MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jan 24 2020, 7:59 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Michael Cheerva
Indianapolis, Indiana                                    Emswiller Williams Noland &
                                                         Clarke, LLC
                                                         Indianapolis, Indiana
                                                         Brent C. Embrey
                                                         Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Won Kim,                                            January 24, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DN-1143
        v.                                               Appeal from the Hancock Circuit
                                                         Court
Mi Chong Kim,                                            The Honorable R. Scott Sirk,
Appellee-Respondent.                                     Judge
                                                         The Honorable Cody B. Coombs,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         30C01-1803-DN-485



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020             Page 1 of 10
[1]   The Hancock Circuit Court entered a decree dissolving the marriage of John

      Won Kim (“Husband”) and Mi Chong Kim (“Wife”) and ordering Husband to

      pay Wife spousal maintenance in the amount of $1,500 per month. Husband

      appeals and argues that the trial court erred by ordering him to pay spousal

      maintenance.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Husband and Wife were married on October 23, 2004. The couple separated on

      February 27, 2018, and Husband filed a petition to dissolve the marriage on

      March 28, 2018. On June 18, 2018, Husband filed a motion requesting a final

      hearing on the petition. The trial court granted the motion the following day

      and set a final hearing date of August 30, 2018.


[4]   On July 6, 2018, counsel for Wife filed a limited appearance, stating that his

      representation was “limited to handling of provisional issues.” Appellant’s App.

      p. 11. Husband then sought, on August 28, 2018, a continuance of the

      scheduled final hearing date. The trial court granted this request and reset the

      final hearing for November 2, 2018.


[5]   On October 29, 2018, Wife filed a motion to convert the scheduled November 2

      hearing from a final to a provisional hearing. In this petition, Wife stated:


              1. [Wife] has been awaiting a provisional hearing since the
              Court’s originally set hearing date . . . on August 30, 2018.


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 2 of 10
        2. The undersigned is providing representation on a limited
        appearance through and including the provisional hearing in this
        matter.

        3. Opposing counsel has been advised of this and it is also
        reflected in the undersigned’s Limited Appearance filed with the
        Court on or about July 5, 2018.

        4. [Wife] is currently disabled and is unable to generate any
        income for herself.

        5. [Husband], who previously provided approximately
        $5,000 to [Wife] prior to filing his Petition for Dissolution of
        Marriage[,] has been paying $0 to [Wife] for at least the past
        three (3) months, leaving [Wife] at the mercy of friends and
        family for her basic needs.

        6.    [Wife] also has no ability to pay counsel.

        7. Husband owns a business, the valuation of which is required
        for a just adjudication [of] this matter.

        8. Husband has other assets heretofore undisclosed that require
        discovery.

        9. [Wife] is not prepared for trial due to the aforementioned
        circumstances.

        10. This motion is not offered to unduly delay these
        proceedings.

        WHEREFORE, [Wife] respectfully prays the court conduct its
        November 2, 2018 hearing as a provisional rather than final
        hearing; that provisional maintenance be set in an amount
        sufficient to maintain the status quo during the pendency of this
        matter, retroactive to the petition date herein; for reasonable
        attorney’s fees and costs related hereto; and for all other relief just
        and proper in the premises.


Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 3 of 10
      Appellant’s App. pp. 12–13 (emphases added). The trial court denied Wife’s

      motion two days later.


[6]   On November 1, 2018, the day before the scheduled final hearing, Wife’s

      counsel filed a notice of objection to the hearing, a verified motion to continue,

      or, alternatively, a notice of completion of his limited representation in the

      matter. The trial court granted this motion to the extent it requested a

      continuance and reset the final hearing for January 4, 2019.


[7]   At the January 4, 2019 final hearing, Wife presented evidence that she had been

      injured in an automobile accident in June 2012, after which she could not work.

      She then suffered a heart attack later that month. She had surgery on her fingers

      in 2013 and 2014. She then injured her neck and back in another automobile

      accident in 2015, and was still receiving treatment for her back injuries at the

      time of the hearing. Wife testified that she suffers from diabetes, chronic back

      pain, arthritis in her fingers, De Quervain’s disease1 in her thumb, and

      hypertension, and she wears a heart monitor.


[8]   On March 15, 2019, the trial court entered a dissolution decree that included, at

      Husband’s request, specific findings of fact and conclusion of law. This decree

      included the following provisions now at issue:




      1
        “De Quervain’s disease is a painful wrist condition that affects the tendons on the thumb side of the wrist
      (the radial side).” “De Quervain’s disease,” National Institutes of Health, Genetic and Rare Diseases
      Information Center, https://rarediseases.info.nih.gov/diseases/9413/de-quervains-disease (last visited
      January 7, 2020).

      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020                   Page 4 of 10
        51. Husband’s gross monthly income is $10,790 and Wife’s gross
        monthly income is $0. Wife was not voluntarily unemployed or
        underemployed during the pendency of this action. . . .

                                                ***

        53. Although Wife did not present any medical records or
        testimony from any medical experts in regards to her disability
        and inability to support herself, Wife’s heart condition is
        currently serious enough that she must be continually evaluated
        by a [heart] Monitor. Such evidence, along with evidence of the
        other injuries Wife has sustained since 2012 and Wife’s work
        history during the marriage since her heart attack in 2012 is
        sufficient evidence for the Court to determine that Wife’s
        ability to support herself is materially affected and to enter an
        award of maintenance. []

        54. Given the division of the [family] business and the
        distributions Wife will be entitled to as a fifty-percent (50%)
        owner of the business and the respective parties’ current and
        future earning ability, Husband shall pay to Wife $1,500 per
        month as disability spousal maintenance. That sum shall be paid
        to [W]ife indefinitely; provided, however, that spousal
        maintenance may be reduced or eliminated by further order of
        the Court as provided in [Indiana Code section] 31-15-7-2(1).

                                                ***

        IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
        AS FOLLOWS:

                                                ***

        4. Husband shall pay Wife the monthly sum of One Thousand
        Five Hundred Dollars ($1,500) until further order of this Court.


Appellant’s App. pp. 28–30 (emphasis added).



Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 5 of 10
[9]    Husband filed a motion to correct error on April 15, 2019, arguing that the trial

       court erred by awarding Wife spousal maintenance. Wife filed a response

       thereto on May 6, 2019, and the trial court entered an order denying Husband’s

       motion to correct error on May 15, 2019. This appeal ensued.


                                          Standard of Review
[10]   Where, as here, the trial court enters findings of fact and conclusions of law

       pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review

       for clear error:


               [T]hat is, first, we determine whether the evidence supports the
               findings, and second, whether the findings support the judgment.
               We do not reweigh the evidence but consider the evidence
               favorable to the judgment. Findings of fact are clearly erroneous
               when the record contains no facts to support them, and a
               judgment is clearly erroneous if no evidence supports the
               findings, the findings fail to support the judgment, or if the trial
               court applies an incorrect legal standard. Although we review
               findings under the clearly erroneous standard, we review
               conclusions of law de novo.


       Carmer v. Carmer, 45 N.E.3d 512, 516–17 (Ind. Ct. App. 2015) (citations

       omitted).


                                         Spousal Maintenance
[11]   Husband argues that the trial court erred by awarding Wife spousal

       maintenance. Indiana Code section 31-15-7-2(1), which governs awards of

       spousal maintenance due to incapacity, provides:


       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 6 of 10
                   (1) If the court finds a spouse to be physically or mentally
                   incapacitated to the extent that the ability of the incapacitated
                   spouse to support himself or herself is materially affected, the
                   court may find that maintenance for the spouse is necessary
                   during the period of incapacity, subject to further order of the
                   court.


                            I. Wife’s Failure to Plead Spousal Maintenance

[12]   Husband first argues that the trial court could not award spousal maintenance

       because Wife did not plead such a claim and that he was therefore surprised or

       “ambushed” by Wife’s claim for maintenance at the final hearing. We are

       unpersuaded. Husband has not referred us to any authority providing that a

       respondent in a dissolution case must assert a claim of maintenance in a

       responsive pleading. To the contrary, Indiana Code section 31-15-7-1 provides

       that a trial court “may order maintenance in . . . final dissolution decrees

       entered under IC 31-15-2-16 . . . after making the findings required by section 2

       of this chapter.” Thus, because Husband filed for dissolution of the marriage,

       the trial court had the authority to award spousal maintenance if such an award

       was supported by the evidence.


[13]   We also agree with Wife that Husband was not unfairly surprised by Wife’s

       request for maintenance at the final hearing. Husband was well aware of Wife’s

       physical infirmities. Indeed, the trial court found that, when the parties were

       still married, Husband agreed that Wife should not work due to her physical

       incapacity. And when Wife filed a motion on October 29, 2018, to convert the

       scheduled final hearing into a provisional hearing, she asserted that she was


       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 7 of 10
       physically disabled, unable to earn income, and requested an award of

       maintenance, albeit provisional maintenance at that time. We therefore reject

       Husband’s argument that he was unfairly surprised by Wife’s request for

       spousal maintenance at the final hearing.


                  II. Sufficiency of the Evidence Supporting an Award of Spousal
                                              Maintenance

[14]   Husband also argues that there was insufficient evidence to support the trial

       court’s award of spousal maintenance. In addressing this claim, we note that

       the decision to award spousal maintenance is wholly within the trial court’s

       discretion. Barton v. Barton, 47 N.E.3d 368, 375 (Ind. Ct. App. 2015) (citing

       Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct. App. 2007)), trans. denied. “The

       presumption that the court correctly applied the law in making an award of

       spousal maintenance is one of the strongest presumptions applicable to our

       consideration of a case on appeal.” Id. Accordingly, we will reverse a trial

       court’s decision to award spousal maintenance only when it is clearly against

       the logic and effect of the facts and circumstances of the case. Id. (citing Clokey

       v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011), aff’d on reh’g, 957

       N.E.2d 1288).


[15]   Here, Husband’s argument that the evidence is insufficient to support the trial

       court’s decision to award spousal maintenance is based on the fact that Wife

       presented no medical records or expert testimony to support her claims. We

       have previously held that an award of spousal maintenance may be based on

       the testimony of the disabled spouse and need not be supported by medical

       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 8 of 10
       records or expert testimony. See In re Marriage of Snemis, 575 N.E.2d 650, 655

       (Ind. Ct. App. 1991) (noting that trial court could have made an award of

       spousal maintenance without medical evidence) (citing Paxton v. Paxton, 420

       N.E.2d 1346 (Ind. Ct. App. 1981) (holding that wife’s testimony that she was

       incapacitated and could not work, without corroborating medical testimony,

       was sufficient to support trial court’s award of spousal maintenance )).


[16]   Wife testified that she had not worked since she was injured in the 2012

       automobile accident and her heart attack shortly thereafter. She had surgery on

       her hand in 2013 and 2014. She then injured her neck and back in a second

       automobile accident in 2015, and continues to receive treatment for her back

       injuries. She also suffers from diabetes, high cholesterol, hypertension, arthritis,

       and wears a heart monitor. While the parties were still married, Husband

       agreed that Wife should not work due to her physical ailments. This evidence

       was sufficient to support the trial court’s award of spousal maintenance. See id.

       Husband’s arguments to the contrary are little more than a request that we

       reweigh the evidence, which is not within our purview as an appellate court.

       Carmer, 45 N.E.3d at 516.


                                                 Conclusion
[17]   An award of spousal maintenance was within the authority of the trial court

       without a separate, specific pleading requesting such by Wife. The claim was

       adequately in Wife’s petition to convert a final hearing into a provisional

       hearing. In addition, Husband, personally, was well aware of Wife’s physical


       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 9 of 10
       problems that would justify such an award. Finally, Wife’s testimony regarding

       her physical infirmities and her inability to work was sufficient to support the

       trial court’s award of spousal maintenance. We therefore affirm the judgment of

       the trial court.


[18]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020   Page 10 of 10
