Jeffery Thomas Maxwell v. Shirley Sue Maxwell (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 Aug 10 2018, 5:21 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Mark J. Roberts John L. Davis

Maggie L. Smith Pritzke & Davis LLP

Frost Brown Todd LLC Greenfield, Indiana

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeffery Thomas Maxwell, August 10, 2018

Appellant-Petitioner, Court of Appeals Case No.

30A01-1712-DR-2768

v. Appeal from the Hancock Circuit

Court

Shirley Sue Maxwell, The Honorable Richard D. Culver,

Appellee-Respondent. Judge

Trial Court Cause No.

30C01-1611-DR-1635

Barnes, Senior Judge.

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Case Summary

[1] Jeffery Maxwell (“Husband”) appeals the trial court’s dissolution of his

marriage to Shirley Maxwell (“Wife”). We affirm in part, reverse in part, and

remand.

Issues

[2] Husband raises several issues, which we restate as:

I. whether the trial court committed reversible

error by deviating from the presumption of an

equal division of marital property without

explaining the deviation;

II. whether the trial court erred by ordering that

Wife receive sixty percent of Husband’s gross

military pension;

III. whether the trial court erred when it ordered

Husband to pay for Wife’s vehicle in the future

to transport their son;

IV. whether the trial court erred when it valued

Husband’s Eli Lilly pension; and

V. whether the trial court erred when it ordered

Husband to pay rehabilitative maintenance to

Wife.

Facts

[3] The parties had a child, C.M., in April 2002. They married in May 2004, while

Husband was in the military. After they married, they had another child, S.M.,

in September 2005, and D.M. in October 2006. D.M. was born prematurely

and has cerebral palsy, which affects his ability to use his legs and arms. D.M.

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is learning to walk with a walker, but he uses a manual wheelchair except at

school, where he uses a motorized wheelchair. Husband retired from the

military in 2012 after twenty-one years of service, and he receives a monthly

veterans’ disability payment. Husband has worked at Eli Lilly in finance and

accounting for fifteen years. Wife worked in retail prior to the parties’ marriage

but stopped working after the marriage. She worked again in retail for a short

time in approximately 2006 before D.M.’s birth. After D.M.’s birth, Wife did

not return to work.

[4] Husband filed a petition for dissolution in November 2016. At this time, Wife

found employment as an instructional assistant with a school corporation. She

works thirty-five hours a week and is paid $10.50 an hour. This position allows

her to be home with the children after school and on school breaks. In late

2017, Eli Lilly notified Husband that his department was being moved to

Ireland. At the time of the hearing, Husband anticipated losing his job in

March 2018.1 The parties reached agreements on most issues regarding the

children, leaving mainly issues regarding division of the marital estate and

maintenance. Husband proposed that he “take on all liabilities associated with

the marital estate.” Tr. Vol. II p. 33. Husband has a 401K through his

employment with Eli Lilly, a pension with Eli Lilly, and a military pension.

Wife requested caretaker maintenance to care for D.M. and rehabilitative

1

Husband asserts that he has lost his job since the trial court’s order. However, we cannot consider evidence

not in the record.

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maintenance to complete her college degree online through Ball State

University.

[5] The trial court entered findings of fact and conclusions thereon. The trial court

adopted Wife’s proposed division of marital property, resulting in a 60%/40%

split in favor of Wife. The trial court ordered that the parties sell the marital

residence with Wife receiving the first $8,050.00 of the proceeds and the

remaining proceeds split 60%/40% in favor of Wife. The trial court awarded

Wife, in part, her vehicle and certain furniture; sixty percent of Husband’s gross

military pension payment when “such is received by [Husband] or when

[Husband] is eligible to receive same;” rehabilitative maintenance in the

amount of $750.00 per month for thirty-six months; $7,500 in attorney fees;

$44,500.00 from Husband’s Eli Lilly 401K, which was valued at $44,500.00; a

property settlement judgment in the amount of $68,953.00 payable at the rate of

$500.00 per month plus eight percent interest with the payments beginning after

the completion of the rehabilitative maintenance payments. Appellant’s App.

Vol. II p. 21. Husband was awarded, in part, his Eli Lilly pension; the

remainder of his military pension; any remainder of his Eli Lilly 401K; his

automobile, tools, firearms, and certain furniture; and the remainder of his 2016

Eli Lilly bonus. Husband was ordered to pay the parties’ debts and a portion of

a handicapped accessible van in the future for Wife’s use. Husband now

appeals.

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Analysis

[6] Husband raises several issues regarding the trial court’s division of marital

property. Where, as here, a party requested findings and conclusions pursuant

to Trial Rule 52, we cannot set aside the findings or judgment unless clearly

erroneous. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App. 2016). “First,

we determine whether the evidence supports the findings, and second, whether

the findings support the judgment.” Id. We affirm the trial court’s findings

unless no facts or inferences from the record support them, but we review legal

conclusions de novo. Id.

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

and we will reverse only for an abuse of discretion. Kendrick v. Kendrick, 44

N.E.3d 721, 724 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion

occurs if the trial court’s decision is clearly against the logic and effect of the

facts and circumstances before the court, or if the trial court has misinterpreted

the law or disregards evidence of factors listed in the controlling statute. Id.

When we review a claim that the trial court improperly divided marital

property, we must consider only the evidence most favorable to the trial court’s

disposition of the property. Id. Although the facts and reasonable inferences

might allow for a different conclusion, we will not substitute our judgment for

that of the trial court. Id.

[8] The trial court’s division of marital property is highly fact sensitive. Id. A trial

court’s discretion in dividing marital property is to be reviewed by considering

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the division as a whole, not item by item. Id. We will not weigh evidence, but

will consider the evidence in a light most favorable to the judgment. Id. A trial

court may deviate from an equal division so long as it sets forth a rational basis

for its decision. Id. A party who challenges the trial court’s division of marital

property must overcome a strong presumption that the court considered and

complied with the applicable statute. Id. Thus, we will reverse a property

distribution only if there is no rational basis for the award. Id.

I. Division of Property

[9] Father first argues that the trial court erred by failing to make findings to

support the unequal division of marital property. Indiana subscribes to a “one-

pot” theory of marital property. Morey v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct.

App. 2016) (citing Ind. Code § 31-15-7-4). Under Indiana Code Section 31-15-

7-4(a), in a dissolution action, the court shall divide the property of the parties,

whether:

(1) owned by either spouse before the marriage;

(2) acquired by either spouse in his or her own right:

(A) after the marriage; and

(B) before final separation of the parties; or

(3) acquired by their joint efforts.

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“Property” means “all the assets of either party or both parties . . . .” I.C. § 31-

9-2-98(b).

“The requirement that all marital assets be placed in the marital

pot is meant to insure that the trial court first determines that

value before endeavoring to divide the property.” Montgomery v.

Faust, 910 N.E.2d 234, 238 (Ind. Ct. App. 2009). Indiana’s “one-

pot” theory prohibits the exclusion of any asset in which a party

has a vested interest from the scope of the trial court’s power to

divide and award. Falatovics [v. Falatovics, 15 N.E.3d 108, 110

(Ind. Ct. App. 2014)]. Although the trial court may decide to

award a particular asset solely to one spouse as part of its just and

reasonable property division, it must first include the asset in its

consideration of the marital estate to be divided. Id. The

systematic exclusion of any marital asset from the marital pot is

erroneous. Id.

Quinn, 62 N.E.3d at 1223.

[10] After determining what constitutes marital property, the trial court must then

divide the marital property under the presumption that an equal split is just and

reasonable. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004),

trans. denied. Indiana Code Section 31-15-7-5 provides:

The court shall presume that an equal division of the marital

property between the parties is just and reasonable. However,

this presumption may be rebutted by a party who presents

relevant evidence, including evidence concerning the following

factors, that an equal division would not be just and reasonable:

(1) The contribution of each spouse to the acquisition of

the property, regardless of whether the contribution

was income producing.

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(2) The extent to which the property was acquired by each

spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time

the disposition of the property is to become effective,

including the desirability of awarding the family

residence or the right to dwell in the family residence

for such periods as the court considers just to the

spouse having custody of any children.

(4) The conduct of the parties during the marriage as

related to the disposition or dissipation of their

property.

(5) The earnings or earning ability of the parties as related

to:

(A) a final division of property; and

(B) a final determination of the property rights of the

parties.

I.C. § 31-15-7-5. “If the trial court deviates from this presumption, it must state

why it did so.” Thompson, 811 N.E.2d at 912-13; see also Morey, 49 N.E.3d at

1072 (“If the trial court determines that a party has rebutted the presumption of

an equal division of the marital pot and decides to deviate from an equal

division, then it must state its reasoning in its findings and judgment.”).

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[11] The trial court here deviated from the presumption that an equal division of the

marital property between the parties is just and reasonable by awarding Wife

sixty percent of the marital estate. Although the trial court made findings on

various subjects, the trial court then simply adopted Wife’s balance sheet with a

few changes and did not explain its reasoning or make specific findings on the

factors discussed in Indiana Code Section 31-15-7-5. Given the lack of specific

findings on the relevant factors, we conclude that remand for either an equal

division of the marital property or an explanation of the reason for deviation is

necessary.

II. Military Pension

[12] The trial court here awarded Wife sixty percent of Husband’s gross military

pension payment when “such is received by [Husband] or when [Husband] is

eligible to receive same.” Appellant’s App. Vol. II p. 21. Husband argues that

the trial court should have applied a coverture formula instead. Husband also

argues that federal law prevented the trial court from awarding Wife more than

fifty percent of his net retirement pay from his military pension.

[13] Wife argues that Husband waived the issue by failing to raise the argument to

the trial court. However, during the evidentiary hearing, Husband specifically

argued that the trial court should apply a coverture formula and argued that the

trial court could not order the payments through a qualified domestic relations

order (“QDRO”) because the parties were not married for ten years during his

military service. Husband testified that they were married for eight years during

his twenty-one years of military service, and his Petitioner’s Exhibit 2 requested

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a coverture factor of 49.98%. Given Husband’s proposed equal division of the

marital property, Wife would have received half of the coverture factor of the

military pension under Husband’s proposal. The trial court declined to apply a

coverture factor and, instead, awarded Wife sixty percent of Husband’s gross

military pension. Husband clearly argued for the application of a coverture

formula and did not waive that issue.

[14] On appeal, however, Husband cites no authority that the trial court was required

to apply a coverture formula. Husband cites Williams v. Williams, 252 P.3d 998,

1006 (Alaska 2011), which applied the coverture formula, but noted that the

formula was “typically used.” All property, whether acquired before or during

the marriage, is generally included in the marital estate for property division.

See Ind. Code § 31-15-7-4(a). This Court has explained,

The “coverture fraction” formula is one method a trial court may

use to distribute pension or retirement plan benefits to the

earning and non-earning spouses. Under this methodology, the

value of the retirement plan is multiplied by a fraction, the

numerator of which is the period of time during which the

marriage existed (while pension rights were accruing) and the

denominator is the total period of time during which pension

rights accrued.

In re Marriage of Fisher, 24 N.E.3d 429, 433 (Ind. Ct. App. 2014) (quoting Hardin

v. Hardin, 964 N.E.2d 247, 250 (Ind. Ct. App. 2012). We noted in In re Marriage

of Nickels, 834 N.E.2d 1091, 1098 (Ind. Ct. App. 2005), that the parties had cited

no authority for the proposition that a trial court was required to use a coverture

fraction formula to distribute a pension or retirement plan. We further noted

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that, “while a trial court may set aside to one party the value of a marital asset

where the other party made no contribution to its acquisition, it is not required

to do so.” Nickels, 834 N.E.2d at 1098; see also Morey, 49 N.E.3d at 1071-72

(noting that the coverture fraction formula was “just one method that allows the

spouse who acquired the asset to segregate what might otherwise be considered

marital property from the marital pot” and that it was within the trial court’s

discretion to determine whether a given asset should be segregated from the

marital pot for application of the coverture fraction formula”). Given

Husband’s failure to cite authority that the trial court was required to apply a

coverture formula, we cannot say that the trial court abused its discretion by

failing to do so.

[15] As for the second part of Husband’s argument, 10 U.S.C.A. § 1408(e)(1)

provides that “[t]he total amount of the disposable retired pay of a member

payable under all court orders pursuant to subsection (c) may not exceed 50

percent of such disposable retired pay.”2 Although Husband did not raise this

2

10 U.S.C.A. § 1408(4)(A) provides:

The term “disposable retired pay” means the total monthly retired pay to which

a member is entitled less amounts which--

(i) are owed by that member to the United States for previous

overpayments of retired pay and for recoupments required by law

resulting from entitlement to retired pay;

(ii) are deducted from the retired pay of such member as a result of

forfeitures of retired pay ordered by a court-marital or as a result of

a waiver of retired pay required by law in order to receive

compensation under title 5 or title 38;

(iii) in the case of a member entitled to retired pay under chapter 61 of

this title, are equal to the amount of retired pay of the member

under that chapter computed using the percentage of the member’s

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statute to the trial court, he was arguing that Wife would receive much less than

fifty percent of his military pension. Consequently, it would have been

unnecessary for him to make this argument. Under these circumstances, we

decline to find that Husband waived the argument.

[16] In her Appellee’s Brief, Wife concedes the following:

Wife does concede that 10 U.S.C.A. § 1408 does limit the total

amount of the disposable retired pay to 50% of the disposable

retired pay.

If the amount to be paid is appropriately based upon the net

disposable pay, then, absent a waiver caused by a failure to bring

this provision of Federal law to the attention of the Trial Court,

such an order to require Husband to pay 50% of his net

disposable retirement to Wife would be appropriate.

Appellee’s Br. p. 26. Consequently, Wife concedes that, if the issue is not

waived, remand for revision of the order for Husband to pay fifty percent of his

net disposable pay is appropriate. We have determined that Husband did not

waive the issue. Given Wife’s concession, we express no opinion on the

disability on the date when the member was retired (or the date on

which the member’s name was placed on the temporary disability

retired list); or

(iv) are deducted because of an election under chapter 73 of this title to

provide an annuity to a spouse or former spouse to whom payment

of a portion of such member’s retired pay is being made pursuant to

a court order under this section.

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legitimacy of Husband’s argument. We remand for revision of the order related

to Husband’s military pension in a manner consistent with Wife’s concession.3

III. Van

[17] Husband argues that the trial court abused its discretion by ordering him to pay

sixty-five percent of the cost of a new van for Wife. The trial court ordered the

following:

It is undisputed that the present Honda van being set off to

Mother cannot transport the motorized wheelchair [D.M.] uses

at school and other places. The Honda van has in excess of

$100,000 miles of use and logic dictates that it will have to be

replaced at some time. When it is replaced, the purchase of a

van that is equipped to or capable of transporting the motorized

wheelchair is necessary as treatment or care for a chronic health

condition of [D.M.]. Mother will have private use of the new

vehicle. Mother shall pay twenty-five percent (25%) of the cost

of the new vehicle and the balance shall be shared by the parties

based upon their percentage share of the total income as set forth

in the CSOW effective as of the date of purchase.

Appellant’s App. Vol. II p. 26. Husband argues that Wife did not establish a

need for the van because the parties have transported D.M. for years without

the use of a handicapped accessible vehicle. Further, Husband contends that

the trial court’s order fails to provide guidance on the timing of the purchase,

the cost of the van, financing of the van, insurance regarding the vehicle, and

3

See Wooster, Ann K., Construction and Application of Federal Uniformed Services Former Spouse Protection Act in

State Court Divorce Proceedings, 59 A.L.R.6th 433 (2010), for an overview of these issues.

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ability of Husband to use the van when he has physical custody of D.M. forty

percent of the time. Finally, Husband argues that the trial court’s order does

not take into account his future financial situation.

[18] The trial court’s order regarding the future van is more in the nature of a child

support obligation. We review decisions regarding child support for an abuse of

discretion. Mitten v. Mitten, 44 N.E.3d 695, 699 (Ind. Ct. App. 2015). An abuse

of discretion occurs when a trial court’s decision is against the logic and effect

of the facts and circumstances before the court or if the court has misinterpreted

the law. Id. When reviewing a decision for an abuse of discretion, we consider

only the evidence and reasonable inferences favorable to the judgment. Id.

[19] The child support guidelines do not directly address this issue. However,

Indiana Code Section 31-16-6-2(a)(2) provides that a child support order may

include, “where appropriate . . . special medical, hospital, or dental expenses

necessary to serve the best interests of the child.” Although the handicapped

accessible van is not technically a medical expense, it does appear necessary to

serve D.M.’s best interest due to his medical conditions. Although D.M. is

young now, it will become more difficult to transport D.M. without a

handicapped accessible van as he gets older. Consequently, we cannot say that

the trial court abused its discretion by ordering Husband to contribute to the

costs of the van. However, Husband’s concerns regarding guidance on the

timing of the purchase, the cost of the van, financing of the van, insurance

regarding the vehicle, and ability of Husband to use the van when he has

physical custody of D.M. forty percent of the time are well taken. We remand

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for the trial court to consider those issues. We also note that perhaps a more

feasible solution would be to address the issue through a modification of child

support when it is necessary to purchase the van.

IV. Eli Lilly Pension

[20] Next, Husband argues that the trial court abused its discretion when it valued

his Eli Lilly pension. Husband argues that the trial court assigned the wrong

value to the pension, improperly failed to apply a coverture factor, and failed to

use a QDRO to transfer Wife’s interest. The trial court here accepted Wife’s

value of $174,148.00, awarded the pension to Husband, and ordered Husband

to pay a property settlement judgment in the amount of $68,953.00 at the rate of

$500 per month with eight percent interest until paid in full.

[21] We first address the trial court’s valuation of the pension. Wife’s valuation of

the pension was determined by Dan Andrews, who the trial court found “is a

recognized expert in the field of calculating present values of defined benefit

pensions.” Appellant’s App. Vol. II p. 21. According to Husband, Andrews

used the wrong “discount rate,” the wrong age of eligibility, and improperly

added an administrative load. According to Husband, these alleged errors

would make the value of the pension unrealistically higher. Husband testified

that he does pension valuations as the course of his business and proposed a

current pension value of $25,920. The trial court was presented with Andrews’s

valuation of the pension and Husband’s valuation of the pension. Husband is

merely requesting that we reweigh the evidence and judge the credibility of the

witnesses, which we cannot do. See Pitman v. Pitman, 721 N.E.2d 260, 264

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(Ind. Ct. App. 1999), trans. denied. Given our standard of review, we cannot say

that the trial court abused its discretion in valuing the pension based upon

Wife’s expert’s opinion.

[22] Next, we address Husband’s coverture argument. Husband contends that the

trial court should have applied a coverture factor of 85.78% because Husband

and Wife were not married during all of Husband’s employment at Eli Lilly.

Although the trial court specifically refused to apply the coverture factor to

Husband’s military pension, the trial court did not address the application of a

coverture factor to the Eli Lilly pension and included the total value of the

pension in its distribution of marital assets. As with his argument concerning

his military pension, see supra, Husband cites no authority for the proposition

that the trial court was required to apply a coverture factor to his Eli Lilly

pension. See Nickels, 834 N.E.2d at 1098 (holding that “while a trial court may

set aside to one party the value of a marital asset where the other party made no

contribution to its acquisition, it is not required to do so”); Morey, 49 N.E.3d at

1071-72 (noting that the coverture fraction formula was “just one method that

allows the spouse who acquired the asset to segregate what might otherwise be

considered marital property from the marital pot” and that it was within the

trial court’s discretion to determine whether a given asset should be segregated

from the marital pot for application of the coverture fraction formula”).

Although it was within the trial court’s discretion apply a coverture formula in

effectuating its division of marital property, the trial court was not required to

do so.

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[23] Finally, Husband argues that the trial court should have transferred the Eli Lilly

pension to Wife through a QDRO rather than a property settlement judgment.

We begin by noting the following explanation of the division of pension

benefits in a dissolution proceeding:

Courts utilize a number of methods for distributing pension

benefits, including an immediate offset method, a deferred

distribution method, or a variation or combination of the

methods. Under the immediate offset method, the court

determines the present value of the retirement benefits and

awards the nonowning spouse his or her share of the benefits in

an immediate lump sum award of cash or property equal to the

value of his or her interest. Under the deferred distribution

method, the court makes no immediate division of the retirement

benefits but determines the future benefits to which the

nonowning spouse is entitled. Traditionally, the benefits have

been stated as a share of the owning spouse’s future benefit, and

payment can be made directly to the nonowning spouse by the

plan administrator under certain circumstances or payment can

be ordered to come directly from the owning spouse.

Several fact situations may favor the use of an immediate offset

method, including where the present value of the pension is

relatively modest, the parties are highly litigious, the separating

parties are relatively young, and the receiving spouse has

immediate and substantial financial need. Other fact situations

may favor a deferred distribution method, including where there

is not sufficient other tangible property remaining in the marital

estate so that a present award is possible, there is an unusually

substantial risk that benefits will never be received, the present

value of benefits is difficult to compute with reasonable accuracy,

and both spouses have no other steady source of income for their

retirement years.

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It is also possible to apply both the deferred distribution and

immediate offset methods in a single case. One such way to

combine the methods is to order an offsetting cash award payable

in installments. Such an award can give the benefits of

immediate offset in a case where there are not sufficient funds

available for an immediate cash payment. Like the immediate

offset method, deferred offset awards are limited by the liquid

funds available in the marital estate. However, the limitation is

not as severe as with an immediate offset award, because a

deferred award is spread out over time, but the payor must still

have sufficient liquid funds to make the installment payments.

Kendrick, 44 N.E.3d at 726-27 (internal citations omitted).

[24] Here, the trial court utilized the immediate offset method, and Husband

advocates using the deferred distribution method through a QDRO. State

courts are “authorized in dissolution actions to order a pension plan

administrator to distribute pension benefits to an alternate payee pursuant to a

QDRO.” Ryan v. Janovsky, 999 N.E.2d 895, 898 (Ind. Ct. App. 2013), trans.

denied. “A QDRO has been characterized as any order made pursuant to a state

domestic relations law which ‘creates or recognizes the existence of an

alternative payee’s right’ to pension benefits.” Id. (quoting Hogle v. Hogle, 732

N.E.2d 1278, 1280 n.3 (Ind. Ct. App. 2000), trans. denied).

[25] Wife had an immediate and substantial financial need given the lack of cash

marital assets, her lack of recent employment history, her new employment at a

school, her need to care for D.M., and her need to locate housing suitable for

D.M. On the other hand, the lack of cash marital assets resulted in an

extremely lengthy repayment schedule for the property settlement judgment.

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Combined with Husband’s other obligations under the dissolution decree,

Husband claims that he is left in a dire financial situation. The trial court here

was presented with a difficult situation. Neither the immediate offset method

nor the deferred distribution method through a QDRO would result in an ideal

situation for both parties. Given the options here, we simply cannot say that

the trial court abused its discretion in ordering the property settlement judgment

rather than a deferred distribution of the pension through a QDRO.

V. Rehabilitative Maintenance

[26] Next, Husband argues that the trial court erred by ordering him to pay

rehabilitative maintenance to Wife. The trial court here ordered Husband to

pay $750 per month to Wife for thirty-six months as rehabilitative maintenance.

According to Husband, Wife offered no evidence to support her personal belief

that she needed a college degree to obtain a position similar to the one she held

before staying home to care for the children. Husband also points out that Wife

only asked for $500 per month in rehabilitative maintenance.

[27] “The trial court’s power to award spousal 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.” Spivey v. Topper,

876 N.E.2d 781, 784 (Ind. Ct. App. 2007). “‘The presumption that the trial

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), trans. denied). “A trial court may award only ‘three, quite limited’

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varieties of post-dissolution maintenance: spousal incapacity maintenance,

caregiver maintenance, and rehabilitative maintenance.” Zan v. Zan, 820

N.E.2d 1284, 1287 (Ind. Ct. App. 2005) (quoting Voigt v. Voigt, 670 N.E.2d

1271, 1276 (Ind. 1996)). Indiana Code Section 31-15-7-2(3) governs the award

of rehabilitative maintenance, which is at issue here, and provides:

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.

[28] The trial court’s findings regarding rehabilitative maintenance follow:

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10. Mother was a “stay-at-home-mom,” except for a short

time at the beginning of the marriage. Mother, prior to

staying home with the children, worked in retail. Her

uncontroverted testimony is that a college degree

would now be necessary for her to secure the same

retail job she worked in the early years of the marriage.

Mother does not have a college degree. During the

marriage, Mother did contribute, besides her work as a

“stay-at-home mom” by doing yard sales and

refurnishing furniture and working part-time at Kohl’s.

Father told her to quit the Kohl’s job and she never

returned to work outside the home.

11. Retail work can include working late into the evening

and weekends. Hours vary based upon the employer.

12. Once this cause was filed, Mother obtained a job with

the Mt. Vernon School Corporation as an Instructional

Assistant (“IA”). As an IA, she works closely with

children with disabilities.

13. The hours she works as an IA mirror the times that the

children are in school. The children also attend the Mt.

Vernon School Corporation. She does not work

evenings or weekends, goes into work at approximately

the same time the children do and gets off work at close

to the same time as the children are released from

school.

14. Mother has been the parent who has assumed the

responsibility with regard to [D.M.’s] therapy and

IEPs.

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15. Father testified he had flexibility in his job at Eli Lilly

& Co. with regard to whether he could work at home

and control his hours.

16. Mother makes $10.50 per hour and works the 180

school-day calendar. Her pay, annualized, is Two

Hundred Sixty-eight Dollars and Fifty-six Cents

($268.56) per week.

17. Father earns One Hundred Five Thousand Dollars

($105,000.00) per year at Eli Lilly and further earns

One Thousand Three Hundred Twenty-three Dollars

($1,323.00) per month from a Veteran’s disability

payment. For 2016, payable in 2017, he earned a gross

bonus from Lilly of Twenty Thousand Seven Hundred

Thirty-three Dollars and eighty-four Cents

($20,733.84). Father has a Bachelor’s degree in

Biochemistry and a Bachelor’s degree in Finance and

has worked at Lilly for a number of years.

*****

28. Mother has investigated taking classes at Ball State

University and knows the present tuition is

approximately Three Hundred Four Dollars ($304.00)

per credit hour. She also knows that tuition will

increase, probably in 2020 but she cannot predict the

amount of increase.

29. Mother needs 24 to 30 hours to obtain an Associate

degree in Business. [H]er teaching degree would be

obtained after the Associate degree. The time to obtain

the appropriate degrees could exceed thirty-six (36)

months.

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*****

33. Mother qualifies for Rehabilitative Maintenance as

defined by Indiana statute.

*****

20. Mother is entitled to rehabilitative maintenance and

Father shall pay one [sic] Seven Hundred and Fifty

Dollars ($750.00) per month for thirty-six (36) months

as rehabilitative maintenance. Said payments shall be

paid beginning on the 1st day of the first month

following the entry of this Decree.

Appellant’s App. Vol. II pp. 19-22, 28.

[29] Husband does not specifically challenge any of these findings. Rather, he

argues that Wife did not submit actual evidence other than her opinion in

support of her assertion that she needed a college degree. Husband’s argument

is largely a request to reweigh the evidence and judge the credibility of the

witnesses, which we cannot do. See Pitman, 721 N.E.2d at 264. The trial court

gave credit to Wife’s testimony, and we cannot say that the findings on this

issue are clearly erroneous. Consequently, we cannot say that the trial court’s

award of rehabilitative maintenance is erroneous. We do, however, have

concerns over the trial court’s sua sponte award of $750 per month where Wife

was only requesting $500 per month in rehabilitative maintenance. Tr. Vol. II

p. 198. We reverse that portion of the order and, on remand, direct the trial

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court to reduce the rehabilitative maintenance to $500 per month for thirty-six

months.

Conclusion

[30] We remand for the trial court to enter either an equal division of the marital

property or an explanation of the reason for a deviation. Given Wife’s

concession regarding Husband’s military pension, we reverse and remand for

an order requiring Husband to pay fifty percent of his disposable retired pay of

the military pension. We affirm the trial court’s order that Husband contribute

to the cost of a van to transport D.M. However, we remand for the trial court

to clarify the details regarding such purchase. We affirm the trial court’s

decisions regarding the Eli Lilly pension valuation. Finally, we affirm the trial

court’s award of rehabilitative maintenance, but remand for the trial court to

reduce the rehabilitative maintenance award to $500 per month for thirty-six

months. We affirm in part, reverse in part, and remand.

[31] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Pyle, J., concur.

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