Divided appeals court affirms denial of incapacity maintenance

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A woman with longstanding disabilities denied incapacity maintenance in her divorce judgment convinced one appellate judge that the trial court abused its discretion, but the majority affirmed the lower court’s decision.

Judges L. Mark Bailey and Terry Crone affirmed the trial court’s denial of Brenda Alexander’s motion to correct error in Brenda Alexander v. Donald Alexander, 32A05-1108-DR-417, in which she challenged the omission of an award for incapacity maintenance.

The Alexanders were married in 1996 and the divorce decree was issued in June 2011. In July, Brenda moved to correct error on the basis that the trial court had made findings that would have supported an award for incapacity or rehabilitative maintenance. A vocational therapist offered testimony that Brenda’s ability to support herself was materially impaired because of herniated discs, degenerative disc disease and carpal tunnel syndrome.

The majority noted that the wife is a college-educated accountant who receives disability payments, and that the trial court didn’t abuse its discretion when it chose not to adopt the opinion that she was entitled to incapacity maintenance, noting that she also received disability payments.

“The evidence before the trial court did not point solely to a conclusion opposite that reached. Although there was evidence that Wife had physical limitations and received disability payments, there was also evidence that she was college-educated, that she had recently provided child care for pay, and that her limitations would not entirely preclude sedentary work. We will not reverse a judgment merely because we might have, on the same evidence, reached a different conclusion,” Bailey wrote.

Dissenting Judge Patricia Riley said the court’s findings missed the point from McCormick v. McCormick, 780 N.E.2d 1220, 1224 (Ind. Ct. App. 2003): “The essential inquiry is whether the incapacitated spouse has the ability to support himself or herself.”

“In light of these special findings and without a determination of the effect of such disability payments on Brenda’s ability to support herself, I cannot conclude that the trial court properly exercised its discretion to deny Brenda an award of incapacity maintenance when its special findings would otherwise authorize an award,” Riley wrote. “Thus, the trial court’s denial of incapacity maintenance under these circumstances was contrary to law and an abuse of discretion. I would therefore remand to the trial court with instructions to determine the propriety of Brenda’s request for incapacity maintenance.”     



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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.