In Re: The Marriage of Mikiko Hige v. Christopher L. Glick

• Court: Indiana Court of Appeals
• Decided: January 31, 2014
• Docket: 79A02-1303-DR-274
• Status: Unpublished

Opinion

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 Jan 31 2014, 9:11 am of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

BRYAN LEE CIYOU DANIEL J. MOORE LORI B. SCHMELTZER Laszynski & Moore Ciyou & Dixon, P.C. Lafayette, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN RE: THE MARRIAGE OF, ) ) MIKIKO HIGE, ) ) Appellant-Petitioner, ) ) vs. ) No. 79A02-1303-DR-274 ) CHRISTOPHER L. GLICK, ) ) Appellee-Respondent. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams, Judge Cause No. 79D01-1107-DR-135

January 31, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

Mikiko Hige appeals the trial court’s dissolution of her marriage to Christopher

Glick. We affirm.

Issues

Hige raises three issues, which we restate as:

I. whether the trial court abused its discretion in denying her motions to continue the final hearing;

II. whether the trial court abused its discretion in denying her request for rehabilitative maintenance; and

III. whether the trial court abused its discretion in dividing the marital estate.

Facts

Hige and Glick met at Indiana University, where Hige was earning a master’s

degree in foreign language education. They married in 1994. The couple thereafter lived

in Japan, where Glick, who has a bachelor’s degree in geography and a master’s degree

in linguistics, worked as a tenured professor teaching English. Hige did not work during

the marriage. The couple did not have any children.

The couple separated in 2010, and Glick moved back to the United States, where

he worked odd jobs until he enrolled in college to earn a degree in chemical engineering.

Hige eventually returned to the United States and enrolled in classes to earn a master’s

degree in library science. Hige was enrolled part-time because she was suffering from

mental health issues. Both parties were living from assets accrued during the marriage.

2 Although Glick initially filed for divorce in Japan, he decided to file for

dissolution in Indiana upon learning that the proceedings would take four to seven years

in Japan and that he would have to pay $3,500 a month in spousal support while the

matter was pending. Glick petitioned for dissolution in Indiana in July 2011. In January

and April 2012, Hige requested and was granted continuances of the final hearing. In

August 2012, Hige changed attorneys and moved for a continuance, which was granted.

On August 24, 2012, the trial court issued an order dissolving the marriage and leaving

the distribution of marital property unresolved. On September 21, 2012, Hige filed

another motion to continue the final hearing, which the trial court denied. On September

24, 2012, an evidentiary hearing was conducted. The hearing was not completed and was

rescheduled for November 8, 2012. On October 19, 2012, Hige moved to continue the

hearing, and it was rescheduled for December 10, 2012. On December 5, 2012, Hige

filed another motion to continue, which the trial court denied.

On December 10, 2012, the evidentiary hearing was concluded. On February 25,

2013, the trial court issued an order rejecting Hige’s request for rehabilitative

maintenance and awarding her approximately 52% of the marital estate. She now

appeals.

Analysis

The trial court entered its findings and conclusions sua sponte. Under the

circumstances, special findings entered by the trial court sua sponte control only as to the

issues they cover. Harrison v. Thomas, 761 N.E.2d 816, 819 (Ind. 2002). “As to issues

on which the trial court has not made findings, or on which the findings are inadequate,

3 we treat the judgment as a general one and we examine the record and affirm the

judgment if it can be sustained upon any legal theory the evidence supports.” Id. As to

the findings the trial court did make, we first must determine whether the evidence

supports the findings and then whether those findings support the trial court’s

conclusions. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Findings will only

be set aside if they are clearly erroneous, which occurs only when the record contains no

facts to support them either directly or by inference or if the trial court applies the wrong

legal standard to properly found facts. Id. “In order to determine that a finding or

conclusion is clearly erroneous, an appellate court’s review of the evidence must leave it

with the firm conviction that a mistake has been made.” Id.

We neither reweigh the evidence nor reassess witness credibility, and we view the

evidence most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

“Appellate deference to the determinations of our trial court judges, especially in

domestic relations matters, is warranted because of their unique, direct interactions with

the parties face-to-face, often over an extended period of time.” Id.

I. Continuances

Hige argues that the trial court abused its discretion by denying her September 21,

2012 and December 5, 2012 motions to continue. Pursuant to Indiana Trial Rule 53.5,

“trial may be postponed or continued in the discretion of the court, and shall be allowed

upon a showing of good cause established by affidavit or other evidence.” “A trial

court’s decision to grant or deny a motion to continue a trial date is reviewed for an abuse

of discretion, and there is a strong presumption the trial court properly exercised its

4 discretion.” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009). “A denial of a

motion for continuance is abuse of discretion only if the movant demonstrates good cause

for granting it.” Id. “However, no abuse of discretion will be found when the moving

party has not demonstrated that he or she was prejudiced by the denial . . . .” Troyer v.

Troyer, 867 N.E.2d 216, 219 (Ind. Ct. App. 2007).

A. September 21, 2012 Motion

In her September 21, 2012 motion, Hige argued that Glick had not provided

information she requested about bank accounts, recent employment, and savings bonds

and suggested that it would be necessary to obtain the information from third parties.

After a telephone conference,1 the trial court denied Hige’s motion. At the beginning of

the September 24, 2012 hearing, the trial court explained that, as discussed at the

telephone conference, they would get through what they could that day and, if more

information was needed, they would deal with it at the close of the evidence and the

matter could be reset.

We cannot conclude that Hige was prejudiced by the denial of this request for a

continuance. First, Hige previously had been granted three continuances. Further, at the

hearing, Glick was questioned regarding the evidence that he had purportedly failed to

disclose, allowing Hige to determine what, if any additional information was needed.

Moreover, the hearing was not concluded that day and was reset for November 8, 2012,

and then, upon Hige’s request, continued to December 10, 2012. Thus, Hige was given

1 Glick argues that Hige’s failure to provide us with a transcript of the telephone conference waives this issue. Because of the trial court’s summary of the telephone conference at the September 24, 2012 hearing, which was transcribed, we are able to adequately review this issue. 5 the opportunity to question Glick about the information that she requested and to follow

up with discovery requests following the hearing, which she did. Under these

circumstances we cannot say that Hige was prejudiced by the denial of the September 21,

2012 motion to continue, and she has not established that the trial court abused its

discretion in denying the motion.

B. December 5, 2012 Motion

On December 5, 2012, Hige filed another motion to continue in which she asserted

that her mental condition rendered her unable to properly prepare for and attend the

December 10, 2012 hearing.2 Glick objected to a continuance, and the trial court denied

the request.

Again, Hige has not established that the trial court abused its discretion in denying

the motion. At the September 24, 2012, hearing, Hige testified regarding her depression

and anxiety and the resulting difficulty focusing and remembering to do things. She

testified that the problem was ongoing. Hige, however, was able to testify about her

various assets and plans for employment. The trial court, therefore, was able to gauge

Hige’s ability to participate in the proceedings when it ruled on the December 5, 2012

motion to continue.3 It was within the trial court’s discretion to deny the motion, and

Hige has not established an abuse of that discretion.

II. Rehabilitative Maintenance

2 On appeal, Hige argues that her mental health problems coupled with an ongoing discovery dispute, which purportedly continued at least through October 30, 2012, warranted the continuance. However, because the December 5, 2012 motion to continue was based solely on Hige’s mental state and not discovery issues, we decline to consider the purported ongoing discovery dispute as a basis for granting this continuance. 3 Hige did not assert that her mental state had worsened since the September 24, 2012 hearing. 6 Hige argues that the trial court erred in denying her request for rehabilitative

maintenance. “Trial courts are vested with broad discretion in the area of denying or

granting rehabilitative maintenance.” Blazek v. Blazek, 631 N.E.2d 518, 520 (Ind. Ct.

App. 1994). “An abuse of discretion occurs only if the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions which may be drawn from the facts and

circumstances.” Id.

Rehabilitative maintenance may be awarded pursuant to Indiana Code 31-15-7-2,

which provides:

A court may make the following findings concerning maintenance:

*****

(3) 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;

7 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.

Hige contends that “this Court has held time and time again that the statute should not be

ignored in the face of uncontroverted evidence of one or more of the statutory factors that

are before the court, as justice and equity require application and enforcement.”

Appellant’s Reply Br. p. 13. We disagree that our previous discussions of the purpose

and benefits of rehabilitative maintenance require an award of maintenance where one or

more of the statutory factors is found by a trial court. The statute is clearly permissive,

and we have repeatedly held that trial courts are vested with broad discretion in these

matters. See e.g., Blazek, 631 N.E.2d at 520; Dahnke v. Dahnke, 535 N.E.2d 172, 174

(Ind. Ct. App. 1989) (“Trial courts are vested with broad discretion in this area.”), trans.

denied.

A. Findings of Fact

Hige asserts that several of the trial court’s findings are not supported by the

evidence. The trial court found in part:

8. The wife ultimately returned to the United States in December 2011 to attend Portland State University. On March 8, 2012, the wife obtained her student VISA[4] which requires that she be a full-time student with classes to be approved by ICE. . . . She has student loan of $11,800 which is paid through part-time work.

9. During the course of the marriage, the wife received gifts from her father on at least two (2) occasions of over

4 The trial court was referring to Hige’s ability to work legally in the United States. 8 $100,000.00 The wife is eligible for Japanese National Pension although the amount is unclear.

App. pp. 7-8.

Hige argues that the trial court found that her VISA allowed her to work up to

twenty hours per week and challenges her mental ability to attend school full-time and to

work pursuant to the terms of the VISA. The trial court, however, did not specifically

make any findings regarding Hige’s ability to work twenty hours per week. Hige has not

established that the finding is clearly erroneous.

Hige also argues that the finding regarding the $11,800 student loan is not

supported by the record, and Glick agrees. There was evidence that when the couple

married Glick had student loans, which have been paid off. There is no evidence that

Hige has any outstanding student loans. However, we fail to see how the erroneous

finding that Hige had student loans affected her substantial rights in the context of

rehabilitative maintenance. Thus, we disregard this error as harmless. See Ind. Trial

Rule 61 (“The court at every stage of the proceeding must disregard any error or defect in

the proceeding which does not affect the substantial rights of the parties.”).

Hige also argues that Finding 9 suggests that she received two gifts of $100,000

each from her father and that the record does not contain evidence of such gifts. We

agree with Glick that, at most, this finding is poorly worded and reflects the testimony

that over the marriage Hige’s father transferred money to her. In fact, Hige testified that

her father gave her $100,000 while they were married. The evidence supports this

finding.

9 Hige also argues that the evidence does not support the finding that she is eligible

for the Japanese National Pension. Although the evidence regarding her eligibility is less

than clear, there is some evidence to support the finding. Glick testified that he paid into

the system on Hige’s behalf and believed she met the requirements because of the

contributions he made in her name. On this issue, Hige initially testified that she had the

pension and later explained that she paid in “[a]lmost barely” the minimum amount of

time to be eligible for the pension but didn’t know if she qualified or not. Tr. p. 87.

When asked if she paid into the system for the requisite time, Hige answered, “I believe

maybe barely but I’m not sure.” Id. at 90. The trial court was free to consider Glick’s

testimony and the portions of Hige’s testimony in which she indicated she was eligible

for the pension as credible. We are not convinced that the trial court’s findings require us

to reverse the denial of Hige’s request for rehabilitative maintenance.

B. Statutory Factors

Hige argues that the trial court disregarded evidence of the statutory factors and,

after providing argument regarding each factor, asserts that her request for maintenance

should have been granted. This is largely a request to reweigh the evidence, which we

cannot do.

At the time of the marriage, both parties had master’s degrees. Hige did not work

during the marriage, and contrary to Hige’s assertions, Glick described the manner in

which she helped him translate and research as “[m]inimal.” Tr. p. 50. There was also

evidence that Hige tutored for a short time but hated it and decided she could not teach.

10 Glick testified that he encouraged her to teach English, but she did not want to. Thus, the

record does not support Hige’s claim that she gave up her career to support Glick’s.

Hige also claims that Glick voluntarily reduced his income to avoid paying

spousal support. It is true that after separating Glick voluntarily left his tenured teaching

position in Japan and returned to the United States. However, Glick’s education and

employment history of teaching English were not as marketable in the United States as

they were in Japan. After applying to several universities without success, Glick decided

to take classes to earn a degree in engineering. The record does not support Hige’s

assertion that Glick clearly reduced his income to avoid paying maintenance.

Although Hige testified that her employment prospects in Japan and the United

States were not promising and that her mental health issues prohibited her from taking

classes full time or working, at the time of the hearing, both parties were living from

assets acquired during the marriage while they attended school to earn additional degrees.

Hige’s request that we reverse is merely a request that we reweigh the evidence, which

we cannot do. Hige has not established that the trial court abused its discretion by

denying her request for rehabilitative maintenance.

III. Marital Estate

Hige argues that the trial court erred by dividing the marital estate equally instead

of awarding her 65% of the marital estate.5

Property owned by either spouse before the marriage is included in the marital estate and subject to division and distribution. Ind. Code § 31-15-7-4 (1998). Indiana law

5 Pursuant to the trial court’s order, Hige effectively was awarded 52% of the marital estate. 11 requires that marital property be divided in a “just and reasonable manner,” id., and provides for the statutory presumption that “an equal division of the - marital property between the parties is just and reasonable.” I.C. § 31-15-7-5. This presumption may be rebutted, however, by evidence of each spouse’s contribution to the acquisition of the property, the extent to which the property was acquired before the marriage or by inheritance, the economic circumstances of each spouse, the conduct of the parties relating to the disposition or dissipation of assets, and each spouse’s earning ability. Id.

Fobar v. Vonderahe, 771 N.E.2d 57, 58-59 (Ind. 2002). Because this case turns on

whether the trial court’s division of the marital property was just and reasonable, it is

highly fact sensitive and is subject to an abuse of discretion standard. See id. at 59. We

do not weigh evidence and consider it in a light most favorable to the judgment. Id.

Hige argues that the trial court erred when it found, “The division of property and

assignment of liabilities entered herein is as [sic] equal, just, reasonable, fair and

equitable award thereof under the facts presented at trial including the parties’ agreement

of the same.” App. p. 12. Hige contends that this finding erroneously suggests the

parties reached a settlement agreement. Instead, we believe the trial court was simply

referring to the parties’ agreement on certain facts, including, for example, the value of

some of the marital assets.

Hige also argues she presented substantial evidence to rebut the presumption that

an equal division of the marital estate was proper. We disagree. First, the evidence

showed that Glick worked as a professor throughout the marriage. Although Hige claims

she supported his career by helping with research and translations, Glick described her

contributions as “[m]inimal.” Tr. p. 50. Second, regarding the gifts from Hige’s father,

12 Hige concedes that there is no evidence regarding whether those funds were spent during

the marriage or retained by her upon separation. Without more, she has not shown that

she was entitled to a set-off for the gifts.

Third, Hige argues that she has no ability to earn income and that Glick

voluntarily left his career and could return anytime. However, there is no evidence that

Glick could return to the same position in Japan and there was extensive evidence

regarding his unsuccessful efforts to find a comparable teaching job in the United States.

Fourth, Hige contends a reasonable inference could be drawn that Glick failed to

disclose marital assets that should have been divided. This argument is speculative at

best. The proceeding was riddled with discovery disputes and allegations of undisclosed

assets by both parties. Glick was questioned thoroughly at the September 24, 2012

hearing regarding his disclosure of marital assets including various transfers between

accounts during the marriage and the location and amounts of savings bonds that he had

purchased during the marriage. The trial court was in the best position to assess Glick’s

credibility on this issue. Without more, Hige has not established Glick improperly failed

to disclose assets.

Fifth, Hige claims there was no evidence that Glick could not return to his former

career and earn the equivalent of what he had previously earned and contends that she

never had a job in the United States and is not employable in Japan “due to her age, lack

of work experience, and the Japanese culture.” Appellant’s Br. p. 42. However, the

evidence showed that Glick could not find comparable work in the United States and the

trial court was free to discredit Hige’s testimony about her inability to find work,

13 especially in light of the evidence that she had not actually applied for any jobs. Further,

although Hige contends that she “relinquished her career pursuits” to support Glick, there

is evidence Glick encouraged Hige to teach but she did not want to. Id. Hige also argues

that she, at fifty-six years old, is much closer to retirement than forty-three-year-old Glick

and has less time to prepare for retirement. Although that may be the case, there is

evidence that Glick contributed toward Hige’s Japanese pension throughout the marriage

and that, as Glick understood it, Hige stands to inherit “a very large sum” from her father.

Tr. p. 156.

The evidence showed that, although both parties had advanced degrees, they had

difficulty finding work and had returned to school to pursue new careers. Without more,

Hige has not established that the trial court abused its discretion in equally dividing the

marital assets.

Conclusion

Hige has not established that the trial court abused its discretion in denying her

motions to continue, denying her request for rehabilitative maintenance, and nearly

equally dividing the marital estate. We affirm.

Affirmed.

ROBB, J., and BROWN, J., concur.