In re the Marriage of: Tina Marie Perry v. William N. Perry, III (mem. dec.)
41A04-1606-DR-1461
| Ind. Ct. App. | Apr 5, 2017Background
- Tina Perry (Mother) and William Perry (Father) divorced in 2013. Mother was awarded sole legal and physical custody then, and Father was ordered to pay child support and $400/month incapacity spousal maintenance to Mother based on her disability and financial need.
- Maintenance award was expressly modifiable and would terminate on death, upon cessation of disability, or when Mother began receiving distributions from Father’s defined benefit plan.
- In a subsequent 2015 Agreed Order, Father obtained sole custody of the children; the parties reallocated child support/expense responsibilities and Social Security benefits for the children (approx. $964/month) were used to satisfy certain obligations.
- In September 2015 Father filed a petition to modify (terminate) Mother’s incapacity maintenance, alleging changed circumstances: he now bore 100% of the children’s expenses (including college, car, extracurriculars) and his income had decreased.
- At the April 2016 hearing Father introduced itemized child-related expenses and front pages of tax returns; he offered no evidence of increased income for Mother. The trial court found a substantial change in circumstances (primarily increased child expenses) and revoked Mother’s maintenance. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether Father proved "changed circumstances so substantial and continuing" to revoke incapacity maintenance | Change: Father now has sole custody and pays 100% of children’s expenses; his income has decreased, so $400/month maintenance is no longer affordable | Mother remained disabled and materially unchanged financially; Social Security benefits pre‑dated the decree; Father’s income was not worse than at time of award and child expense increases were offset by changes (no longer paying prior child support; receiving children’s SS payments) | Reversed: trial court abused discretion; evidence did not satisfy the high standard for revoking an incapacity award; maintenance remains in place |
Key Cases Cited
- In re Gertiser, 45 N.E.3d 363 (Ind. 2015) (explains standard for modifying vs. revoking maintenance and that revocation requires showing the award is unreasonable now and under any reasonably foreseeable future circumstances)
- Haville v. Haville, 825 N.E.2d 375 (Ind. 2005) (interprets statutory standard for modification/revocation of maintenance)
- Banks v. Banks, 980 N.E.2d 423 (Ind. Ct. App. 2012) (factors to consider when assessing changed circumstances for maintenance modification)
- Alexander v. Alexander, 980 N.E.2d 878 (Ind. Ct. App. 2012) (identifies three narrow bases for spousal maintenance: incapacity, caregiver, rehabilitative)
- French v. French, 821 N.E.2d 891 (Ind. Ct. App. 2005) (standard of review for motions to correct error and appellate review of trial court discretion)