In Re the Marriage of Sharp

427 N.E.2d 690, 1981 Ind. App. LEXIS 1697
CourtIndiana Court of Appeals
DecidedOctober 29, 1981
Docket3-281A60
StatusPublished
Cited by8 cases

This text of 427 N.E.2d 690 (In Re the Marriage of Sharp) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Sharp, 427 N.E.2d 690, 1981 Ind. App. LEXIS 1697 (Ind. Ct. App. 1981).

Opinions

[692]*692STATON, Judge.

Before the hearing on the petition to dissolve the marriage of Elinor Sharp and Harry Sharp, the trial court ordered Harry to pay Elinor maintenance of $75.00 per week during the pendency of the dissolution action. After a hearing on the petition, the trial court entered a dissolution decree which dissolved the marriage of Elinor Sharp and Harry Sharp, divided the marital property, and ordered Harry to pay Elinor $75.00 per week maintenance. Harry then filed his petition to terminate maintenance.1 After a hearing on Harry’s petition, the trial court issued supplemental findings and conclusions in which it revoked its order of spousal-maintenance and ordered Elinor to reimburse Harry for all the maintenance payments that had been made. The trial court also provided that Harry could elect to take credit for the reimbursement in the division of the marital property if the division was not completely effected.

Elinor raises the following issues:

(1) Did the trial court err in finding in its supplemental findings and conclusions that Elinor is not physically or mentally incapacitated to the extent that her ability to support herself is materially affected?
(2) Did the trial court err in rescinding its previous maintenance order and in ordering that Elinor reimburse Harry for all maintenance payments?

Harry raises the following issues for our review:

(3) Did the trial court err by overvaluing certain property?
(4) Did the trial court abuse its discretion in its division of the marital property?
(5) Did the trial court err by including Harry’s future retirement benefits in the marital property?

We affirm issue one, and we instruct the trial court to modify its judgment in regards to issues two, three and five. We need not discuss issue four due to our disposition of issue three.

I.

Ability to Support

The trial court, after hearing the evidence on the petition to dissolve the marriage, stated the following as its finding of fact no. 6:

“Petitioner-wife is a high school graduate age 49 years, has a background of unskilled labor and is a victim of rheumatoid arthritis, presently under treatment by Howard R. Engel, M.D. At trial Dr. Engel’s testimony concerning petitioner can be summarized
“1) she began treatment with gold shots 12/21/79 and these will continue for life.
“2) he directed her to cease employment
“3) she has 20 ° flexation, 45 ° extention [sic] in her right writst [sic]; 30 ° flexation 80 ° extension in her left
“4) she experienced more trouble on her return to work, that this ‘return to work hurt her’
“5) her present condition will never improve and damage done is irretrievable
“6) she can work, but for short periods since this ‘disease means the more you do the more you hurt’ and goes ‘in mathematical progression.’
“7) there is no procedure for wrist surgically
“8) as disease ‘burns itself out’ there is less pain but more deformity
“9) could work where hands not used, but her feet also would flare up
“10) she cannot type, would have difficulty working in a factory
“11) her range of motion worse now than December of 1979 and it will not improve”

Elinor was diagnosed as having rheumatoid arthritis in November of 1979. From [693]*693March 27, 1980 to April 28, 1980 Elinor was on a medical leave of absence due to her rheumatoid arthritis. One and a half weeks after she went back to work, all workers of her seniority were laid off. Elinor testified that during the IV2 weeks she was back at work she had managed to do her work even though it was quite painful.

The trial court awarded Elinor maintenance under IC 1979, 31-1-11.5-9(c).2 The trial court uses its discretion in awarding maintenance

“after considering such factors as the financial resources of the party seeking maintenance (including matrimonial property apportioned to her), the standard of living established in the marriage, duration of the marriage, and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Even though the court finds a spouse’s supportive ability is materially impaired, a maintenance award is not mandatory.”

Temple v. Temple (1975), 164 Ind.App. 215, 328 N.E.2d 227, 230.

Harry filed a petition to terminate maintenance. The trial court granted his petition, setting forth the following as part of its findings of fact:

“4. At hearing thereon held October 7 and 15, 1980 evidence was adduced finding that
“a. petitioner-wife did not work for the period May 6 through July 2, 1980;
“b. that she returned to her former employment at CTS Corporation immediately thereafter and remained employed to the date of said hearing at an hourly rate of $7.38, with a minimum of 32 hours weekly to a high of 40 hours weekly;
“c. that such employment has been had and pursued by petitioner-wife, notwithstanding the testimony of her physician, Dr. Howard P. [s/c] Engel.”

On appeal, Elinor argues that her ability to support herself has not changed. In support of this argument, she notes that the original medical evidence presented at the hearing on the petition to dissolve the marriage has not been contradicted. She argues that the trial court erred in terminating the maintenance payments she received because the only change in circumstances that had occurred was that she had returned to work and was working almost 40 hours a week.

In Farthing v. Farthing (1979), Ind.App., 382 N.E.2d 941, 944, this Court stated that the standard to be used to determine if spousal maintenance should be modified is IC 1979, 31-1-11.5-17. This statute requires a showing of changed circumstances so substantial and continuing as to make the terms of the maintenance unreasonable.

We shall reverse the trial court’s decision only when it has abused its discretion. To constitute an abuse of discretion, Elinor must show that the trial court’s decision was one which was “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Marshall v. Reeves (1974), 262 Ind. 107, 311 N.E.2d 807, 811.

We will not reweigh the evidence; we will consider only that evidence and the reasonable inferences drawn therefrom which are most favorable to the appellee, Harry. Morgan v. Cooper (1981), Ind.App., 415 N.E.2d 729, 733.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thompson v. Thompson
811 N.E.2d 888 (Indiana Court of Appeals, 2004)
Axsom v. Axsom
565 N.E.2d 1097 (Indiana Court of Appeals, 1991)
Reddy v. New Hampshire Insurance Co., No. 357446 (Dec. 7, 1990)
1990 Conn. Super. Ct. 4480 (Connecticut Superior Court, 1990)
Feitz v. Feitz
533 N.E.2d 1287 (Indiana Court of Appeals, 1989)
In re Marriage of Herman
460 N.E.2d 1021 (Indiana Court of Appeals, 1984)
In Re the Marriage of Sharp
427 N.E.2d 690 (Indiana Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
427 N.E.2d 690, 1981 Ind. App. LEXIS 1697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-sharp-indctapp-1981.