John Won Kim v. Mi Chong Kim (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 24 2020, 7:59 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 ATTORNEYS FOR APPELLEE
Mark Small Michael Cheerva
Indianapolis, Indiana Emswiller Williams Noland &
Clarke, LLC
Indianapolis, Indiana
Brent C. Embrey
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Won Kim, January 24, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-DN-1143
v. Appeal from the Hancock Circuit
Court
Mi Chong Kim, The Honorable R. Scott Sirk,
Appellee-Respondent. Judge
The Honorable Cody B. Coombs,
Commissioner
Trial Court Cause No.
30C01-1803-DN-485
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020 Page 1 of 10
[1] The Hancock Circuit Court entered a decree dissolving the marriage of John
Won Kim (“Husband”) and Mi Chong Kim (“Wife”) and ordering Husband to
pay Wife spousal maintenance in the amount of $1,500 per month. Husband
appeals and argues that the trial court erred by ordering him to pay spousal
maintenance.
[2] We affirm.
Facts and Procedural History
[3] Husband and Wife were married on October 23, 2004. The couple separated on
February 27, 2018, and Husband filed a petition to dissolve the marriage on
March 28, 2018. On June 18, 2018, Husband filed a motion requesting a final
hearing on the petition. The trial court granted the motion the following day
and set a final hearing date of August 30, 2018.
[4] On July 6, 2018, counsel for Wife filed a limited appearance, stating that his
representation was “limited to handling of provisional issues.” Appellant’s App.
p. 11. Husband then sought, on August 28, 2018, a continuance of the
scheduled final hearing date. The trial court granted this request and reset the
final hearing for November 2, 2018.
[5] On October 29, 2018, Wife filed a motion to convert the scheduled November 2
hearing from a final to a provisional hearing. In this petition, Wife stated:
1. [Wife] has been awaiting a provisional hearing since the
Court’s originally set hearing date . . . on August 30, 2018.
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2. The undersigned is providing representation on a limited
appearance through and including the provisional hearing in this
matter.
3. Opposing counsel has been advised of this and it is also
reflected in the undersigned’s Limited Appearance filed with the
Court on or about July 5, 2018.
4. [Wife] is currently disabled and is unable to generate any
income for herself.
5. [Husband], who previously provided approximately
$5,000 to [Wife] prior to filing his Petition for Dissolution of
Marriage[,] has been paying $0 to [Wife] for at least the past
three (3) months, leaving [Wife] at the mercy of friends and
family for her basic needs.
6. [Wife] also has no ability to pay counsel.
7. Husband owns a business, the valuation of which is required
for a just adjudication [of] this matter.
8. Husband has other assets heretofore undisclosed that require
discovery.
9. [Wife] is not prepared for trial due to the aforementioned
circumstances.
10. This motion is not offered to unduly delay these
proceedings.
WHEREFORE, [Wife] respectfully prays the court conduct its
November 2, 2018 hearing as a provisional rather than final
hearing; that provisional maintenance be set in an amount
sufficient to maintain the status quo during the pendency of this
matter, retroactive to the petition date herein; for reasonable
attorney’s fees and costs related hereto; and for all other relief just
and proper in the premises.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020 Page 3 of 10
Appellant’s App. pp. 12–13 (emphases added). The trial court denied Wife’s
motion two days later.
[6] On November 1, 2018, the day before the scheduled final hearing, Wife’s
counsel filed a notice of objection to the hearing, a verified motion to continue,
or, alternatively, a notice of completion of his limited representation in the
matter. The trial court granted this motion to the extent it requested a
continuance and reset the final hearing for January 4, 2019.
[7] At the January 4, 2019 final hearing, Wife presented evidence that she had been
injured in an automobile accident in June 2012, after which she could not work.
She then suffered a heart attack later that month. She had surgery on her fingers
in 2013 and 2014. She then injured her neck and back in another automobile
accident in 2015, and was still receiving treatment for her back injuries at the
time of the hearing. Wife testified that she suffers from diabetes, chronic back
pain, arthritis in her fingers, De Quervain’s disease1 in her thumb, and
hypertension, and she wears a heart monitor.
[8] On March 15, 2019, the trial court entered a dissolution decree that included, at
Husband’s request, specific findings of fact and conclusion of law. This decree
included the following provisions now at issue:
1
“De Quervain’s disease is a painful wrist condition that affects the tendons on the thumb side of the wrist
(the radial side).” “De Quervain’s disease,” National Institutes of Health, Genetic and Rare Diseases
Information Center, https://rarediseases.info.nih.gov/diseases/9413/de-quervains-disease (last visited
January 7, 2020).
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020 Page 4 of 10
51. Husband’s gross monthly income is $10,790 and Wife’s gross
monthly income is $0. Wife was not voluntarily unemployed or
underemployed during the pendency of this action. . . .
***
53. Although Wife did not present any medical records or
testimony from any medical experts in regards to her disability
and inability to support herself, Wife’s heart condition is
currently serious enough that she must be continually evaluated
by a [heart] Monitor. Such evidence, along with evidence of the
other injuries Wife has sustained since 2012 and Wife’s work
history during the marriage since her heart attack in 2012 is
sufficient evidence for the Court to determine that Wife’s
ability to support herself is materially affected and to enter an
award of maintenance. []
54. Given the division of the [family] business and the
distributions Wife will be entitled to as a fifty-percent (50%)
owner of the business and the respective parties’ current and
future earning ability, Husband shall pay to Wife $1,500 per
month as disability spousal maintenance. That sum shall be paid
to [W]ife indefinitely; provided, however, that spousal
maintenance may be reduced or eliminated by further order of
the Court as provided in [Indiana Code section] 31-15-7-2(1).
***
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
AS FOLLOWS:
***
4. Husband shall pay Wife the monthly sum of One Thousand
Five Hundred Dollars ($1,500) until further order of this Court.
Appellant’s App. pp. 28–30 (emphasis added).
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[9] Husband filed a motion to correct error on April 15, 2019, arguing that the trial
court erred by awarding Wife spousal maintenance. Wife filed a response
thereto on May 6, 2019, and the trial court entered an order denying Husband’s
motion to correct error on May 15, 2019. This appeal ensued.
Standard of Review
[10] Where, as here, the 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
for clear error:
[T]hat is, first, we determine whether the evidence supports the
findings, and second, whether the findings support the judgment.
We do not reweigh the evidence but consider the evidence
favorable to the judgment. Findings of fact are clearly erroneous
when the record contains no facts to support them, and a
judgment is clearly erroneous if no evidence supports the
findings, the findings fail to support the judgment, or if the trial
court applies an incorrect legal standard. Although we review
findings under the clearly erroneous standard, we review
conclusions of law de novo.
Carmer v. Carmer, 45 N.E.3d 512, 516–17 (Ind. Ct. App. 2015) (citations
omitted).
Spousal Maintenance
[11] Husband argues that the trial court erred by awarding Wife spousal
maintenance. Indiana Code section 31-15-7-2(1), which governs awards of
spousal maintenance due to incapacity, provides:
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1143 | January 24, 2020 Page 6 of 10
(1) 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.
I. Wife’s Failure to Plead Spousal Maintenance
[12] Husband first argues that the trial court could not award spousal maintenance
because Wife did not plead such a claim and that he was therefore surprised or
“ambushed” by Wife’s claim for maintenance at the final hearing. We are
unpersuaded. Husband has not referred us to any authority providing that a
respondent in a dissolution case must assert a claim of maintenance in a
responsive pleading. To the contrary, Indiana Code section 31-15-7-1 provides
that a trial court “may order maintenance in . . . final dissolution decrees
entered under IC 31-15-2-16 . . . after making the findings required by section 2
of this chapter.” Thus, because Husband filed for dissolution of the marriage,
the trial court had the authority to award spousal maintenance if such an award
was supported by the evidence.
[13] We also agree with Wife that Husband was not unfairly surprised by Wife’s
request for maintenance at the final hearing. Husband was well aware of Wife’s
physical infirmities. Indeed, the trial court found that, when the parties were
still married, Husband agreed that Wife should not work due to her physical
incapacity. And when Wife filed a motion on October 29, 2018, to convert the
scheduled final hearing into a provisional hearing, she asserted that she was
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physically disabled, unable to earn income, and requested an award of
maintenance, albeit provisional maintenance at that time. We therefore reject
Husband’s argument that he was unfairly surprised by Wife’s request for
spousal maintenance at the final hearing.
II. Sufficiency of the Evidence Supporting an Award of Spousal
Maintenance
[14] Husband also argues that there was insufficient evidence to support the trial
court’s award of spousal maintenance. In addressing this claim, we note that
the decision to award spousal maintenance is wholly within the trial court’s
discretion. Barton v. Barton, 47 N.E.3d 368, 375 (Ind. Ct. App. 2015) (citing
Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct. App. 2007)), trans. denied. “The
presumption that the court correctly applied the law in making an award of
spousal maintenance is one of the strongest presumptions applicable to our
consideration of a case on appeal.” Id. Accordingly, we will reverse a trial
court’s decision to award spousal maintenance only when it is clearly against
the logic and effect of the facts and circumstances of the case. Id. (citing Clokey
v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011), aff’d on reh’g, 957
N.E.2d 1288).
[15] Here, Husband’s argument that the evidence is insufficient to support the trial
court’s decision to award spousal maintenance is based on the fact that Wife
presented no medical records or expert testimony to support her claims. We
have previously held that an award of spousal maintenance may be based on
the testimony of the disabled spouse and need not be supported by medical
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records or expert testimony. See In re Marriage of Snemis, 575 N.E.2d 650, 655
(Ind. Ct. App. 1991) (noting that trial court could have made an award of
spousal maintenance without medical evidence) (citing Paxton v. Paxton, 420
N.E.2d 1346 (Ind. Ct. App. 1981) (holding that wife’s testimony that she was
incapacitated and could not work, without corroborating medical testimony,
was sufficient to support trial court’s award of spousal maintenance )).
[16] Wife testified that she had not worked since she was injured in the 2012
automobile accident and her heart attack shortly thereafter. She had surgery on
her hand in 2013 and 2014. She then injured her neck and back in a second
automobile accident in 2015, and continues to receive treatment for her back
injuries. She also suffers from diabetes, high cholesterol, hypertension, arthritis,
and wears a heart monitor. While the parties were still married, Husband
agreed that Wife should not work due to her physical ailments. This evidence
was sufficient to support the trial court’s award of spousal maintenance. See id.
Husband’s arguments to the contrary are little more than a request that we
reweigh the evidence, which is not within our purview as an appellate court.
Carmer, 45 N.E.3d at 516.
Conclusion
[17] An award of spousal maintenance was within the authority of the trial court
without a separate, specific pleading requesting such by Wife. The claim was
adequately in Wife’s petition to convert a final hearing into a provisional
hearing. In addition, Husband, personally, was well aware of Wife’s physical
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problems that would justify such an award. Finally, Wife’s testimony regarding
her physical infirmities and her inability to work was sufficient to support the
trial court’s award of spousal maintenance. We therefore affirm the judgment of
the trial court.
[18] Affirmed.
Robb, J., and Pyle, J., concur.
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