court
      Robert Nelson Coles, Jr.,                                The Honorable Kimberly S.
      Appellee-Petitioner.                                     Dowling, Judge
                                                               Trial Court Cause No.
                                                               18C02-1303-DR-130



      Najam, Judge.


                                       Statement of the Case
[1]   Nancy Jo Coles (“Wife”) appeals the dissolution court’s grant of Robert Nelson

      Coles, Jr.’s (“Husband’s”) petition to terminate an award of spousal


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020               Page 1 of 11
      maintenance. Wife raises one issue for our review, namely, whether the trial

      court abused its discretion when it terminated the maintenance payments.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On September 29, 2014, the dissolution court dissolved the parties’ marriage.

      At that time, Husband earned $135,000 per year. Wife was disabled and unable

      to work. Accordingly, the court ordered Husband to pay Wife $2,000 per

      month in incapacity maintenance for a period of two years. The court also

      evenly divided the parties’ assets.


[4]   Wife appealed the dissolution court’s order and asserted in relevant part that the

      court had abused its discretion when it restricted the maintenance payments to

      two years. Coles v. Coles, No. 18A02-1410-DR-767, 2015 WL 3766897, at *2

      (Ind. Ct. App. June 16, 2015). On appeal, this Court stated that there is “no

      dispute” that Wife is “totally and permanently disabled” such that her ability to

      support herself is materially affected. Id. at *3. Accordingly, this Court held

      that Wife “is entitled to receive spousal maintenance for an indefinite period of

      time, subject to future modification upon [Husband’s] retirement or other

      changed circumstances.” Id.


[5]   On January 22, 2019, Husband filed a petition to terminate the maintenance

      payments. In that petition, Husband asserted that the maintenance should be

      terminated “for [three] separate and independent reasons.” Appellant’s App.

      Vol. II at 26. Specifically, Husband asserted that: Wife had received a
      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 2 of 11
      “substantial inheritance” from her mother, Wife had started receiving Medicare

      and social security benefits, and Husband “intends to retire in the near future.”

      Id.


[6]   The dissolution court held a hearing on Husband’s petition. During the

      hearing, Husband testified that his current salary is $166,000 but that he could

      receive up to $194,785.88 if he received a bonus from his employer. He also

      testified that he is currently collecting $3,559 per month in social security

      benefits. Husband then testified that he planned to retire soon. But he stated

      that he was unable to “nail down” a retirement date until the question of

      maintenance is resolved because his income after retirement will consist only of

      his social security benefits, which he estimated will be $2,500 or $2,700 per

      month after taxes. Tr. Vol. II at 9.


[7]   Husband additionally testified that, at the time their marriage was dissolved,

      Wife had to pay $500 per month in order to receive insurance benefits from

      Husband’s employer. But Husband stated that Wife now receives Medicare

      benefits and no longer has to pay that monthly insurance premium.


[8]   Wife then testified that she receives $1,025 per month in social security benefits

      but that her Medicare premium of $134 is deducted from that amount. Wife

      also testified that she spends $1,323.06 per year on prescriptions plus a

      premium of $31 per month for her prescription coverage benefits. But Wife

      stated that, due to worsening health conditions, she has recently been prescribed

      a new medication that costs $2,330 per shot, which shot she will need to take


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 3 of 11
       twice in the first month and then once each month thereafter. And Wife

       testified that, in addition to her medical expenses, her living expenses total

       $4,258.24 per month.


[9]    Wife then testified about her inheritance. Specifically, Wife stated that she had

       inherited an investment account that was currently valued at $848,562.00. Wife

       also testified that she inherited a lake house, which she estimated was worth

       between $200,000 and $220,000. In addition, Wife testified that she had

       received two bank accounts from her mother, which contained a total of

       $80,000 to $115,000. However, Wife testified that she only withdraws $1,000

       per month from her investment account for living expenses because she does

       not “want to lose the principal at all.” Id. at 28.


[10]   Following the hearing, the dissolution court entered the following findings of

       fact and conclusions thereon:


               15. At the time of the dissolution, [Wife] was purchasing
               COBRA insurance through [Husband’s] employer at the
               approximate cost of $500/mo.


               16. [Wife] began receiving her social security retirement income
               at age 62 and at age 65 she received Medicare, so she no longer
               purchases COBRA.


               17. [Wife] receives $1025.00/month from Social Security, less
               her Medicare premium of $134.00/month.


               18. [Wife’s] mother passed away approximately one year ago.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 4 of 11
        19. [Wife] was the only heir.


        20. There was testimony presented by [Wife] that her mother
        intended to leave some property to the adult child of the parties.
        However, her mother never completed the changes to her will
        and all of the property was left to [Wife].


        21. [Wife] received an investment account, her mother’s home
        which has been sold, and a van which has also been sold. All of
        those proceeds now exist in the investment account and total
        approximately $850,000.00 as of February 7, 2019. That amount
        adjusts with the market. [Wife] also inherited a lake house from
        her mother which she believes is worth approximately $200,000
        to $220,000. [Wife] plans to give that property to the parties’
        child. [Wife] also received two bank accounts from her mother
        totaling approximately $80,000 to $115,000. The total value of
        [Wife’s] inheritance is approximately $1,160,000.


        22. [Wife] receives approximately $1,000.00 per month for living
        expenses from the investment account.


        23. [Wife] is 67 years of age.


        24. Both parties agree that [Wife] is completely disabled.


        25. [Wife’s] prescription costs are $1,323.06 annually and she
        pays $31/month for Express Scripts.


        26. [Wife] has recently been prescribed Cosentyx which is not
        included in her plan. Her cost is $2,330 per shot after insurance
        coverage. She will receive two shots the first month and then one
        each month thereafter.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 5 of 11
        27. Since the dissolution, Wife’s health has worsened. Post
        dissolution she has had a heart procedure, a stroke, memory
        recall issues, pacemaker, psoriatic arthritis (Cosentyx
        prescription), oral surgery, cataract surgeries, depression/anxiety
        and lung issues.


        28. [Wife] believes that costs needed to repair and upgrade her
        home to accommodate her health issues would be approximately
        $54,000.00


        29. [Wife] believes her monthly expenses (in addition to medical
        care set out above) are approximately $4,250.00.


        30. The Court finds that [Wife’s] estimate of her monthly
        expenses is exaggerated. [Wife] included sums such as $600.00
        monthly for food for one person, savings to purchase a new van,
        $100 monthly for personal care items, $100 monthly for
        household products, $250 yearly for ten times per year of snow
        plowing. These are all excessive amounts.


        31. [Wife] alleges that she is unable to afford her expenses
        because she does not want to spend any of the principal of her
        inheritance.


        32. The Court finds that [Wife’s] position is unreasonable.


        33. The Court finds that there has been a substantial and
        continuing change of circumstances such that the prior order of
        maintenance is unreasonable. While [Wife’s] health has
        deteriorated since the maintenance order, her financial position
        has changed substantially and to the point that she is able to now
        support herself.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 6 of 11
       Appellant’s App. Vol. II at 44-45. Based on those findings, the dissolution

       court terminated the maintenance order. This appeal ensued.


                                      Discussion and Decision
[11]   Wife appeals the dissolution court’s order granting Husband’s petition to

       terminate the spousal maintenance award. As the Indiana Supreme Court has

       previously stated:


               Trial courts have broad discretion in ruling on petitions to modify
               maintenance, and we will reverse their decisions only for abuse
               of discretion. That is, we review whether the decision is clearly
               against the logic and effects of the facts and circumstances before
               the court, or the reasonable, probable, and actual deductions to
               be drawn therefrom; whether the court misinterpreted the law or
               disregarded evidence of factors listed in a controlling statute; or
               whether it applied the wrong legal standard to properly found
               facts.


       Gertiser v. Gertiser (In re Marriage of Gertiser), 45 N.E.3d 363, 368-69 (Ind. 2015)

       (quotation marks and citations omitted).


[12]   Further, where, as here, the dissolution court enters findings of fact and

       conclusions thereon, we


               shall not set aside the findings or judgment unless clearly
               erroneous and shall give due regard . . . to the opportunity of the
               trial court to judge the credibility of the witnesses. Rather, we
               look only to whether the evidence supports the findings, and then
               whether the findings support the judgment, without reweighing
               the evidence or reassessing witness credibility. The findings are
               controlling unless the record contains no facts to support them


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 7 of 11
               either directly or by inference. Legal conclusions, though, are
               reviewed de novo.


       Id. (quotation marks and citations omitted).


[13]   In Indiana, a trial court can award spousal maintenance under “three narrow

       circumstances—incapacity, caregiver, or rehabilitative.” Alexander v. Alexander,

       980 N.E.2d 878. 880 (Ind. Ct. App. 2012). Here, the dissolution court awarded

       incapacity maintenance to Wife, which requires “both a physical or mental

       incapacity and a resulting financial necessity.” In re Marriage of Gertiser, 45 N.E.3d

       at 367 (emphases in original).


[14]   Once a court enters an order for spousal maintenance, that order can be

       modified only “upon a showing of changed circumstances so substantial and

       continuing as to make the terms unreasonable[.]” Ind. Code § 31-15-7-3(1).

       Our Supreme Court has recently stated:


               In Haville v. Haville, we accepted that statutory language at face
               value—observing in a footnote that the statute “expressly
               declares that provisions of an order for maintenance authorized
               by statute ‘may be modified or revoked’ upon specified grounds,
               one of which is ‘a showing of changed circumstances so
               substantial and continuing as to make the terms unreasonable.’”
               825 N.E.2d 375, 378 n.2 (Ind. 2005). Nothing in that statutory
               language limits the “circumstances” to the incapacity itself. To
               the contrary, it permits revocation under precisely the same terms
               as modification—when the award has become unreasonable
               under the circumstances.


       In re Marriage of Gertiser, 45 N.E.3d at 376-68.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 8 of 11
[15]   As a “practical matter” though, that standard is “more daunting” for revoking a

       maintenance order rather than merely modifying it, especially where, as here,

       the underlying incapacity is permanent. Id. at 368. For a modification, the

       opportunity remains open for future modifications, so “it is enough to show

       that the changes are ‘substantial and continuing’ enough to make the existing

       award unreasonably excessive or inadequate[.]” Id. But because revoking an

       award means extinguishing it forever, “it necessarily entails proving that the

       change is ‘so substantial and continuing’ that the very existence of the award has

       become unreasonable—not only in the present, but under any reasonably

       foreseeable future circumstances as well.” Id. (emphasis in original).


[16]   On appeal, Wife contends that the dissolution court abused its discretion when

       it terminated the maintenance award because the parties’ financial

       circumstances have not changed so substantially or continuing as to make the

       existence of the award unreasonable. Specifically, Wife contends that

       Husband’s income has increased since the court dissolved their marriage while

       her earning capacity has remained the same, that Husband has been unable to

       establish a date for retirement, and that his “future financial income is too

       speculative and incomplete” to support the termination of the maintenance

       award. Appellant’s Br. at 14. Wife further contends that, while she received an

       inheritance from her mother, her inheritance “is not sufficient to support her for

       the rest of her life” because her condition has worsened such that she “will need

       certain services” that “may be more expensive” and because the investment

       account is subject to market fluctuations. Id. at 19, 21.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020   Page 9 of 11
[17]   We acknowledge that Wife is totally and permanently disabled and that her

       condition has worsened since the dissolution of the parties’ marriage.

       However, as discussed above, “our role is not to reweigh the evidence or

       substitute our judgment for the court’s.” In re Marriage of Gertiser, 45 N.E.3d at

       369. Rather, our role is “only to determine whether the evidence supports the

       findings and whether those findings support the judgment.” Id.


[18]   Here, Husband testified that he would like to retire “soon” but that he could not

       “nail down” a retirement date until the issue of maintenance had been resolved.

       Tr. Vol. II at 9. Specifically, Husband testified that his income after retirement

       will only consist of his social security benefits, which he estimated to be $2,500

       to $2,700 per month after taxes.1


[19]   The evidence further demonstrates that Wife’s financial position has also

       changed. Indeed, Wife inherited $1,160,000 from her mother in the form an

       investment account, two bank accounts, and a lake house. Additionally, since

       the date of the dissolution decree, Wife has begun receiving social security and




       1
         Wife briefly states that Husband “was awarded seven separate retirement accounts in the dissolution.”
       Appellant’s Br. at 14. However, the parties did not present any evidence of Husband’s retirement accounts
       during the hearing on Husband’s petition to terminate spousal maintenance. Further, Wife makes no
       argument on appeal that the court erred when it did not consider Husband’s retirement accounts in
       terminating the maintenance order.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020             Page 10 of 11
       Medicare benefits, which means she is no longer required to pay $500 per

       month for insurance coverage through Husband’s employer. 2


[20]   The evidence supports the dissolution court’s findings, and the findings support

       the conclusion that there has been a change of circumstances so substantial and

       continuing that the existence of the maintenance order has become

       unreasonable. 3 See In re Marriage of Gertiser, 45 N.E.3d at 368. Accordingly, the

       trial court did not abuse its discretion when it granted Husband’s petition to

       terminate the spousal maintenance payments. We affirm the dissolution court’s

       order.


[21]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       2
         Wife also asserts that her inheritance is not enough to preclude “all foreseeable need” for future spousal
       maintenance payments because her inheritance will only last for twenty-one years since her living expenses
       are $54,000 per year. However, the dissolution court found that Wife’s estimate of her living expenses was
       “exaggerated” and “excessive.” Appellant’s App. Vol. II at 45. And it is not our role to substitute our
       judgment for the dissolution court’s. See In re Marriage of Gertiser, 45 N.E.3d at 369.
       3
         Wife contends that the court erred when it terminated the maintenance award because the dissolution
       court’s original equal division of the property was premised on Wife receiving spousal maintenance.
       However, the dissolution court did not contemplate an indefinite period of maintenance when it divided the
       property equally. Rather, the court only awarded maintenance to Wife for a period of two years when it
       divided the marital assets.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2627 | February 19, 2020               Page 11 of 11
