MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                        Jun 07 2018, 7:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
James R. Recker                                          Pamela Buchanan
Indianapolis, Indiana                                    Buchanan & Bruggenschmidt, P.C.
                                                         Zionsville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shane Vanlandingham,                                     June 7, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         06A01-1711-DR-2586
        v.                                               Appeal from the Boone Superior
                                                         Court
Sherry Vanlandingham,                                    The Honorable Bruce E. Petit,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         06D02-1610-DR-145



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018              Page 1 of 14
                                          Case Summary
[1]   Shane Vanlandingham (“Husband”) challenges a discovery sanction order,

      provisional order, property division, and award of spousal maintenance related

      to the dissolution of his marriage to Sherry Vanlandingham (“Wife”). We

      affirm in part, reverse in part, and remand with instructions.



                                                   Issues
[2]   Husband presents four issues for review, restated as follows:


              I.       Whether the trial court abused its discretion by awarding
                       attorney’s fees of $426.00 to Wife as a discovery sanction
                       and declining to order that amount refunded;


              II.      Whether Husband is entitled to partial relief from the
                       provisional order because the amount he was ordered to
                       pay exceeded statutory authorization;


              III.     Whether the trial court abused its discretion in finding that
                       Wife was eligible for incapacity maintenance; and


              IV.      Whether the trial court improperly awarded to Wife all the
                       equity in the marital residence after having determined
                       that an equal division of the marital pot was fair and
                       equitable.


                            Facts and Procedural History
[3]   The parties were married on May 27, 2000. On October 18, 2016, Wife filed a

      petition for dissolution of the marriage. On January 11, 2017, the trial court

      Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 2 of 14
      issued a provisional order, which incorporated the parties’ agreement on paying

      expenses pending the final dissolution decree. Also, Husband was ordered to

      pay $426.00 to Wife’s attorney, for having failed to respond to written

      interrogatories after the trial court ordered him to do so. Wife filed a petition

      seeking incapacity maintenance pursuant to Indiana Code Section 31-15-7-1.


[4]   On May 4, 2017, the parties appeared at a final evidentiary hearing and

      provided testimony. Wife was represented by counsel and Husband appeared

      pro se. After the presentation of evidence, the trial court ordered the marriage

      dissolved. The trial court advised the parties that they had fourteen days to

      submit proposed final decrees and informed them that the provisional order

      would remain in effect pending the final decree.


[5]   Subsequently, Husband retained counsel. He filed a motion for relief from the

      attorney’s fee sanction and requested repayment; the motion for relief was

      denied. On July 13, 2017, the trial court conducted a hearing at which

      Husband’s counsel made an oral motion to re-open the evidence related to

      property distribution; the trial court took that motion under advisement.

      Husband was found in contempt of court for failure to pay expenses allocated

      to him under the provisional order, and he was ordered to pay Wife’s attorney

      an additional $275.00.1 On July 27, 2017, Husband filed a motion for relief

      from the provisional order; that motion was summarily denied on the following




      1
          He does not challenge this award.


      Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 3 of 14
      day, with the trial court making a chronological case summary notation that

      Husband had agreed to pay the expenses as outlined in the provisional order.


[6]   On October 4, 2017, the trial court issued a Final Decree of Dissolution of

      Marriage. Therein, the trial court denied Husband’s oral motions for additional

      discovery and presentation of evidence. The trial court found that an equal

      division of marital assets was appropriate but that Wife should be awarded

      Husband’s equity in the marital residence – amounting to approximately

      $19,624.50 – as a lump sum payment of incapacity maintenance. No periodic

      maintenance payments were ordered. Husband now appeals.



                                 Discussion and Decision
                                        Discovery Sanction
[7]   Husband did not respond to Wife’s interrogatories, even after the trial court

      ordered him to do so, and he was thereafter sanctioned. Husband argues that

      the trial court abused its discretion by ordering him to pay $426.00 to Wife’s

      attorney, because the number of interrogatories propounded to him was

      excessive. He observes that a Boone County Local Rule prescribes 30

      interrogatories but Wife served upon him 76 interrogatories.


[8]   Pursuant to Indiana Trial Rule 33(A), a party may, without leave of court, serve

      upon another party written interrogatories to be answered by the party served,

      who “shall furnish such information as is available to the party.” If a party fails

      to answer an interrogatory submitted under Trial Rule 33, the party who served

      Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 4 of 14
       the interrogatory may move for an order compelling an answer. T.R. 37(A)(2).

       If the trial court grants the motion, the court shall, after an opportunity for a

       hearing, require the non-responsive party to pay the moving party’s reasonable

       expenses incurred in obtaining the order, including attorney’s fees, unless the

       court finds that opposition to the motion was substantially justified or that other

       circumstances make an award of expenses unjust. T.R. 37(A)(4).


[9]    The purpose of the discovery rules is to allow for minimal trial court

       involvement and to promote liberal discovery. Whitaker v. Becker, 960 N.E.2d

       111, 115 (Ind. 2012). In accordance with that purpose, Indiana Trial Rule

       37(B)(2)(c) “expressly provides that a trial court may impose sanctions” for

       discovery violations. Id. The selection of an appropriate sanction is entrusted

       to the trial court, who “stand[s] much closer than an appellate court to the

       currents of litigation pending before them.” Id. We review the decision only

       for an abuse of discretion. Id.


[10]   At a provisional hearing, Husband conceded that he had not complied with a

       court order to respond to Wife’s interrogatories. He protested that Wife had

       typically handled the mail, and he “didn’t understand why” Wife and her

       attorney would be mailing things to him. (Tr. at 9.) However, Husband also

       stated, “I read the one that I got certified mail and that was enough, that’s all I

       needed and I got the Court date, I got the time to come.” (Tr. at 9.) He

       promptly responded to Wife’s counsel’s in-court questions about income and

       expenses. The trial court found Husband to be capable of understanding and



       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 5 of 14
       responding to inquiries regarding his financial position, and imposed the

       sanction at issue.


[11]   Later, Husband’s counsel urged the trial court to order Wife’s attorney to

       disgorge the attorney’s fees payment because the number of interrogatories was

       excessive. The relevant local rule provided for 30 interrogatories, although a

       greater number could be propounded with leave of court. Wife did not obtain

       leave of court before moving to compel Husband’s answers; rather, she attached

       the interrogatories as an exhibit to the motion. Husband was then ordered to

       answer the interrogatories. Had Husband answered thirty interrogatories or

       timely objected to the excessive number, we may have been inclined to reverse

       a sanction for attorney’s fees. However, Husband admittedly failed to comply

       even partially with a court order regarding discovery to which he had presented

       no objection or challenge. Husband has demonstrated no abuse of the trial

       court’s discretion and is not entitled to refund of the $426.00 in attorney’s fees.


                                              Provisional Order
[12]   Indiana Code Section 31-15-4-8 provides that, in a dissolution action, a trial

       court may enter a temporary order for maintenance or support in such amounts

       and on such terms that are just and proper. Provisional orders are temporary

       orders designed to maintain the status quo while issues are more fully

       developed. Mosley v. Mosley, 906 N.E.2d 928, 929-30 (Ind. Ct. App. 2009). The

       order may not be revoked or modified before the final decree unless a party




       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 6 of 14
       shows facts appropriate to revocation or modification. Troyer v. Troyer, 987

       N.E.2d 1130, 1142 (Ind. Ct. App. 2013).


[13]   At the provisional hearing, Wife proposed that the parties continue to pay their

       household bills as they had before the marital separation, that is, Husband

       would pay the mortgage, utilities, homeowners association dues, and Wife’s

       medical insurance, and Wife would pay for cable and computer access.

       Husband agreed, advising the trial court that he had “no problem with that.”

       (Tr. Vol. II, pg. 12.) The trial court entered an order consistent with this

       proposal.


[14]   Husband now argues that he was, in effect, ordered to pay maintenance to

       Wife, and should be relieved of some of the obligations of the provisional order,

       because he “was required to pay an amount in excess of that statutorily

       mandated.” Appellant’s Brief at 9. Specifically, he claims that mortgage

       payments, utility payments, and Wife’s medical insurance premiums totaled

       $540.00 weekly and he should have been required to pay only 35% of his

       weekly income, or $249.20. Husband does not point to a specific statutory cap

       on an award of temporary maintenance, but directs our attention to Pham v.

       Pham, 650 N.E.2d 1212, 1215 (Ind. Ct. App. 1995), to support his contention

       that he should not have been ordered to pay expenses exceeding 35% of his

       weekly income.


[15]   In Pham, a husband whose prior-year gross income was $10,592.00 was ordered

       to pay the wife $9,100.00 in maintenance for three years, and he appealed. See


       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 7 of 14
       id. A panel of this Court found “the child support guidelines serve as a useful

       reference point in determining the appropriate amount of an award for spousal

       maintenance.” Id. The Court observed that, under the Indiana Child Support

       Guidelines, temporary maintenance could be awarded up to 35% of the

       obligor’s weekly adjusted income and the aggregate child support and

       temporary maintenance should not exceed 50% of the obligor’s weekly adjusted

       income. Id. The Court reversed the award, finding it “inappropriate for a court

       to award more than 50% of the obligor’s weekly gross income where there is

       only a spouse entitled to maintenance.” Id.


[16]   The Pham decision does not support a retroactive reduction of Husband’s

       obligations under the provisional order. First, the provisional order here was

       not an award of prospective payments from one spouse to another for ongoing

       support as was the case in Pham. Rather, the provisional order allocated certain

       expenses between the parties pending the final dissolution decree. And,

       importantly, the order incorporated the parties’ agreement as to those expenses.

       Having specifically agreed to pay the mortgage, utilities, homeowners dues, and

       Wife’s medical insurance pending the final decree, Husband cannot now be

       heard to complain. See Witte v. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (under

       the invited error doctrine, “a party may not take advantage of an error that [he]

       commits, invites, or which is the natural consequence of [his] own neglect or

       misconduct.”)




       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 8 of 14
                   Decision to Award Incapacity Maintenance
[17]   Pursuant to Indiana Code Section 31-15-7-2, a divorcing spouse may receive

       post-dissolution maintenance as incapacity maintenance, caregiver

       maintenance, or rehabilitative maintenance. As to the trial court’s decision to

       award Wife incapacity maintenance, Husband’s argument consists of the

       following paragraph:


               Although the trial court followed guidelines in awarding
               maintenance to Petitioner/wife pursuant to her testimony that
               she suffers from, inter alia, fibromyalgia, migraines, depression
               and insomnia and has no earning capacity, no medical records
               were introduced to support those claims. However, the court
               properly found that pursuant to Luttrell v. Luttrell, 994 N.E.2d 298
               (Ind. Ct. App. 2013) Petitioner/wife is receiving Social Security
               benefits for disabilities and that establishes the need for
               maintenance. Notwithstanding that, Respondent/husband is
               asking this court to consider that the Social Security
               Administration maintains a vast agency to determine the extent
               of an applicant’s request for disability payments and, more
               importantly, how much that disability is worth if it finds a
               disability exists. Since the Federal Government, through the
               Social Security Agency has made a determination of the extent of
               Petitioner/wife’s disability and the compensation value as a
               monthly payment that, in this case, it seems appropriate that the
               court consider other factors beyond that already compensated for
               in constructing an order of any additional maintenance.


       Appellant’s Brief at 10. As best we can discern, Husband’s argument is that the

       trial court should presume an award of Social Security disability benefits is

       adequate for Wife’s self-support and she should have been required to adduce

       evidence of its inadequacy to justify an award of incapacity maintenance.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 9 of 14
[18]   Indiana Code Section 31-15-7-2(1) provides:


               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.


[19]   The trial court’s power to award spousal maintenance is 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). Regarding incapacity maintenance, once the trial court

       makes the requisite finding regarding incapacity, its discretion is “limited”

       regarding whether to award incapacity maintenance. Barton v. Barton, 47

       N.E.3d 368, 375 (Ind. Ct. App. 2015). Our supreme court has 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 circumstances that directly relate to the criteria for
               awarding incapacity maintenance.


       Cannon v. Cannon, 758 N.E.2d 524, 527 (Ind. 2001). In determining whether to

       ultimately award maintenance payments, the trial court should also address the

       ability of the other spouse to make payments. Barton, 47 N.E.3d at 377.


[20]   Here, Wife presented uncontroverted testimony and documentary exhibits to

       show that she suffers from various medical conditions, has not been employed

       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 10 of 14
       during the marriage, is unable to be employed prospectively, and has been

       awarded Social Security disability payments. Based upon this record, the trial

       court’s requisite finding that Wife is incapacitated such that her ability to

       support herself is materially affected is not clearly against the logic and effect of

       the facts and circumstances.


                       Allocation of Marital Residence Equity
[21]   Finally, Husband challenges the disposition of his equity in the marital

       residence. He contends that “the trial court’s ostensibly equal division of the

       marital property was in fact an uneven distribution of the marital residence

       equity without a finding of why that deviation should occur.” We agree.


[22]   Indiana Code Section 31-15-7-5 provides in relevant part, “[t]he court shall

       presume that an equal division of the marital property between the parties is just

       and reasonable.” The presumption may be rebutted by a party who presents

       relevant evidence concerning statutory factors, including evidence as to “the

       earning ability of the parties.” See I.C. § 31-15-7-5(5). Here, the trial court

       found that “neither party has met its burden to support an uneven distribution

       of marital assets and equal division is appropriate.” Appealed Order at 5. The

       final decree also provided:


               The Court finds that [Wife] has not presented sufficient evidence
               to rebut the presumption of equal distribution and Orders the
               equity in the marital residence divided equally between the
               parties with each receiving an equal share of Nineteen Thousand,
               Six Hundred Twenty Four Dollars and fifty cents ($19,624.50).
               However, [Husband]’s share of the equity is awarded to the

       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 11 of 14
                [Wife] for lump sum payment for incapacity maintenance as
                earlier set out in paragraph 10. [Husband], at Final Hearing
                testified that he wanted ownership of the marital residence to be
                granted to [Wife]. The Court awards the marital residence to
                [Wife] as her sole property.


       Appealed Order at 7.


[23]   After the parties by agreement divided their personal property, the marital

       estate primarily consisted of the marital residence and the value, if any, of

       Husband’s Employee Stock Option Plan.2 The trial court’s order purports to

       divide the marital estate equally yet issue Wife a “lien” for half the employee

       stock ownership plan distributions3 and give her all equity in the marital

       residence. The split in Wife’s favor is not supported by a requisite finding that

       an equal division would not be just and reasonable; indeed, the deviation from

       an equal split is contradicted by other language of the final decree.


[24]   Wife does not address the internal inconsistency of the trial court’s order, but

       rather observes that Husband acquiesced to Wife retaining the marital

       residence. During Husband’s testimony, he sometimes made statements that




       2
         The trial court stated in the final decree that the parties had agreed that the employee stock option plan had
       a “current value of $45,623.00.” (Appealed Order at 4.) The record does not support this conclusion. Wife
       alleged that Husband had an interest worth $45,623.53. Her attorney advised the trial court that she was
       unable to obtain documentation. Husband testified that the plan was “not guaranteed,” and that he had “no
       401(k)” but “maybe [had] pension in the ESOP.” (Tr. Vol. II, pg. 55.) No further testimony regarding the
       stock option plan was presented. Thus, the record does not establish whether Husband’s interest in the plan
       was a contingent or vested interest or its current value, if any.
       3
        The final decree states that Wife is to have a “lien against future distribution of that Plan.” (Appealed
       Order at 5.)

       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018                Page 12 of 14
       were volunteered or non-responsive to the questions of Wife’s counsel. At one

       point, Husband offered, “she can have the house.” (Tr. Vol. II, pg. 56.)

       Nonetheless, the statement was not made in the context of a proposal to equally

       divide the stock option plan and allocate all residential equity to Wife without

       expectation of cash or offset. We do not agree with Wife that Husband agreed

       to the disposition of assets as ordered in the final decree.


[25]   Also, Wife points to the absence of statutory language prohibiting the payment

       of spousal maintenance from marital assets. We likewise found no such

       prohibition. That said, maintenance awards and property divisions differ in

       their characteristics. For example, a maintenance award normally involves

       future income and federal tax law provides the payor spouse a deduction from

       taxable income. See Baker v. Baker, 552 N.E.2d 525, 527 (Ind. Ct. App. 1990),

       trans. denied. Also, an order for payment of maintenance is subject to

       modification. See I.C. § 31-15-7-2(1) (providing for maintenance “during the

       period of incapacity, subject to further order of the court.”) A “dispositive”

       factor in determining whether an award is fashioned as maintenance or a

       property division is whether the payment is “conditioned upon the parties’

       change of circumstances,” such as a party’s death or remarriage. Baker, 552

       N.E.2d at 527.


[26]   Husband correctly observes that the award of real estate equity to Wife does not

       have the hallmarks of a maintenance award. Rather, the trial court entered a

       final – as opposed to modifiable – order for the disposition of marital property.

       The award of all real estate equity to one spouse amounted to a deviation from

       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 13 of 14
       the statutory presumption of an equal split. Because it was unaccompanied by

       a finding to support the deviation, we remand for further proceedings. The trial

       court may divide the marital pot equally or state its reasons for deviation. See

       Alexander v. Alexander, 927 N.E.2d 926, 941 (Ind. Ct. App. 2010) (“If a trial

       court deviates from an equal division it must state its reasons for doing so”),

       trans. denied.



                                               Conclusion
[27]   Husband is not entitled to a refund of the attorney’s fees paid as a discovery

       sanction or to partial relief from the provisional order. The trial court did not

       abuse its discretion by finding that Wife’s ability to support herself is materially

       affected by her physical incapacity. Finally, the trial court fashioned a property

       settlement award that deviated from an equal division of the marital assets

       without making requisite findings.


[28]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1711-DR-2586 | June 7, 2018   Page 14 of 14
