In Re: The Marriage of Gertiser Kevin Gertiser v. Anne Stokes (formerly Gertiser)

Jan 14 2015, 9:38 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
RUSSELL T. CLARKE, JR. JUDY M. TYRRELL
Emswiller, Williams, Noland & Clarke, P.C. Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF )
ANNE T. GERTISER and KEVIN GERTISER, )
)
KEVIN GERTISER, )
)
Appellant-Respondent, )
)
vs. ) No. 29A02-1401-DR-43
)
ANNE STOKES (formerly Gertiser), )
)
Appellee-Petitioner. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Daniel Pfleging, Judge
Cause No. 29D02-0303-DR-200
January 14, 2015
OPINION – FOR PUBLICATION
MAY, Judge
Kevin Gertiser appeals the denial of his petition to terminate the spousal maintenance
he pays to his ex-wife, Anne Stokes. Kevin asserts the court abused its discretion by
continuing the spousal maintenance and by ordering him to pay Anne’s attorney fees. We
reverse and remand.
FACTS AND PROCEDURAL HISTORY
Kevin and Anne divorced on June 25, 2007. The court ordered Kevin to pay Anne,
who is blind, incapacity-based maintenance in the amount of $1,182.50 per month. Anne
remarried on December 29, 2012, and Kevin filed a petition to terminate the spousal
maintenance because Anne now has the means to support herself.
Kevin’s base pay is $156,263.00 per year, approximately $12,000.00 per year more
than he made at the time of the divorce. Although he may receive a bonus, it is not
guaranteed.
Anne receives Social Security Disability Income of $940.00 per month, from which
health insurance is deducted. Occasionally, Anne works as a part-time, temporary
salesperson for Senior Expos but has never earned more than $1,200.00 per year. Her
husband earns $163,800.00 per year, and they share bank accounts and have financial assets
in excess of $600,000.00.
The trial court declined to modify Kevin’s spousal maintenance order because Anne’s
personal earning ability and incapacity had not improved since the divorce; thus, the court
concluded, there had not been a significant change of circumstances that would make the
original order unreasonable. The court also ordered Kevin to pay $7,000.00 towards Anne’s
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attorney fees.
DISCUSSION AND DECISION
When, as here, the trial court issues findings of fact and conclusions of law, we
will not set aside the court’s findings unless they are clearly erroneous. In re
Marriage of Erwin, 840 N.E.2d 385, 389 (Ind. Ct. App. 2006). We are to
determine whether the evidence supports the findings and the findings support
the judgment. Id. In reviewing the trial court’s findings, we are not to reweigh
the evidence or reassess the credibility of witnesses. Id. Rather, a trial court’s
findings of fact will only be found clearly erroneous when the record is
without any evidence or reasonable inferences to support them. Id.
Mitchell v. Mitchell, 875 N.E.2d 320, 322-23 (Ind. Ct. App. 2007), trans. denied.
1. Spousal Maintenance
When determining whether spousal maintenance is necessary, the court should
consider: (1) the financial resources of the party seeking maintenance (including marital
property apportioned), (2) the standard of living established in the marriage, (3) the duration
of the marriage, and (4) the ability of the spouse from whom maintenance is sought to meet
his needs while meeting those of the spouse seeking maintenance. Temple v. Temple, 164
Ind. App. 215, 219-20, 328 N.E.2d 227, 230 (1975).
Once a maintenance order has been entered, “modification may be made only: (1)
upon a showing of changed circumstances so substantial and continuing as to make the terms
unreasonable.” Ind. Code § 31-15-7-3(1). When determining whether a “substantial change
in circumstances” has occurred, the trial court should consider the same factors used to
determine whether maintenance is necessary. Banks v. Banks, 980 N.E.2d 423, 427 (Ind. Ct.
App. 2012), trans. denied. Because the “spousal maintenance statute focuses on the
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receiving spouse’s ability to support himself or herself,” modification of spousal support
based on a change in the receiving spouse’s income requires a showing the change in income
is “permanent and definite.” Mitchell, 875 N.E.2d at 324.
Anne argues spousal maintenance is not automatically terminated upon her marriage.1
We agree. See Roberts v. Roberts, 644 N.E.2d 173 (Ind. Ct. App. 1994) (remarriage did not
terminate spousal maintenance when the new spouse had no income with which to support
person receiving maintenance). Nevertheless, we are left with the question whether Anne’s
remarriage creates a substantial and continuing change of circumstances such that the terms
of the original order have become unreasonable. Ind. Code § 31-15-7-3(1).
Kevin asserts Anne’s marriage to a man of significant means amounts to a substantial
change in her ability to support herself.2 Our review of the record leads us to conclude
Anne’s financial resources have changed substantially. Before her remarriage, Anne had a
monthly income of $892.00 from Social Security, and occasional payments totaling less than
$1,200.00 per year from a part-time, temporary sales position. Now, through a joint banking
account and marriage, she has over $600,000.00 in financial assets. See Perkins v. Harding,
836 N.E.2d 295, 299 (Ind. Ct. App. 2005) (“Indiana subscribes to the ‘one-pot’ theory of
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Anne’s reliance on Myers v. Myers, 560 N.E.2d 39 (Ind. 1990), is misplaced as it does not address the issue
of marriage but rather the issue of modification during the time the recipient spouse was cohabiting with
another.
Anne also argues that a modification of the spousal maintenance could be only a decrease but not a
termination as her counsel had been unable to find any case law stating termination of maintenance could occur
before the incapacity was eliminated. Ind. Code § 31-15-7-3 refers to modification and revocation. As Kevin
noted, revocation is defined to mean “annul, or make void by recalling, taking back, cancel, rescind, repeal, or
reverse.” (Appellant’s Reply Br. at 2 quoting Black’s Law Dictionary at 1485.) We agree and hold the trial
court is allowed to modify spousal maintenance to the extent of termination.
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marital possessions.” This theory supposes all marital property, whether acquired before or
after the date of marriage, is included as an asset of the marriage.).3 In addition, Anne’s
husband earns $163,800.00 per year and pays 75% to 80% of the household bills, including
taxes, mortgage, insurance, utilities, and car payments.
Although the trial court is correct that Anne’s ability to earn income has not changed,
the court abused its discretion by denying Kevin’s petition to terminate spousal maintenance
because it did not consider the substantial income and assets now available to Anne pursuant
to her marriage to Paul. Accordingly, the trial court should have terminated the spousal
maintenance. Additionally, following the statutes regarding modification of child support,
modification may be retroactive to the date of filing the petition. See Ind. Code § 31-16-8-1
(states the circumstances wherein such an order may be modified). See also Ind. Code § 31-
16-16-6(b)(1) (a court may modify an obligor’s duty to pay after notice of the petition has
been served).4
2. Attorney Fees
Kevin appeals the trial court’s order that he pay attorney fees Anne incurred for
defending against his petition to terminate spousal maintenance. Anne does not address the
attorney fees issue in her brief.
When the appellee does not address an issue, we need not undertake the
burden of developing her argument. Instead, we will reverse the trial court’s
2
Kevin’s assertion that Bartrom v. Credit Adjustment Bureau, 618 N.E.2d 1 (Ind. 1993) is inconsistent with
Roberts is in error as Bartrom deals with the doctrine of necessaries and married couples.
3 This theory presumably would not apply if a prenuptial agreement had been made, but the parties have not
indicated there was any such agreement.
4
Child support and spousal maintenance are governed by the same statutes.
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judgment if the appellant demonstrates prima facie error. Prima facie error in
this context is defined as, at first sight, on first appearance, or on the face of it.
Where an appellant does not meet this burden, we will affirm.
Tisdial v. Young, 925 N.E.2d 783, 784-85 (Ind. Ct. App. 2010) (quotation omitted).
When reviewing an award of attorney fees, we apply an abuse of discretion standard.
Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002), trans. denied. A trial court has
wide discretion in awarding attorney fees, and we will reverse only if the award is clearly
against the logic and effect of the facts and circumstances before the court. Id. The trial
court may look at the responsibility of the parties in incurring the attorney’s fees. Id. The
trial judge has personal expertise he or she may use when determining reasonable attorney’s
fees. Id.
In awarding attorney fees, “the court may consider such factors as the resources of the
parties, the relative earning ability of the parties, and other factors which bear on the
reasonableness of the award.” In re Marriage of Bartley, 712 N.E.2d 537, 546 (Ind. Ct. App.
1999). The trial court ordered the attorney fees “[b]ecause of the wide disparity in the party’s
incomes.” (App. at 16.) As noted above, when including all resources available to Anne, no
such disparity exists. Rather, Anne has more resources available to pay attorney fees than
does Kevin. Accordingly, the trial court abused its discretion in ordering such fees be paid
by Kevin. See Bartlemay v. Witt, 892 N.E.2d 219, 232 (Ind. Ct. App. 2008) (attorney fees
held to be erroneous when order relied on erroneous factual findings).
The trial court abused its discretion by denying Kevin’s petition to terminate spousal
maintenance and by ordering him to pay Anne’s attorney fees. Accordingly, we reverse and
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remand so the trial court may terminate the maintenance retroactive to the notification of the
petition on Anne or her agent.
Reversed and remanded.
VAIDIK, C.J., and FRIEDLANDER, J., concur.
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