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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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