Thomas Avery v. Laura Mae Avery (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 23, 2018
• Docket: 71A04-1712-DR-2960
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 23 2018, 5:45 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT Jonathan A. Watson Rachel J. Luken Anderson, Agostino & Keller, P.C. South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Avery, July 23, 2018 Appellant-Respondent, Court of Appeals Case No. 71A04-1712-DR-2960 v. Appeal from the St. Joseph Circuit Court Laura Mae Avery, The Honorable John Broden, Appellee-Petitioner. Judge The Honorable William Wilson, Magistrate Trial Court Cause No. 71C01-1503-DR-241

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 1 of 12 Case Summary and Issue [1] In the midst of a dissolution proceeding, Laura Mae Avery alleged financial

distress and requested a provisional order for temporary spousal maintenance

from Thomas Avery. The trial court granted the motion and ordered Thomas

to pay $500 per month to Laura. Thomas appeals, raising several issues we

have consolidated as one: whether the trial court abused its discretion in

making the provisional order. Concluding the trial court abused its discretion

in ordering Thomas to pay Laura $500 per month, we reverse.

Facts and Procedural History [2] Thomas and Laura Mae were separated in 1998, but Laura did not file for

dissolution of the marriage until March 2015. It appears no provisional orders

were made at the outset. Laura suffered a series of strokes in November 2016

and was out of work for some time. She returned to work for twelve hours per

week in March 2017 and was able to increase her hours to twenty per week in

September 2017. During this time, she also received Social Security benefits

and used her IRA to supplement her income.

[3] The parties appeared for a pre-trial conference on September 5, 2017, at which

time a bench trial was scheduled for December 6, 2017. On September 13,

2017, Laura filed a Motion for Provisional Order, alleging:

1. That this matter has been pending for 2 years and 5 months.

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 2 of 12 2. That [Laura] is merely requesting a division of [Thomas’] pension.

3. That [Thomas] has continued to receive his pension since the date this matter has been filed and [Laura] is under financial distress after recently having a stroke and having to access her nominal retirement funds to survive.

4. [Laura] would request that the Court grant her 50% of [Thomas’] pension while this matter is still pending or [in] the alternative, a reasonable amount of temporary spousal maintenance.

Appellant’s Appendix, Volume 2 at 19. The trial court held a hearing on

Laura’s motion on October 12, 2017. Laura’s attorney asserted that Thomas’

income, including both Social Security benefits and retirement benefits, was

$2,811.00 per month and that Laura’s income was $1,456.00 per month: “If

you apply the, I guess, strict spousal maintenance guidelines, if you will, with

those numbers, I think [Thomas] would owe approximately $235.00 per month

to [Laura].” Transcript, Volume 2 at 6. Alternatively, Laura’s attorney posited

she would be entitled to fifty percent of Thomas’ retirement benefit since the

date of filing forty-one months before. Conservatively, he estimated Laura

would be entitled to $4,357.36 from Thomas’ retirement benefit. “So I guess

one way or another [Thomas] should pay [Laura] a minimum of $235.00 per

month, maybe $400.00 per month to make up in ten months [sic] time or so the

$4,300.00 that I would say [Laura] is owed at a minimum.” Id. at 7. Thomas’

attorney asserted his monthly expenses exceed his income and, with respect to

Laura’s illness, “it seems the urgency has passed for spousal maintenance” as Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 3 of 12 her “medical progress has been good” and she’s been able to increase her work

hours. Id. at 9-10. The trial court asked both sides to submit affidavits detailing

their income from all sources and their expenses for each month, and took the

matter under advisement.

[4] Laura’s affidavit showed monthly income of $1,456 from Social Security and

her employment, and monthly expenses of $1,673 from twelve categories of

expenses, such as rent, car payment, insurance, utilities, groceries, and

contributions to her church. Thomas’ affidavit showed monthly income of

$2,706 from Social Security and his pension, and average monthly expenses of

$3,795.84 from sixty-seven categories of expenses, including clothing, attorney

fees, charitable donations to several organizations, and home repairs. The trial

court then issued the following order:

[Laura’s] monthly income is reported to be $1,456. Her monthly expenses are reported to be $1,673. As a result, each month she is $217 in the red. [Thomas’] monthly income is reported to be $2,706. The Court determines that [Thomas’] monthly expenses are $1,808. Thus, [Thomas] has a monthly surplus of $898.

In order to assist [Laura] with her ongoing expenses each month, [Thomas] is ordered to pay to [Laura] the sum of $500 per month beginning December 1, 2017. The issue of retroactivity is deferred. These payments may be, but are not guaranteed to be, treated as distributions of the marital estate.

Appellant’s App., Vol. 2 at 10-11 (footnote omitted). The trial court explained

that although it did not believe Thomas was “artificially inflating his monthly

expenses,” it disregarded some expenses: Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 4 of 12 Some of the expenses (such as donations to charitable organizations) are commendable, but they will not be counted among the necessary expenses. Other expenses (such as the cost of construction at [Thomas’] residence) are more properly considered as part of an annual expense but not an actual required monthly expense.

Id. at 10-11 at n.1. After the order was entered, the December trial date was

continued. Thomas now appeals.

Discussion and Decision I. Standard of Review [5] We begin by noting that Laura has not filed a brief. When an appellee fails to

submit a brief, we do not undertake the burden of developing arguments for the

appellee. Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015), trans.

denied. Instead, we apply a less stringent standard of review and may reverse

the trial court if the appellant establishes prima facie error. Id. In this context,

prima facie error means “at first sight, on first appearance, or on the face of it.”

Id.

[6] A trial court has broad discretion in issuing provisional orders for temporary

maintenance or support. Mosley v. Mosley, 906 N.E.2d 928, 930 (Ind. Ct. App.

2009); see Ind. Code § 31-15-4-8(a) (“The court may issue an order for

temporary maintenance or support in such amounts and on such terms that are

just and proper.”). A provisional order is temporary in nature. Ind. Code § 31-

15-4-14 (stating such an order “terminates when . . . the final decree is

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 5 of 12 entered”). Thus, we give great deference to the trial court’s decision in

provisional matters because it is making a preliminary determination on the

basis of information that is not yet fully developed. Mosley, 906 N.E.2d at 930.

II. Provisional Order of Maintenance [7] A provisional order, in place only during the pendency of the proceedings, is

designed to preserve the status quo. Priore v. Priore, 65 N.E.3d 1065, 1074 (Ind.

Ct. App. 2016), trans. denied. In a typical dissolution scenario, the parties have

been living together and sharing resources and expenses until very near the date

of separation. Maintaining the status quo in such a situation may require one

party to pay temporary maintenance to the other until the parties’ marital estate

is fully known and finally distributed even when spousal maintenance after the

dissolution would not be appropriate. See, e.g., Mosley, 906 N.E.2d at 929-30

(affirming provisional order that wife retain possession of marital residence and

husband be responsible for one-half of mortgage obligation; parties were

married in 2000, separated in September 2008, and provisional order was

entered in November 2008). Here, however, Thomas and Laura separated in

1998, although Laura did not file for dissolution until 2015, and she did not

request a provisional order until 2017.

[8] The record is sparse and does not disclose how long Thomas and Laura had

been married prior to separating, let alone reveal how they handled their

financial arrangements before or since. The record does reveal that Laura

“delayed asking for help . . . because she was using a marital asset, her IRA, to

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 6 of 12 supplement her income,” but the IRA is now closed. Tr., Vol. 2 at 10. In

addition, the parties’ affidavits reveal no shared expenses. From this limited

information, it appears the parties were financially independent of one another.

It is unfortunate that Laura suffered a health crisis that impacted her ability to

work and regrettable that she had to use an asset such as her IRA to supplement

her income. But the status quo appears to be that Thomas and Laura were each

handling their own incomes and expenses without contribution from the other

for a significant period of time. Rather than preserving the status quo pending a

final determination, the trial court’s provisional order upends the stasis that has

prevailed between the parties for many years.

[9] Again, the issuance of a provisional order for maintenance is within the trial

court’s discretion, and we will reverse only when the decision is clearly against

the logic and effect of the facts and circumstances before the court. See Mosley,

906 N.E.2d at 930. Here, the trial court ordered Thomas to pay Laura $500 per

month “in order to assist [her] with her ongoing expenses each month.”

Appellant’s App., Vol. 2 at 11. An order of temporary maintenance may have

been “just and proper” in order to help alleviate Laura’s financial distress until

the parties’ property could be finally distributed. However, the trial court did

not attempt to preserve, as closely as possible, the status quo between the

parties in issuing its order. Instead, the trial court over-compensated Laura at

Thomas’ expense, first by disregarding some of the expenses Thomas affirmed

were true and accurate, and then by ordering Thomas to pay Laura more than

twice her monthly shortfall.

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 7 of 12 [10] As we have already stated and as the dissent points out, the record here is

sparse. But it was Laura’s burden as the proponent of the motion to prove that

a provisional order in a given amount would be “just and proper” under the

circumstances. What is in the record shows the parties have been long-

separated, and it appears they also have been long-self-supporting. What is not

in the record is any evidence that Thomas provided support to Laura during

their lengthy separation or that Laura requested support from him or pursued

other avenues such as disability payments prior to seeking this provisional

order. Both parties appear to be in terrible financial straits. Although we might

have affirmed an order awarding a smaller sum more commensurate with the

parties’ situations, Thomas has met his prima facie burden of showing on

appeal that the trial court’s order that he pay Laura $500 per month is against

the logic and effect of the facts and circumstances in this case.

[11] This conclusion, however, does present a conundrum: what relief can we

provide under the circumstances of this case? Given the parties’ relative

economic circumstances, we cannot rectify the damage done – Thomas may

have been unable to meet his expenses in order to satisfy the trial court’s order

these past six months, and Laura’s precarious financial situation would not

allow repayment of sums ordered in error. Unfortunately, we can provide only

prospective relief in the form of reversing the trial court’s order and ending

Thomas’ obligation to make further payments. We also direct the trial court’s

attention to the fact that any disparity or inequity in a provisional order can and

should be adjusted in the trial court’s final order. Mosley, 906 N.E.2d at 930.

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 8 of 12 Conclusion [12] The trial court erred in provisionally ordering Thomas to pay $500 per month to

Laura. The order of the court is reversed.

[13] Reversed.

Najam, J., concurs.

Altice, J., dissents with opinion.

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 9 of 12 IN THE COURT OF APPEALS OF INDIANA

Thomas Avery, Court of Appeals Case No. 71A04-1712-DR-2960 Appellant-Respondent,

v.

Laura Mae Avery, Appellee-Petitioner.

Altice, Judge, dissenting.

[14] I cannot agree that the trial court abused its broad discretion by granting

temporary maintenance to Laura. The barren record before us does not

establish how long the parties were married before their physical separation in

1998 or why there was a delay of nearly seventeen years before either party filed

for dissolution. More importantly, there is no indication of the parties’

financial situations during the marriage or the years of separation. All that can

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 10 of 12 be gleaned from the record is that the parties appeared to be financially

independent of one another at least during the dissolution proceedings, which

commenced in March 2015.

[15] While the proceedings dragged on, Laura suffered catastrophic medical issues

beginning in November 2016. This left her unable to work for many months

and then only able to work part-time, requiring her to supplement her income

with a marital asset – her IRA – to meet monthly expenses. In September 2017,

Laura filed a request for temporary maintenance after her IRA had been

depleted and she could no longer meet her monthly expenses.

[16] The status quo at the time the dissolution petition was filed might well have

been that the parties were independently handling their own income and

expenses. Laura’s ability to do so, however, was drastically and unexpectedly

altered during the lengthy dissolution proceedings. In other words, the status

quo shifted.

[17] Ind. Code § 31-15-4-8(a) grants trial courts the discretion to issue an order for

temporary maintenance “in such amounts and on such terms that are just and

proper.” In my opinion, an award of temporary maintenance was clearly “just

and proper” under the circumstances presented.

[18] Moreover, with respect to the amount of the payments, Thomas argues only

that the trial court abused its discretion in determining the parties’ monthly

expenses, not that the award should be limited by Laura’s shortfall.

Specifically, Thomas noted that the trial court allowed Laura’s contribution of

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 11 of 12 $120 to her church, yet denied his claimed charitable expenses of $80 per

month. Thomas vaguely labeled this monthly expense as “Veterans

groups/law enforcement org/misc org/foundations/charities/horse rescue”.

Appendix at 13. While the trial court treated the parties’ purported charitable

expenses differently, I believe this was within the trial court’s discretion.1

1 The majority states that the trial court over-compensated Laura, in part, by disregarding some of the expenses Thomas affirmed were true and accurate. The trial court, however, was not obligated to accept all of Thomas’s claimed expenses, which totaled nearly $3800 (more than twice Laura’s) and, in addition to basic expenses, included debt (credit card payments and attorney fees totaling over $700 per month), structural work on his house ($600 per month), and nominal expenses such as Netflix, Amazon Prime, books/magazines, fitness, cookware, bath linens/non-slip safety mats, and entertainment.

Court of Appeals of Indiana | Memorandum Decision 71A04-1712-DR-2960 | July 23, 2018 Page 12 of 12