Lulay v. Lulay

• Decision Date: 24 December 1991
• Docket Number: No. 32A01-9105-CV-156,32A01-9105-CV-156
• Citation: 583 N.E.2d 171
• Parties: In re the Marriage of Lorraine K. LULAY, Appellant-Respondent, v. Bernard R. LULAY, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 171

583 N.E.2d 171

In re the Marriage of Lorraine K. LULAY, Appellant-Respondent, v. Bernard R. LULAY, Appellee-Plaintiff.

No. 32A01-9105-CV-156.

Court of Appeals of Indiana First District.

Dec. 24, 1991.

Lynden Dianne Schmidt, Indianapolis, Paul G. Bradshaw, Peoria, Ill., for appellant-respondent.

Douglas W. Meyer, Elmendorf, Meyer & Freese, Plainfield, for appellee-plaintiff.

BAKER, Judge.

Respondent-appellant Lorraine Lulay (Lorraine) appeals from the trial court's decree dissolving her marriage to petitioner-appellee Bernard Lulay (Bernard). She raises three issues for our review, which we restate as:

I. Whether the trial court abused its discretion in apportioning the children's II. Whether the trial court abused its discretion in dividing the marital property.

uninsured medical, dental, optical and prescription expenses.

III. Whether the trial court abused its discretion in failing to award Lorraine rehabilitative maintenance.

We affirm.

FACTS

Lorraine and Bernard were married on July 16, 1977. Lorraine was 23 years old and had received an associates in arts degree from Illinois Central College. During the early years of their marriage she gave private piano lessons in their home, teaching approximately 75 students a week for $7.00 per half hour lesson. Their first children, twins, were born three years after they were married, and a third child was born three years after the twins' birth. After starting their family, Lorraine was primarily a full-time homemaker and mother, although she continued to supplement the family income by giving piano lessons to nine students a week. Once her children got a little older, however, she sought employment outside of the home in secretarial and business administration positions.

Bernard married Lorraine when he was 26 years old. Before their marriage, he served briefly in the military but was discharged after he injured his knee during basic training. He receives a military disability pension of $66.04 per week for the injury. During their marriage, Bernard earned his associate's degree from Illinois Central College by taking evening classes after working at his full-time job. His military service qualified him for education benefits through the G.I. Bill, which paid 100% of his tuition from 1971-81. His former employer, Caterpillar Tractor, paid all of his tuition between 1981-83, and his present employer, PSI Energy, currently pays 80% of his tuition and books. At the time of the final hearing in the dissolution proceedings, Bernard was nine hours short of earning his bachelor's degree in management. He is currently employed by PSI Energy as a senior project control engineer with an annual salary of approximately $50,400.

Bernard filed a petition for dissolution of their marriage on March 7, 1990, and the trial court entered the decree on December 11, 1990. The trial court awarded Lorraine custody of their children and gave her the family residence and most of the personal property.

DISCUSSION AND DECISION

I

Lorraine argues the trial court abused its discretion in apportioning the payment of the children's uninsured medical, dental, optical, and prescription expenses. Under the court's order, Lorraine is responsible for paying the first $950.00 of uninsured expenses incurred per calendar year, while any amount over $950.00 is to be split equally between Lorraine and Bernard. Lorraine argues the trial court abused its discretion by placing on her this additional financial burden when Bernard is in a much better financial position to pay these expenses.

Payment of children's medical expenses in an action for dissolution of marriage is provided for by IND. CODE 31-1-11.5-12(b)(2). The section provides that the child support order may include "special medical, hospital, or dental expenses necessary to serve the best interests of the child." As well, the Indiana Supreme Court adopted the Child Support Guidelines and Commentary, which are to be applied "in all proceedings where child support is established or modified on and after October 1, 1989." Commentary, Ind. Child Support Guideline 1. In regard to apportioning uninsured medical expenses, the commentary provides, in pertinent part:

It has been the practice in many courts to apportion between the parents the medical, dental and optical expenses that exceed insurance, usually on an equal basis. The date on which the Guideline schedules are based included a component for ordinary medical expenses. Specifically, 6% (six percent) of the support amount is for health care expense. It is suggested, if an apportionment is made, that the custodial parent absorb a specified amount of expense per occurrence of illness (that is, for one particular illness or injury) before the noncustodial parent is required to contribute. An argument could be made for amounts over that specific amount to be apportioned according to the percentages developed on line 3 of the worksheet, the Percentage Share of Income. (Line 4B of worksheet) As an alternative, the custodial parent could be ordered to absorb a specified amount of medical expenses annually before the obligor is required to begin paying toward medical expenses.

Commentary, Ind. Child Support Guideline 3(E).

Conflict has recently developed in Indiana case law regarding discretion afforded the trial court in apportioning uninsured medical expenses. In Grammer v. Grammer (1991), Ind.App., 566 N.E.2d 1080, this court held that the Indiana Child Support Guidelines provide presumptive mandates, requiring deviations to be accompanied by written findings articulating why the presumptive amount is unjust. This court had reached a similar decision in In re Humphrey (1990), Ind.App., 561 N.E.2d 502, in which we found that the guidelines provide presumptively correct child support awards, but held the judge may deviate from the presumptions when he or she finds "the presumptive amount is unreasonable, unjust or inappropriate." Id. at 502. We have retreated, however, from viewing the guidelines as presumptive mandates. In Kyle v. Kyle (1991), Ind.App., 582 N.E.2d 842, we recognized that "the Guidelines do not mandate any particular treatment of uninsured medical expenses," but found the commentary merely suggests ways to apportion them. Id. at 848-49. Because the trial court is not strictly bound by the guidelines, apportionment of uninsured medical expenses is left to the trial court's sound discretion. Cox v. Cox (1991), Ind.App., 580 N.E.2d 344, 351-52; Kyle, supra. When this court is asked to decide whether the trial court abused its discretion, we will find it did only when the decision is against the clear logic and effect of the facts and circumstances before the court. Porter v. Porter (1988), Ind.App., 526 N.E.2d 219, 227, trans. denied.

In this case, the trial court ordered Bernard to maintain major medical insurance on the three children. He is also required to pay $304.65 per week in child support, of which six percent, or $18.27, is to be used by Lorraine to pay the children's uninsured medical expenses. Lorraine's responsibility for the first $950.00 in uninsured expenses is derived by multiplying the weekly payment of $18.27 times 52 weeks, for a total of approximately $950.00. Any expenses over $950.00 are to be divided equally between Lorraine and Bernard. This arrangement complies directly with an apportionment scheme suggested in the commentary to the Child Support Guidelines. Commentary, Ind. Child Support Guideline 3(E). Although trial courts may, in their sound discretion, order awards outside of the guidelines, Lorraine has failed to show in this case that the trial court abused its discretion when it complied with the guidelines. The order provides adequate support for the children and is consistent with both parents' ability to pay.

II

Next, Lorraine argues the trial court abused its discretion in dividing the marital property. The division of marital property traditionally has been a matter for the sound discretion of the trial court. In re Davidson (1989), Ind.App., 540 N.E.2d 641, 645. When we decide whether the trial court abused its discretion, we presume the trial court followed the law and made all the proper considerations. White v. White (1981), Ind.App., 425 N.E.2d 726. Furthermore, we consider only the evidence most favorable to the prevailing party and will not reweigh the evidence or assess the...