MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 05 2017, 5:39 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 ATTORNEY FOR APPELLEE Amy O. Carson Michael R. Auger Massillamany & Jeter LLP Franklin, Indiana Fishers, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Marriage of: April 5, 2017
Tina Marie Perry, Court of Appeals Case No. 41A04-1606-DR-1461 Appellant-Respondent, Appeal from the v. Johnson Superior Court The Honorable William N. Perry, III, Cynthia S. Emkes, Judge Trial Court Cause No. Appellee-Petitioner. 41D02-1209-DR-697
Kirsch, Judge.
[1] The marriage of Tina Marie Perry (“Mother”) and William N. Perry, III
(“Father”) was dissolved in 2013, and pursuant to a decree of dissolution,
Mother was awarded spousal maintenance based on her incapacity. Mother
raises one issue on appeal, which we restate as whether Father met his burden Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 1 of 21 of showing changed circumstances so substantial and continuing as to warrant
the revocation of Father’s obligation to pay incapacity maintenance.
[2] We reverse and remand with instructions.
Facts and Procedural History [3] Mother and Father, who were married on December 30, 1995, are the parents
of A.P., born March 27, 1997, and M.P., born December 21, 2000 (together,
“the children”). The parties’ marriage was dissolved after seventeen years of
marriage by a Decree of Dissolution of Marriage, dated October 3, 2013 (“the
Decree”).1 The dissolution court found that it was in the children’s best
interests to be with Mother and awarded her the sole legal and physical custody
of the children.2 Father was awarded parenting time consistent with Indiana
Parenting Time Guidelines.
[4] Sections IV, V, and VIII of the Decree are pertinent to this appeal. In Section
IV, titled “Child Support,” the dissolution court ordered Father to pay child
1 The dissolution court entered its initial decree of dissolution on September 24, 2013; however, on October 3, 2013, that decree was amended by “Corrected Findings of Fact and Conclusions Thereon and Decree of Dissolution of Marriage.” Appellant’s App. at 26-60. A reference to “the Decree” is a reference to the October 3, 2013 order. 2 Decisions of two trial courts are pertinent to this appeal. For clarity, we refer to the trial court that entered the Decree as the “dissolution court” and to the trial court that entered an agreed order in June 2015, and later revoked Mother’s incapacity maintenance, as the “trial court.”
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 2 of 21 support to Mother in the amount of $203 per week.3 Appellant’s App. at 33-34.4
That weekly amount was calculated from a child support obligation worksheet,
which reflected that Father’s weekly gross income was $1,384, or $71,968 per
year,5 and Mother’s weekly gross income was $519, or $26,988 per year.6
Appellant’s App. at 33, 59. The dissolution court also ordered Father to pay
Mother 20% of any irregular income, from refereeing and snow removal, that
Father received in excess of his base income of $71,968. Id. at 35. Father
estimated that in 2011 and 2012, he had irregular income in the amounts of
$9,305 and $9,649, respectively.7 At the time of the final dissolution hearing,
Mother was not receiving any Social Security benefits paid on behalf of the
children; however, the dissolution court determined that any such benefits paid
to Mother in the future would be added to her weekly gross income for
purposes of calculating future child support. Id. at 34.
3 This amount was calculated using children’s total weekly child support amount of $386, minus $78 (Father’s credit for parenting time), minus $105 (Mother’s support obligation). Because exact dollar amounts are not pertinent to our analysis, where a dollar amount includes cents, we have rounded the figure to the nearest dollar. 4 There are two volumes of the Appellant’s Appendix; however, Volume I contains only the table of contents for Volume II. For ease of reference, all citations to Appellant’s Appendix are citations to Volume II. 5 There is a small discrepancy in the gross annual income attributed to Father, with the two amounts being $71,990 and $71,968. Pursuant to Father’s W-2, his gross annual income in 2012 was $71,990. Appellant’s App. at 33. The dissolution court, apparently, divided that income by 52 weeks and arrived at the rounded- down weekly income of $1,384. Id. That weekly income was then used to calculate the quarterly income of $17,992, which resulted in an annual income of $71,968. 6 This amount represented Mother’s 2013 Social Security disability benefits in the weekly amount of $480 plus weekly income from rental property in the amount of $39. 7 Based on this 80/20 formula, future irregular income in comparable amounts would result in income to Father of about $7,500 and income to Mother of about $1,800 per year.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 3 of 21 [5] In Section V of the Decree, titled “Insurance Exemptions and Extracurricular
Activity Expenses,” the dissolution court ordered Father to maintain medical,
dental, and vision insurance coverage for the children. Appellant’s App. at 37.
There was no evidence that Father incurred any additional expense for
maintaining “the children’s coverage in addition to his own.” Id. at 33.
Mother was ordered to pay the first $1,204 of annual uninsured health care for
medical, dental, prescriptions, orthodontics, or other physical or emotional
health-related expense incurred by or on behalf of the children. Id. at 37. The
balance of uninsured expenses was to be paid 72.73% by Father and 27.27% by
Mother. Id. at 59. The dissolution court also ordered the parties to split the
costs of the children’s extracurricular expenses, with Father paying 70% and
Mother paying 30%. Id. at 37-38.
[6] Finally, in Section VIII of the Decree, titled “Maintenance,” the dissolution
court ordered Father to pay $400 per month to Mother, about $92 per week, of
spousal maintenance based on her disability—a disability that both parties
agreed had existed since October 1, 2010. Id. at 53. In granting Mother’s
request for incapacity maintenance, the dissolution court considered Mother’s
net monthly disability income of $1,765 from Social Security, her monthly
obligations, as well as a summary of her major expenses. Id. at 53-54. The
dissolution court explained:
Even without considering her credit card obligations, utilities, and the cost of everyday living, [Mother]’s mortgage and car loans alone account for the lion’s share of her disposable income. [Mother] has a reasonable request for $400.00 in monthly
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 4 of 21 maintenance, and [Father] has the regular and irregular income with which to satisfy the request. The Court finds and orders that [Father] shall pay incapacity maintenance to [Mother] in the amount of $400.00 per month . . . . The obligation shall terminate upon the death of either party and is modifiable according to law. . . . Said maintenance shall terminate at the time [Mother] begins receiving distributions from [Father’s] Defined Benefit Plan . . . .
Appellant’s App. at 54 (emphasis added). The oldest child, A.P., was sixteen
years old at the time the Decree was entered; yet, there is no language in the
Decree pertaining to educational support for children’s post-secondary
education.
[7] Shortly after the issuance of the Decree, the children’s circumstances changed,
and on November 5, 2013, Father filed a petition for modification of custody.
The trial court held a hearing on December 17, 2013 and, on December 30,
2013, entered an order concluding that it was no longer in the children’s best
interests for Mother to have sole legal and physical custody. Appellant’s App. at
61-66. Accordingly, the trial court granted Father sole legal and physical
custody of the children, gave Mother “liberal parenting time,” and modified
Father’s child support obligation to Mother, on a temporary basis, from $203
per week to $120 per month. Id. at 62.
[8] In June 2015, after numerous continuances, the parties reached an agreement,
and the trial court issued an “Agreed Order on Modification of Custody and
Contempt Citations” (“the Agreed Order”). Id. at 67-69. Pursuant to the
Agreed Order, Father continued to have physical and legal custody of the
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 5 of 21 children, and Mother continued to have parenting time with the children in
accordance with the Parenting Time Guidelines. The Agreed Order also set
forth the following pertinent provisions:
4. The parties agree that Father’s child support obligation as set out in the December 30, 2013 [order] shall terminate immediately. Further, the parties have attached hereto a Child Support Obligation Worksheet reflecting a child support obligation owed by Mother to Father.8 However, Father receives Social Security Disability benefits as a result of Mother’s disability.9 The parties agree that said amount shall satisfy Mother’s obligation of support to Father. The parties agree that at the time of this Agreement that no arrearage is owed by Father to Mother nor by Mother to Father.
5. The parties agree that the six percent rule shall apply and that Father shall be obligated for the first One Thousand Two Hundred Eighty Dollars ($1,280.00) of annual uninsured medical expenses for the minor children. Once Father pays said amount, any remaining obligations shall be split with Father being responsible for 75% and Mother being responsible for 25% of said costs.
6. The parties agree that there remain two outstanding bills for the children’s participation in soccer in the approximate amount of Eight Hundred Seventy Dollars ($870.00). Father shall be responsible for said obligations. Additionally, Father shall pay 100% of the
8 The referenced child support worksheet is not in the record before us. 9 Mother, alone, cites to the amount of the Social Security payment as being $964 per month for both children. Tr. at 9; Appellant’s App. at 7, 9. Because Father does not dispute this figure, we proceed with the understanding that Social Security paid Father $964 per month.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 6 of 21 extracurricular costs associated with the minor children from the date of this Order forward.
....
10. The parties agree that this Agreement resolves all issues existing between the parties that were set forth in the Verified Petition for Modification of Custody filed November 5, 2013 ….
Appellant’s App. at 67-68 (emphasis added).
[9] On September 15, 2015, less than three months after the trial court entered the
Agreed Order, Father filed a “Petition to Modify Spousal Maintenance”
(“Petition to Modify”), alleging that, since the Decree, “there has a been a
substantial and continuing change in circumstances warranting a modification”
of the court’s spousal maintenance order. Appellant’s App. at 70. In the Petition
to Modify, Father argued that the change of circumstances was related to his
having sole custody of his children and the expenses associated with that.
Father noted that he was responsible for paying 100% of the expenses for the
children’s extracurricular activities, school, cell phones, and clothing. Id. at 70-
71. He also stated that he was responsible for paying 100% of the oldest child’s
monthly car payments, car insurance, gas, and post-secondary education at
University of Indianapolis. Id. Father alleged that, “while at the time of the
Court’s issuance of the Decree Mother was not employed and had no income,
Mother now receives Social Security Disability payments and is believed to
have other income as well.” Id. at 71. Father asked the trial court to “modify
its prior issued order of spousal maintenance to terminate Father’s obligation” Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 7 of 21 to pay spousal maintenance and prayed for “any and all other just and proper
relief . . . .” Id. at 71.
[10] On April 5, 2016, the trial court held a hearing on Father’s Petition to Modify.
Three weeks later, the trial court issued its order revoking Father’s obligation to
pay incapacity maintenance to Mother (“Order for Modification”). Mother
filed a motion to correct error, which the trial court denied on May 31, 2016.
Mother now appeals.
Discussion and Decision [11] We generally review rulings on motions to correct error for an abuse of
discretion. French v. French, 821 N.E.2d 891, 895 (Ind. Ct. App. 2005). Our
standard of review for appeal of a motion to correct error directs us to consider
the propriety of the trial court’s decision on the underlying order, which here is
the Order for Modification. Id. A trial court has broad discretion in ruling on a
petition to modify spousal maintenance, and we will reverse that decision only
for an abuse of discretion. In re Marriage of Gertiser, 45 N.E.3d 363, 368 (Ind.
2015). “That is, we review whether the decision is 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; whether the court
misinterpreted the law or disregarded evidence of factors listed in a controlling
statute; or whether it applied the wrong legal standard to properly found facts.”
Id. at 368-69 (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 8 of 21 [12] In its Order for Modification, the trial court entered findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52(A). Where, as here, the
trial court enters findings and conclusions sua sponte, the findings control only
with respect to the issues they cover, while a general judgment standard applies
to issues on which there are no findings. In re Marriage of Sutton, 16 N.E.3d 481,
484-85 (Ind. Ct. App. 2014). “We affirm a general judgment entered with
findings if it can be sustained on any legal theory supported by the evidence.”
Ahls v. Ahls, 52 N.E.3d 797, 800 (Ind. Ct. App. 2016) (citing Hurt v. Hurt, 920
N.E.2d 688, 691 (Ind. Ct. App. 2010)). A finding of fact is clearly erroneous
when the record contains no facts to support the finding, either directly or by
inference. Id. (citing Hurt, 920 N.E.2d at 800). “‘A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts.’” Id.
(quoting Hurt, 920 N.E.2d at 691). In conducting our review, we first
determine whether the evidence supports the findings; then we determine
whether the findings support the judgment. Id.
[13] A trial court may award spousal maintenance under “three narrow
circumstances—incapacity, caregiver, or rehabilitative.” Alexander v. Alexander,
980 N.E.2d 878, 880 (Ind. Ct. App. 2012). At issue here is incapacity
maintenance, which requires both a physical or mental incapacity and a
resulting financial necessity. In re Gertiser, 45 N.E.3d 363, 367 (Ind. 2015).
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
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 9 of 21 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.
Mother was awarded spousal maintenance of $400 per month based on her
physical or mental incapacity—the existence of which Father does not
dispute—that resulted in financial need.
[14] After the initial award,
[p]rovisions of an order with respect to maintenance ordered under . . . this chapter (or IC 31-1-11.5-9(c) before its repeal) may be modified or revoked. Except as provided in IC 31-16-8-2, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable[.]
Ind. Code § 31-15-7-3(1). Commenting on Indiana Code section 31-15-7-3, our
Supreme Court recently stated:
In Haville v. Haville, we accepted that statutory language at face value—observing in a footnote that the statute “expressly declares that provisions of an order for maintenance authorized by statute ‘may be modified or revoked’ upon specified grounds, one of which is ‘a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.’” 825 N.E.2d 375, 378 n.2 (Ind. 2005). Nothing in that statutory language limits the “circumstances” to the incapacity itself. To the contrary, it permits revocation under precisely the same terms as modification—when the award has become unreasonable under the circumstances.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 10 of 21 In re Gertiser, 45 N.E.3d at 367-68. For purposes of Indiana Code section 31-15-
7-3, “revoking an award is a form of modifying it, so the two terms are not
necessarily exclusive.” Id. at 367 n.5.
[15] In the Decree, the dissolution court had “assign[ed] great weight to [Father’s]
superior earnings and earning ability,” noting that Mother’s income was
“locked in at about $25,000.00 annually,” while Father had earned almost
$72,000 in 2012 and $81,000 in 2011, income that did not include “substantial
earnings from refereeing and snow plowing.” Appellant’s App. at 52-53. The
dissolution court also assigned “considerable weight to the financial
circumstances of the parties at the time the divorce is to be completed.” Id. at
53. The court noted that Father rented a home owned by his parents and
“use[d] his parents’ credit card to meet his expenses.” Id.
[16] In granting Mother the initial award of incapacity maintenance, the dissolution
court considered the following factors: (1) Mother was disabled and had been
disabled since October 1, 2010; (2) Mother has “significant limitations” that
prevent her from working, and “she is unable to work”; (3) Mother’s “net
monthly income” from Social Security is $1,765, or $407 per week;10 (4)”[e]ven
10 Mother’s income listed in the Decree’s section pertaining to maintenance, conflicts with the income listed in the section pertaining to child support. In the child support section, the dissolution court stated that Mother received disability benefits from Liberty Mutual Insurance Company in the “gross amount” of $2,080, and that on April 23, 2013, she was awarded disability benefits from the Social Security Administration in the “gross monthly amount” of $1,871. Appellant’s App. at 33. However, Mother explained that her private insurance disability benefits were reduced by the amount she received from Social Security; therefore, her maximum disability benefit for purposes of child support was $2,080 per month or $480 per week. Appellant’s App. at 33.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 11 of 21 without considering Mother’s credit card obligations, utilities, and the cost of
everyday living, [Mother]’s mortgage and car loans alone account for the lion’s
share of her disposable income”; and (5) Father has the regular income and
irregular income with which to satisfy an incapacity maintenance payment of
$400 per month. Appellant’s App. at 53-54.
[17] In his Petition to Modify, Father ignored most of the above considerations and,
instead, focused on the fact that he gained full custody of the children and is
responsible for 100% of their expenses, including extracurricular activities,
school expenses, cell phones, and clothing, as well as 100% of A.P.’s expenses
for her post-secondary education at University of Indianapolis, car payments,
car insurance, and gasoline. Id. at 70-71. In his only statement pertaining to
Mother’s finances, Father maintained that Mother was unemployed and had no
income in 2013, but now has “Social Security Disability payments and is
believed to have other income as well.” Id. at 71.
[18] At the hearing on his Petition to Modify, Father introduced two kinds of
evidence to prove a substantial change—evidence of the increase in the cost of
caring for the children and evidence that his income had changed. Father
argued that, in 2015, he had spent on behalf of the children approximately
$12,000 in “bigger ticket items” such as “health insurance, medical costs, cell
phones, automobile expenses, book rental fees, and the like,” and in only the
first quarter of 2016, he had paid about $7,000. Tr. at 3-4. The 2015 expenses
could be summarized as (1) $424 in interest on A.P.’s loans for post-secondary
education, (2) $2,171 in health-related expenses, (3) $2,183 in sports-related
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 12 of 21 expenses, (4) $4,783 in car-related expenses, (5) $1,500 in cell phone-related
expenses, and (6) $1,121 in expenses for M.P.’s education. Appellant’s App. at
20-21. The 2016 expenses included approximate amounts of $375 for cell
phones, $302 for sports, and $2,248 for car-related expenses. Father also
itemized A.P.’s outstanding college loan amount as $4,200. Id. at 21.
[19] Regarding his income, Father introduced the first page of his last three tax
returns, for years 2013, 2014, and 2015, to prove that his income had actually
decreased since the time of the dissolution. Tr. at 5. Father cited to his
adjusted gross income as follows: $87,850 in 2013, $78,000 in 2014, and
$85,000 in 2015. Id. Father claimed that his income went down in 2014
because he had custody of the children and had to give up his irregular income.
Id. Father also claimed that $4,000 of his 2015 income was a one-time signing
bonus, resulting in 2015 income of $81,000. From this evidence Father claimed
that, considering “the extravagant increase in burden that he ha[d] taken upon
himself that that four hundred dollars [in spousal maintenance] should be
reduced to zero.” Id. at 6. Father introduced no evidence regarding Mother’s
finances.
[20] In its Order for Modification, the trial court found that Mother’s disability
remained. Appellant’s App. at 13. In evaluating whether incapacity
maintenance should be modified, the trial court focused on the change of the
children’s custody from Mother to Father, and the fact that “Father ha[d] been
paying 100% of the daily expenses for the children.” Id. at 14. Also significant
to the trial court was the fact that the child-related expenses “are substantial
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 13 of 21 considering the ages of the children.” Id. The trial court also placed emphasis
on Father’s financial obligations, including: college and school expenses; the
expenses for travel soccer, the expenses for A.P.’s car, insurance, and gas;
extracurricular activity expenses; medical expenses; and the increased costs of
the children’s daily living expenses. Id. Regarding Mother, the trial court
found, “Mother has been ordered to contribute to the payment of expenses for
the children, and she has not done so.” Id. From these factors, the trial court
revoked Father’s obligation to pay the incapacity maintenance, stating,
“[T]here has been such a substantial change in the amount of expenses Father
[was] obligated to pay that are reasonable and necessary in regard to his support
of the minor children, that he is no longer able financially to pay $400.00 per
month to Mother for spousal maintenance.”11 Id. at 14-15.
[21] A spousal maintenance award may be modified or revoked if the trial court
determines that there have been “changed circumstances so substantial and
continuing as to make the terms unreasonable.” Indiana Code § 31-15-7-3(1).
“[W]hen determining whether there has been a substantial change in
circumstances justifying modification of a spousal maintenance award, a trial
court should consider the factors underlying the original award; those factors
include the financial resources of the party seeking to continue maintenance,
11 The trial court revoked Mother’s incapacity maintenance. However, recognizing that Mother had been “relying on the monthly spousal maintenance payments in budgeting for the year,” delayed the effective date of its order, thus requiring Father to continue to make maintenance payments until October 1, 2016. Appellant’s App. at 16.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 14 of 21 the standard of living established in the marriage, and the ability of the spouse
paying maintenance to meet his or her own needs. Banks v. Banks, 980 N.E.2d
423, 427 (Ind. Ct. App. 2012) (citing Mitchell v. Mitchell, 875 N.E.2d 320, 323
(Ind. Ct. App. 2007), trans. denied), trans. denied. “For a modification, it is
enough to show changes are ‘substantial and continuing’ enough to make the
existing award unreasonably excessive or inadequate, and the opportunity
remains open for future modifications. See In re Gertiser, 45 N.E.3d at 368.
However, “because revoking an award means extinguishing it forever, it
necessarily entails proving that the change is so ‘substantial and continuing’ that
the very existence of the award has become unreasonable—not only in the
present, but under any reasonably foreseeable future circumstances as well.” Id.
[22] The trial court revoked Mother’s maintenance award. Accordingly, Mother
argues on appeal that the trial court erred when it terminated her spousal
maintenance upon a finding that the change in circumstances is “so ‘substantial
and continuing’ that the very existence of the award has become unreasonable
not only in the present, but under any reasonable foreseeable circumstances as
well.” Appellant’s Br. at 13 (quoting In re Gertiser, 45 N.E.3d at 368). We agree
with Mother.
[23] Regarding the trial court’s finding of “a substantial change in circumstances,”
Mother contends that the evidence did not support the modification of her
maintenance award. Specifically, Mother offers that, instead, the evidence
supported a finding that the parties’ incomes remained relatively the same. Id.
at 11. In his Petition to Modify, Father argued that Mother’s financial
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 15 of 21 condition had improved because in 2013, when the Decree was entered, Mother
was not employed and had no income, but now Mother receives Social Security
Disability payments. Appellant’s App. at 71. Mother notes that, contrary to
Father’s implication, she was paid Social Security benefits, in the amount of
$1,765 per month, prior to entry of the October 2013 Decree. Id. at 22. In fact,
Mother’s Social Security benefits represented a substantial part of Mother’s
income, which was used to calculate child support payments. Id. at 59. Father
also did not introduce any evidence that Mother had earned “other income”
since the Decree was entered. Id. at 71. Mother argues that her income
decreased subsequent to the Decree because Social Security began deducting
about $61 from her monthly benefit to cover her “Medicare prescription drug
plan costs.” Appellant’s Br. at 9; Appellant’s App. at 23. The evidence before the
trial court supported Mother’s contention that her income had slightly
decreased.
[24] Addressing the issue of whether there was a change in his income, Father
introduced the front page of each of his tax returns for the years 2013, 2014, and
2015, arguing that “his income had actually dropped slightly during that time
frame.” Appellee’s Br. at 13. The tax forms revealed that Father’s annual gross
income in those years, prior to deductions related to spousal maintenance, was
$89,456 in 2013, $83,796 in 2014, and $90,233 in 2015. Appellant’s App. at 17-
19. After subtracting $4,000 from his 2015 income, claiming it was a one-time
signing bonus, Father reported that his 2015 income was $86,233, an income
Father claimed was $3,223 less than his 2013 income. Id. Contrary to Father’s
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 16 of 21 suggestion that 2013 is the key year, we note that any change in Father’s
income must be compared to Father’s 2012 income. It is true that the Decree
was entered in 2013; however, Mother’s maintenance award was calculated
based on Father’s 2012 W-2, which reflected an annual gross income of
$71,990, an amount Father claimed was his “typical” income. Id. at 33. Even
adding $7,718 to that income, the 80% of irregular income that Father was
entitled to under the Decree, Father’s gross income in 2012 would have been
around $79,708. Accordingly, Father’s income tax forms reveal that Father has
made more each year than he did when the dissolution court awarded Mother
incapacity maintenance.12 The evidence did not support a finding that there
was a substantial change in Father’s income to warrant a modification, let alone
a termination.
[25] Mother also contends that the evidence did not support the trial court’s
determination that a substantial change in the amount of “expenses Father is
obligated to pay on behalf of the children” has resulted in Father being
financially unable to pay $400 per month for incapacity maintenance. Mother
claims that an increase in the children’s expenses is irrelevant to the issue of
maintenance because (1) Father’s expenses have been offset by other sources of
money, and (2) the children’s expenses relevant in the instant case do not
impact the maintenance order. As to the first factor, Mother argues that
12 Based on these numbers, Father’s 2012 income increased by $9,748 in 2013, by $4,088 in 2014, and by $10,525 in 2015.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 17 of 21 additional expenses for the children, if any, were offset by changes that
occurred subsequent to the award of maintenance. Mother contends that, in
addition to the increase in Father’s income, Father is no longer obligated, as he
was when maintenance was ordered, to pay child support in the amount of
$203 per week. Appellant’s Br. at 16. As such, Father retains a yearly amount of
approximately $10,556 per year. Id. Mother also contends that, in addition to
not having to pay $10,556, Father received, at the time of the maintenance
modification hearing, $964 per month, or $11,568 per year, in Social Security
payments for the benefit of the children. While the trial court made no findings
that Father’s relative finances had improved, the evidence presented to the trial
court supported a finding that Father was in a financially better position than he
had been at the time the maintenance award was entered.
[26] Mother contends that Father’s claim of changed conditions on the basis of
increased spending for the children is also not supported by the evidence. As
part of the modification of custody from Mother to Father, the parties agreed to
terms of child support, and those terms were reflected in the Agreed Order. The
Agreed Order, in part, provided that the $964 monthly Social Security
payments, or $11,568 per year, paid on behalf of the children, “shall satisfy
Mother’s obligation of support to Father.” Appellant’s App. at 68. The Agreed
Order also set forth that Father was responsible for: (1) the outstanding soccer
bills for M.P., in the amount of $870, plus “100% of the extracurricular costs
from the date of the order forward; and (2) the first $1,280 of uninsured medical
expenses, and thereafter, 75% of the remaining obligations. The Agreed Order
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 18 of 21 did not specifically obligate either parent to pay the children’s expenses related
to post-secondary education, a car, or cell phones, even though the children
were already incurring such expenses.
[27] During the hearing on the Petition to Modify, Father introduced a list of the
children’s expenses for 2015, totaling more than $12,500. Assuming without
deciding that the parents were responsible for paying each of those expenses,
Father’s numbers exaggerate the amount he was paying. At the time of the
dissolution hearing, and before Social Security made payments on behalf of the
children, Father made about 72.7% of the family’s income and Mother made
about 27.3%. The parties’ contributions to child support were calculated using
those percentages. Under that formula, and setting aside any changes made
subsequent to the Decree, Father could have already been responsible for 72.7%
of the $12,500. The annual $11,568 Social Security payment that Mother gave
Father to satisfy her child support obligation would have more than satisfied
Mother’s share.
[28] Finally, Mother argues that Father’s payment of the children’s expenses,
regardless of the amount, is not relevant to the question of whether incapacity
maintenance should be modified. Appellant’s Br. at 8. We agree. Here, the
dissolution court did not link custody or the calculation of child support to the
award of incapacity maintenance. In fact, the Decree separated the issues into
two sections; addressing the issue of child support in section IV and addressing
the issue of maintenance in section VIII. As Mother notes, the Decree did not
tie the modification or revocation of incapacity maintenance to any stage of the
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 19 of 21 children’s lives, such as starting college or becoming emancipated. Id. at 9.
Instead, the dissolution court stated:
The [maintenance] obligation shall terminate upon the death of either party and is modifiable according to law. The Wife shall notify the Husband if she is found not to be disabled by the Social Security Administration upon future review . . . . Said maintenance shall terminate at the time [Wife] begins receiving distributions from [Husband’s] Defined Benefit Plan discussed previously.
Appellant’s App. at 54. The “defined benefit plan [was] valued on the premise of
a normal retirement option,” i.e., when Father turned 65 years old. Id. at 51.
At the time that the incapacity maintenance was awarded, Father was
approximately 43 years old, and Mother was approximately 48 years old. Id.
Accordingly, this language reflected the dissolution court’s determination that
the incapacity maintenance would be paid to Mother for an extended period of
time, regardless of child support payments, and as long as Mother remained
incapacitated and in financial need.
[29] Here, the trial court made no detailed calculations about either party’s finances.
Instead, it found in general terms that there had been a “substantial change in
circumstances,” since the award of spousal maintenance, which made the
maintenance “no longer reasonable,” and warranted its termination. Id. at 13.
We agree with Mother that the evidence presented to the trial court did not
meet the “daunting” standard requiring “that the very existence of the award
has become unreasonable—not only in the present, but under any reasonably
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 20 of 21 foreseeable future circumstances as well.” Id. at 11, 12 (citing In re Gertiser, 45
N.E.3d at 368). Accordingly, we reverse the trial court’s Order for
Modification, and we remand with instructions that the incapacity maintenance
order remains in place.
[30] Reversed and remanded with instructions.
Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A04-1606-DR-1461 | April 5, 2017 Page 21 of 21