MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Aug 10 2018, 5:21 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Mark J. Roberts                                          John L. Davis
Maggie L. Smith                                          Pritzke & Davis LLP
Frost Brown Todd LLC                                     Greenfield, Indiana
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Thomas Maxwell,                                  August 10, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         30A01-1712-DR-2768
        v.                                               Appeal from the Hancock Circuit
                                                         Court
Shirley Sue Maxwell,                                     The Honorable Richard D. Culver,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         30C01-1611-DR-1635



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018       Page 1 of 24
                                             Case Summary
[1]   Jeffery Maxwell (“Husband”) appeals the trial court’s dissolution of his

      marriage to Shirley Maxwell (“Wife”). We affirm in part, reverse in part, and

      remand.


                                                    Issues
[2]   Husband raises several issues, which we restate as:


                    I.         whether the trial court committed reversible
                               error by deviating from the presumption of an
                               equal division of marital property without
                               explaining the deviation;

                   II.         whether the trial court erred by ordering that
                               Wife receive sixty percent of Husband’s gross
                               military pension;

                  III.         whether the trial court erred when it ordered
                               Husband to pay for Wife’s vehicle in the future
                               to transport their son;

                  IV.          whether the trial court erred when it valued
                               Husband’s Eli Lilly pension; and

                   V.          whether the trial court erred when it ordered
                               Husband to pay rehabilitative maintenance to
                               Wife.

                                                     Facts
[3]   The parties had a child, C.M., in April 2002. They married in May 2004, while

      Husband was in the military. After they married, they had another child, S.M.,

      in September 2005, and D.M. in October 2006. D.M. was born prematurely

      and has cerebral palsy, which affects his ability to use his legs and arms. D.M.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 2 of 24
      is learning to walk with a walker, but he uses a manual wheelchair except at

      school, where he uses a motorized wheelchair. Husband retired from the

      military in 2012 after twenty-one years of service, and he receives a monthly

      veterans’ disability payment. Husband has worked at Eli Lilly in finance and

      accounting for fifteen years. Wife worked in retail prior to the parties’ marriage

      but stopped working after the marriage. She worked again in retail for a short

      time in approximately 2006 before D.M.’s birth. After D.M.’s birth, Wife did

      not return to work.


[4]   Husband filed a petition for dissolution in November 2016. At this time, Wife

      found employment as an instructional assistant with a school corporation. She

      works thirty-five hours a week and is paid $10.50 an hour. This position allows

      her to be home with the children after school and on school breaks. In late

      2017, Eli Lilly notified Husband that his department was being moved to

      Ireland. At the time of the hearing, Husband anticipated losing his job in

      March 2018.1 The parties reached agreements on most issues regarding the

      children, leaving mainly issues regarding division of the marital estate and

      maintenance. Husband proposed that he “take on all liabilities associated with

      the marital estate.” Tr. Vol. II p. 33. Husband has a 401K through his

      employment with Eli Lilly, a pension with Eli Lilly, and a military pension.

      Wife requested caretaker maintenance to care for D.M. and rehabilitative




      1
       Husband asserts that he has lost his job since the trial court’s order. However, we cannot consider evidence
      not in the record.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018           Page 3 of 24
      maintenance to complete her college degree online through Ball State

      University.


[5]   The trial court entered findings of fact and conclusions thereon. The trial court

      adopted Wife’s proposed division of marital property, resulting in a 60%/40%

      split in favor of Wife. The trial court ordered that the parties sell the marital

      residence with Wife receiving the first $8,050.00 of the proceeds and the

      remaining proceeds split 60%/40% in favor of Wife. The trial court awarded

      Wife, in part, her vehicle and certain furniture; sixty percent of Husband’s gross

      military pension payment when “such is received by [Husband] or when

      [Husband] is eligible to receive same;” rehabilitative maintenance in the

      amount of $750.00 per month for thirty-six months; $7,500 in attorney fees;

      $44,500.00 from Husband’s Eli Lilly 401K, which was valued at $44,500.00; a

      property settlement judgment in the amount of $68,953.00 payable at the rate of

      $500.00 per month plus eight percent interest with the payments beginning after

      the completion of the rehabilitative maintenance payments. Appellant’s App.

      Vol. II p. 21. Husband was awarded, in part, his Eli Lilly pension; the

      remainder of his military pension; any remainder of his Eli Lilly 401K; his

      automobile, tools, firearms, and certain furniture; and the remainder of his 2016

      Eli Lilly bonus. Husband was ordered to pay the parties’ debts and a portion of

      a handicapped accessible van in the future for Wife’s use. Husband now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 4 of 24
                                                  Analysis
[6]   Husband raises several issues regarding the trial court’s division of marital

      property. Where, as here, a party requested findings and conclusions pursuant

      to Trial Rule 52, we cannot set aside the findings or judgment unless clearly

      erroneous. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App. 2016). “First,

      we determine whether the evidence supports the findings, and second, whether

      the findings support the judgment.” Id. We affirm the trial court’s findings

      unless no facts or inferences from the record support them, but we review legal

      conclusions de novo. Id.


[7]   The division of marital property is within the sound discretion of the trial court,

      and we will reverse only for an abuse of discretion. Kendrick v. Kendrick, 44

      N.E.3d 721, 724 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion

      occurs if the trial court’s decision is clearly against the logic and effect of the

      facts and circumstances before the court, or if the trial court has misinterpreted

      the law or disregards evidence of factors listed in the controlling statute. Id.

      When we review a claim that the trial court improperly divided marital

      property, we must consider only the evidence most favorable to the trial court’s

      disposition of the property. Id. Although the facts and reasonable inferences

      might allow for a different conclusion, we will not substitute our judgment for

      that of the trial court. Id.


[8]   The trial court’s division of marital property is highly fact sensitive. Id. A trial

      court’s discretion in dividing marital property is to be reviewed by considering


      Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 5 of 24
      the division as a whole, not item by item. Id. We will not weigh evidence, but

      will consider the evidence in a light most favorable to the judgment. Id. A trial

      court may deviate from an equal division so long as it sets forth a rational basis

      for its decision. Id. A party who challenges the trial court’s division of marital

      property must overcome a strong presumption that the court considered and

      complied with the applicable statute. Id. Thus, we will reverse a property

      distribution only if there is no rational basis for the award. Id.


                                          I. Division of Property

[9]   Father first argues that the trial court erred by failing to make findings to

      support the unequal division of marital property. Indiana subscribes to a “one-

      pot” theory of marital property. Morey v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct.

      App. 2016) (citing Ind. Code § 31-15-7-4). Under Indiana Code Section 31-15-

      7-4(a), in a dissolution action, the court shall divide the property of the parties,

      whether:


                  (1)      owned by either spouse before the marriage;


                  (2)      acquired by either spouse in his or her own right:


                          (A)     after the marriage; and


                          (B)     before final separation of the parties; or


                  (3)      acquired by their joint efforts.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 6 of 24
       “Property” means “all the assets of either party or both parties . . . .” I.C. § 31-

       9-2-98(b).


               “The requirement that all marital assets be placed in the marital
               pot is meant to insure that the trial court first determines that
               value before endeavoring to divide the property.” Montgomery v.
               Faust, 910 N.E.2d 234, 238 (Ind. Ct. App. 2009). Indiana’s “one-
               pot” theory prohibits the exclusion of any asset in which a party
               has a vested interest from the scope of the trial court’s power to
               divide and award. Falatovics [v. Falatovics, 15 N.E.3d 108, 110
               (Ind. Ct. App. 2014)]. Although the trial court may decide to
               award a particular asset solely to one spouse as part of its just and
               reasonable property division, it must first include the asset in its
               consideration of the marital estate to be divided. Id. The
               systematic exclusion of any marital asset from the marital pot is
               erroneous. Id.


       Quinn, 62 N.E.3d at 1223.


[10]   After determining what constitutes marital property, the trial court must then

       divide the marital property under the presumption that an equal split is just and

       reasonable. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004),

       trans. denied. Indiana Code Section 31-15-7-5 provides:


               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 concerning 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.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 7 of 24
            (2)      The extent to which the property was acquired by each
                     spouse:


                     (A)     before the marriage; or


                     (B)     through inheritance or gift.


            (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.


I.C. § 31-15-7-5. “If the trial court deviates from this presumption, it must state

why it did so.” Thompson, 811 N.E.2d at 912-13; see also Morey, 49 N.E.3d at

1072 (“If the trial court determines that a party has rebutted the presumption of

an equal division of the marital pot and decides to deviate from an equal

division, then it must state its reasoning in its findings and judgment.”).

Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 8 of 24
[11]   The trial court here deviated from the presumption that an equal division of the

       marital property between the parties is just and reasonable by awarding Wife

       sixty percent of the marital estate. Although the trial court made findings on

       various subjects, the trial court then simply adopted Wife’s balance sheet with a

       few changes and did not explain its reasoning or make specific findings on the

       factors discussed in Indiana Code Section 31-15-7-5. Given the lack of specific

       findings on the relevant factors, we conclude that remand for either an equal

       division of the marital property or an explanation of the reason for deviation is

       necessary.


                                             II. Military Pension

[12]   The trial court here awarded Wife sixty percent of Husband’s gross military

       pension payment when “such is received by [Husband] or when [Husband] is

       eligible to receive same.” Appellant’s App. Vol. II p. 21. Husband argues that

       the trial court should have applied a coverture formula instead. Husband also

       argues that federal law prevented the trial court from awarding Wife more than

       fifty percent of his net retirement pay from his military pension.


[13]   Wife argues that Husband waived the issue by failing to raise the argument to

       the trial court. However, during the evidentiary hearing, Husband specifically

       argued that the trial court should apply a coverture formula and argued that the

       trial court could not order the payments through a qualified domestic relations

       order (“QDRO”) because the parties were not married for ten years during his

       military service. Husband testified that they were married for eight years during

       his twenty-one years of military service, and his Petitioner’s Exhibit 2 requested
       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 9 of 24
       a coverture factor of 49.98%. Given Husband’s proposed equal division of the

       marital property, Wife would have received half of the coverture factor of the

       military pension under Husband’s proposal. The trial court declined to apply a

       coverture factor and, instead, awarded Wife sixty percent of Husband’s gross

       military pension. Husband clearly argued for the application of a coverture

       formula and did not waive that issue.


[14]   On appeal, however, Husband cites no authority that the trial court was required

       to apply a coverture formula. Husband cites Williams v. Williams, 252 P.3d 998,

       1006 (Alaska 2011), which applied the coverture formula, but noted that the

       formula was “typically used.” All property, whether acquired before or during

       the marriage, is generally included in the marital estate for property division.

       See Ind. Code § 31-15-7-4(a). This Court has explained,


               The “coverture fraction” formula is one method a trial court may
               use to distribute pension or retirement plan benefits to the
               earning and non-earning spouses. Under this methodology, the
               value of the retirement plan is multiplied by a fraction, the
               numerator of which is the period of time during which the
               marriage existed (while pension rights were accruing) and the
               denominator is the total period of time during which pension
               rights accrued.


       In re Marriage of Fisher, 24 N.E.3d 429, 433 (Ind. Ct. App. 2014) (quoting Hardin

       v. Hardin, 964 N.E.2d 247, 250 (Ind. Ct. App. 2012). We noted in In re Marriage

       of Nickels, 834 N.E.2d 1091, 1098 (Ind. Ct. App. 2005), that the parties had cited

       no authority for the proposition that a trial court was required to use a coverture

       fraction formula to distribute a pension or retirement plan. We further noted

       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 10 of 24
       that, “while a trial court may set aside to one party the value of a marital asset

       where the other party made no contribution to its acquisition, it is not required

       to do so.” Nickels, 834 N.E.2d at 1098; see also Morey, 49 N.E.3d at 1071-72

       (noting that the coverture fraction formula was “just one method that allows the

       spouse who acquired the asset to segregate what might otherwise be considered

       marital property from the marital pot” and that it was within the trial court’s

       discretion to determine whether a given asset should be segregated from the

       marital pot for application of the coverture fraction formula”). Given

       Husband’s failure to cite authority that the trial court was required to apply a

       coverture formula, we cannot say that the trial court abused its discretion by

       failing to do so.


[15]   As for the second part of Husband’s argument, 10 U.S.C.A. § 1408(e)(1)

       provides that “[t]he total amount of the disposable retired pay of a member

       payable under all court orders pursuant to subsection (c) may not exceed 50

       percent of such disposable retired pay.”2 Although Husband did not raise this



       2
           10 U.S.C.A. § 1408(4)(A) provides:

                       The term “disposable retired pay” means the total monthly retired pay to which
                       a member is entitled less amounts which--
                          (i)      are owed by that member to the United States for previous
                                   overpayments of retired pay and for recoupments required by law
                                   resulting from entitlement to retired pay;
                          (ii)     are deducted from the retired pay of such member as a result of
                                   forfeitures of retired pay ordered by a court-marital or as a result of
                                   a waiver of retired pay required by law in order to receive
                                   compensation under title 5 or title 38;
                          (iii)    in the case of a member entitled to retired pay under chapter 61 of
                                   this title, are equal to the amount of retired pay of the member
                                   under that chapter computed using the percentage of the member’s

       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018                Page 11 of 24
       statute to the trial court, he was arguing that Wife would receive much less than

       fifty percent of his military pension. Consequently, it would have been

       unnecessary for him to make this argument. Under these circumstances, we

       decline to find that Husband waived the argument.


[16]   In her Appellee’s Brief, Wife concedes the following:


               Wife does concede that 10 U.S.C.A. § 1408 does limit the total
               amount of the disposable retired pay to 50% of the disposable
               retired pay.


               If the amount to be paid is appropriately based upon the net
               disposable pay, then, absent a waiver caused by a failure to bring
               this provision of Federal law to the attention of the Trial Court,
               such an order to require Husband to pay 50% of his net
               disposable retirement to Wife would be appropriate.


       Appellee’s Br. p. 26. Consequently, Wife concedes that, if the issue is not

       waived, remand for revision of the order for Husband to pay fifty percent of his

       net disposable pay is appropriate. We have determined that Husband did not

       waive the issue. Given Wife’s concession, we express no opinion on the




                                disability on the date when the member was retired (or the date on
                                which the member’s name was placed on the temporary disability
                                retired list); or
                       (iv)     are deducted because of an election under chapter 73 of this title to
                                provide an annuity to a spouse or former spouse to whom payment
                                of a portion of such member’s retired pay is being made pursuant to
                                a court order under this section.



       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018           Page 12 of 24
       legitimacy of Husband’s argument. We remand for revision of the order related

       to Husband’s military pension in a manner consistent with Wife’s concession.3


                                                          III. Van

[17]   Husband argues that the trial court abused its discretion by ordering him to pay

       sixty-five percent of the cost of a new van for Wife. The trial court ordered the

       following:


                It is undisputed that the present Honda van being set off to
                Mother cannot transport the motorized wheelchair [D.M.] uses
                at school and other places. The Honda van has in excess of
                $100,000 miles of use and logic dictates that it will have to be
                replaced at some time. When it is replaced, the purchase of a
                van that is equipped to or capable of transporting the motorized
                wheelchair is necessary as treatment or care for a chronic health
                condition of [D.M.]. Mother will have private use of the new
                vehicle. Mother shall pay twenty-five percent (25%) of the cost
                of the new vehicle and the balance shall be shared by the parties
                based upon their percentage share of the total income as set forth
                in the CSOW effective as of the date of purchase.


       Appellant’s App. Vol. II p. 26. Husband argues that Wife did not establish a

       need for the van because the parties have transported D.M. for years without

       the use of a handicapped accessible vehicle. Further, Husband contends that

       the trial court’s order fails to provide guidance on the timing of the purchase,

       the cost of the van, financing of the van, insurance regarding the vehicle, and




       3
        See Wooster, Ann K., Construction and Application of Federal Uniformed Services Former Spouse Protection Act in
       State Court Divorce Proceedings, 59 A.L.R.6th 433 (2010), for an overview of these issues.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018              Page 13 of 24
       ability of Husband to use the van when he has physical custody of D.M. forty

       percent of the time. Finally, Husband argues that the trial court’s order does

       not take into account his future financial situation.


[18]   The trial court’s order regarding the future van is more in the nature of a child

       support obligation. We review decisions regarding child support for an abuse of

       discretion. Mitten v. Mitten, 44 N.E.3d 695, 699 (Ind. Ct. App. 2015). An abuse

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

       of the facts and circumstances before the court or if the court has misinterpreted

       the law. Id. When reviewing a decision for an abuse of discretion, we consider

       only the evidence and reasonable inferences favorable to the judgment. Id.


[19]   The child support guidelines do not directly address this issue. However,

       Indiana Code Section 31-16-6-2(a)(2) provides that a child support order may

       include, “where appropriate . . . special medical, hospital, or dental expenses

       necessary to serve the best interests of the child.” Although the handicapped

       accessible van is not technically a medical expense, it does appear necessary to

       serve D.M.’s best interest due to his medical conditions. Although D.M. is

       young now, it will become more difficult to transport D.M. without a

       handicapped accessible van as he gets older. Consequently, we cannot say that

       the trial court abused its discretion by ordering Husband to contribute to the

       costs of the van. However, Husband’s concerns regarding guidance on the

       timing of the purchase, the cost of the van, financing of the van, insurance

       regarding the vehicle, and ability of Husband to use the van when he has

       physical custody of D.M. forty percent of the time are well taken. We remand

       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 14 of 24
       for the trial court to consider those issues. We also note that perhaps a more

       feasible solution would be to address the issue through a modification of child

       support when it is necessary to purchase the van.


                                            IV. Eli Lilly Pension

[20]   Next, Husband argues that the trial court abused its discretion when it valued

       his Eli Lilly pension. Husband argues that the trial court assigned the wrong

       value to the pension, improperly failed to apply a coverture factor, and failed to

       use a QDRO to transfer Wife’s interest. The trial court here accepted Wife’s

       value of $174,148.00, awarded the pension to Husband, and ordered Husband

       to pay a property settlement judgment in the amount of $68,953.00 at the rate of

       $500 per month with eight percent interest until paid in full.


[21]   We first address the trial court’s valuation of the pension. Wife’s valuation of

       the pension was determined by Dan Andrews, who the trial court found “is a

       recognized expert in the field of calculating present values of defined benefit

       pensions.” Appellant’s App. Vol. II p. 21. According to Husband, Andrews

       used the wrong “discount rate,” the wrong age of eligibility, and improperly

       added an administrative load. According to Husband, these alleged errors

       would make the value of the pension unrealistically higher. Husband testified

       that he does pension valuations as the course of his business and proposed a

       current pension value of $25,920. The trial court was presented with Andrews’s

       valuation of the pension and Husband’s valuation of the pension. Husband is

       merely requesting that we reweigh the evidence and judge the credibility of the

       witnesses, which we cannot do. See Pitman v. Pitman, 721 N.E.2d 260, 264
       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 15 of 24
       (Ind. Ct. App. 1999), trans. denied. Given our standard of review, we cannot say

       that the trial court abused its discretion in valuing the pension based upon

       Wife’s expert’s opinion.


[22]   Next, we address Husband’s coverture argument. Husband contends that the

       trial court should have applied a coverture factor of 85.78% because Husband

       and Wife were not married during all of Husband’s employment at Eli Lilly.

       Although the trial court specifically refused to apply the coverture factor to

       Husband’s military pension, the trial court did not address the application of a

       coverture factor to the Eli Lilly pension and included the total value of the

       pension in its distribution of marital assets. As with his argument concerning

       his military pension, see supra, Husband cites no authority for the proposition

       that the trial court was required to apply a coverture factor to his Eli Lilly

       pension. See Nickels, 834 N.E.2d at 1098 (holding that “while a trial court may

       set aside to one party the value of a marital asset where the other party made no

       contribution to its acquisition, it is not required to do so”); Morey, 49 N.E.3d at

       1071-72 (noting that the coverture fraction formula was “just one method that

       allows the spouse who acquired the asset to segregate what might otherwise be

       considered marital property from the marital pot” and that it was within the

       trial court’s discretion to determine whether a given asset should be segregated

       from the marital pot for application of the coverture fraction formula”).

       Although it was within the trial court’s discretion apply a coverture formula in

       effectuating its division of marital property, the trial court was not required to

       do so.


       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 16 of 24
[23]   Finally, Husband argues that the trial court should have transferred the Eli Lilly

       pension to Wife through a QDRO rather than a property settlement judgment.

       We begin by noting the following explanation of the division of pension

       benefits in a dissolution proceeding:


               Courts utilize a number of methods for distributing pension
               benefits, including an immediate offset method, a deferred
               distribution method, or a variation or combination of the
               methods. Under the immediate offset method, the court
               determines the present value of the retirement benefits and
               awards the nonowning spouse his or her share of the benefits in
               an immediate lump sum award of cash or property equal to the
               value of his or her interest. Under the deferred distribution
               method, the court makes no immediate division of the retirement
               benefits but determines the future benefits to which the
               nonowning spouse is entitled. Traditionally, the benefits have
               been stated as a share of the owning spouse’s future benefit, and
               payment can be made directly to the nonowning spouse by the
               plan administrator under certain circumstances or payment can
               be ordered to come directly from the owning spouse.


               Several fact situations may favor the use of an immediate offset
               method, including where the present value of the pension is
               relatively modest, the parties are highly litigious, the separating
               parties are relatively young, and the receiving spouse has
               immediate and substantial financial need. Other fact situations
               may favor a deferred distribution method, including where there
               is not sufficient other tangible property remaining in the marital
               estate so that a present award is possible, there is an unusually
               substantial risk that benefits will never be received, the present
               value of benefits is difficult to compute with reasonable accuracy,
               and both spouses have no other steady source of income for their
               retirement years.



       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 17 of 24
               It is also possible to apply both the deferred distribution and
               immediate offset methods in a single case. One such way to
               combine the methods is to order an offsetting cash award payable
               in installments. Such an award can give the benefits of
               immediate offset in a case where there are not sufficient funds
               available for an immediate cash payment. Like the immediate
               offset method, deferred offset awards are limited by the liquid
               funds available in the marital estate. However, the limitation is
               not as severe as with an immediate offset award, because a
               deferred award is spread out over time, but the payor must still
               have sufficient liquid funds to make the installment payments.


       Kendrick, 44 N.E.3d at 726-27 (internal citations omitted).


[24]   Here, the trial court utilized the immediate offset method, and Husband

       advocates using the deferred distribution method through a QDRO. State

       courts are “authorized in dissolution actions to order a pension plan

       administrator to distribute pension benefits to an alternate payee pursuant to a

       QDRO.” Ryan v. Janovsky, 999 N.E.2d 895, 898 (Ind. Ct. App. 2013), trans.

       denied. “A QDRO has been characterized as any order made pursuant to a state

       domestic relations law which ‘creates or recognizes the existence of an

       alternative payee’s right’ to pension benefits.” Id. (quoting Hogle v. Hogle, 732

       N.E.2d 1278, 1280 n.3 (Ind. Ct. App. 2000), trans. denied).


[25]   Wife had an immediate and substantial financial need given the lack of cash

       marital assets, her lack of recent employment history, her new employment at a

       school, her need to care for D.M., and her need to locate housing suitable for

       D.M. On the other hand, the lack of cash marital assets resulted in an

       extremely lengthy repayment schedule for the property settlement judgment.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 18 of 24
       Combined with Husband’s other obligations under the dissolution decree,

       Husband claims that he is left in a dire financial situation. The trial court here

       was presented with a difficult situation. Neither the immediate offset method

       nor the deferred distribution method through a QDRO would result in an ideal

       situation for both parties. Given the options here, we simply cannot say that

       the trial court abused its discretion in ordering the property settlement judgment

       rather than a deferred distribution of the pension through a QDRO.


                                      V. Rehabilitative Maintenance

[26]   Next, Husband argues that the trial court erred by ordering him to pay

       rehabilitative maintenance to Wife. The trial court here ordered Husband to

       pay $750 per month to Wife for thirty-six months as rehabilitative maintenance.

       According to Husband, Wife offered no evidence to support her personal belief

       that she needed a college degree to obtain a position similar to the one she held

       before staying home to care for the children. Husband also points out that Wife

       only asked for $500 per month in rehabilitative maintenance.


[27]   “The trial court’s power to award spousal 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.” Spivey v. Topper,

       876 N.E.2d 781, 784 (Ind. Ct. App. 2007). “‘The presumption that the trial

       court correctly applied the law in making an award of spousal maintenance is

       one of the strongest presumptions applicable to the consideration of a case on

       appeal.’” Id. (quoting Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1174 (Ind. Ct. App.

       1995), trans. denied). “A trial court may award only ‘three, quite limited’
       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 19 of 24
       varieties of post-dissolution maintenance: spousal incapacity maintenance,

       caregiver maintenance, and rehabilitative maintenance.” Zan v. Zan, 820

       N.E.2d 1284, 1287 (Ind. Ct. App. 2005) (quoting Voigt v. Voigt, 670 N.E.2d

       1271, 1276 (Ind. 1996)). Indiana Code Section 31-15-7-2(3) governs the award

       of rehabilitative maintenance, which is at issue here, and provides:


               After considering:


                   (A)      the educational level of each spouse at the time of
                            marriage and at the time the action is commenced;


                   (B)      whether an interruption in the education, training, or
                            employment of a spouse who is seeking maintenance
                            occurred during the marriage as a result of
                            homemaking or child care responsibilities, or both;


                   (C)      the earning capacity of each spouse, including
                            educational background, training, employment skills,
                            work experience, and length of presence in or absence
                            from the job market; and


                   (D)      the time and expense necessary to acquire sufficient
                            education or training to enable the spouse who is
                            seeking maintenance to find appropriate employment;


               a court may find that rehabilitative maintenance for the spouse
               seeking maintenance is necessary in an amount and for a period
               of time that the court considers appropriate, but not to exceed
               three (3) years from the date of the final decree.


[28]   The trial court’s findings regarding rehabilitative maintenance follow:


       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 20 of 24
            10.      Mother was a “stay-at-home-mom,” except for a short
                     time at the beginning of the marriage. Mother, prior to
                     staying home with the children, worked in retail. Her
                     uncontroverted testimony is that a college degree
                     would now be necessary for her to secure the same
                     retail job she worked in the early years of the marriage.
                     Mother does not have a college degree. During the
                     marriage, Mother did contribute, besides her work as a
                     “stay-at-home mom” by doing yard sales and
                     refurnishing furniture and working part-time at Kohl’s.
                     Father told her to quit the Kohl’s job and she never
                     returned to work outside the home.


            11.      Retail work can include working late into the evening
                     and weekends. Hours vary based upon the employer.


            12.      Once this cause was filed, Mother obtained a job with
                     the Mt. Vernon School Corporation as an Instructional
                     Assistant (“IA”). As an IA, she works closely with
                     children with disabilities.


            13.      The hours she works as an IA mirror the times that the
                     children are in school. The children also attend the Mt.
                     Vernon School Corporation. She does not work
                     evenings or weekends, goes into work at approximately
                     the same time the children do and gets off work at close
                     to the same time as the children are released from
                     school.


            14.      Mother has been the parent who has assumed the
                     responsibility with regard to [D.M.’s] therapy and
                     IEPs.




Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 21 of 24
            15.      Father testified he had flexibility in his job at Eli Lilly
                     & Co. with regard to whether he could work at home
                     and control his hours.


            16.      Mother makes $10.50 per hour and works the 180
                     school-day calendar. Her pay, annualized, is Two
                     Hundred Sixty-eight Dollars and Fifty-six Cents
                     ($268.56) per week.


            17.      Father earns One Hundred Five Thousand Dollars
                     ($105,000.00) per year at Eli Lilly and further earns
                     One Thousand Three Hundred Twenty-three Dollars
                     ($1,323.00) per month from a Veteran’s disability
                     payment. For 2016, payable in 2017, he earned a gross
                     bonus from Lilly of Twenty Thousand Seven Hundred
                     Thirty-three Dollars and eighty-four Cents
                     ($20,733.84). Father has a Bachelor’s degree in
                     Biochemistry and a Bachelor’s degree in Finance and
                     has worked at Lilly for a number of years.


                                             *****


            28.      Mother has investigated taking classes at Ball State
                     University and knows the present tuition is
                     approximately Three Hundred Four Dollars ($304.00)
                     per credit hour. She also knows that tuition will
                     increase, probably in 2020 but she cannot predict the
                     amount of increase.


            29.      Mother needs 24 to 30 hours to obtain an Associate
                     degree in Business. [H]er teaching degree would be
                     obtained after the Associate degree. The time to obtain
                     the appropriate degrees could exceed thirty-six (36)
                     months.


Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 22 of 24
                                                    *****


                   33.      Mother qualifies for Rehabilitative Maintenance as
                            defined by Indiana statute.


                                                    *****


                   20.      Mother is entitled to rehabilitative maintenance and
                            Father shall pay one [sic] Seven Hundred and Fifty
                            Dollars ($750.00) per month for thirty-six (36) months
                            as rehabilitative maintenance. Said payments shall be
                            paid beginning on the 1st day of the first month
                            following the entry of this Decree.


       Appellant’s App. Vol. II pp. 19-22, 28.


[29]   Husband does not specifically challenge any of these findings. Rather, he

       argues that Wife did not submit actual evidence other than her opinion in

       support of her assertion that she needed a college degree. Husband’s argument

       is largely a request to reweigh the evidence and judge the credibility of the

       witnesses, which we cannot do. See Pitman, 721 N.E.2d at 264. The trial court

       gave credit to Wife’s testimony, and we cannot say that the findings on this

       issue are clearly erroneous. Consequently, we cannot say that the trial court’s

       award of rehabilitative maintenance is erroneous. We do, however, have

       concerns over the trial court’s sua sponte award of $750 per month where Wife

       was only requesting $500 per month in rehabilitative maintenance. Tr. Vol. II

       p. 198. We reverse that portion of the order and, on remand, direct the trial




       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 23 of 24
       court to reduce the rehabilitative maintenance to $500 per month for thirty-six

       months.


                                                 Conclusion
[30]   We remand for the trial court to enter either an equal division of the marital

       property or an explanation of the reason for a deviation. Given Wife’s

       concession regarding Husband’s military pension, we reverse and remand for

       an order requiring Husband to pay fifty percent of his disposable retired pay of

       the military pension. We affirm the trial court’s order that Husband contribute

       to the cost of a van to transport D.M. However, we remand for the trial court

       to clarify the details regarding such purchase. We affirm the trial court’s

       decisions regarding the Eli Lilly pension valuation. Finally, we affirm the trial

       court’s award of rehabilitative maintenance, but remand for the trial court to

       reduce the rehabilitative maintenance award to $500 per month for thirty-six

       months. We affirm in part, reverse in part, and remand.


[31]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1712-DR-2768 | August 10, 2018   Page 24 of 24
