      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                       Feb 16 2016, 9:08 am

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Preston T. Breunig                                       Angela B. Swenson
      Martha L. Westbrook                                      Swenson & Associates PC
      Buck Berry Landau & Breunig, P.A.                        Carmel, Indiana
      Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Richard R. Hogshire,                                     February 16, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               06A01-1506-DR-676
              v.                                               Appeal from the Boone Circuit
                                                               Court
      Ursula Hoover,                                           The Honorable J. Jeffrey Edens,
      Appellee-Respondent.                                     Judge
                                                               Trial Court Cause No.
                                                               06C01-1401-DR-7



      Najam, Judge.


                                       Statement of the Case
[1]   Richard R. Hogshire (“Husband”) appeals the trial court’s order awarding

      temporary maintenance to Ursula Hoover (“Wife”). Husband presents a single

      Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 1 of 20
      issue for our review, namely, whether the trial court abused its discretion when

      it ordered him to pay Wife temporary maintenance in the amount of $523 per

      week, including in-kind payments.


[2]   We affirm.


                                 Facts and Procedural History
[3]   We previously set out the facts and procedural history in this case as follows:


              On January 5, 2012, Husband filed a petition to dissolve his
              fourteen-year marriage to Wife. In response, Wife filed a
              counter-petition for divorce on January 13, 2012. Husband and
              Wife, who are seventy-seven and seventy-five years old,
              respectively, do not have any children together. The lion’s share
              of the marital assets consists of the marital residence in
              Indianapolis, Indiana, as well as several businesses in Husband’s
              name.

              Following the parties’ cross-petitions for dissolution, on April 30,
              2012, the trial court conducted a provisional hearing and received
              evidence regarding the financial circumstances of both Husband
              and Wife. The next day, the trial court issued a provisional order
              (Provisional Order # 1), which awarded temporary possession of
              the marital residence to Husband. Provisional Order # 1 also
              required, in part, that Husband pay $300 per month to Wife in
              temporary maintenance and that he provide her with $5,000 in
              order to retain a business valuation expert.

              On October 9, 2012, Wife filed a petition for emergency relief
              and modification of Provisional Order # 1. On November 16,
              2012, after a second provisional hearing, the trial court issued a
              modified provisional order (Provisional Order # 2), which
              extinguished Husband’s obligation to make monthly
              maintenance payments. Instead, the trial court awarded Wife

      Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 2 of 20
        temporary possession of the marital residence and ordered
        Husband to pay all of the expenses related thereto, including the
        mortgage payment. In addition to maintaining its initial order
        that Husband pay $5,000 for a business valuation expert, the trial
        court, acting sua sponte, also ordered Husband to pay $10,000
        toward Wife’s attorney fees. On November 21, 2012, Husband
        filed a motion for the trial court to reconsider its ruling, which
        the trial court denied on November 30, 2012.

        On December 17, 2012, Husband filed his first interlocutory
        appeal, challenging the trial court’s award of $15,000 in
        preliminary fees and costs. See Hogshire v. Hoover (“Hogshire I”),
        2013 WL 6198238 (Ind. Ct. App. Nov. 27, 2013). On January 7,
        2013, Husband asked for a stay of Provisional Order # 2 pending
        appeal, which the trial court granted on February 4, 2013, subject
        to the condition that Husband post a $7,500 bond. Husband
        concedes that he never posted this bond.

        At some point after the issuance of Provisional Order # 2,
        Husband and Wife sold the marital residence and deposited the
        proceeds into an escrow account for division at the final hearing.
        No longer able to live in the marital residence at Husband’s
        expense, Wife filed a petition to modify Provisional Order # 2 on
        May 16, 2013. Following a third provisional hearing on June 24,
        2013, the trial court issued Provisional Order # 3 on September
        6, 2013. In Provisional Order # 3, the trial court ordered
        Husband to pay weekly maintenance of $750 to Wife, as well as
        to pay all of the outstanding fees for the completion of the
        business valuation. Ten days later, Husband filed his second
        interlocutory appeal to challenge the rulings of Provisional Order
        # 3. See Hogshire v. Hoover (“Hogshire II”), 2014 WL 2927270
        (Ind. Ct. App. June 27, 2014). Again, Husband requested a stay
        pending appeal, which the trial court denied on October 1, 2013.[]

        On September 24, 2013, following Husband’s failure to remit his
        first two maintenance payments, Wife filed a motion for rule to


Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 3 of 20
        show cause, alleging Husband to be “willfully and intentionally
        in contempt of” Provisional Order # 3. (Appellant’s App. p. 21).
        Then, on October 3, 2013, Wife filed a second petition for
        contempt, claiming that Husband never posted the $7,500 cash
        bond required to stay his obligation to pay $15,000 per
        Provisional Order # 2. In addition to requesting that the court
        enforce Husband’s compliance with the terms of both Provisional
        Orders, both of Wife’s petitions included a demand for attorney
        fees incurred as a result of prosecuting the contempt. On October
        25, 2013, the trial court conducted a hearing, during which both
        parties testified regarding their financial circumstances. Husband
        stipulated to the fact that he has not made payments in
        accordance with either of the Provisional Orders but asserted that
        his actions did not constitute contempt based on his financial
        inability to comply. Wife, however, insisted that Husband’s
        financial declaration fails to reflect the full extent of his available
        funds and that he is capable of making the maintenance, attorney
        fee, and business valuation payments as ordered.

        On November 5, 2013, the trial court entered its Judgment. In
        holding Husband in contempt, the trial court determined that
        “[h]e is willfully rejecting his responsibility to pay for [W]ife’s
        [business valuation] expert and to pay her maintenance.”
        (Appellant’s App. p. 15). As a result, the trial court ordered
        Husband to pay $4,000 for the attorney fees Wife incurred in
        bringing the contempt action. Also, the trial court ordered that
        the escrowed proceedings from the sale of the marital residence
        be used to satisfy Husband’s obligation under Provisional Order
        # 2 in the amount of $15,000, as well as for any maintenance
        payments owing under Provisional Order # 3.

        On November 27, 2013, our court rendered its decision in
        Hogshire I, holding that[,] although it is permissible for a trial
        court to sua sponte award $10,000 in attorney fees, the trial court
        had abused its discretion by doing so in Provisional Order # 2
        without first hearing evidence on Husband’s financial
        circumstances. We remanded to the trial court for an
Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 4 of 20
               examination of the parties’ resources. Seven months later, we
               issued our decision in Hogshire II. There, we reversed the portion
               of Provisional Order # 3 requiring Husband to pay $750 in
               weekly maintenance “and remand[ed] with instructions to
               modify the maintenance award taking into account Husband’s
               earnings, living expenses, and other obligations imposed by the
               court’s provisional orders.” Hogshire II, 2014 WL 2927270, at *4.
               We further concluded that the trial court had abused its
               discretion by ordering Husband to pay for the outstanding and
               future fees of the business valuation expert based, in part, on
               Husband’s inability to pay.


      Hogshire v. Hoover, 2014 WL 5089291, at *1-2 (Ind. Ct. App. Oct. 9, 2014)

      (“Hogshire III”).1 In Hogshire III, we affirmed the trial court’s order finding

      Husband in contempt, but remanded with instructions to the trial court to revise

      its judgment “such that the stated amounts of maintenance and other fees are

      consistent with our remand instructions in Hogshire I and Hogshire II.” Id. at *8.


[4]   Pending our memorandum decision in Hogshire III, on July 16, 2014, Wife filed

      a verified emergency petition for provisional maintenance. Following a hearing

      on that petition, on May 18, 2015, the trial court entered its order finding and

      concluding in relevant part as follows:


                                          Wife’s Income and Expenses

                                              Wife’s Employment




      1
        Husband filed his appeal in Hogshire III from the trial court’s order finding him in contempt prior to the
      date this court issued its memorandum decision in Hogshire II.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016              Page 5 of 20
        8)      Wife is seventy-six (76) years of age.

        9)      Wife is unemployed.

        10) Wife claims to suffer from a number of physical ailments,
        including heart problems, uncontrolled anxiety and depression.

        11) Wife claims to suffer from the side effects of her
        medications.

        12)     Wife is currently not under a physician’s care.

        13) Wife’s claims regarding her medical conditions are
        unsubstantiated by medical evidence.

        14)     Wife is not seeking employment.

        15) Wife claims that she is unable to work due to her medical
        conditions.

        16) Wife’s claim that she is unable to work due to her medical
        conditions is unsubstantiated by vocational evidence.

                                        Wife’s Income

        17)     Wife receives monthly social security payments of $860.

                                       Wife’s Expenses

        18)     Wife has the monthly expenses of $2967 . . . .

        19)     Wife has expenses for car maintenance which vary.

        20) Wife has ongoing credit card expenses for credit cards
        taken out after this matter was filed.

                               Husband’s Income and Expenses
Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 6 of 20
        21)     Husband is seventy-eight (78) years of age.

                               Husband’s Business Interests

        22)     Husband is the owner of two businesses.

                                               ***

        33) In spite of $25,000 having been paid for a business
        evaluation, a business evaluation had not been completed.

                                               ***

                                      Husband’s income

                                               ***

        39) Husband’s net income from Mr. Dan’s in 2014 was
        $34,971.05 for the year or $2,914.25 per month.

                                               ***

        42) In 2014 Husband received monthly distributions [as sole
        shareholder of Fresh Grill, LLC] of $4115.

                                               ***

        44) In prior years, Husband took a salary from his
        corporations.

        45) In 2014 Husband chose to take corporate distributions,
        when income is available, in lieu of salary.

        46) In prior years, his salary was greater than his 2014 annual
        distributions.



Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 7 of 20
        47) As sole shareholder of Fresh Grill, Husband has sole
        control over its net income.

        48) Husband receives a monthly social security retirement
        benefit of $2112.

                                               ***

        53) Husband pays Wife’s medical insurance in the monthly
        amount of $219 and Husband pays Wife’s prescription insurance
        in the monthly amount of $45.

        54) Husband also pays minimum monthly payment on the
        parties’ credit cards.

        55)     One of the cards is the Chase Freedom card.

        56) The Court previously ordered both parties not to charge
        against this card.

        57) However, Wife continues to use the card to pay her
        personal expenses.

        58) The Court finds that husband has monthly income of
        $9167 as follows:

                a.       Social Security                   $2112

                b.       Mr. Dan’s (net income)            $2914

                c.       Fresh Grill distributions $4115

                d.       In-kind                           $26

                                     Husband’s Expenses

        59)     Husband has ongoing monthly expenses [that] are $7434[.]
Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 8 of 20
        60) The Court does not include husband’s maintenance
        payments previously ordered as it will be re-calculating the
        amount in this order.

        61) Husband states that he owes $140,000 in attorney fees in
        this matter.

                                               ***

        81) . . . [A]s sole shareholder of Fresh Grill, the Court notes
        that Husband has sole control over the payment of corporate
        expenses.

        82) One of Fresh Grill’s expenses is a bi-weekly salary paid to
        its bookkeeper of $2038 or almost $53,000 per year.

                                CONCLUSIONS OF LAW

        83) The Court understands that, on its face, Wife’s age would
        make it difficult for her to find employment.

        84) [Indiana Code Section] 31-15-7-2 makes no provision for
        maintenance based on age.

                                               ***

                          Method of Calculating Maintenance

        93) The Indiana Court of Appeals, in Pham v. Pham, 650
        N.E.2d 1212 (Ind. Ct. App. 1995), reversed the trial court’s
        award of maintenance with instructions to modify the
        maintenance award taking into account Husband’s earnings,
        living expenses, and other obligations imposed by the court’s
        provisional order.



Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 9 of 20
        94) In Pham, the Court of Appeals refers to Indiana Child
        Support Guideline 2 as being a useful reference point in
        determining the appropriate amount of award for spousal
        maintenance. 650 N.E.2d at 1215.

        95) Child Support Guideline 2 provides, in part, that
        “Temporary maintenance may be awarded by the Court not to
        exceed thirty-five percent (35%) of the obligors[’] weekly adjusted
        income . . . . Temporary maintenance and/or child support may
        be ordered by the court either in dollar payments or ‘in-kind’
        payments of obligations.”

        96) Commentary to Indiana Child Support Guideline 2
        provides that “it is recommended that temporary maintenance
        not exceed thirty-five (35%) of [the] obligor’s weekly adjusted
        income. The maximum award should be reserved for those
        instances where the custodial spouse has no income or means of
        support, taking into consideration that spouse’s present living
        arrangement (i.e., whether or not he or she lives with someone
        who shares or bears the majority of the living expenses, lives in
        the military residence with little or no expense, lives in military
        housing, etc.)”

        97) Further, the commentary to Child Support Guideline 2
        provides, “In computing temporary maintenance, in-kind
        payments, such as the payment of utilities, house payments, rent,
        etc. should also be included in calculating the percentage
        limitations.”

        98) Here, as in Pham, the parties have no un-emancipated
        children.

        99) The Court concludes that it should look to Indiana Child
        Support Guideline 2 as a reference point in determining the
        appropriate amount of award for temporary spousal
        maintenance.


Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 10 of 20
        100) However, the Court also concludes that it need not
        exclusively look to Child Support Guideline 2 in determining
        temporary spousal maintenance.

                          The Parties’ Adjusted Gross Income

        101) In doing so, the Court first looks at the adjusted gross
        income of each party.

        102) Wife’s only source of income is social security payments of
        $860.00 per month.

        103) Husband’s adjusted monthly income is $7312. ($9167 -
        $1855 tax estimates).

        104) The parties have total adjusted gross income of $8172.

        105) Wife has 10.5% of the parties’ adjusted gross income.

        106) Husband has 89.5% of the parties’ adjusted gross income.

            The Percentage of Husband’s Adjusted Gross Income to
           Initially be Included in Awarding Temporary Maintenance

        107) The Court next determines the percentage of Husband’s
        adjusted gross income it will initially award Wife as temporary
        maintenance.

        108) Child Support Guideline 2 recommends that the
        maximum award be reserved where a spouse has no means of
        support.

        109) In this case, Wife has some means of support. However,
        she only received 10.5% of the parties’ adjusted gross income.




Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 11 of 20
        110) Because Wife has some means of support, the Court
        concludes that an award of maintenance based on 35% of
        Husband’s adjusted gross income is not appropriate.

        111) To account for Wife’s adjusted gross income, the Court
        will reduce the 35% maximum percentage of husband’s adjusted
        gross income it should consider by 10.5% (Wife’s percentage of
        the parties’ adjusted gross income).

        112) Accordingly, the Court concludes that it should consider
        31% of husband’s adjusted gross income in determining an award
        of maintenance. (35% x 89.5% rounded down).

                        Initial Temporary Maintenance Award

        113) Initially, Wife should receive temporary maintenance in
        an amount equal to 31% of Husband’s adjusted gross income.

        114) Initially, Wife should be awarded weekly temporary
        maintenance in the amount of $523. ($7312 x 31% = $2267 x 12
        = $27,204 divided by 52 weeks = $523 rounded down).

          Reduction of Temporary Maintenance Award Based on In-
          Kind Payments Made by Husband and Based on Credit Card
                           Minimum Payments

        115) Husband makes certain in-kind payments to Wife.

        116) Child Support Guideline 2 provides, “In computing
        temporary maintenance, in-kind payments, such as the payment
        of utilities, house payments, rent, etc. should also be included in
        calculating the percentage limitations.”

        117) Instead of reducing the percentage of Husband’s adjusted
        gross income considered in calculating temporary maintenance,
        the Court concludes that it is more equitable to simply give


Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 12 of 20
        Husband a credit against Wife’s initial maintenance award for
        the in-kind payments he makes.

                      Wife’s Insurance Premiums Husband Pays

        118) Husband pays Wife monthly in-kind payments of $259 for
        Wife’s insurance payments.

        119) The Court concludes that Wife’s maintenance award of
        $523 should be reduced by $60 per week to account for these
        payments. ($259 x 12 = $3108 divided by 52 = $60 rounded up).

            Chase Freedom Card Minimum Payments Husband Pays

        120) In addition, Husband pays $300 on the Chase Freedom
        card which Wife continues to use to pay her monthly expenses.

        121) Husband requests that the Court order that the Chase
        Freedom account be closed.

        122) However, the Court [herein] is ordering that the account
        remain open and is ordering that Wife be allowed to charge the
        $300 minimum on the account with Husband being ordered to
        pay the minimum amount each month.

        123) In determining maintenance the Court concludes that
        Husband’s $300 payment should also be considered as in-kind
        income paid to Wife.

        124) The Court considered adding this to Wife’s income in
        figuring out the income percentages of the parties.

        125) However, the Court concludes that it is more equitable to
        simply give Husband a credit against Wife’s initial maintenance
        award for the $300 payment he makes each month.



Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 13 of 20
        126) The Court concludes that Wife’s maintenance award of
        $523 should be reduced by $69 per week to account for this $300
        in-kind payment. ($300 x 12 = $3600 divided by 52 = $69
        rounded down).

              Other Minimum Credit Card Payments Husband Pays

        127) Finally, in awarding maintenance, the Court also takes
        into consideration that Husband is making all the minimum
        payments on the parties’ credit cards in addition to the Chase
        Freedom card.

        128) Excluding the Chase Freedom card, Husband pays $1552
        in minimum monthly credit card payments.

        129) The Court concludes that Husband should be given some
        credit for these payments against Wife’s maintenance award.

        130) The Court concludes that Husband should be given a
        credit against Wife’s temporary maintenance award in an
        amount equal to 10.5% of the monthly minimum credit card bills
        Husband pays, excluding the Chase Freedom card.

        131) The Court concludes that Wife’s maintenance award of
        $523 should be reduced by $38 per week to account for the
        monthly minimum credit card payments. (Total monthly
        expenses of $1552 x 10.5 = $163 x 12 = $1956 divided by 52
        weeks = $38 rounded up).

        132) In doing so, the Court makes clear that it is not determining that
        Wife is only responsible for 10.5% of the credit card debt.

        133) The Court is simply using the 10.5% figure as a basis for reducing
        Wife’s initial maintenance award.

        134) The percentage of the marital assets and debt will be determined
        at final hearing.

Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 14 of 20
                                Wife’s Maintenance Award

        135) After making reductions from Wife’s initial maintenance
        award of $523, the Court concludes that Wife’s weekly
        temporary maintenance award should be $362. ($523 - $60 - $69
        -$38 = $362).

        136) With a monthly maintenance award of approximately
        $1569, with Wife’s monthly social security payment of $860 and
        with Wife’s ability to charge $300 per month on the Chase
        Freedom charge card, Wife still has a monthly income deficit of
        -$238.

        137) The Court understands that, although the amount is not
        significant monetarily, it is significant to Wife given her small
        fixed income.

        138) With an additional monthly expense for maintenance,
        Husband has positive monthly income of $164.

        139) The Court understands that this amount is not significant.

        140) Sadly, the parties’ financial situation at the end of the
        month, more than anything else, reflects the realities of divorce in
        general and the realities of this divorce, which has been pending
        now for over three years, in particular.

        141) However, it is significant to the Court in reaching its
        conclusion that Husband, unlike Wife, has variable income that
        is within his control.

        142) As sole shareholder, Husband has the ability to control his
        distribution income.

        143) Particularly, Husband, as the sole shareholder, has the
        ability to reduce his business expenses such as the annual
        payment of $53,000 for the services of a full time bookkeeper and
Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 15 of 20
        annual business deductions of over $98,000, significant expenses
        for a small corporation.

        144) A reduction of business expenses could result in greater
        distribution income to Husband which would help offset, among
        other things, the attorney fees that he owes.

        145) Reductions in Fresh Grill’s business expenses might result
        in less income.

                                               ***

        147) Reductions in Fresh Grill’s business expenses may not be
        palatable to Husband in a perfect world.

        148) However, his world is not perfect at this moment. It is in
        crisis.

        149) Again, the crisis is an unfortunate reality of this prolonged
        divorce.

                            CHASE FREEDOM ACCOUNT

        150) Husband requests that the Court order that the Chase
        Freedom credit card be closed.

        151) The Court concludes that it is not equitable to do so at this
        time.

        152) Given Wife’s limited income and given her expenses, she
        needs an ability to have some credit available to her in case of an
        emergency.

        153) The Court concludes that Husband should continue to
        make minimum monthly payments of $300 on the Chase
        Freedom card.


Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 16 of 20
         154) The Court concludes that Wife should be able to charge up
         to $300 per month on the Chase Freedom card.

         155) However, the Court also concludes that any charges Wife
         makes on the Chase Freedom card, after the date of this order,
         should be subject to allocation at final hearing.

                                                ORDER

         156) The Court ORDERS Husband to pay Wife temporary
         maintenance in the weekly amount of $355 commencing Friday
         May 22, 2015 and a like amount each Friday thereafter until
         further order.

         157) The Court further ORDERS Husband to continue to pay
         Wife’s insurance premiums considered as in-kind payments in
         determining temporary maintenance.

         158) The Court further ORDERS Husband to continue to make
         the $300 minimum Chase Freedom card payments.

                                                   ***

         160) The Court further ORDERS Husband to continue making
         the monthly minimum payments of the parties’ other credit
         cards.


Appellant’s App. at 30-45 (emphasis added). This appeal ensued.2




2
   An order requiring one party to pay temporary support and maintenance to another party is an order for
the payment of money. Burbach v. Burbach, 651 N.E.2d 1158, 1162 (Ind. Ct. App. 1995). Consequently, the
trial court’s order awarding Wife temporary maintenance is an appealable interlocutory order as of right. Id.

Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016          Page 17 of 20
                                          Discussion and Decision
[5]   Husband contends as follows:

                 The evidence in this cause included the statutory presumption
                 that an equal division of the marital property between the parties
                 is just and reasonable. Ind. Code § 31-15-7-5. The findings in
                 this cause do not support the trial court’s judgment that the Wife
                 overcame the presumption and that marital debt should be
                 divided 89.5% to Husband and 10.5% to Wife.


      Appellant’s Br. at 17.3 Husband maintains that the trial court should

      “recalculate temporary maintenance crediting the Husband with 50% of the

      payments of the marital debt, thus reducing Wife’s award of temporary

      maintenance to $183 per week retroactive to May 18, 2015.” Id. at 24. We

      cannot agree.


[6]   Indiana Code Section 31-15-4-84 provides in relevant part as follows:


                 (a) The court may issue an order for temporary maintenance or
                 support in such amounts and on such terms that are just and
                 proper. However, the court shall require that the support
                 payments be made through the clerk of the circuit court as trustee
                 for remittance to the person entitled to receive benefits, unless the
                 court has reasonable grounds for providing or approving another
                 method of payment.




      3
          We note that Husband makes no contention that Wife is not entitled to temporary maintenance.
      4
          Neither party cites this statute on appeal.


      Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016       Page 18 of 20
      A trial court’s award of temporary maintenance is reviewable only for an abuse

      of discretion. See Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). An abuse

      of discretion occurs when the trial court’s decision is against the logic and effect

      of the facts and circumstances before it. Fort Wayne Lodge, LLC v. EBH Corp.,

      805 N.E.2d 876, 882 (Ind. Ct. App. 2004).


[7]   Here, Husband makes no cogent argument to show that the temporary

      maintenance award is not just and reasonable under Indiana Code Section 31-

      15-4-8 or that the trial court otherwise abused its discretion in making the

      award. Rather, Husband appears to contend that the trial court was obliged to

      calculate the temporary maintenance award based upon a division of the

      marital estate pursuant to Indiana Code Section 31-15-7-5, which presumes that

      an equal division of the marital property between the parties is just and

      reasonable. But, in awarding temporary maintenance to Wife, the trial court

      had no reason to divide the marital estate, and Indiana Code Section 31-15-7-5

      is inapplicable. Rather, the trial court shall divide the marital estate in the final

      decree, which has yet to be entered. Indeed, in its order, the trial court

      explicitly stated that it was “not determining that Wife is only responsible for

      10.5% of the credit card debt” and that the “percentage of the marital assets and

      debt will be determined at final hearing.” Appellant’s App. at 42.


[8]   We observe that the trial court has discretion to determine how to treat the

      temporary maintenance at the final distribution. Rodgers v. Rodgers, 503 N.E.2d

      1255, 1258 (Ind. Ct. App. 1987), trans. denied. Accordingly, we have held that a

      trial court did not abuse its discretion when it accounted for the temporary

      Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 19 of 20
       maintenance in the final distribution, Fiste v. Fiste, 627 N.E.2d 1368, 1372 (Ind.

       Ct. App. 1994), disapproved on other grounds by Moyars v. Moyars, 717 N.E.2d 976,

       979 n.2 (Ind. Ct. App. 1999), trans. denied, but we have also held that a trial

       court did not abuse its discretion when it refused to credit temporary support

       payments against a final distribution, Rodgers, 503 N.E.2d at 1258. But these

       are matters for the final hearing and the final decree.


[9]    We hold that the trial court did not abuse its discretion when it calculated

       Husband’s temporary maintenance obligation. Husband has not shown that

       the award is unjust or improper. I.C. § 31-15-4-8. Indeed, the trial court’s

       findings and conclusions are exhaustive and illustrate the court’s deep

       understanding of the parties’ assets and liabilities, as well as the parties’

       respective abilities to pay their monthly expenses.


[10]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1506-DR-676| February 16, 2016   Page 20 of 20
