      MEMORANDUM DECISION
                                                                      Jun 16 2015, 9:17 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Robert C. Beasley                                         Deborah Farmer Smith
      Dennis Wenger & Abrell, P.C.                              Campbell Kyle Proffitt LLP
      Muncie, Indiana                                           Carmel, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Nancy Jo L. Coles,                                       June 16, 2015

      Appellant,                                               Court of Appeals Case No.
                                                               18A02-1410-DR-767
              v.                                               Appeal from the Delaware County
                                                               Circuit Court No. 4

      Robert Nelson Coles, Jr.,                                Cause No. 18C04-1303-DR-027
      Appellee                                                  The Honorable Linda Wolf
                                                                Judge.


      Friedlander, Judge.

[1]   Nancy Jo Coles is totally and permanently disabled and cannot support herself.

      Upon dissolution of her thirty-five year marriage to Robert Coles, the trial court

      divided the marital estate evenly and ordered Robert to pay spousal

      maintenance to Nancy for a finite period of time – two years. On appeal,

      Nancy presents the following restated issues for review:

      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015    Page 1 of 14
                 1.      Did the trial court abuse its discretion by awarding
                         maintenance for a predetermined, finite period of time?
                 2.      Did the trial court err by not awarding maintenance during the
                         eighteen-month provisional period?
                 3.      Was it an abuse of discretion to equally divide the marital estate
                         given the economic disparity between the parties?
                 4.      Should the value of Robert’s accrued paid time off have been
                         included in the marital pot?
      We affirm in part, reverse in part, and remand.

[2]   Nancy and Robert were married on May 13, 1978. They have one child,

      Travis, who is now an adult. Robert worked consistently throughout the

      marriage, while Nancy worked for periods of time but generally stayed home

      and fulfilled the agreed-upon role of homemaker and primary caregiver for

      Travis. Nancy has suffered from significant health issues for more than a

      decade. On February 4, 2013, Robert filed a petition to dissolve the marriage.

[3]   The final hearing occurred on July 31 and August 1, 2014. At the time of the

      hearing, Robert and Nancy were sixty-five and sixty-two years old, respectively.

      The parties stipulated to the admission into evidence of Robert Gregori, M.D.’s

      report concerning Nancy’s medical condition and her ability to work.1 In his

      detailed report, Dr. Gregori concluded:

                 Based on Ms. Coles’ medical history, extensive medical records
                 reviewed, and her present physical examination, I would support the
                 position of both her treating rheumatologist and primary care
                 physician, who have recognized for over the last year that she is totally



      1
          Dr. Gregori was the independent medical examiner hired by Robert.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 2 of 14
              and permanently disabled. Based on her limited tolerance for standing
              and walking, as well as her limited tolerance for upright sitting and her
              impairments of the hands and elbows, I do not believe that she could
              do even a sedentary position on a part-time basis. I would not expect
              her to sit for more than 30 minutes in duration or for a total of two
              hours over the course of a day period in the upright position. I would
              also not expect her to tolerate standing, walking, or any repetitive
              activities involving her hands or upper extremities. Her medical
              condition requires her to frequently lie on a recliner throughout the
              course of the day. I have no doubt that the patient is totally and
              permanently disabled due to her rheumatologic condition, especially
              the rheumatoid arthritis. Contributing to her disabling arthritis are her
              medical conditions that include hypothyroidism, fibromyalgia,
              interstitial lung disease, and atrial fibrillation. Again, she is
              permanently and totally disabled and has likely been so for a number
              of years.
      Appellant’s Appendix at 40-41.


[4]   Robert and Nancy have accumulated a marital estate of just over one million

      dollars, including a modest mortgage-free home, two automobiles, a boat and

      trailer, other personal property, and cash and retirement assets. While Nancy

      cannot work, Robert is an executive with an annual base salary of $120,000 and

      bonus eligibility. Well over half of his after-tax income constitutes disposable

      income. Moreover, Robert has accrued the maximum amount of paid time off

      (PTO) allowed by his company – 520 hours. Robert is in excellent health and

      can continue to work.

[5]   Robert did not provide Nancy with spousal maintenance payments during the

      provisional period. He did, however, pay the real estate taxes on the marital

      home for one year, three bi-annual installments of the homeowner’s insurance,

      and Nancy’s Visa bill for several months.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 3 of 14
[6]   In addition to attorney fees, Nancy sought to recoup from Robert

      approximately $41,000, which she had used to support herself during the

      provisional period. She also asked for the court to order Robert to pay $1720

      per month for spousal maintenance and to pay her health insurance premiums

      of approximately $540 per month. Robert, on the other hand, argued that he

      should not be required to pay maintenance or, alternatively, that any

      maintenance order “be for a fixed duration so that [he] can determine how

      much longer, after age 66, he must continue to work.” Id. at 54. In lieu of

      provisional maintenance and attorney fees, Robert sought a 52.5/47.5 split of

      the marital estate in favor of Nancy. Nancy asked for a 65/35 split in her favor.

[7]   In the final dissolution decree issued on September 29, 2014, the trial court

      divided the marital estate equally, with each party receiving approximately

      $520,000 in assets.2 Robert was ordered to pay $10,000 of Nancy’s attorney

      fees. Further, the court ordered him to pay spousal maintenance in the amount

      of $2000 per month for two years from October 1, 2014 through September 1,

      2016. Nancy appeals from this order.

                                                             1.

[8]   Nancy contends that the trial court abused its discretion by restricting the

      spousal maintenance payments to two years. In light of the stipulated evidence




      2
          Included in the Nancy’s assets was the marital home, valued at $148,600.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 4 of 14
       that she is totally and permanently disabled and unable to work, Nancy argues

       that the court could not limit the period of maintenance.

[9]    An award of spousal maintenance is statutorily authorized for three limited

       purposes: spousal incapacity maintenance, caregiver maintenance, and

       rehabilitative maintenance. Coleman v. Atchison, 9 N.E.3d 224, 229 (Ind. Ct.

       App. 2014). With respect to incapacity maintenance, Indiana Code Ann. § 31–

       15–7–2(1) (West, Westlaw current with P.L. 1-2015 to P.L. 87-2015 of the First

       Regular Session of the 119th General Assembly, with effective dates through

       April 29, 2015) provides: “[i]f 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.”

[10]   A trial court’s decision to award maintenance is within its discretion, and we

       will reverse only if the award is against the logic and effect of the facts and

       circumstances of the case. Coleman v. Atchison, 9 N.E.3d 224. Our Supreme

       Court has made clear, however, that “a trial court has limited discretion

       whether to award incapacity maintenance once the court makes the requisite

       finding regarding disability.” Id. at 229 (citing Cannon v. Cannon, 758 N.E.2d

       524 (Ind. 2001)). In Cannon, the Court observed:

               Where a trial court finds that a spouse is physically or mentally
               incapacitated to the extent that the ability of that spouse to support
               himself or herself is materially affected, the trial court should normally
               award incapacity maintenance in the absence of extenuating
       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 5 of 14
               circumstances[3] that directly relate to the criteria for awarding
               incapacity maintenance.
       Cannon v. Cannon, 758 N.E.2d at 527.


[11]   In the instant case, there is no dispute that Nancy is physically incapacitated to

       the extent that her ability to support herself is materially affected. In fact, she is

       totally and permanently disabled and unable to work. Recognizing Nancy’s

       incapacity, the trial court awarded monthly spousal maintenance in the amount

       of $2000. With no explanation or finding of extenuating circumstances,

       however, the court limited the maintenance payments to two years. This was

       an abuse of discretion.

[12]   I.C. § 31-15-7-2(1) authorizes an award of spousal maintenance “during the

       period of incapacity” and makes this award “subject to further order of the

       court.” Id. See also Haville v. Haville, 825 N.E.2d 375, 378 (Ind. 2005)

       (“duration of [spousal maintenance award] is expressly measured by the period

       of the recipient’s incapacity”). Accordingly, such an award may be modified in

       the future if the spouse’s incapacity sufficiently resolves or extenuating

       circumstances arise that directly relate to the criteria for awarding incapacity

       maintenance.




       3
         Such circumstances include: the financial resources of the party seeking maintenance (including marital
       property awarded), the standard of living established during marriage, duration of the marriage, and the
       ability of the spouse from whom maintenance is sought to meet his/her needs while meeting the needs of the
       incapacitated spouse. See Coleman v. Atchison, 9 N.E.3d at 229.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015           Page 6 of 14
[13]   While there may be limited situations where a court could find that a spouse’s

       incapacity will last for a finite period of time, this is clearly not such a case.4 See

       Spivey v. Topper, 876 N.E.2d 781 (Ind. Ct. App. 2007). Accordingly, the trial

       court abused its discretion by limiting the maintenance award to two years. See

       id. (court abused its discretion by concluding that spouse’s incapacity was finite

       and by limiting maintenance to six months). On remand, the trial court is

       directed to amend the dissolution decree to reflect that Nancy is entitled to

       receive spousal maintenance for an indefinite period of time, subject to future

       modification upon Robert’s retirement or other changed circumstances.

                                                             2.

[14]   Nancy also argues that the trial court abused its discretion by failing to award

       maintenance reimbursement to her for the eighteen-month provisional period.

       Nancy claims that she consumed approximately $41,000 of the marital estate

       for her living and medical expenses5 during the provisional period and that

       Robert had a spousal duty to contribute to these expenses out of his earnings.

[15]   A provisional order is designed to maintain the status quo of the parties during

       the dissolution proceedings. Mosley v. Mosley, 906 N.E.2d 928 (Ind. Ct. App.



       4
         We further observe that the trial court did not find, nor does the record support a finding, that extenuating
       circumstances directly relating to the criteria for awarding incapacity maintenance will necessarily arise in
       two years. Given Robert’s age and pending retirement, changed circumstances are certainly on the horizon,
       but the timing is unknown. When such changes arise, of course, Robert is entitled to seek modification of the
       maintenance award, which may include termination or significant reduction of the maintenance obligation.
       5
        Of this amount, $5710 was for HVAC replacement for the marital home, which was ultimately awarded to
       Nancy.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015               Page 7 of 14
       2009). It is an interim order that terminates when the final dissolution decree is

       entered. Mosley v. Mosley, 906 N.E.2d 928 (citing I.C. § 31–15–4–14 (West,

       Westlaw current with P.L. 1-2015 to P.L. 87-2015 of the First Regular Session

       of the 119th General Assembly, with effective dates through April 29, 2015)).

       “Any disparity or inequity in a provisional order—can and should—be adjusted

       in the trial court’s final order.” Mosley v. Mosley, 906 N.E.2d at 930.


[16]   The determination of temporary orders, such as for provisional maintenance, is

       committed to the sound discretion of the trial court. Id. See also Ind. Code

       Ann. § 35-15-4-8(a) (West, Westlaw current with P.L. 1-2015 to P.L. 87-2015 of

       the First Regular Session of the 119th General Assembly, with effective dates

       through April 29, 2015) (“court may issue an order for temporary

       maintenance…in such amounts and on such terms that are just and proper”).

       On appeal, we consider the evidence most favorable to the trial court’s decision

       and will reverse only where the decision is clearly against the logic and effect of

       the facts and circumstances before the court. Mosley v. Mosley, 906 N.E.2d 928.


[17]   Due to a number of continuances brought on by the parties, there was no

       provisional hearing in this case. Rather, Nancy sought reimbursement for

       provisional maintenance at the final hearing. The record reveals that, despite

       the absence of a provisional order, Nancy continued living in the mortgage-free

       marital home, while Robert paid the homeowner’s insurance and the real estate

       taxes. Robert also paid Nancy’s Visa bill for several months in 2013. Further,

       during the provisional period, Nancy remained on Robert’s health insurance

       and accessed approximately $5000 of the couple’s medical health savings

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 8 of 14
       account. Under the circumstance and in light of the broad discretion granted

       trial courts regarding provisional orders, we conclude that the trial court did not

       abuse its discretion when, in the final decree, it ordered Robert to pay $10,000

       of Nancy’s legal fees but did not award provisional maintenance.

                                                         3.

[18]   Nancy challenges the trial court’s equal division of the marital estate as an

       abuse of discretion. She claims this was improper given the vast disparity in the

       economic circumstances of the parties.

[19]   Our standard of review is well settled:

               The division of marital assets lies within the sound discretion of the
               trial court, and we will reverse only for an abuse of discretion. When a
               party challenges the trial court’s division of marital property, [s]he
               must overcome a strong presumption that the court considered and
               complied with the applicable statute, and that presumption is one of
               the strongest presumptions applicable to our consideration on appeal.
               We may not reweigh the evidence or assess the credibility of the
               witnesses, and we will consider only the evidence most favorable to
               the trial court’s disposition of the marital property. Although the facts
               and reasonable inferences might allow for a different conclusion, we
               will not substitute our judgment for that of the trial court.
       Troyer v. Troyer, 987 N.E.2d 1130, 1139 (Ind. Ct. App. 2013) (quoting Galloway

       v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006)), trans. denied.


[20]   Indiana law presumes that an equal division of the marital property is just and

       reasonable. I.C. § 31-15-7-5 (West, Westlaw current with P.L. 1-2015 to P.L.

       87-2015 of the First Regular Session of the 119th General Assembly, with

       effective dates through April 29, 2015). The presumption, however, may be

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 9 of 14
       rebutted by relevant evidence that an equal division would not be just and

       reasonable. Id. Factors a court may consider in this regard include: the

       contribution of each spouse to the acquisition of the property; the extent to

       which the property was acquired by each spouse before the marriage or through

       inheritance or gifts; the economic circumstances of each spouse at the time of

       disposition; the conduct of the parties as it relates to disposition or dissipation

       of their property; and the earnings or earning ability of each spouse. Id.


[21]   Though Nancy focuses on the economic position of each party, she begins her

       argument by noting that she brought significant assets into the marriage6 while

       Robert brought only debt. Nancy, however, does not cite to any evidence that

       these assets were held separately by her during the marriage, without being

       comingled with joint marital assets. Additionally, we find that the sheer length

       of the marriage weighs heavily against considering the assets and liabilities each

       party brought into the marriage.

[22]   We turn now to the income earning ability and economic circumstances of the

       parties. The record establishes that Robert continues to have a substantial

       earning ability, while Nancy is unable to work due to her disability and her

       medical and living expenses far exceed her social security income. Robert’s

       monthly net income is approximately $6700, of which $2000 is dedicated to




       6
         Nancy brought approximately $25,000 in cash and $57,000 in inheritance assets. The couple also received
       financial assistance and gifts from Nancy’s parents during the marriage.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015          Page 10 of 14
       spousal maintenance. The property division also provides Nancy with assets

       totaling over $520,000.

[23]   Although the relative earning abilities and economic circumstances of the

       parties could support a division of marital assets in Nancy’s favor, it was within

       the trial court’s discretion to determine that the disparity was adequately

       addressed by the $2000 spousal maintenance award.7 We reject the invitation

       to substitute our judgment for that of the trial court. See Troyer v. Troyer, 987

       N.E.2d 1130. See also Augspurger v. Hudson, 802 N.E.2d 503, 513 (Ind. Ct. App.

       2004) (“the trial court could reasonably determine that an equal division is just

       and reasonable under the circumstances, despite Wife’s poor health and meager

       earning ability”). As we have previously observed, “[d]ivision of property

       should not be considered in a vacuum, and the trial court is free to consider

       other awards (such a[s] spousal maintenance) when determining the proper

       division.” Id. at 513. In light of the overall dissolution order, Nancy has not

       established that the trial court’s decision to divide the marital estate equally is

       unjust or unreasonable.

                                                             4.

[24]   Finally, Nancy contends that the value of Robert’s accrued PTO should have

       been included as an asset of the marital estate. She claims the PTO was vested



       7
        We note that a dissolution court’s role is not to equalize salaries. Hyde v. Hyde, 751 N.E.2d 761 (Ind. Ct.
       App. 2001).



       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015               Page 11 of 14
       and Robert had a right to convert the 520 hours of PTO to cash in December

       2013. Nancy provides little analysis in support of this argument or her assertion

       that Bingley v. Bingley, 935 N.E.2d 152 (Ind. 2010), is controlling.


[25]   In Bingley, the husband was retired from Navistar and received, in addition to

       his pension, paid health insurance for the remainder of his life. The Supreme

       Court held that these benefits plainly constituted an intangible marital asset

       subject to division, as the husband was presently receiving the benefits and they

       were not subject to divestiture in future years. Id. The Court explained that the

       health insurance benefits “closely resemble[d] a right to future pension

       payments.” Id. at 156.


[26]   “Whether a right to a present or future benefit constitutes an asset that should

       be included in marital property depends mainly on whether it has vested by the

       time of dissolution.” Id. at 155. A right can vest in possession or interest. That

       is, it can be an immediately existing right of present enjoyment or a presently

       fixed right to future enjoyment. See Bingley v. Bingley, 935 N.E.2d 152. The

       cash value of Robert’s PTO is neither.

[27]   The parties do not dispute that Robert had accrued 520 hours of PTO. A

       personnel document issued by Robert’s employer was admitted into evidence.

       It indicates that “PTO is a system which provides for paid absence from work

       for rest/relaxation, illness, short-term disability, condolence leave, or personal

       emergencies.” Appellee’s Appendix at 88 (emphasis in original). An employee

       may not accumulate more than 520 hours of PTO. To prevent a loss in accrual,


       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 12 of 14
       employees have a cash-in option to receive cash “in lieu of PTO accrual”. Id. at

       90. The document provides:

               In order to utilize the “cash-in” option, an employee will need to
               choose by December 29th how much future PTO accrual he or she
               desires to cash-in. The center will provide employees the opportunity
               to elect this cash-in option between December 1 and December 29 of
               each calendar year. The election will be for the calendar year
               following the election…. Employees will be paid the second payroll in
               January.
               There are certain restrictions that apply to the cash-in option.
                        1.      Before an employee may elect to receive cash in lieu of
                                PTO accrual for the future calendar year the employee
                                must have accrued 40 hours.
                        2.      A balance of 40 hours must be reflected in the employee
                                PTO balance after case [sic] in occurs.
       Id. at 91 (emphases supplied). While employees are generally entitled to

       payment for accrued PTO at separation from employment, the document

       provides that an employee “who is being discharged for significant disciplinary

       reasons…or who fails to provide the requisite prior written notice of his or her

       resignation of employment is not entitled to receive pay for his or her accrued

       and unutilized Paid Time Off.” Id. at 94 (emphasis in original).


[28]   A plain reading of the personnel document reveals that Robert was not entitled

       to convert his 520 hours of accrued PTO to cash in December 2013, as asserted

       by Nancy. Rather, if elected in December (which it was not), Robert could

       have cashed in the 160 hours he was to earn in 2014, the next calendar year. At

       the time of the dissolution, Robert did not have a present right to be paid for the

       PTO accrued during the marriage.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 13 of 14
[29]   Further, the 520 hours accrued during the marriage were subject to actual use

       for time off during the remainder of Robert’s employment. In other words, he

       did not have a fixed right to future enjoyment (that is, payment for 520 hours of

       accrued PTO) because at the time of his retirement the amount of accrued PTO

       could be anywhere between 0 and 520 hours. See Akers v. Akers, 729 N.E.2d

       1029, 1032 (Ind. Ct. App. 2000) (“it was mere speculation for the trial court to

       assume that Husband would not suffer any illness and would retain at least 187

       unused sick days at their current value until retirement”). The PTO hours were

       also subject to divestiture depending on the nature of his separation from

       service.

[30]   We have consistently held that only property in which a party has a vested

       interest at the time of dissolution may be included as a marital asset. Akers v.

       Akers, 729 N.E.2d 1029. The PTO accrued during the marriage had a future

       value that was indeterminate and speculative at best. See id. The trial court

       properly excluded it from the marital estate.

[31]   Judgment of the trial court is affirmed in part, reversed in part, and remanded

       with instructions to amend the decree of dissolution to reflect that Nancy is

       entitled to receive spousal maintenance for an indefinite period of time.


       Baker, J., and Kirsch, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-DR-767 | June 16, 2015   Page 14 of 14
