Reta M. Hollowell v. Donald Hollowell (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 49A02-1605-DR-985
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2017, 6:29 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 Norman L. Reed Maria Matters The Law Office of Norman Reed Maria Matters Attorney at Law Indianapolis, Indiana LLC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Reta M. Hollowell, February 28, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A02-1605-DR-985 v. Appeal from the Marion Superior Court Donald Hollowell, The Honorable Christopher Haile, Appellee-Respondent. Magistrate Trial Court Cause No. 49D11-1504-DR-12821

Pyle, Judge.

Statement of the Case [1] Reta Hollowell (“Wife”) appeals the trial court’s denial of her motion to correct

error filed with respect to a dissolution decree that ordered Donald Hollowell

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 1 of 10 (“Husband”) to pay her $500.00 per month in incapacity maintenance and

equally divided the parties’ property. Concluding that the trial court did not

abuse its discretion in determining the amount of incapacity maintenance or in

dividing the parties’ marital property, we affirm the trial court’s judgment.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion in determining the amount of incapacity maintenance it ordered Husband to pay Wife; and

2. Whether the trial court abused its discretion in equally dividing the parties’ property.

Facts [3] Husband and Wife were married in June 1973. They are the parents of two

adult children. Wife became disabled in 1979 as the result of a back injury and

began receiving Social Security disability benefits. Husband is a financial

analyst for Defense Financing and Accounting Service.

[4] Wife filed a petition for dissolution in April 2015. Testimony at the November

2015 dissolution hearing revealed that sixty-three-year-old Wife received $8,684

per year in Social Security disability benefits, and sixty-four-year-old Husband

earned $82,524 per year. The parties owned a house, and each party owned a

car. They agreed on the items to be included in the marital pot.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 2 of 10 [5] During the hearing, Wife asked the trial court to award her the marital

residence, her car, and the parties’ three dogs. She never argued that she should

receive more than the fifty percent of the marital pot. Instead, she asked the

trial court to “divide the [home] equity equally.” (Tr. 9). Wife also asked the

trial court to order Husband to pay her $500.00 per week in spousal

maintenance.

[6] Husband testified that Wife was not capable of maintaining the house and the

large lot. He also explained that the house was currently financed through a

Veteran’s Administration loan that was in his name. He did not believe that

Wife would be able to secure a new loan on the house. Husband further

testified that the two youngest dogs belonged to him and that all three dogs

were too much for Wife to currently handle. He asked the trial court to award

him the house, the two youngest dogs, and his vehicle. Husband also offered to

pay Wife $500.00 per month in spousal maintenance.

[7] At the end of the hearing, Husband asked the trial court if it wanted the parties

to submit proposed orders. The trial court responded that it did not. In

January 2016, the trial court issued an order, finding that Wife was disabled

and ordering Husband to pay her $500.00 per month in spousal maintenance.

The trial court also concluded that the statutory presumption of an equal

division of property had not been rebutted, and it awarded each party an equal

division of the joint property. Husband was awarded the house and the two

youngest dogs, and the trial court equalized the property division by awarding

Wife a $34,628.00 distribution from Husband’s deferred compensation account.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 3 of 10 [8] Wife filed a Motion to Correct Error wherein she accused Husband and the trial

court of a possible ex parte communication and violation of the Indiana Rules

of Professional Conduct. Specifically, Wife alleged that Husband’s counsel had

tendered a proposed order to the trial court and had not provided her with a

copy of this order. Wife further alleged that the trial court had ultimately

approved Husband’s tendered order without any revisions. Wife alleged that

the trial court “simply trusted opposing counsel to divide the assets properly,

and rubber stamped [Husband’s] proposed decree unintentionally.” (App. 19).

Wife further argued that the trial court should have ordered Husband to pay her

$500.00 per week, rather than $500.00 per month, in spousal maintenance and

awarded her more than fifty percent of the marital estate.

[9] In a motion in opposition to Wife’s motion, Husband’s counsel stated she had

not submitted a proposed order to the trial court and argued that Wife’s

“reckless disregard for the truth in pleadings [was] subject to Rule 11 sanctions .

. . .” (App. 14). At the March 2016 hearing on her motion, Wife apologized

for her allegations of misconduct. She explained that “[i]t just appeared as

though . . . virtually everything [H]usband [had] asked for he [had] received. . .

. The Court gave . . . the dogs to husband. . . . [Wife] asked for $500.00 a

week [in maintenance]. He asked for $500.00 a month. The Court gave

$500.00 a month. . . .” (Tr. 56-57). In response, the trial court explained as

follows regarding its decision to award Wife $500.00 per month in spousal

maintenance and to equally divide the parties’ property:

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 4 of 10 I looked at the entire record, okay? I listened to the hearing. I went back and listened to the hearing. I looked at my notes. I looked at everything in the record in this Court in making this decision. I get that [Wife] isn’t happy with the decision, but, you know, I’m looking for you to point me to an error that the Court made in making some valuation or some decision other than the fact that you don’t like the way things were divided or you don’t like the amount of maintenance.

(Tr. 61). Following the hearing, the trial court issued an order accepting Wife’s

apology, declining to order sanctions against Wife’s counsel that would have

been warranted under Rule 11 of the Indiana Rules of Trial Procedure, and

denying Wife’s motion to correct error. Wife now appeals.

Decision [10] Wife appeals the trial court’s denial of her motion to correct error. Our

standard of review in such cases is well-established. We review a trial court’s

ruling on a motion to correct error for an abuse of discretion. Old Utica School

Preservation, Inc. v. Utica Tp., 7 N.E.3d 327, 330 (Ind. Ct. App. 2014), trans.

denied.

1. Incapacity Maintenance

[11] Wife first argues that the trial court erred in awarding her $500.00 per month in

spousal maintenance. She specifically contends that the “amount of spousal

maintenance is excessively low and constitutes an abuse of discretion.”

(Appellant’s Br. 13).

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 5 of 10 [12] The trial court has broad discretion to make an award of spousal maintenance,

and we will reverse only upon an abuse of that discretion. Bizik v. Bizik, 753

N.E.2d 762, 768-69 (Ind. Ct. App. 2001), trans. denied. Discretion is a privilege

afforded a trial court to act in accord with what is fair and equitable under the

facts of each case. Pala v. Loubser, 943 N.E.2d 400, 405 (Ind. Ct. App. 2011),

trans. denied. We will find an abuse of discretion only where 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 to be drawn

therefrom. Id. In determining whether a trial court abused its discretion in a

spousal maintenance determination, this Court will presume that the trial court

properly followed the applicable statutory factors in reaching its decision. Bizik,

753 N.E.2d at 769. The presumption that the trial court correctly applied the law

in making an award of spousal maintenance is one of the strongest presumptions

applicable to the consideration of a case on appeal. Id.

[13] A court may order spousal maintenance under INDIANA CODE § 31-15-7-2 in

three circumstances: (1) incapacity maintenance for a spouse who cannot

support himself or herself; (2) rehabilitative maintenance for a spouse who needs

additional education or training before seeking a job; and (3) caregiver

maintenance for a spouse who must care for an incapacitated child. Balicki v.

Balicki, 837 N.E.2d 532, 542 (Ind. Ct. App. 2005), trans. denied. At issue in this

appeal is incapacity maintenance.

[14] INDIANA CODE § 31-15-7-2(1) governs incapacity maintenance and provides that

“[i]f the court finds a spouse to be physically or mentally incapacitated to the

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 6 of 10 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.” 1

However, even if a trial court finds that a spouse’s incapacity materially affects

her self-supportive ability, a maintenance award is not mandatory. Bizik, 753

N.E.2d at 769.

[15] Here, after viewing the parties’ courtroom demeanor and hearing their

testimony, the trial court determined that Wife was disabled. Although this

determination did not require the court to award Wife spousal maintenance, see

Bizik, 753 N.E.2d at 769, the court nevertheless ordered Husband to pay Wife

$500.00 per month. Wife challenges the amount of maintenance awarded but

fails to show how it constituted an abuse of discretion. Our review of the facts

in this case reveal that the trial court’s decision is not clearly against the logic

and effect of the facts and circumstances before it, or the reasonable, probable,

and actual deductions to be drawn therefrom. The trial court did not abuse its

discretion in awarding Wife $500.00 per month in spousal maintenance.2

1 Wife mistakenly directs us to INDIANA CODE. § 31-15-7-2(3), which governs rehabilitative maintenance rather than incapacity maintenance. Specifically, the statute provides that a “court may find that rehabilitative 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.” 2 Despite Wife’s claim to the contrary, Pham v. Pham, 650 N.E.2d 1212 (Ind. Ct. App. 1995), simply does not state that there is a presumption that spousal maintenance should be 35% of the payor’s weekly adjusted gross income. Rather, Pham holds only that “an award of spousal maintenance requiring Husband to pay Wife virtually all of his earnings [is] unreasonable.” Pham, 650 N.E.2d at 1214.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 7 of 10 2. Property Division

[16] Wife also argues that the trial court erred in equally dividing the parties’

property. We note, however, that Wife did not ask the trial court to deviate

from the statutory presumption and award her more than 50% of the marital

property at the dissolution hearing. Rather, she did not raise this issue until she

filed her motion to correct error. A party cannot raise a previously available

issue for the first time in a motion to correct error. Yater v. Hancock Cty. Bd. of

Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997). Failure to raise errors that

existed at trial may not be remedied in a post-trial motion to correct error or on

appeal. Id. The issue is therefore waived. See id.

[17] Waiver notwithstanding, we find no error. The division of marital assets is a

matter within the sound discretion of the trial court. Harris v. Harris, 42 N.E.3d

1010, 1017 (Ind. Ct. App. 2015). By statute, the trial court must divide the

property of the parties in a just and reasonable manner, and that includes

property owned by either spouse prior to the marriage, acquired by either

spouse after the marriage and prior to the final separation of the parties, or

acquired by their joint efforts. Id. (citing IND. CODE § 31-15-7-4(A)). There is a

statutory presumption that an equal division of property between the parties is

just and reasonable. Id. (citing I.C. § 31-15-7-5). Specifically, INDIANA CODE §

31-15-7-5 provides:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 8 of 10 relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the parties.

[18] A party seeking to rebut the presumption of an equal division of marital

property bears the burden in so doing. Harris, 42 N.E.3d at 1017. The party

challenging a trial court’s division of marital property must overcome a strong

presumption that the court considered and complied with the applicable statute.

Id. This presumption is one of the strongest presumptions applicable to our

consideration on appeal. Id. Although the facts and reasonable inferences

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 9 of 10 might allow for a different conclusion, we will not substitute our judgment for

that of the trial court. Id.

[19] Here, our review of the evidence reveals that the only mention of property

division at the dissolution hearing was when Wife asked the trial court to

“divide the [home] equity equally.” (Tr. 9). Based her lack of evidence and

arguments at the dissolution hearing, Wife has failed to overcome the strong

presumption that the trial court properly divided the marital estate.

Accordingly, the trial court did not abuse its discretion in equally dividing the

parties’ property, and we find no error.

[20] Affirmed.

Baker, J., and Mathias, J. concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-985 | February 28, 2017 Page 10 of 10