Reta M. Hollowell v. Donald Hollowell (mem. dec.) ( 2017 )

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
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(“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.
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[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.
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[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:
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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).
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[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
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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.
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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
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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
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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.
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