Sheryl A. Payne v. Thomas L. Payne ( 2013 )

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 of
Dec 10 2013, 9:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
KRISTINA KEENER YEAGER JON P. McCARTY
Indianapolis, Indiana Covington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHERYL A. PAYNE, )
)
Appellant-Petitioner, )
)
vs. ) No. 23A01-1305-DR-204
)
THOMAS L. PAYNE, )
)
Appellee-Respondent. )
APPEAL FROM THE FOUNTAIN CIRCUIT COURT
The Honorable Robert M. Hall, Special Judge
Cause No. 23C01-1202-DR-73
December 10, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Petitioner Sheryl A. Payne (“Wife”) and Appellee-Respondent Thomas L.
Payne (“Husband”) were married on November 26, 1982. The parties divorced in November
of 1999 but subsequently remarried. On February 21, 2012, Wife again sought to dissolve
the parties’ marriage. In doing so, Wife requested, among other things, spousal maintenance.
On February 12, 2013, the trial court issued an order dissolving the parties’ marriage,
dividing the parties’ assets and debts, and denying Wife’s request for spousal maintenance.
Wife subsequently filed a motion to correct error, which was denied. Wife appeals from the
trial court’s denial of her motion to correct error. Concluding that the trial court did not
abuse its discretion in denying Wife’s motion to correct error, we affirm.
FACTS AND PROCEDURAL HISTORY
Husband and Wife have been married to each other twice. Husband and Wife were
initially married on November 26, 1982. The parties divorced in November of 1999 but
subsequently remarried. On February 21, 2012, Wife again sought to dissolve the parties’
marriage.
On October 5, 2012, the trial court conducted an evidentiary hearing on Wife’s
dissolution petition, during which the trial court heard testimony from both Husband and
Wife regarding their financial positions. At the time of the evidentiary hearing, Husband had
been employed as a truck driver for Federal Express for approximately nine years. Husband
earned a net monthly income of approximately $4000.00 and had regular monthly expenses
of approximately $3950.00. In addition to ordinary living expenses, Husband’s monthly
2
expenses included post-secondary education expenses for the parties’ daughter, medical
expenses for Husband and the parties’ daughter, and credit card payments for debt incurred
for family expenses during the parties’ marriage.
With respect to Wife, at the time of the evidentiary hearing, Wife was not working but
received $998.00 in disability benefits from the Social Security Administration. In addition
to this monthly award, Wife was awarded a $14,000.00 lump sum payment, which
represented Wife’s lost income from January 1, 2010, to the date of payment in January of
2012. Wife claimed that she did not contribute any of this lump sum payment to household
expenses because she was “getting ready to leave” for Florida where she planned to reside
with or near her mother. Tr. p. 47. Wife filed for dissolution three weeks after receiving this
lump payment. Wife included an estimate of the living expenses that she claimed she would
incur once she moved to Florida. The $1735.00 monthly estimate included $650.00 in rent,
$205.00 in cable and utilities, $240.00 in automobile expenses, $320.00 in groceries, $200.00
in cigarettes, $20.00 in dog food, and $50.00 in pharmacy expenses. Wife acknowledged,
however, that these claimed expenses merely represented an estimate and that she could not
provide a list of actual monthly expenses. Wife also acknowledged that she planned to reside
with her mother, at least temporarily, once she moved to Florida.
On February 12, 2013, the trial court issued a dissolution decree in which it divided
the marital estate. In this decree, the trial court awarded Wife (1) a 1998 Jeep Cherokee,
subject to the indebtedness thereon; (2) all of the personal property requested by Wife during
the evidentiary hearing, including a pop-up trailer; (3) the proceeds of any bank accounts in
3
Wife’s name; (4) half of Husband’s 401(k) retirement account; and (5) the full lump sum
disability payment that she received in January of 2012. The trial court ordered that Wife
shall hold Husband harmless on the debt associated with Wife’s vehicle.
The trial court awarded Husband (1) the marital residence, subject to the indebtedness
thereon;1 (2) a 1997 Nissan Altima automobile; (3) the remaining personal property that was
not included in Wife’s requested personal property; (4) the proceeds of any bank accounts in
Husband’s name; (5) the proceeds of Husband’s FedEx PPA account; and (6) the remaining
half of Husband’s 401(k) retirement account. The trial court ordered that Husband shall hold
Wife harmless on the debt associated with the marital residence. In addition, the trial court
ordered Husband responsible for virtually all of the marital debt, including (1) approximately
$28,000.00 in college loans for the parties’ daughter; (2) approximately $24,000.00 in credit
card debt incurred during the marriage; (3) approximately $5500.00 for all of Wife’s
outstanding medical bills through the date of October 5, 2012; (4) all medical bills for the
parties’ daughter; and (5) the outstanding Edward’s Heating & Cooling bill. The trial court
also ordered Husband to pay $3950.00 of Wife’s attorney’s fees and denied Wife’s request
for spousal maintenance.
On March 11, 2013, Wife filed a motion to correct error in which she alleged that the
trial court erroneously denied her request for spousal maintenance. The trial court denied
Wife’s motion to correct error on April 11, 2013. This appeal follows.
DISCUSSION AND DECISION
1
At the time of the evidentiary hearing, the marital residence had negative equity in excess of
$7000.00.
4
Initially, we note that Wife appeals following the denial of her motion to correct
error.
A trial court is vested with broad discretion to determine whether it will grant
or deny a motion to correct error. Volunteers of America v. Premier Auto
Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. App. 2001). A trial court has
abused its discretion only if its decision is clearly against the logic and effect
of the facts and circumstances before the court or the reasonable inferences
therefrom. Id. The trial court’s decision comes to us cloaked in a presumption
of correctness, and the appellant has the burden of proving that the trial court
abused its discretion. Id. In making our determination, we may neither
reweigh the evidence nor judge the credibility of witnesses. Id.Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007).
Upon reviewing a motion to correct error, this court also considers the standard of
review for the underlying ruling. Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346, 349 (Ind. Ct.
App. 2011) (citing Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct. App.
2007)). Here, with respect to the issue of spousal maintenance, the trial court concluded that
an award of spousal maintenance was not warranted. The trial court supported its conclusion
by making a number of findings regarding Wife’s ability to support herself.
When a trial court enters findings of fact and conclusions of law
pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of
review. First, we determine whether the evidence supports the findings, and
second, whether the findings support the judgment. Smith v. Smith, 938
N.E.2d 857, 860 (Ind. Ct. App. 2010). In deference to the trial court’s
proximity to the issues, we disturb the judgment only where there is no
evidence supporting the findings or the findings fail to support the judgment.
Id. We do not reweigh the evidence, but consider only the evidence favorable
to the trial court’s judgment. Id. Those appealing the trial court’s judgment
must establish that the findings are clearly erroneous. Id. Findings are clearly
erroneous when a review of the record leaves us firmly convinced that a
mistake has been made. We do not defer to conclusions of law, however, and
evaluate them de novo. Id.5
Clokey v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011).
I. Denial of Wife’s Request for Spousal Maintenance
Wife contends that the trial court abused its discretion in denying her request for
spousal maintenance. Specifically, Wife claims that she was entitled to an award of spousal
maintenance because she is disabled and is unable to work due to her incapacity. The
occasions under which a trial court may order spousal maintenance payments are limited. Id.(citing Marriage of Erwin, 840 N.E.2d 385, 390 (Ind. Ct. App. 2006)). One circumstance,
which is referred to as “incapacity maintenance,” is illustrated in Indiana Code section 31-15-
7-2(1), which provides:
If the court finds a spouse to be physically or mentally incapacitated to the
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.
Stated another way, “[t]he trial court may make an award of spousal maintenance upon the
finding that a spouse’s self-supporting ability is materially impaired.” Bizik v. Bizik, 753
N.E.2d 762, 768 (Ind. Ct. App. 2001) (citing Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1174
(Ind. Ct. App. 1995), trans. denied).
The trial court’s power to make an award of maintenance is wholly
within its discretion, and we will reverse only when the decision is clearly
against the logic and effect of the facts and circumstances of the case.
[Fuehrer, 651 N.E.2d at 1174.] However, even if a trial court finds that a
spouse’s incapacity materially affects her self-supportive ability, a
maintenance award is not mandatory. In re Marriage of Richmond, 605
N.E.2d 226, 228 (Ind. Ct. App. 1992). Nevertheless, in determining whether a
trial court has abused its discretion in a spousal maintenance determination,
this court will presume that the trial court properly considered the applicable
statutory factors in reaching its decision. Moore v. Moore, 695 N.E.2d 1004,
1007 (Ind. Ct. App. 1998). The presumption that the trial court correctly
6
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.
Fuehrer, 651 N.E.2d at 1174.
Bizik, 753 N.E.2d at 768-69.
With regard to Wife’s claim for spousal maintenance, the trial court found as follows:
The issue of spousal maintenance is before the court. The court has considered
the provisions of IC 31-15-7-2 and finds that spousal maintenance should not
be awarded. Wife has been awarded Social Security Disability which is
subject to review with there being an indication that the disability may not be
permanent. This is also the component that there is a voluntary creation of the
inability to work at the present time. The court finds that the burden of proof
has not been met to the satisfaction of the court.
Appellant’s App. p. 6. Wife claims that the trial court’s factual findings relating to its denial
of an award of spousal maintenance are not supported by the record. Specifically, Wife
argues that the record does not support the finding that her disability may not be permanent.
Wife also argues that the record does not support the finding that there is a voluntary
component to her current inability to work. We disagree.
A. Permanent Nature of Disability
In arguing that the trial court erroneously found that her disability may not be
permanent, Wife asserts that there is undisputed evidence that she is mentally and physically
incapacitated. While it is true that at the time of the dissolution hearing, Wife appeared to be
incapacitated, the decision of the Social Security Administration to award Wife disability
benefits, which was entered into evidence below, specifically stated that “Medical
improvement is expected with appropriate treatment. Consequently, a continuing disability
review is recommended in 36 months.” Appellant’s App. p. 26. The trial court appears to
7
have relied on the Social Security Administration’s determination in finding that Wife’s
disability may not be permanent, and we conclude that this determination supports the trial
court’s finding in this regard.
Wife also argues that the trial court abused its discretion in basing its denial of spousal
maintenance on the potential temporary nature of her disability because permanency is not a
statutory requirement for an award of maintenance following a finding of incapacity. Wife’s
argument, however, overlooks the clear statutory language stating that the trial court “may”
order maintenance upon finding a spouse incapable of self-support, regardless of whether
such incapacity is temporary or permanent. This court has held that “[e]ven if a spouse’s
incapacity materially affects [her] self-supportive ability, an award of maintenance is not
mandatory.” Riddle v. Riddle, 566 N.E.2d 78, 82 (Ind. Ct. App. 1991); see also Ind. Code §
31-15-7-2(1); Bizik, 753 N.E.2d at 769; Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct. App.
2007); Clokey, 956 N.E.2d at 718. The trial court considered evidence of Wife’s incapacity
but determined that an award of spousal maintenance was, nonetheless, not warranted.
Wife’s argument in this regard amounts to little more than an invitation to reweigh the
evidence, which we will not do. See Clokey, 956 N.E.2d at 718.
B. Voluntary Inability to Work
Wife also argues that the trial court erroneously found that there is a voluntary
component to her inability to work. Wife claims that her mental and physical impairments
were uncontested by Husband and that the trial court “does not elaborate on what voluntary
acts [she] might be doing to ‘create the inability to work.’” Appellant’s Br. p. 17. She
8
asserts that “nothing can be found” in the record to support the inference that she was doing
anything to voluntarily create an inability to work. Appellant’s Br. p. 20.
Upon review, we observe that despite Wife’s assertion to the contrary, the record
contains evidence which would tend to support the trial court’s finding that there is a
voluntary component to Wife’s current inability to work. During the evidentiary hearing,
Wife testified that she had not worked since sometime in 2010, when she decided not to work
while awaiting notification as to whether she would be found to be disabled and consequently
eligible to receive disability benefits. Wife’s decision not to work, while based in part on her
mental and physical incapacities, was a pragmatic decision made by Wife while awaiting
notification regarding her disability status. Wife does not point to any substantial change in
her status that would eliminate the voluntary component to this decision. As such, Wife’s
decision indicates a voluntary component to her unemployment.
In addition, in requesting spousal maintenance, Wife listed a $200.00 monthly
cigarette expense. Wife acknowledged during the evidentiary hearing that she continued to
smoke cigarettes despite the fact that she suffered from high blood pressure, diabetes, COPD,
heart problems, asthma, severe emphysema, and other health problems. Wife also
acknowledged that smoking was not “good” for her health. Tr. p. 34. Nothing in the record
suggests that Wife has tried but has been unable to stop smoking. Instead, the record
suggests that Wife merely chose not to. Furthermore, we are unpersuaded by Wife’s claim
that her smoking habit could or would not adversely affect her employability. Wife’s alleged
inability to support herself financial was based upon both her mental and physical incapacity.
9
Wife’s choice to continue to put her health at risk, arguably furthering her alleged physical
incapacity, by continuing to smoke cigarettes also supports a finding that Wife’s alleged
inability to work had a voluntary component. Again, Wife’s argument in this regard amounts
to little more than an invitation to reweigh the evidence, which we will not do. See Clokey,
956 N.E.2d at 718.
In sum, having concluded that the trial court’s findings relating to Wife’s request for
spousal maintenance were supported by the record, we conclude that the trial court did not
abuse its discretion in denying Wife’s request for spousal maintenance.
The judgment of the trial court is affirmed.
MATHIAS, J., and PYLE, J., concur.
10