Kevin Gertiser v. Anne Stokes f/k/a Gertiser

45 N.E.3d 363, 2015 Ind. LEXIS 955, 2015 WL 6941124
CourtIndiana Supreme Court
DecidedNovember 10, 2015
Docket29S02-1511-DR-643
StatusPublished
Cited by17 cases

This text of 45 N.E.3d 363 (Kevin Gertiser v. Anne Stokes f/k/a Gertiser) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kevin Gertiser v. Anne Stokes f/k/a Gertiser, 45 N.E.3d 363, 2015 Ind. LEXIS 955, 2015 WL 6941124 (Ind. 2015).

Opinion

RUSH, Chief Justice.

A trial court may modify or revoke a spousal maintenance award under Indiana Code section 31-15-7-3(1) if it determines that there have been “changed circumstances so substantial and continuing as to make the terms unreasonable.” In making that determination, the trial court has *365 broad discretion in weighing evidence of the parties’ financial circumstances. Here, the trial court concluded that the disabled former wife’s remarriage had changed her finances, but not substantially enough 'to warrant revoking maintenance. The Court of Appeals reversed, concluding that the trial court had disregarded undisputed evidence that her total marital assets had substantially increased.

We disagree. Even though the change in the former wife’s finances" could appear substantial at first blush, the evidence in the light favorable to the judgment" supports the trial court’s findings, and those findings support its refusal to revoke maintenance.' And because we affirm the trial court as to maintenance, we also affirm its award of attorney fees in the former wife’s favor.

Facts and Procedural History

After twenty-five years of marriage, Kevin Gertiser and Anne 1 Gertiser (now Stokes) divorced in 2007. They have both remarried.

At the time of their divorce, the court ordered Kevin to pay Anne. incapacity maintenance of $1,182.50 .per month, finding that her legal blindness materially affected her ability to support herself:

[Anne] suffers from severe myopia, optic nerve degeneration and macular degeneration. While the myopia is a longstanding (although progressively worsening) condition, she- was .first diagnosed with optic nerve degeneration and macular degeneration beginning approximately 1998. In 1998, [Anne] experienced a retinal tear. Since then her eyesight has degenerated to the point at which she is effectively blind: She is able to do some reading, with material held an inch or two from her face.' She moves about with the assistance of a lead dog, Dina. She is unable to drive and relies on the assistance of friends, and the bus, for transportation. [Anne] is incapacitated to the extent that her ability to support- herself is materially affected.

Anne’s income at the time was under $10,000 per year in Social Security Disability benefits and under $1,000 of annual earnings from part-time medical transcription work from home, while Kevin made about $144,000 per year. The maintenance award was affirmed on appeal. Ger-tiser v. Gertiser (“Gertiser I ”), No. 29A02-0712-CV-1069, 2008 WL 3866854 (Ind.Ct. App. Aug. 21,2008), trans. denied.

About a month after Anne remarried, the CCS shows that Kevin filed a “Motion to Modify Spousal Maintenance.” 2 At the hearing on that motion, Kevin argued that maintenance should be revoked entirely- — alleging that-Anne’s remarriage *366 created a substantial and continuing change in her financial condition that made any further maintenance unreasonable, because Anne’s husband Paul brought substantial assets and income into the marriage and has a statutory duty to support her. He also argued that Anne was capable of working in medical transcription or phone-based customer service “with updated skills and re-training” and assistive technology. ,

After a. hearing, the trial' court issued findings of fact and conclusions of law— determining that there had been no “substantial and continuing change in circumstances making the award of spousal maintenance unreasonable” and that Anne’s “ability to support herself’ remains “materially affected.” It reasoned that its original maintenance award did not depend on Anne being “totally incapable of working,” and that neither her disability nor earning potential had improved since then. It also found that Kevin’s income had increased since the divorce while Anne’s “minimal” income was unchanged, and that despite her remarriage, the “only significant change to her financial situation ... is that she no longer has to borrow money from her father each month to pay her mortgage.” The court acknowledged Paul’s “statutory duty to support his wife,” but also that under Indiana law, a disabled spouse’s “[r]emarriage ... alone is not sufficient to establish a substantial change of circumstances” to warrant modification. It therefore denied Kevin’s petition and ordered, him to pay $7,000 of Anne’s attorney fees.

Kevin appealed, and the Court of Appeals reversed. In re Marriage of Gertiser (“Gertiser II”), 24 N.E.3d 521 (Ind.Ct.App.2015), trans. granted, vacated. The Court of Appeals agreed with Anne that “spousal maintenance is not automatically terminated upon her remarriage,” id. at 523-24 (citing Roberts v. Roberts, 644 N.E.2d 173 (Ind.Ct.App.1994)), but under these circumstances agreed with Kevin that Anne’s “marriage to a man of significant means amounts to a substantial change in her ability to support herself.” Id. at 524. It therefore concluded:

Although the. trial court is correct that Anne’s ability to earn income has not changed, the court abused its discretion by denying Kevin’s petition to terminate spousal maintenance because it did not consider the substantial income and assets now available to Anne pursuant to her marriage to Paul. Accordingly, the trial court should have terminated the spousal maintenance.

Id. at 524. It further ordered the termination to be retroactive to the date Kevin filed his petition. Id. at 525. Finally, it reversed the attorney-fee award in Anne’s favor because “[a]s noted above, when including all resources available to Anne, no ... disparity exists [between her financial resources and Kevin’s]. Rather, Anne has more resources available to pay attorney fees than does Kevin.” Id. at 525.

We held oral argument on Anne’s petition to transfer and now grant transfer by separate order issued together with this opinion. We recognize this record could have supported Kevin’s position, if the trial court had accepted it. But there is also ample evidence to support the contrary view reflected in the trial court’s findings — and those findings support the refusal to revoke maintenance. We therefore affirm.

Discussion

I. Indiana Courts May Revoke Incapacity Maintenance for Recipients Whose Ability to Support Themselves Is No Longer Materially Affected — Even if They Are Still Disabled.

We begin with the threshold question Arme presents on toansfer: Whether a *367 court may revoke incapacity maintenance for recipients who remain incapacitated, but have a substantial and continuing change in their financial circumstances. She argues that unless a recipient is no longer disabled, a change in circumstances warrants only modifying maintenance, while permanently revoking it is warranted only for recipients who are no longer incapacitated to the extent that their ability to support themselves is materially affected.

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Cite This Page — Counsel Stack

Bluebook (online)
45 N.E.3d 363, 2015 Ind. LEXIS 955, 2015 WL 6941124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kevin-gertiser-v-anne-stokes-fka-gertiser-ind-2015.