                                                                             FILED
                                                                        Jan 31 2019, 6:04 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
James E. Ayers                                             Ralph E. Dowling
Wernle, Ristine & Ayers                                    Dowling Law Office
Crawfordsville, Indiana                                    Muncie, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dorothy Campbell,                                          January 31, 2019
Appellant,                                                 Court of Appeals Case No.
                                                           18A-DR-361
        v.                                                 Appeal from the Boone Circuit
                                                           Court
Mark Reed Campbell,                                         The Honorable J. Jeffrey Edens,
Appellee                                                    Judge
                                                           Trial Court Cause No.
                                                           06C01-1609-DR-587



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019                              Page 1 of 11
[1]   Dorothy Campbell appeals the trial court’s order dissolving her marriage to

      Mark Campbell. Dorothy argues that the trial court erroneously denied her

      request for spousal maintenance and erroneously valued one of the parties’

      assets. Finding no error, we affirm.


                                                      Facts
[2]   Dorothy and Mark were married in 1991; no children were born of the

      marriage. Both parties worked until Dorothy became disabled in 1996.

      Dorothy has not worked since that time. Mark provided the sole financial

      support for the couple until Dorothy began receiving Social Security Disability

      (SSD) payments in 2001.1 Dorothy’s SSD arrearage payment was used to buy

      furnishings, electronics, and appliances for the house they built in 2001. Mark

      has continued to work and earned $23.01 per hour at the time of the hearing.


[3]   In the spring of 2016, the parties separated, sold the marital residence, and paid

      off marital debts. Dorothy filed a petition for dissolution of marriage in May

      2016, requesting spousal maintenance due to her disability and an equitable

      division of the marital property. The trial court held a hearing on August 25,

      2017, and issued its dissolution decree on November 9, 2017. In the decree,

      the trial court denied Dorothy’s request for spousal maintenance; valued the

      parties’ Buick Enclave at $21,143.00; and divided the marital estate equally,




      1
       In 2001, the Social Security Administration determined that Dorothy became disabled on May 1, 1997, and
      offered benefits dating back to December 1998 based on when Dorothy filed for disability.

      Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019                         Page 2 of 11
      requiring an equalization payment from Mark to Dorothy. Dorothy filed a

      motion to correct error regarding spousal maintenance and the valuation of the

      Buick Enclave; the trial court denied the motion. Dorothy now appeals.


                                    Discussion and Decision
                                     I. Spousal Maintenance
[4]   Dorothy first argues that the trial court erred by denying her request for spousal

      maintenance. The trial court may award spousal maintenance upon finding

      that a spouse is incapacitated and her ability to support herself is materially

      affected. Ind. Code § 31-15-7-2(1). Findings are required by statute to support

      an award of incapacity maintenance, see I.C. § 31-15-7-1, but there is no

      corresponding requirement that findings be entered when incapacity

      maintenance is denied. Thus, the trial court’s findings here are “special

      findings.” Ind. Trial Rule 52(A)(3); Cannon v. Cannon, 758 N.E.2d 524, 526

      (Ind. 2001) (determining, in reviewing findings from which trial court

      concluded wife was not entitled to incapacity maintenance, that findings

      supporting denial would be treated as special findings). We will not set aside

      special findings unless they are clearly erroneous. Alexander v. Alexander, 980

      N.E.2d 878, 880 (Ind. Ct. App. 2012). The weight of the evidence and the

      credibility of the witnesses are matters for the trial court to assess. Id.


[5]   There are two ways in which a party to a divorce may be obligated to make

      spousal maintenance payments: either the parties agree to maintenance in a

      negotiated settlement agreement or the court may order maintenance payments

      Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019           Page 3 of 11
      in limited circumstances. Palmby v. Palmby, 10 N.E.3d 580, 583 (Ind. Ct. App.

      2014). One of these circumstances occurs when the trial 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[.]” I.C.

      § 31-15-7-2(1). If the trial court makes that finding, it may order maintenance.

      Id. Because such an award is designed to help provide for the incapacitated

      spouse’s sustenance and support, the essential inquiry is whether the spouse can

      support herself. Alexander, 980 N.E.2d at 881. An award of incapacity

      maintenance is within the trial court’s discretion. Barton v. Barton, 47 N.E.3d

      368, 375 (Ind. Ct. App. 2015).


[6]   It is undisputed that Dorothy was seventy-three years old at the time of the

      hearing and has an eighth-grade education. Moreover, while the parties may

      not agree upon her precise diagnoses, there is no real dispute that she has had

      years of serious medical problems and has been considered to be disabled and

      entitled to SSD since 1997.


[7]   The trial court made the following findings regarding Dorothy’s request for

      incapacity maintenance:

                                            Social Security Benefits


              15.      On May 1, 1997 [Dorothy] was determined to be disabled
                       by the Social Security Administration.


              16.      The nature of [Dorothy’s] disability was not indicated in
                       the award certificate.

      Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019          Page 4 of 11
         17.      [Dorothy] did not provide the Court with evidence as to
                  whether or not her disability status was periodically
                  reviewed and continued.


         18.      [Dorothy] continues to receive Social Security benefits.


         19.      The Court is unsure if those are disability benefits or
                  retirement benefits.[2]


                                                Wife’s Age


         20.      By her own admissions, based on her age, [Dorothy]
                  would not likely be currently working regardless of her
                  health conditions.


                                                   ***


                                           Wife’s Testimony


         30.      [Dorothy] presented extensive testimony and exhibits
                  concerning her disabilities.


         31.      [Dorothy] also presented testimony concerning the
                  limitations she has as a result of her disabilities.


                             Lack of Supporting Vocational Evidence


         32.      However, [Dorothy] did not provide the Court with any
                  vocational evidence as to whether or not the limitations


2
 We can only conclude that this finding is clearly erroneous, as there is no evidence in the record that
Dorothy’s benefits were anything other than disability benefits.

Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019                                Page 5 of 11
                       from her disability prevent her from performing all types of
                       employment, including sedentary employment.


              33.      Based on the evidence before it, the Court does not find
                       that [Dorothy] is physically or mentally incapacitated to
                       the extent that [] her ability to support herself is materially
                       affected.


      Appealed Order p. 3-5 (internal citations omitted).


[8]   The trial court found that Dorothy was not incapacitated to the extent that her

      ability to support herself is materially affected. She argues that this conclusion

      is clearly erroneous based on the evidence in the record. Even if we were to

      agree with her position for argument’s sake—in other words, even if the trial

      court should have found that Dorothy was incapacitated—the award of

      maintenance was still within the trial court’s discretion. The statute does not

      enumerate factors that must be considered or facts that must be weighed as the

      trial court exercises its discretion on this matter. Here, the trial court

      considered the evidence before it and made a careful judgment that

      maintenance is not warranted in this case. Although it could likewise have

      reached the opposite result on these facts, we see no reason to conclude that the

      trial court exceeded its discretion in denying the maintenance request.


[9]   There will come a time in the lives of most of us when we are unable to work,

      whether because of age or disability. To reverse in this case would imply that if




      Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019            Page 6 of 11
       one of the divorcing parties is elderly and receiving SSD,3 maintenance is

       always required. We decline to reach such a result. Cases like this are

       extremely fact-sensitive and filled with nuance that our trial courts are best able

       to sift through. We believe it wise of our legislature to vest our trial courts with

       discretion in such matters and will not step into the trial court’s exercise of

       discretion here. Therefore, we affirm the trial court’s decision to deny

       Dorothy’s request for spousal maintenance.4


                                         II. Property Valuation
[10]   The trial court has broad discretion in ascertaining the value of property in a

       dissolution action, and its valuation will only be disturbed where the decision is

       clearly against the logic and effect of the facts and circumstances before the trial

       court. Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind. Ct. App. 2011). If the

       trial court’s chosen valuation is within the range of values supported by the

       evidence, we will affirm. Goossens v. Goossens, 829 N.E.2d 36, 38 (Ind. Ct. App.

       2005).


[11]   Dorothy testified that they bought the 2012 Buick Enclave for approximately

       $33,000 in late 2012. It was a used car, previously owned by Enterprise, and it




       3
         Dorothy argues that being eligible for SSD should be prima facie evidence of incapacity. Whether or not it
       should be is irrelevant. The simple fact is that nothing in the statute or caselaw indicates that it is, in fact,
       prima facie evidence of incapacity.
       4
        Dorothy argues that the denial of maintenance based partially on her age violates her constitutional right to
       equal protection and treatment. But she failed to raise it below, cites to no authority in support, and includes
       no cogent constitutional analysis in making this argument. Therefore, we decline to address it.

       Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019                                  Page 7 of 11
       had hail damage when they bought it. Dorothy posited that it was worth

       $14,000 at the time of separation but was “probably more like ten now” because

       she did not have a garage and it had to be parked outside. Tr. Vol. II p. 59.

       Dorothy arrived at her $14,000 figure by “look[ing] at the Kelley Blue Book and

       . . . at sales on ‘em and just various places[,]” but she did not remember exactly

       the Kelley Blue Book value and she did not submit any documentation supporting

       her valuation of the vehicle. Id. at 87. Mark submitted a Kelley Blue Book report

       on the Enclave estimating the trade-in value at $21,143. Tr. Ex. Vol. VI p. 190.


[12]   The trial court was within the bounds of the evidence presented by valuing the

       Enclave at $21,000 for purposes of dividing the marital estate. Mark provided

       evidence of the Enclave’s value via the Kelley Blue Book report whereas Dorothy

       provided only a guess. See Troyer v. Troyer, 987 N.E.2d 1130, 1138 (Ind. Ct.

       App. 2013) (holding trial court did not abuse its discretion in accepting wife’s

       valuation of property when husband testified he had not had the property

       appraised and his valuation was “a complete guess”). The valuation was within

       the scope of the evidence before the trial court, and we decline to reverse on this

       issue.


[13]   The judgment of the trial court is affirmed.


       May, J., concurs.
       Robb, J., concurs in part and dissents in part with a separate opinion.




       Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019       Page 8 of 11
                                                        IN THE
              COURT OF APPEALS OF INDIANA

       Dorothy Campbell,                                            Court of Appeals Case No.
                                                                    18A-DR-361
       Appellant-Petitioner,

                  v.

       Mark Reed Campbell,
       Appellee-Respondent,



       Robb, Judge, concurring in part and dissenting in part.


[14]   I respectfully dissent from the majority’s resolution with respect to spousal

       maintenance.5 I agree with the majority that an award of spousal maintenance

       is a matter within the trial court’s discretion, see slip op. at ¶ 5, and that even if a

       trial court were to find a spouse incapacitated, it is not required by the statute to

       award maintenance, see id. at ¶ 8; but see Cannon, 758 N.E.2d at 527 (noting that

       although the statutory language makes a maintenance award discretionary, “the




       5
           I concur with respect to the property valuation issue.


       Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019                      Page 9 of 11
       trial court should normally award incapacity maintenance” if it finds a spouse is

       mentally or physically incapacitated). I also agree that an SSD award does not

       necessarily equate to incapacity in every situation. See id. at ¶ 9 n.3.


[15]   Despite my agreement with these general principles of law, I am unable to

       agree with the majority that on these facts, the trial court did not abuse its

       discretion. The trial court stated it was unsure if Dorothy’s benefits were for

       disability or retirement, mentioned Dorothy’s age as the reason for her not

       working, and implied that Dorothy was required to present evidence other than

       her own testimony that she was unable to work due to her disability. These

       findings suggest to me that the trial court did not apply the appropriate standard

       in determining whether Dorothy should be awarded spousal maintenance.


[16]   As the majority notes, Dorothy’s benefits were clearly for disability and no one

       suggested otherwise. Although receiving such benefits does not automatically

       entitle her to spousal maintenance, that she has been deemed eligible for such

       benefits should be a consideration in the trial court’s determination. Her

       inability to work is not a function of her age, it is a function of her disability,

       which caused her to cease working in 1996. For the ensuing nearly twenty

       years, Mark has benefited from her SSD payments and provided for any

       financial shortfall. She has no safety net now. And finally, 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 of incapacity maintenance based on the

       wife’s testimony that she was receiving Social Security disability benefits due to

       her rheumatoid arthritis and hypertension and that she was unable to hold a job

       Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019         Page 10 of 11
       due to her disability. Dorothy testified extensively about the nature and extent

       of her disability and how it affects her life and ability to work at even a

       sedentary job. See Tr. Vol. II at 47 (Dorothy testifying that she is unable to use

       a computer for more than fifteen or twenty minutes at a time because it bothers

       her hands and shoulders and sitting is difficult due to her arthritis). Testimony

       and evidence indicating Dorothy’s expenses exceed her SSD benefits – which

       now comprise her sole income – was uncontradicted and her expenses were not

       challenged as unreasonable.


[17]   To the extent the trial court’s findings indicate it may have failed to consider

       that Dorothy receives SSD benefits, determined her disability did not materially

       affect her ability to support herself because her age would have impacted her

       earning ability regardless, and required additional evidence Dorothy was not

       required to offer to support her request, I believe the trial court abused its

       discretion. I would remand for the trial court to reconsider Dorothy’s request

       for spousal maintenance in light of the correct standard.




       Court of Appeals of Indiana | Opinion 18A-DR-361 | January 31, 2019        Page 11 of 11
