In Re: The Marriage of Mikiko Hige v. Christopher L. Glick ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
Jan 31 2014, 9:11 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
BRYAN LEE CIYOU DANIEL J. MOORE
LORI B. SCHMELTZER Laszynski & Moore
Ciyou & Dixon, P.C. Lafayette, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF, )
)
MIKIKO HIGE, )
)
Appellant-Petitioner, )
)
vs. ) No. 79A02-1303-DR-274
)
CHRISTOPHER L. GLICK, )
)
Appellee-Respondent. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1107-DR-135
January 31, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Mikiko Hige appeals the trial court’s dissolution of her marriage to Christopher
Glick. We affirm.
Issues
Hige raises three issues, which we restate as:
I. whether the trial court abused its discretion in denying
her motions to continue the final hearing;
II. whether the trial court abused its discretion in denying
her request for rehabilitative maintenance; and
III. whether the trial court abused its discretion in dividing
the marital estate.
Facts
Hige and Glick met at Indiana University, where Hige was earning a master’s
degree in foreign language education. They married in 1994. The couple thereafter lived
in Japan, where Glick, who has a bachelor’s degree in geography and a master’s degree
in linguistics, worked as a tenured professor teaching English. Hige did not work during
the marriage. The couple did not have any children.
The couple separated in 2010, and Glick moved back to the United States, where
he worked odd jobs until he enrolled in college to earn a degree in chemical engineering.
Hige eventually returned to the United States and enrolled in classes to earn a master’s
degree in library science. Hige was enrolled part-time because she was suffering from
mental health issues. Both parties were living from assets accrued during the marriage.
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Although Glick initially filed for divorce in Japan, he decided to file for
dissolution in Indiana upon learning that the proceedings would take four to seven years
in Japan and that he would have to pay $3,500 a month in spousal support while the
matter was pending. Glick petitioned for dissolution in Indiana in July 2011. In January
and April 2012, Hige requested and was granted continuances of the final hearing. In
August 2012, Hige changed attorneys and moved for a continuance, which was granted.
On August 24, 2012, the trial court issued an order dissolving the marriage and leaving
the distribution of marital property unresolved. On September 21, 2012, Hige filed
another motion to continue the final hearing, which the trial court denied. On September
24, 2012, an evidentiary hearing was conducted. The hearing was not completed and was
rescheduled for November 8, 2012. On October 19, 2012, Hige moved to continue the
hearing, and it was rescheduled for December 10, 2012. On December 5, 2012, Hige
filed another motion to continue, which the trial court denied.
On December 10, 2012, the evidentiary hearing was concluded. On February 25,
2013, the trial court issued an order rejecting Hige’s request for rehabilitative
maintenance and awarding her approximately 52% of the marital estate. She now
appeals.
Analysis
The trial court entered its findings and conclusions sua sponte. Under the
circumstances, special findings entered by the trial court sua sponte control only as to the
issues they cover. Harrison v. Thomas, 761 N.E.2d 816, 819 (Ind. 2002). “As to issues
on which the trial court has not made findings, or on which the findings are inadequate,
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we treat the judgment as a general one and we examine the record and affirm the
judgment if it can be sustained upon any legal theory the evidence supports.” Id. As to
the findings the trial court did make, we first must determine whether the evidence
supports the findings and then whether those findings support the trial court’s
conclusions. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Findings will only
be set aside if they are clearly erroneous, which occurs only when the record contains no
facts to support them either directly or by inference or if the trial court applies the wrong
legal standard to properly found facts. Id. “In order to determine that a finding or
conclusion is clearly erroneous, an appellate court’s review of the evidence must leave it
with the firm conviction that a mistake has been made.” Id.We neither reweigh the evidence nor reassess witness credibility, and we view the
evidence most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).
“Appellate deference to the determinations of our trial court judges, especially in
domestic relations matters, is warranted because of their unique, direct interactions with
the parties face-to-face, often over an extended period of time.” Id.I. Continuances
Hige argues that the trial court abused its discretion by denying her September 21,
2012 and December 5, 2012 motions to continue. Pursuant to Indiana Trial Rule 53.5,
“trial may be postponed or continued in the discretion of the court, and shall be allowed
upon a showing of good cause established by affidavit or other evidence.” “A trial
court’s decision to grant or deny a motion to continue a trial date is reviewed for an abuse
of discretion, and there is a strong presumption the trial court properly exercised its
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discretion.” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009). “A denial of a
motion for continuance is abuse of discretion only if the movant demonstrates good cause
for granting it.” Id. “However, no abuse of discretion will be found when the moving
party has not demonstrated that he or she was prejudiced by the denial . . . .” Troyer v.
Troyer, 867 N.E.2d 216, 219 (Ind. Ct. App. 2007).
A. September 21, 2012 Motion
In her September 21, 2012 motion, Hige argued that Glick had not provided
information she requested about bank accounts, recent employment, and savings bonds
and suggested that it would be necessary to obtain the information from third parties.
After a telephone conference,1 the trial court denied Hige’s motion. At the beginning of
the September 24, 2012 hearing, the trial court explained that, as discussed at the
telephone conference, they would get through what they could that day and, if more
information was needed, they would deal with it at the close of the evidence and the
matter could be reset.
We cannot conclude that Hige was prejudiced by the denial of this request for a
continuance. First, Hige previously had been granted three continuances. Further, at the
hearing, Glick was questioned regarding the evidence that he had purportedly failed to
disclose, allowing Hige to determine what, if any additional information was needed.
Moreover, the hearing was not concluded that day and was reset for November 8, 2012,
and then, upon Hige’s request, continued to December 10, 2012. Thus, Hige was given
1
Glick argues that Hige’s failure to provide us with a transcript of the telephone conference waives this
issue. Because of the trial court’s summary of the telephone conference at the September 24, 2012
hearing, which was transcribed, we are able to adequately review this issue.
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the opportunity to question Glick about the information that she requested and to follow
up with discovery requests following the hearing, which she did. Under these
circumstances we cannot say that Hige was prejudiced by the denial of the September 21,
2012 motion to continue, and she has not established that the trial court abused its
discretion in denying the motion.
B. December 5, 2012 Motion
On December 5, 2012, Hige filed another motion to continue in which she asserted
that her mental condition rendered her unable to properly prepare for and attend the
December 10, 2012 hearing.2 Glick objected to a continuance, and the trial court denied
the request.
Again, Hige has not established that the trial court abused its discretion in denying
the motion. At the September 24, 2012, hearing, Hige testified regarding her depression
and anxiety and the resulting difficulty focusing and remembering to do things. She
testified that the problem was ongoing. Hige, however, was able to testify about her
various assets and plans for employment. The trial court, therefore, was able to gauge
Hige’s ability to participate in the proceedings when it ruled on the December 5, 2012
motion to continue.3 It was within the trial court’s discretion to deny the motion, and
Hige has not established an abuse of that discretion.
II. Rehabilitative Maintenance
2
On appeal, Hige argues that her mental health problems coupled with an ongoing discovery dispute,
which purportedly continued at least through October 30, 2012, warranted the continuance. However,
because the December 5, 2012 motion to continue was based solely on Hige’s mental state and not
discovery issues, we decline to consider the purported ongoing discovery dispute as a basis for granting
this continuance.
3
Hige did not assert that her mental state had worsened since the September 24, 2012 hearing.
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Hige argues that the trial court erred in denying her request for rehabilitative
maintenance. “Trial courts are vested with broad discretion in the area of denying or
granting rehabilitative maintenance.” Blazek v. Blazek, 631 N.E.2d 518, 520 (Ind. Ct.
App. 1994). “An abuse of discretion occurs only if 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 which may be drawn from the facts and
circumstances.” Id.Rehabilitative maintenance may be awarded pursuant to Indiana Code 31-15-7-2,
which provides:
A court may make the following findings concerning
maintenance:
*****
(3) After considering:
(A) the educational level of each spouse at the time of
marriage and at the time the action is commenced;
(B) whether an interruption in the education, training,
or employment of a spouse who is seeking
maintenance occurred during the marriage as a result
of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including
educational background, training, employment skills,
work experience, and length of presence in or absence
from the job market; and
(D) the time and expense necessary to acquire
sufficient education or training to enable the spouse
who is seeking maintenance to find appropriate
employment;
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a court may find that rehabilitative maintenance for the
spouse seeking 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.
Hige contends that “this Court has held time and time again that the statute should not be
ignored in the face of uncontroverted evidence of one or more of the statutory factors that
are before the court, as justice and equity require application and enforcement.”
Appellant’s Reply Br. p. 13. We disagree that our previous discussions of the purpose
and benefits of rehabilitative maintenance require an award of maintenance where one or
more of the statutory factors is found by a trial court. The statute is clearly permissive,
and we have repeatedly held that trial courts are vested with broad discretion in these
matters. See e.g., Blazek, 631 N.E.2d at 520; Dahnke v. Dahnke, 535 N.E.2d 172, 174
(Ind. Ct. App. 1989) (“Trial courts are vested with broad discretion in this area.”), trans.
denied.
A. Findings of Fact
Hige asserts that several of the trial court’s findings are not supported by the
evidence. The trial court found in part:
8. The wife ultimately returned to the United States in
December 2011 to attend Portland State University. On
March 8, 2012, the wife obtained her student VISA[4] which
requires that she be a full-time student with classes to be
approved by ICE. . . . She has student loan of $11,800 which
is paid through part-time work.
9. During the course of the marriage, the wife received gifts
from her father on at least two (2) occasions of over
4
The trial court was referring to Hige’s ability to work legally in the United States.
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$100,000.00 The wife is eligible for Japanese National
Pension although the amount is unclear.
App. pp. 7-8.
Hige argues that the trial court found that her VISA allowed her to work up to
twenty hours per week and challenges her mental ability to attend school full-time and to
work pursuant to the terms of the VISA. The trial court, however, did not specifically
make any findings regarding Hige’s ability to work twenty hours per week. Hige has not
established that the finding is clearly erroneous.
Hige also argues that the finding regarding the $11,800 student loan is not
supported by the record, and Glick agrees. There was evidence that when the couple
married Glick had student loans, which have been paid off. There is no evidence that
Hige has any outstanding student loans. However, we fail to see how the erroneous
finding that Hige had student loans affected her substantial rights in the context of
rehabilitative maintenance. Thus, we disregard this error as harmless. See Ind. Trial
Rule 61 (“The court at every stage of the proceeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the parties.”).
Hige also argues that Finding 9 suggests that she received two gifts of $100,000
each from her father and that the record does not contain evidence of such gifts. We
agree with Glick that, at most, this finding is poorly worded and reflects the testimony
that over the marriage Hige’s father transferred money to her. In fact, Hige testified that
her father gave her $100,000 while they were married. The evidence supports this
finding.
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Hige also argues that the evidence does not support the finding that she is eligible
for the Japanese National Pension. Although the evidence regarding her eligibility is less
than clear, there is some evidence to support the finding. Glick testified that he paid into
the system on Hige’s behalf and believed she met the requirements because of the
contributions he made in her name. On this issue, Hige initially testified that she had the
pension and later explained that she paid in “[a]lmost barely” the minimum amount of
time to be eligible for the pension but didn’t know if she qualified or not. Tr. p. 87.
When asked if she paid into the system for the requisite time, Hige answered, “I believe
maybe barely but I’m not sure.” Id. at 90. The trial court was free to consider Glick’s
testimony and the portions of Hige’s testimony in which she indicated she was eligible
for the pension as credible. We are not convinced that the trial court’s findings require us
to reverse the denial of Hige’s request for rehabilitative maintenance.
B. Statutory Factors
Hige argues that the trial court disregarded evidence of the statutory factors and,
after providing argument regarding each factor, asserts that her request for maintenance
should have been granted. This is largely a request to reweigh the evidence, which we
cannot do.
At the time of the marriage, both parties had master’s degrees. Hige did not work
during the marriage, and contrary to Hige’s assertions, Glick described the manner in
which she helped him translate and research as “[m]inimal.” Tr. p. 50. There was also
evidence that Hige tutored for a short time but hated it and decided she could not teach.
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Glick testified that he encouraged her to teach English, but she did not want to. Thus, the
record does not support Hige’s claim that she gave up her career to support Glick’s.
Hige also claims that Glick voluntarily reduced his income to avoid paying
spousal support. It is true that after separating Glick voluntarily left his tenured teaching
position in Japan and returned to the United States. However, Glick’s education and
employment history of teaching English were not as marketable in the United States as
they were in Japan. After applying to several universities without success, Glick decided
to take classes to earn a degree in engineering. The record does not support Hige’s
assertion that Glick clearly reduced his income to avoid paying maintenance.
Although Hige testified that her employment prospects in Japan and the United
States were not promising and that her mental health issues prohibited her from taking
classes full time or working, at the time of the hearing, both parties were living from
assets acquired during the marriage while they attended school to earn additional degrees.
Hige’s request that we reverse is merely a request that we reweigh the evidence, which
we cannot do. Hige has not established that the trial court abused its discretion by
denying her request for rehabilitative maintenance.
III. Marital Estate
Hige argues that the trial court erred by dividing the marital estate equally instead
of awarding her 65% of the marital estate.5
Property owned by either spouse before the marriage is
included in the marital estate and subject to division and
distribution. Ind. Code § 31-15-7-4 (1998). Indiana law
5
Pursuant to the trial court’s order, Hige effectively was awarded 52% of the marital estate.
11
requires that marital property be divided in a “just and
reasonable manner,” id., and provides for the statutory
presumption that “an equal division of the - marital property
between the parties is just and reasonable.” I.C. § 31-15-7-5.
This presumption may be rebutted, however, by evidence of
each spouse’s contribution to the acquisition of the property,
the extent to which the property was acquired before the
marriage or by inheritance, the economic circumstances of
each spouse, the conduct of the parties relating to the
disposition or dissipation of assets, and each spouse’s earning
ability. Id.
Fobar v. Vonderahe, 771 N.E.2d 57, 58-59 (Ind. 2002). Because this case turns on
whether the trial court’s division of the marital property was just and reasonable, it is
highly fact sensitive and is subject to an abuse of discretion standard. See id. at 59. We
do not weigh evidence and consider it in a light most favorable to the judgment. Id.
Hige argues that the trial court erred when it found, “The division of property and
assignment of liabilities entered herein is as [sic] equal, just, reasonable, fair and
equitable award thereof under the facts presented at trial including the parties’ agreement
of the same.” App. p. 12. Hige contends that this finding erroneously suggests the
parties reached a settlement agreement. Instead, we believe the trial court was simply
referring to the parties’ agreement on certain facts, including, for example, the value of
some of the marital assets.
Hige also argues she presented substantial evidence to rebut the presumption that
an equal division of the marital estate was proper. We disagree. First, the evidence
showed that Glick worked as a professor throughout the marriage. Although Hige claims
she supported his career by helping with research and translations, Glick described her
contributions as “[m]inimal.” Tr. p. 50. Second, regarding the gifts from Hige’s father,
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Hige concedes that there is no evidence regarding whether those funds were spent during
the marriage or retained by her upon separation. Without more, she has not shown that
she was entitled to a set-off for the gifts.
Third, Hige argues that she has no ability to earn income and that Glick
voluntarily left his career and could return anytime. However, there is no evidence that
Glick could return to the same position in Japan and there was extensive evidence
regarding his unsuccessful efforts to find a comparable teaching job in the United States.
Fourth, Hige contends a reasonable inference could be drawn that Glick failed to
disclose marital assets that should have been divided. This argument is speculative at
best. The proceeding was riddled with discovery disputes and allegations of undisclosed
assets by both parties. Glick was questioned thoroughly at the September 24, 2012
hearing regarding his disclosure of marital assets including various transfers between
accounts during the marriage and the location and amounts of savings bonds that he had
purchased during the marriage. The trial court was in the best position to assess Glick’s
credibility on this issue. Without more, Hige has not established Glick improperly failed
to disclose assets.
Fifth, Hige claims there was no evidence that Glick could not return to his former
career and earn the equivalent of what he had previously earned and contends that she
never had a job in the United States and is not employable in Japan “due to her age, lack
of work experience, and the Japanese culture.” Appellant’s Br. p. 42. However, the
evidence showed that Glick could not find comparable work in the United States and the
trial court was free to discredit Hige’s testimony about her inability to find work,
13
especially in light of the evidence that she had not actually applied for any jobs. Further,
although Hige contends that she “relinquished her career pursuits” to support Glick, there
is evidence Glick encouraged Hige to teach but she did not want to. Id. Hige also argues
that she, at fifty-six years old, is much closer to retirement than forty-three-year-old Glick
and has less time to prepare for retirement. Although that may be the case, there is
evidence that Glick contributed toward Hige’s Japanese pension throughout the marriage
and that, as Glick understood it, Hige stands to inherit “a very large sum” from her father.
Tr. p. 156.
The evidence showed that, although both parties had advanced degrees, they had
difficulty finding work and had returned to school to pursue new careers. Without more,
Hige has not established that the trial court abused its discretion in equally dividing the
marital assets.
Conclusion
Hige has not established that the trial court abused its discretion in denying her
motions to continue, denying her request for rehabilitative maintenance, and nearly
equally dividing the marital estate. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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