Marriage of Dillman, In re

• Decision Date: 21 May 1985
• Docket Number: No. 4-684A162,4-684A162
• Parties: In re the MARRIAGE OF Mary R. DILLMAN, Appellant (Petitioner Below), and Ralph E. Dillman, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 86

478 N.E.2d 86

In re the MARRIAGE OF Mary R. DILLMAN, Appellant (Petitioner Below) and Ralph E. Dillman, Appellee (Respondent Below).

No. 4-684A162.

Court of Appeals of Indiana Fourth District.

May 21, 1985.

D. Eric Neff, Crown Point, for appellant.

John R. Sorbello, Barber & Sorbello, Crown Point, for appellee.

YOUNG, Judge.

Appellant Mary R. Dillman appeals the trial court's refusal to award her maintenance pursuant to the dissolution of her marriage to Ralph E. Dillman. Appellant bases her claim to maintenance on IND.CODE 31-1-11.5-11 ¹ which provides in part:

(d) A court may make the following findings concerning maintenance:

(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of such incapacitated spouse to support himself is materially affected, the court may find that maintenance for that spouse is necessary during any such incapacity, subject to further order of the court. (emphasis added)

Even if a trial court finds that a spouse's incapacity materially affects his or her self-supportive ability, a maintenance award is not mandatory. Temple v. Temple (1975), 164 Ind.App. 215, 328 N.E.2d 227.

If the spouse's self-supportive ability is materially impaired, the propriety of a maintenance award and the amount thereof should then be determined after considering such factors as the financial resources of the party seeking maintenance (including matrimonial property apportioned to her), the standard of living established in the marriage, duration of the marriage, and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Id. at 219, 328 N.E.2d at 230.

The trial court has discretionary power to award maintenance. Temple, supra. Our review, as in other cases involving the exercise of discretion, is limited to the question of whether the trial court's decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." In re Marriage of Sharp (1982), Ind.App., 430 N.E.2d 417, quoting Marshall v. Reeves (1974), 262 Ind. 107, 311 N.E.2d 807, 811. One way to show a trial court acted against the logic and effect of the circumstances is to show the court's misinterpretation of the law. State v. Town of Wolcott (1982), Ind.App., 433 N.E.2d 62.

In this case, evidence was presented that Mary Dillman suffers from carotid occlusive disease, angina pectoris, generalized arteriosclerosis and chronic obstructive lung disease. She underwent quadruple bypass surgery in July 1981 and an endarectomy in March 1982. In August 1982 she was hospitalized for treatment of her lung disease and acute asthmatic bronchitis. At the time of the hearing she was taking at least four medications for her various maladies and continued to experience chest pain, dizziness, blackouts and leg and back pain. Her physician stated that her disease is not cured and that she needs continuing medical treatment. He indicated, however, that she could probably perform "certain sedentary jobs," although he would not hire her if other applicants were available.

The trial court denied appellant's request for maintenance with the following explanation:

I'm going to rule against you, Mrs. Dillman, for the following reason:

I think the law in Indiana, although it might not be fair to all parties in a situation such as yours, is pretty clear when applied to this particular case.

I have no doubt in my mind that you have some dizziness and problems with that, and that you are incapacitated to some extent. However, the testimony of your own physician, your own specialist, in fact, is that there are several jobs that you could take, and the doctor listed several jobs that he thought you would be able to do. I think he listed a receptionist, in response to specific questions by Mr. Sorbello, and several other things....

Discretion is a privilege afforded a trial court to act in accord with what is fair and equitable under the facts of each case. Urbanational Developers, Inc. v. Shamrock Engineering, Inc. (1978), 175 Ind.App. 416, 372 N.E.2d 742. By his own admission, the trial court in this case reached a result which he believed "might not be fair." Although the trial court found appellant was "incapacitated to some extent," he apparently thought the Indiana maintenance statute precluded him from awarding her maintenance because "there are several jobs" she could perform. This conclusion misconstrues the statute.

IC 31-1-11.5-11 calls for a threshold determination that (1) a spouse is physically or mentally incapacitated and (2) the incapacity materially affects the spouse's self-supportive ability. ² Farthing v. Farthing (1978), 178 Ind.App. 336, 382 N.E.2d 941. The words "materially affects" are not specifically defined in the statute. It is clear, however, that the statute does not require a spouse to be completely bedfast or totally disabled before he or she can successfully claim maintenance. Rather than establishing a minimal percentage of disability, the statute creates a flexible standard which allows a trial court to consider whether any incapacity significantly affects a spouse's ability to support himself. The degree of employability is an inextricable factor in this determination. A spouse may suffer an affliction which would only minimally affect the self-supportive ability of a highly skilled person. That same malady, however, may materially affect the self-supportive ability of one who, even without the incapacity, is marginally employable, or only employable in physically demanding jobs.

Furthermore, the fact that a spouse is able to perform some job or even that she is currently employed does not necessarily make maintenance inappropriate. In Farthing, supra, the former husband sought to modify an order requiring him to pay maintenance. He argued that maintenance should be terminated since his former wife had begun working as a housekeeper despite her "nervous" condition. The trial court reduced rather than terminated maintenance. The second district affirmed, noting that the...