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

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.
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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.
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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
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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:
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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
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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
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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.
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[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.
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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.
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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
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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
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$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.
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