Farthing v. Farthing, No. 2-676A244

• Docket Nº: No. 2-676A244
• Citation: 382 N.E.2d 941, 178 Ind.App. 336
• Case Date: November 02, 1978
• Court: Court of Appeals of Indiana

Page 941

382 N.E.2d 941 178 Ind.App. 336 Donald R. FARTHING, Appellant (Petitioner below),
v.
Blanche L. FARTHING, Appellee (Respondent below). No. 2-676A244. Court of Appeals of Indiana, Second District. Nov. 2, 1978.
Rehearing Denied Jan. 10, 1979.

[178 Ind.App. 337]

Page 942

Donald G. Yates, James E. Chovanec, Huntington, for appellant.

James W. Bowers, Palmer, Bowers & Brewer, Huntington, for appellee.

SULLIVAN, Judge.

The marriage of Donald and Blanche Farthing was dissolved by decree on February 19, 1975. Pursuant to the dissolution the trial court ordered the Husband to pay the Wife $55.00 per week maintenance.

The Husband did not perfect an appeal from the February 19 decree. However, on September 25, 1975, the Husband filed a Petition to Modify the maintenance portion of the decree. After hearing evidence, the trial court made findings of fact and rendered judgment as follows:

"The Court finds that respondent has substantially recovered physical health but has not fully recovered her mental health."

"The Court further finds that the petitioner has suffered a substantial loss in income in 1975."

"The Court further finds that the petitioner is not in compliance with the Court's support order heretofore entered and is in arrears in the amount of $555.00."

"The Court further finds that the respondent's attorney has rendered services to respondent in the value of $603.75, and further finds that petitioner should pay respondent's attorney for such services."

"IT IS THEREFORE ORDERED AND ADJUDGED by the Court that the support order heretofore entered in the amount of $55.00 be and is hereby reduced to the sum of $40.00 per week."

"IT IS FURTHER ORDERED AND ADJUDGED by the Court that petitioner is in arrears in making support payments heretofore ordered in the amount of $555.00."

[178 Ind.App. 338] "IT IS FURTHER ORDERED AND ADJUDGED by the Court that petitioner pay to respondent's attorney the sum of $603.75 for services rendered to respondent."

Upon appeal from the modification order, the Husband contends that the trial court:

(1) erred in failing to make special findings of fact upon all requirements set forth by I.C. 31-1-11.5-9(c) (Burns Code Ed. Supp.1978);

(2) abused its discretion in reducing rather than discontinuing the Wife's maintenance; and

(3) abused its discretion in ordering the Husband to pay the Wife's attorney fees.

I.

Standard of Review

The statutory power of the trial court to retain jurisdiction and modify awards of maintenance is set forth in I.C. 31-1-11.5-9(c) (Burns Code Ed. Supp.1978):

"The court may make no provision for maintenance except that when the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of such incapacitated spouse to support himself or herself is materially affected, the court may make provision for the maintenance of said spouse during any such incapacity, Subject to further order of the court." (Emphasis supplied).

See also Newman v. Newman (2d Dist. 1976) Ind.App., 355 N.E.2d 867.

The burden of proof upon a petitioner for modification of a maintenance award has yet to be established under Indiana law. There is no statute nor case law directly addressing the question. ¹ While the descriptive heading inserted by the legislature, preceding subsection (a) of I.C. 31-1-11.5-17 (Burns Code Ed. Supp.1978), appears to make the statute's substance applicable to maintenance, the statute in fact deals in substance only with child support[178 Ind.App. 339] and property disposition. We nevertheless construe the statutory heading as evincing a legislative intent to apply the standard set forth by I.C. 31-1-11.5-17(a) to modification of spousal maintenance granted pursuant to I.C. 31-1-11.5-9(c).

Page 944

Thus, the Husband, as petitioner, was required at the modification hearing to show by a preponderance of the evidence "changed circumstances so substantial and continuing as to make the terms unreasonable." I.C. 31-1-11.5-17(a). The trial court, by decreasing the award from $55.00 to $40.00 per week, necessarily found that circumstances had changed in some degree. Nevertheless, the Husband, in attacking the validity of continuing Any maintenance award, carried the burden of showing change in circumstances such that the requirements of I.C. 31-1-11.5-9(c) were no longer fulfilled. In this respect, the trial court's determination that circumstances pertinent to the threshold requirements of the statute have not changed substantially is a negative judgment, and such judgment will only be reversed if the evidence is without conflict and can lead only to a conclusion contrary to that of the trial court's. Arnold v. Parry (2d Dist. 1977) Ind.App., 363 N.E.2d 1055.

II.

Special Findings of Fact

The trial court specially found in the modification order that the Wife was still mentally incapacitated. As to that finding, we may reverse only if it is "clearly erroneous". American Family Mutual Insurance Co. v. Bentley (1st Dist. 1976) Ind.App., 352 N.E.2d 860.

The Husband contends that the trial court was further required, absent a request by either party, to make a special finding of fact whether the incapacity materially affected the Wife's ability to support herself. Indiana Rules of Procedure, Trial Rule 52 governs those instances which require special findings of fact. The Husband asserts that I.C. 31-1-11.5-9(c) falls within the category of statutes contemplated by TR 52(A)(3). He places much reliance upon Temple v. Temple (1st Dist. 1975) Ind.App., 328 N.E.2d 227, wherein the court stated that "the statute calls for an initial factual determination whether a spouse's self-[178 Ind.App. 340] supportive ability is materially affected by physical or mental incapacity." 328 N.E.2d at 229-230.

While there is no direct authority with respect to the necessity of express findings pursuant to the requirements of I.C. 31-1-11.5-9(c), we nevertheless conclude that when, as here, the trial court expressly designates the award as maintenance, neither I.C. 31-1-11.5-9(c) nor Temple v. Temple, supra, 328 N.E.2d 227, require special findings of fact. ² The statute merely compels the trial court to make inquiry and "find" whether there exists incapacity and material effect upon the spouse's self-supportive ability before awarding maintenance. The "finding" required by the statute is implicit in the grant or denial of maintenance and need only be supported by sufficient evidence of record. But compare Savage v. Savage (1st Dist. 1978) Ind.App., 374 N.E.2d 536.

As stated in 3 Harvey, Indiana Practice § 52.3, p. 427, concerning TR 52(D) (2):

"(I)f findings are made upon issues upon which findings are not required they shall be recognized as findings only upon the matters covered and the judgment or general finding shall control as to matters not covered by such findings."

Thus, with respect to the requirement of I.C. 31-1-11.5-9(c) that the trial court "find" that the Wife's incapacity materially affects her ability to support herself, the general judgment, if clearly designated as a maintenance award, unmistakably...