Clokey v. Bosley Clokey
956 N.E.2d 714
| Ind. Ct. App. | 2011Background
- Richard and Penny married on June 19, 2004; at marriage Penny was disabled and receiving Social Security disability benefits.
- Richard had substantial assets, including a $600,000 investment fund and a family trust from which he received distributions and could control funds.
- Pre-marriage and married assets were commingled and later transferred to a trust; Penny did not work and had limited income.
- During the marriage, Richard dissipated marital assets and the Volkers Group fund depleted to zero by March 2010; he faced substantial debt and questioned spending.
- The trial court found Penny physically or mentally incapacitated to support herself and awarded incapacity maintenance of $2,000 per month for her lifetime or until disability was removed, based in part on Penny’s disability and lack of sufficient property.
- The dissolution decree noted Richard’s concealment and commingling of assets and ordered maintenance and asset distribution accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in awarding incapacity maintenance. | Clokey argues the award overlooks his ability to pay and his age, and that the dissipation of assets should limit maintenance. | Clokey concedes Penny’s incapacity supports maintenance and argues the court properly considered dissipation and commingling in asset distribution. | No abuse of discretion; $2,000/month maintained due to Penny's incapacity and asset dissipation. |
Key Cases Cited
- Paxton v. Paxton, 420 N.E.2d 1346 (Ind. Ct. App. 1981) (medical testimony not required to support incapacity maintenance when disability proven)
- Cannon v. Cannon, 758 N.E.2d 524 (Ind. 2001) (discretion in incapacity maintenance limited to substantial impairment of ability to support self)
- Fuehrer v. Fuehrer, 651 N.E.2d 1171 (Ind. Ct. App. 1995) (maintenance discretion guided by statutory framework and case law)
- McCormick v. McCormick, 780 N.E.2d 1220 (Ind. Ct. App. 2003) (maintenance designed to provide for sustenance; focus on recipient's ability to support herself)
- Smith v. Smith, 938 N.E.2d 857 (Ind. Ct. App. 2010) (standard of review for trial court findings under Indiana Trial Rule 52(A))