Roger Lee Kilburn v. Deirdre v. Kilburn (mem. dec.)

MEMORANDUM DECISION

FILED

Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:41 am

this Memorandum Decision shall not be CLERK

regarded as precedent or cited before any Indiana Supreme Court

Court of Appeals

and Tax Court

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Thomas B. O’Farrell

McClure/O’Farrell

Noblesville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Roger Lee Kilburn, March 31, 2016

Appellant-Respondent, Court of Appeals Case No.

29A04-1502-DR-77

v. Appeal from the Hamilton

Superior Court

Deirdre V. Kilburn, The Honorable Wayne A.

Appellee-Petitioner. Sturtevant, Judge

Trial Court Cause No.

29D05-1402-DR-1226

Pyle, Judge.

Statement of the Case

[1] Roger Kilburn (“Husband”) appeals the trial court’s order upon the dissolution

of his marriage to Deidre Kilburn (“Wife”). Husband argues that the trial court

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abused its discretion by awarding rehabilitative maintenance and the marital

residence to Wife. Because Husband has not shown any abuse of discretion in

the trial court’s award of rehabilitative maintenance and because Husband’s

specific challenge regarding the marital residence is not ripe for review, we

affirm the trial court’s judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion by awarding rehabilitative

maintenance and the marital residence to Wife.

Facts

[3] Husband and Wife were married in December 2011, and no children were born

from the marriage.1 At the time of their marriage, Husband was retired from

the Carmel Fire Department, where he had worked for almost twenty years.

Husband was also receiving disability benefits. Wife, who had served in the

United States Navy, worked full-time for the Indiana Bureau of Motor Vehicles.

Shortly thereafter, in October 2012, Wife was declared disabled and started to

receive disability benefits.

[4] After two years of marriage, Wife filed a petition for dissolution of the marriage

in February 2014. She also filed a petition requesting that the trial court award

1

Both spouses had previously been married and had children from those marriages.

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her spousal maintenance. The trial court held a final dissolution hearing on

September 17, 2014 and December 5, 2014.2 Thereafter, on February 9, 2015,

the trial court issued a thirty-four page decree of dissolution, which contained

extensive and thorough findings of fact and conclusions of law. The trial court

ordered, in relevant part, that:

3. The marital residence located at 16967 Southall, Westfield,

Indiana is set off to Wife as her sole and separate property,

together with the responsibility for the pay[m]ent of the mortgage

thereon.

4. Wife shall have 180 days from the date of this order to remove

Husband’s name from the mortgage associated with the [marital]

residence.

*****

18. Husband shall pay rehabilitative maintenance to Wife in the

amount of $1,000 per month for a period of 12 months

commencing on March 1, 2015.

19. The parties shall have 30 days from the date of this order to

execute all deeds, titles, sales disclosures, or other necessary

transfer documents to effectuate the Court’s distribution of the

marital estate ordered herein.

(App. 39, 41). Husband now appeals.

2

The trial court also reviewed and decided several pending motions that had been filed by the parties.

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Decision

[5] Husband challenges the trial court’s awards contained in the dissolution decree.

Specifically, he argues that the trial court abused its discretion by: (1) ordering

him to pay rehabilitative maintenance to Wife; and (2) awarding the marital

residence to Wife.

[6] Before we address Husband’s arguments, we note that Wife did not file an

appellee’s brief. When an appellee fails to submit an appellate brief, “‘we need

not undertake the burden of developing an argument on the [A]ppellee’s

behalf.’” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting

Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we

will reverse the trial court’s judgment if the appellant’s brief presents a case of

prima facie error.’” Id. (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima

facie error in this context is defined as, at first sight, on first appearance, or on

the face of it.” Id. (internal quotation marks and citation omitted).

[7] As we review Husband’s challenges to the trial court’s dissolution decree, we

observe that the trial court entered written findings and conclusions under

Indiana Trial Rule 52(A) pursuant to Husband’s request. Where the trial court

has entered such findings and conclusions, we apply a two-tiered standard of

review. See Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216

(Ind. 2012). “We first determine whether the evidence supports the findings and

then whether the findings support the judgment.” Id. We “shall not set aside

the findings or judgment unless clearly erroneous.” Ind. Trial Rule 52(A).

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When determining whether a finding or judgment is clearly erroneous, we may

neither reweigh the evidence nor reassess the credibility of the witnesses.

Sawmill Creek, 964 N.E.2d at 216. “The evidence is viewed in the light most

favorable to the judgment, and we will defer to the trial court’s factual findings

if they are supported by the evidence and any legitimate inferences therefrom.”

Id. at 216-17. A trial court’s legal conclusions, however, are reviewed de novo.

Id.

[8] We first address Husband’s challenge to the trial court’s award of spousal

maintenance to Wife. “The court’s power to award spousal maintenance is

wholly within its discretion[.]” Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct.

App. 2007). “‘The presumption that the court correctly 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.’” Id. (quoting Fuehrer v.

Fuehrer, 651 N.E.2d 1171, 1174 (Ind. Ct. App. 1995), reh’g denied, trans. denied).

[9] “A trial court may award only ‘three, quite limited’ varieties of post-dissolution

maintenance: spousal incapacity maintenance, caregiver maintenance, and

rehabilitative maintenance.” Zan v. Zan, 820 N.E.2d 1284, 1287-88 (Ind. Ct.

App. 2005) (quoting Voigt v. Voigt, 670 N.E.2d 1271, 1276 (Ind. 1996) and

citing IND. CODE § 31-15-7-2). At issue in this appeal is rehabilitative

maintenance. INDIANA CODE § 31-15-7-2(3) authorizes a trial court to award

rehabilitative maintenance to a spouse for up to three years when the spouse

needs support while obtaining employment-related education or training.

Specifically, this subsection of the spousal maintenance statute provides that:

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(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;

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.

I.C. § 31-15-7-2(3).

[10] Here, the trial court ordered Husband to pay rehabilitative maintenance to Wife

in the amount of $1,000 per month for twelve months. When doing so, the trial

court made the following relevant findings:

FINDINGS REGARDING MAINTENANCE/DISABILITY/

RETIREMENT PLANS

116. Husband receives a lifetime monthly benefit from the CFD

[Carmel Fire Department] through the Indiana Public

Retirement System (“INPRS”) in the amount of $2,307.63.

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117. At age 52, per INPRS, Husband’s benefit will automatically

convert to a retirement benefit.

118. Dan Andrews, a qualified pension valuation expert,

prepared a report admitted into evidence as Petitioner’s Exhibit 5

and testified that Husband’s benefit after it is converted into a

retirement benefit at age 52, has a present value of $772,200.07.

119. Husband also receives disability benefits (“SSDI”) from the

Social Security Administration in the amount of $2,232 a month.

120. Husband’s monthly benefits therefore total approximately

$4,560.

121. Husband was in retirement or benefits status on the date of

the marriage and therefore Husband’s pension benefits were

earned entirely before the marriage.

122. Husband presented as evidence a Trial Order issued by an

administrative law judge . . . [who] acknowledged that

[H]usband suffers from post-traumatic stress disorder (PTSD).

123. In addition, Husband suffers from medical issues that have

already required two back surgeries, and he testified that

additional surgeries will be required. It was a combination of

Husband’s physical and emotional issues that caused him to

retire from the Carmel Fire Department, and the physical issues

caused him to close out his side business.

124. Wife is 45 years old and was a member of the United States

Navy prior to the marriage but did not see service overseas or in

a combat zone. She worked at the Indiana Bureau of Motor

Vehicles during the marriage.

125. Wife became disabled during the marriage and was

diagnosed with PTSD.

126. Wife is on various medications to treat her PTSD.

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127. Wife testified that she had attempted, through the Veteran’s

Administration (“VA”), to seek resources for occupational

therapy to return to work.

126. [sic] The medication and occupational therapy to this point

have not been successful.

129. Wife testified she has trouble focusing and staying on task

and therefore is unable to work.

130. The Court saw no evidence regarding Wife’s behavior

through numerous court hearings in this cause that support a lack

of focus or an inability to stay on task.

131. Wife’s sources of income are: INPRS monthly benefit in the

amount of $180.38; SSDI monthly benefit in the amount of $975;

SSDI dependent derivative monthly benefit in the amount of

$400; and child support for her minor child of $477 a month, for

a total of $2,032.38 per month.

132. Somewhat more than $850 per month of Wife’s income is

for the support of her minor son who is 16 years old, and that

portion will be reduced or eliminated after the child is 18 and/or

emancipated.

133. Similar to Husband’s INPRS benefit, Wife’s benefit will also

convert to a retirement benefit when Wife attains age 52.

134. Dan Andrews also prepared a report admitted into evidence

as Petitioner’s Exhibit 6 and testified that the present value of

Wife’s benefit, after it is converted to a retirement benefit, is

$49,641.63.

135. Wife had a retirement account with Hoosier Start valued at

$8,815 on the date of filing. With the consent of the Court, Wife

was allowed to use this account to satisfy some of her attorney’s

fees incurred in this matter.

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136. Wife requested that Husband pay $2,500 per month by the

first of the month via direct deposit into her checking account for

the next 14 years or until he has paid a total of $420,000,

whichever occurs first.

137. Wife is mentally incapacitated, and that incapacity at this

time materially affects her present ability to be self-supporting.

139. [sic] Each party shall be awarded as their sole and exclusive

property their interest in their respective PERF accounts, and

Wife shall be awarded as her sole and exclusive property the

Hoosier Start retirement account.

140. [sic] Spousal or rehabilitative maintenance is ordered in the

amount of $1,000 per month for a period of 12 months

commencing on March 1, 2015.

(App. 32-35).

[11] Husband’s challenge to the award of rehabilitative maintenance is limited to his

contention that the trial court was required to include a specific finding that

Wife “needs support while acquiring sufficient education or training to get an

appropriate job” and that the failure to include such a finding precluded the trial

court from ordering such an award. (Husband’s Br. 12). In support of his

contention, Husband cites to our supreme court’s opinion in Voigt, in which it

discussed the three statutory categories of spousal maintenance 3 and explained

that “a court may order rehabilitative maintenance for no more than three years

3

The Voigt Court discussed the categories of spousal maintenance contained in INDIANA CODE § 31-1-11.5-

11(e), which contained identical language as the categories of spousal maintenance contained in INDIANA

CODE § 31-15-7-2, the current statute.

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if it finds that a spouse needs support while acquiring sufficient education or

training to get an appropriate job.” Voigt, 670 N.E.2d at 1277. Essentially,

Husband’s argument is that the trial court’s order was erroneous because it did

not mirror the language contained in the Voigt opinion.

[12] Contrary to Husband’s contention, the Voigt Court did not hold that a trial

court must include any specific language or “magic words” in its findings when

awarding rehabilitative maintenance. While INDIANA CODE § 31-15-7-1

provides that a trial court “may order maintenance . . . after making the

findings required by section 2[,]” the plain language of the subsection of

INDIANA CODE § 31-15-7-2 relating to rehabilitative maintenance makes clear

that the trial court must first “consider[]” multiple factors before it exercises its

discretion and “find[s] that rehabilitative maintenance . . . is necessary in an

amount and for a period of time that the court considers appropriate[.]” I.C. §

31-15-7-2(3). Furthermore, the statute does not require a trial court to make

specific findings regarding the enumerated considerations before awarding

rehabilitative maintenance. See Moore v. Moore, 695 N.E.2d 1004, 1008 (Ind. Ct.

App. 1998) (discussing the requirements of awarding rehabilitative maintenance

under the prior version of the maintenance statute).

[13] Husband makes no specific argument that the trial court did not make the

necessary considerations before finding that rehabilitative maintenance in the

amount of $1,000 per month for a period of twelve months would be awarded

to Wife. Indeed, “[t]his court will presume that the trial court properly

considered the applicable statutory factors in reaching its decision” regarding an

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award of rehabilitative maintenance. Moore, 695 N.E.2d 1007. Because

Husband has not overcome the “presumption that the court correctly applied

the law in making an award of spousal maintenance” and has not shown that

the trial court abused its discretion by awarding rehabilitative maintenance to

Wife, we affirm the trial court’s award of spousal rehabilitative maintenance.

See Spivey, 876 N.E.2d at 784.

[14] Lastly, we address Husband’s challenge to the trial court’s order regarding the

marital residence, which the trial court included in the marital pot and awarded

to Wife.

[15] The division of marital property is within the sound discretion of the trial court,

and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d

1005, 1012 (Ind. Ct. App. 2014). “The court has discretion in its decision to

award marital property, including the marital residence.” Smith v. Smith, 854

N.E.2d 1, 7 (Ind. Ct. App. 2006). In an action for dissolution of marriage, the

trial court is required to divide the marital property in a “just and reasonable

manner.” I.C. § 31-15-7-4(b). See also Fobar v. Vonderahe, 771 N.E.2d 57, 58

(Ind. 2002). “[A]lthough the trial court must include all assets in the marital

pot, it may ultimately decide to award an asset solely to one spouse as part of its

just and reasonable property division.” Wanner v. Hutchcroft, 888 N.E.2d 260,

263 (Ind. Ct. App. 2008).

[16] Here, the trial court entered the following specific findings regarding its award

of the marital residence to Wife:

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FINDINGS REGARDING MARITAL RESIDENCE

51. The parties owned real estate located at 16967 Southall,

Westfield, Indiana (“Southall”) at the date of filing.

52. Wife owned the real estate prior [to] the marriage[,] and she

has occupied the same since the date of filing.

53. There is a Veterans Administration backed mortgage on the

property held by Freedom Mortgage, and the balance of the

mortgage at the date of filing was approximately $139,645.

54. Pursuant to a provisional order, Husband was required to pay

the mortgage and has done so since March of 2014.

55. Karey Bredemeyer, a licensed real estate broker, prepared a

Comparative Market Analysis (“CMA”) of Southall and testified

that in move-in condition, the marital residence could be listed

for sale, based on the current market, for a range of $135,000 to

$145,000.

56. Mr. Bredemeyer did not inspect the inside of the property as

part of preparing the CMA.

57. Wife testified that Southall was in need of some repairs and

updating.

58. The Hamilton County Assessor valued Southall at $120,700

for property tax purposes. This is not the fair market value of the

property.

59. Based on the evidence, including Mr. Bredemeyer’s

testimony and Wife’s testimony, the Court finds the value of

Southall to be $130,000. The parties have no equity in the

property.

60. Both Husband and Wife requested possession of Southall.

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61. Wife wants to retain the property as being her prior marital

residence and as a home for her son as he completes Westfield

High School.

62. Wife testified she had begun the process of applying to obtain

financing on Southall in her own name. Wife’s mother testified

that she would be willing to help Wife co-signing for any

mortgage.

63. Testimony indicated that although Wife brought the real

estate into the marriage, she was delinquent in her mortgage

payments and the property was near or in foreclosure when

Husband first moved in and began making the mortgage payment

at her request while she would pay “other bills”. The parties

refinanced the property so that Husband could be added to the

mortgage obligation and the payments brought current.

64. Evidence also shows that Husband made substantial

improvements to [the] property . . . .

65. Since the provisional hearing in this cause, and perhaps

before the hearing, Husband has been the sole contributor to the

mortgage payments associated with the marital residence.

66. At the time of the marriage, Wife was fully employed and

was unable to meet the mortgage obligation and other expenses

involved with the house. At the time of the preliminary hearing,

Wife was unable to afford those expenses. Since that time, her

economic circumstances have not improved.

67. If Wife is unable to refinance the mortgage and remove

Husband’s name from the mortgage and is unable to maintain

the mortgage payments going forward, this will negatively affect

the credit of both Husband and Wife.

68. Husband testified that he no longer wants to retain the

marital residence but believes that Wife is unable to afford to

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keep the home. He wants the home set off to him so that he can

sell it.

69. The house should be set off to Wife.

(App. 22-25).

[17] Husband’s challenge to the trial court’s order regarding the marital residence

does not actually involve the present award of the residence to Wife. Indeed,

he acknowledges that “this appears to be a standard property division order[.]”

(Husband’s Br. 14). Instead, his challenge is limited to what may happen in the

future in the event that Wife does not obtain a refinanced mortgage on the

house and remove him from the mortgage. He contends that if that occurs,

then he “will be compelled to write mortgage checks from his disability income

for as long as [Wife] owns the home and fails (or chooses) not to pay the

mortgage.” (Husband’s Br. 15-16). Thus, he asserts that the trial court’s award

of the marital residence to Wife would essentially result in “de facto alimony or

long-term maintenance[.]” (Husband’s Br. 16).

[18] It is clear that Husband’s argument is not ripe for appellate review. “Ripeness

relates to the degree to which the defined issues in a case are based on actual

facts rather than on abstract possibilities, and are capable of being adjudicated

on an adequately developed record.” Indiana Dep’t of Envtl. Mgmt. v. Chem.

Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). See also In re Paternity of

M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001) (“Ripeness involves the

timing of judicial review and the principle that judicial machinery should be

conserved for problems that are real and present or imminent, not squandered

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on problems that are abstract or hypothetical or remote.”), trans. denied.

Because Husband’s challenge to the trial court’s award of the marital residence

focuses on possible future ramifications that may arise if Wife fails to refinance

the mortgage on the marital residence and if Husband then makes payments on

the existing mortgage, it is not ripe for review. Thus, we affirm the trial court’s

judgment.

[19] Affirmed.

Vaidik, C.J., concurs.

Robb, J., concurs in part and dissents in part with opinion.

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IN THE

COURT OF APPEALS OF INDIANA

Roger Lee Kilburn, Court of Appeals Case No.

Appellant-Respondent, 29A04-1502-DR-77

v.

Deirdre V. Kilburn,

Appellee-Petitioner.

Robb, Judge, dissenting in part and concurring in part

The majority determines that the trial court did not abuse its discretion in

awarding rehabilitative maintenance to Wife. I disagree on two fronts.

First, I disagree that what the trial court awarded was in fact rehabilitative

maintenance. See slip op. at ¶ 9 (“At issue in this appeal is rehabilitative

maintenance,” citing Ind. Code § 31-15-7-2(3)). The trial court did state in its

order that Husband was to pay $1,000 per month in “rehabilitative

maintenance” to Wife for a period of twelve months. App. at 41. However,

the standard the trial court employed in determining whether maintenance was

warranted was that for incapacity maintenance:

To award spousal maintenance under Ind. Code § 31-15-7-2(1),

the trial court must first make a threshold determination that (1)

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a spouse is physically or mentally incapacitated, and (2) the

incapacity materially affects the spouse’s self-supportive ability.

If the trial court finds that a spouse is incapacitated, it then has

the discretion to award maintenance. Marriage of Richmond, 605

N.E.2d [226,] 228 [(Ind. Ct. App. 1992)].

App. at 19. Further, the trial court’s findings concern incapacity maintenance:

Wife became disabled during the marriage when she was diagnosed with PTSD

and is unable to work, she is on various medications to treat PTSD, and the

medications and occupational therapy have not been successful treatments

allowing her to return to work. As a result, the trial court found that “Wife is

mentally incapacitated, and that incapacity at this time materially affects her

present ability to be self-supporting.” Id. at 35; see also Exhibit 31 (summary of

Wife’s requests, asking the trial court find “Wife is unable to work due to her

disability” and order Husband to pay a certain monthly sum “as disability

maintenance”). On the other hand, there was no evidence introduced at trial

and the trial court made no findings that would support a conclusion Wife was

in need of support while acquiring sufficient education or training to get an

appropriate job. See Ind. Code § 31-15-7-2(3). Wife had appropriate

employment which she was unable to continue because she became disabled.

The trial court may not be required to use any “magic words” in its findings, see

slip op. at ¶ 12, but it must make findings that support its judgment. Therefore,

to the extent the trial court intended to award rehabilitative maintenance, the

award is unsupported by the evidence or the findings and is clearly erroneous.

Second, to the extent the trial court merely mislabeled its award of maintenance

and in fact awarded incapacity maintenance, I would hold that the trial court

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abused its discretion in doing so. When a trial court finds that a spouse is

physically or mentally incapacitated to the extent that the ability of that spouse

to support herself is materially affected, “the trial court should normally award

incapacity maintenance in the absence of extenuating circumstances that

directly relate to the criteria for awarding incapacity maintenance.” Cannon v.

Cannon, 758 N.E.2d 524, 527 (Ind. 2001). Nonetheless, such an award is not

mandatory. Id.; see also Lesley v. Lesley, 6 N.E.3d 963, 968 (Ind. Ct. App. 2014).

Moreover, the duration of an incapacity maintenance award is measured by the

duration of the incapacity. Ind. Code § 31-15-7-2(1); Spivey v. Topper, 876

N.E.2d 781, 786 (Ind. Ct. App. 2007). Limiting an incapacity maintenance

award to a finite period in the absence of evidence that the incapacity is finite is

error. Spivey, 876 N.E.2d at 786 (comparing spouse’s incapacity resulting from

bipolar and autoimmune disorders to incapacity resulting from broken bones).

The state of the record before us does not support an award of incapacity

maintenance to Wife. Although there was evidence that Wife receives

disability benefits, there was no medical evidence offered to support or explain

Wife’s claims of disability. In fact, despite Wife’s assertion she was unable to

work because she had trouble focusing and staying on task, the trial court

specifically found that it saw no evidence of that during the proceedings. See

App. at 34. Further, Husband was disabled and retired at the time of the

marriage, and the benefits which comprise his current income were earned

entirely before the marriage. As noted above, the trial court’s limited award of

maintenance bears no apparent correlation to Wife’s disability, nor does it bear

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any relation to her prior income or current financial needs. It appears that the

award of $1,000 per month for twelve months may have been based primarily

on reasons other than Wife’s incapacity, as the trial court’s findings regarding

maintenance were commingled with findings regarding the parties’ relative

disability and retirement benefits. See App. at 32-35 (“Findings Regarding

Maintenance/Disability/Retirement Plans”). In light of the facts and

circumstances of both parties’ situations, I would hold the trial court abused its

discretion in ordering Husband to pay incapacity maintenance to Wife.

I therefore respectfully dissent from the majority decision with respect to the

issue of maintenance. I concur with the decision in all other respects.

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