Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
Dec 16 2011, 9:25 am
of the supreme court,
court of appeals and
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DANIEL J. MOORE
Laszynski & Moore
STEVEN P. MEYER
Ball Eggleston, PC
COURT OF APPEALS OF INDIANA
DIANA L. GIPSON,
CRAIG G. GIPSON,
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1008-DR-269
December 16, 2011
MEMORANDUM DECISION – NOT FOR PUBLICATION
Diane Gipson appeals the trial court’s dissolution decree in her divorce from Craig
Gipson. We remand.
The combined and restated issue before us is whether the trial court erred in the
amount of rehabilitative maintenance it awarded to Diane and in its equal division of the
The Gipsons married in 1973. Both parties graduated from high school, and
neither party obtained a college degree. Craig began working for Bob Rohrman, an
automobile dealer, in 1979. He started out as a car salesman but gradually worked his
way up the ranks of the company. In 1992, Rohrman paid for Craig to attend a year-long
training course through the National Automobile Dealers Association. In 1998, Craig
was promoted to director of operations for Rohrman’s Lafayette sales area, which
essentially is a position directly below Rohrman himself. In this position, Craig receives
a guaranteed salary of $6000 per month. He also is entitled to certain profit sharing
bonuses. From 2005-2009, Craig’s average annual income through salary and bonuses
was $145,387. In 2010, however, due to Rohrman having a very profitable year, Craig
received approximately $400,000 total in salary and bonuses, some of which reflected
2009 profit-sharing that was paid in 2010. Nearly $200,000 of this amount was put
toward credit card debt and into a savings account.
The couple had two children during the marriage. Diane worked sporadically
during the marriage at various jobs, but primarily stayed home to raise the children and
be a homemaker. Craig specifically told Diane that he preferred for her not to work
outside the home. Craig’s job, especially in the earlier years, often required him to work
very long hours while Diane stayed at home with the children. The most income that
Diane earned during the marriage was in 1992, when she earned approximately $11,500
working as an office manager in an optometrist’s office. After the parties’ last child
graduated from high school in 1999, Diane did not seek to return to full-time employment
outside the home. The last year in which she worked at all outside the home was 2001,
when she earned $341 at a food service position.
In August 2010, Craig filed for divorce, when both parties were in their late fifties.
Towards the end of 2010, Diane underwent career counseling through the Lafayette
WorkOne Center. Diane’s counselor determined that her current academic level for math
and reading was at a ninth grade level, which is typical for someone who has been out of
school for many years.
Diane and her counselor determined that she would need
additional skills and training to obtain a job that would pay a living wage, although Diane
had not disclosed that she had learned and performed various office administrative tasks
at the optometrist’s office. With the counselor, Diane created a career plan to eventually
become a dental assistant. This would require Diane to first attend remedial education
classes at the Lafayette Adult Reading Academy, then to attend Ivy Tech Community
College for approximately a year and a half to two years in order to earn a dental
assisting degree. Diane was planning to begin attending Ivy Tech in the fall of 2011.
She was eligible for a government-provided “displaced homemaker” grant of $3000 per
year that would cover most of the cost of her tuition and books at Ivy Tech. Tr. p. 68.
The trial court conducted a final dissolution hearing on January 20, 2011. At the
hearing, Craig agreed to make monthly payments of $378 to maintain health and dental
insurance for Diane through COBRA for three years. There also was evidence presented
that Diane currently was driving a leased 2008 Toyota, the lease for which would end in
April 2011, and which carried an option to purchase for approximately $16,000 at that
On February 25, 2011, the trial court entered a final dissolution decree,
accompanied by sua sponte findings and conclusions. Regarding division of the marital
property, Diane had requested that it be split unevenly in her favor. Diane had also
requested that Craig pay rehabilitative maintenance to her. The trial court entered the
following pertinent conclusions regarding the marital estate and rehabilitative
The court shall presume that an equal division of the
marital property between the parties is just and reasonable.
This presumption may be rebutted. I.C. 31-15-7-5. The court
may consider such factors (a) contribution of each spouse
toward the acquisition of the property; (b) extent to which the
property was acquired by the parties; (c) economic
circumstances of each spouse at the time of the disposition of
the property; and (d) earnings or earnings ability of the
The evidence in this case reveals that during the
marriage, the Husband worked as a car salesman and the Wife
worked in managerial and clerical positions. Wife decreased
her full time hours in to [sic] stay home and raise the children
and voluntarily chose not to re-enter the work force after the
children left the house. The parties only recently increased
their net worth through year end bonuses and profit sharing
from Husband’s employment. The court finds that the parties
contributed equally toward the accumulation of the marital
assets and as such, a presumptive equal division of the assets
is appropriate. However, the parties’ current circumstances
warrant deviation to the extent that the Husband shall pay a
portion of the expenses necessary to re-establish the Wife as
an independent person.
I.C. 31-15-7-2 provides that a court may award a
spouse rehabilitative maintenance after considering such
factors as the educational level of each spouse, whether
interruption in education or training occurred during the
marriage, the earning capacity of each spouse, and the time
and expense necessary to acquire sufficient education to
enable the spouse seeking maintenance to find appropriate
employment. Here, the parties have the same education level
as they did at the beginning of the marriage, with the
exception of an auto dealer certification obtained by Husband
paid through his employer. The Wife obtained skills as an
office manager handling bookkeeping, scheduling, inventory,
and vendor and customer relations and skills as a teacher
assistant. She did not interrupt any formal education or
training when she quit work to stay home full time. She did
not pursue any additional training or employment after the
children left the home and has shown no interest in doing so.
Wife presented some evidence that she may need additional
training but failed to disclose to her expert her previous work
history and employment skills. There was no convincing
evidence presented that indicates Wife cannot return to jobs
similar to her previous employment.
There was sufficient evidence presented to justify
some short term maintenance to allow Wife to update her
skills through a program at the Reading Academy and to
ensure Wife has health insurance. Accordingly, Husband is
ordered to pay rehabilitative maintenance for benefit of Wife
by maintaining payments as ordered in the October 15, 2010
Provisional Order for an additional 90 days from the date of
this order or until Wife leaves the marital residence,
whichever shall occur first. Husband is further ordered
assume [sic] and pay all monthly payments necessary to
provide Wife health insurance through a COBRA policy
available through Husband’s employer for a period of 36
months following the date of this order. Husband shall pay
Wife’s tuition obligation, net of her displaced homemaker’s
grant, directly to the [Lafayette Adult Reading Academy], in
the approximate sum of $278.00. Husband shall also pay all
sums necessary for the Wife to purchase her current vehicle
when the lease expires in April 2011.
App. pp. 38-39, 41-42.
Although the trial court indicated in conclusion 4 that it was going to deviate from
an equal division of the marital property, it split the property evenly. After accounting
for debts assigned solely to Craig and an equalization payment he would be required to
make to Diane, this resulted in each party being awarded approximately $350,000 in net
assets. Over $300,000 of the amount awarded to Diane was liquid, including funds in the
savings account and a separate Rohrman 401(k) plan that she would be able to access
immediately, before reaching retirement age. Craig was awarded the marital residence.
The trial court also ordered Craig to pay Diane’s attorney fees. Diane now appeals.
The trial court’s dissolution order contained sua sponte findings of fact and
conclusions thereon. Such findings control only the issues they cover, and a general
judgment standard of review will control as to the issues upon which there are no
findings. Farah, LLC v. Architura Corp., 952 N.E.2d 328, 333 (Ind. Ct. App. 2011). A
general judgment entered with findings may be affirmed on any legal theory supported by
the evidence. Id. As for the findings and conclusions the trial court did make, we must
first determine whether the evidence supports the findings of fact, and second, whether
those findings of fact support the conclusions thereon. Tracy v. Morell, 948 N.E.2d 855,
862 (Ind. Ct. App. 2011). “Findings will only be set aside if they are clearly erroneous.”
Id. Findings are clearly erroneous only if the record contains no facts to support them
either directly or by inference, while a judgment is clearly erroneous if it applies the
wrong legal standard to properly found facts. Id. In order to determine that a finding or
conclusion is clearly erroneous, we must be left with the firm conviction that a mistake
has been made. Id. Here, although the trial court’s findings and conclusions were
entered sua sponte, it is apparent that it intended to enter complete findings to resolve all
of the issues between the parties. We will review this case accordingly.
Diane frames the first issue she raises as whether the trial court erred in its
“decision to not award her rehabilitative maintenance.” Appellant’s Br. p. 3. Diane later
acknowledges that Craig, in fact, was ordered to pay what amounts to maintenance.
Specifically, Craig was ordered to pay for COBRA health and dental insurance for Diane
for three years at $378 per month. Additionally, Craig was ordered to purchase the 2008
Toyota for Diane at the end of the lease in April 2011, which would cost approximately
$16,000. Craig also was directed to pay the relatively de minimis amount of $278 toward
Diane’s continuing education. These payments, we believe, are appropriately framed as
rehabilitative maintenance payments, unconnected with the division of the marital
property, given that the trial court designated the payments as maintenance, they exceed
the value of the marital estate, and they are future payments to be made from Craig’s
future income. See Webb v. Schleutker, 891 N.E.2d 1144, 1156 (Ind. Ct. App. 2008)
(listing factors to distinguish maintenance from marital property division); see also In re
Marriage of Coomer, 622 N.E.2d 1315, 1320 (Ind. Ct. App. 1993) (treating payments for
COBRA insurance coverage that would be paid out of husband’s future income as
spousal maintenance to wife).
We conclude that the issue in this case is more
appropriately framed as whether the trial court ordered an inadequate amount of
rehabilitative maintenance, not whether the trial court improperly failed to award any
We review a trial court’s decision regarding spousal maintenance for an abuse of
discretion. Lloyd v. Lloyd, 755 N.E.2d 1165, 1171 (Ind. Ct. App. 2001). An abuse of
discretion will be found if the trial court’s decision is clearly against the logic and effect
of the facts or reasonable inferences to be drawn therefrom, or if the trial court
misinterprets the law, or if it disregards evidence of factors in the controlling statute.
Mitchell v. Mitchell, 875 N.E.2d 320, 323 (Ind. Ct. App. 2007), trans. denied. We
presume that a trial court properly considered the statutory factors in ruling on a request
for spousal maintenance. Lloyd, 755 N.E.2d at 1171. “Maintenance awarded by a trial
court in the absence of an agreement between the parties consists of three types:
incapacity maintenance for a spouse who cannot support himself or herself, rehabilitative
maintenance for a spouse who needs additional education or training before seeking a
job, and caregiver maintenance for a spouse who must care for an incapacitated child.”
Webb, 891 N.E.2d at 1155-56.
An award of rehabilitative maintenance, as sought by Diane, is governed by the
following statutory language:
(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
(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.
Ind. Code § 31-15-7-2(3).
Even where there is evidence satisfying the statutory factors for spousal
maintenance, a trial court is not absolutely required to order it. See Cannon v. Cannon,
758 N.E.2d 524, 527 (Ind. 2001) (addressing maintenance award based on ex-spouse’s
incapacity). However, in Cannon, our supreme court stated that if the statutory factors
for awarding incapacity maintenance are satisfied, such maintenance “normally” should
be awarded “in the absence of extenuating circumstances” directly relating to the criteria
for awarding such maintenance. Id. The statutory factors for an award of rehabilitative
maintenance are considerably different than those for incapacity maintenance. Still, we
believe that an award of rehabilitative maintenance is appropriate under circumstances
where the statutory criteria are clearly met.
We note that some of the trial court’s findings and conclusions could be read as
suggesting that Diane should have more proactively sought job training and employment
after the couple’s last child finished high school and left the home in 1999. We disagree
with any such suggestion, or that it should be relevant with respect to the rehabilitative
maintenance issue. There is no evidence that Craig believed Diane should have returned
to work after the children completed high school, or that Diane had a desire to do so.
Rather, the only evidence in the record is that Craig and Diane agreed that it was
preferable for her to remain home.
Moreover, the parties had already been married for nearly thirty years when the
last child completed high school, and Diane was apparently unaware that Craig was
contemplating divorce until he called her in August 2010 with the news that he was going
to file for divorce. Thus, Diane was not on notice that she might have to provide for
herself in the later years of her life until sometime in 2010, at the earliest. There certainly
is no requirement that a spouse who has spent much of his or her married life raising
children must seek to work outside the home after the children have moved out. To deny
adequate rehabilitative maintenance to an ex-spouse on this basis would amount to
penalizing that person for failing to anticipate that he or she would end up divorced at a
later stage in life.
We also have qualms with the trial court’s conclusion that Diane’s experience as
an office manager at the optometrist’s office, where she last worked almost twenty years
ago, would qualify her for a similar position today. First, there obviously has been a
rapid change in office technology since the early 1990’s. Second, Diane only earned a
maximum of $11,500 annually in that position, and she testified that it did not provide
her with benefits. It is difficult to consider such a position as providing a “living wage.”
We cannot say the record and other findings support the trial court’s conclusion that
Diane’s nearly twenty-year-old office experience would be sufficient for her to quickly
find a job by which she could support herself.
We acknowledge that requiring Craig to provide COBRA health and dental
insurance to Diane for three years is not insubstantial. Nor is requiring Craig to purchase
Diane’s 2008 vehicle for her at the conclusion of the lease. These payments should
alleviate Diane’s health care and transportation concerns for the next several years while
she continues her education and begins a new career path. As for the cost of that
education, it should almost entirely be paid for with government grants with the de
minimis remainder to be paid by Craig.
Still, it is undisputed that Diane currently has no source of regular income from
which she can pay her living expenses aside from health and dental insurance and her
vehicle, including most notably for a place to live. It also is undisputed that Diane is now
in her late fifties, has a high school diploma, and is attempting to re-enter the workforce
after working outside the home only sporadically for the last nearly forty years, and with
no such work at all in the past decade, by mutual agreement of the parties. There appears
to be room here for an increase in the rehabilitative maintenance award.
One possible reason for not awarding Diane more substantial maintenance is that
she also was awarded a significant amount of liquid assets as part of the marital property
division, i.e., nearly $300,000 in such assets.
Here, the issue of rehabilitative
maintenance becomes necessarily intertwined with the property division. There is a
presumption that an equal division of martial property between the parties is just and
reasonable, but that presumption may be rebutted by evidence of the following:
The contribution of each spouse to the acquisition of
the property, regardless of whether the contribution
was income producing.
The extent to which the property was acquired by each
before the marriage; or
through inheritance or gift.
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.
The conduct of the parties during the marriage as
related to the disposition or dissipation of their
The earnings or earning ability of the parties as related
a final division of property; and
a final determination of the property rights of
I.C. § 31-15-7-5.
There is no evidence here of either party having received substantial gifts or
inheritances before or during the marriage, nor of any misconduct or dissipation of assets
by either party. The trial court also aptly noted that Diane’s contributions during the
marriage as a homemaker were just as valuable as Craig’s work outside the home in
creating the marital property. However, the trial court also confusingly stated that while
an equal division of the property was appropriate, it believed a deviation from an equal
division was warranted given “the parties’ current circumstances . . . .” App. p. 39. We
presume that the “circumstances” to which the trial court was referring would be the
vastly disparate current earning abilities of the parties. Even if we were to disregard the
$400,000 bonus Craig recently received as a possible one-time anomaly, he still has
averaged $145,387 in salary in recent years, versus Diane’s zero in the previous nearly
ten years and her one-year highest salary of $11,500.
Despite stating that it was going to deviate from an equal division of the property,
the trial court in fact did not do so. It did award a modicum of rehabilitative maintenance
to Diane, which is different from an unequal division of marital property. See Webb, 891
N.E.2d at 1156. Although Diane could utilize some of the liquid assets she received in
the equal division of the marital property to support herself, Craig, given his substantial
current income, will not likewise be required to access his equal portion of the marital
property to support himself for any period of time. Thus, Diane effectively is ultimately
going to be left with a lesser percentage of the marital property than Craig.
It does appear that the trial court recognized the vastly disparate current earnings
potential of the parties and that it intended to compensate for that disparity, either through
the division of marital property or the award of rehabilitative maintenance. However, the
trial court’s ultimate maintenance award, combined with the equal division of the marital
property, does not adequately address that disparity. Moreover, we have rejected as
legally inadequate two of the trial court’s stated findings and/or conclusions for not
awarding more maintenance to Diane. The trial court’s properly supported findings
clearly establish the vast current earning disparity between the parties and that Diane has
met the criteria for an award of rehabilitative maintenance. We conclude that remand to
the trial court is necessary to further consider that disparity.
We remand for the trial court to enter an order that further considers and addresses
the vast earning disparity between the parties in a manner consistent with this opinion.
KIRSCH, J., and BRADFORD, J., concur.