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No abuse by trial court in modifying maintenance payment terms

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The Indiana Court of Appeals held that a trial court did not abuse its discretion when it denied a man’s petition to revoke spousal maintenance.

Michael Palmby agreed in May 2008 to pay his wife, Karen Palmby, $1,500 a month for two years as part of their divorce agreement. They had been married nearly 27 years and Karen Palmby mainly stayed home with their three children during the course of their marriage. The spousal maintenance was to help Karen Palmby obtain any training to reenter the workforce.

But Michael Palmby ended up paying about $12,000 because he lost significant income due to the housing downturn in 2008 and 2009. He was a Realtor making $120,000 when they divorced; he quit real estate and started working at a call center in 2013 making $50,000. Instead of using the money for work training, Karen Palmby used it to pay medical bills after she broke her arm. She obtained employment at a department store during the pendency of the divorce and has since received a promotion.

In 2013, she sought to recover the remaining money owed; Michael Palmby sought to end the maintenance because of a substantial and continuing change in his circumstances. The trial court decided that Michael Palmby should have $200 per paycheck garnished to pay for the spousal maintenance.

The Court of Appeals found that because the settlement agreement rested on a ground on which the trial court could have ordered the maintenance in the absence of an agreement, the trial court had the authority to modify the instant agreement with respect to rehabilitative maintenance.

The judges noted that Michael Palmby didn’t request a modification based on a substantial and continuing change in circumstances in December 2009 when he entered into an agreement acknowledging he was in contempt for failure to make the payments and had 10 percent of his paycheck garnished until the amount was paid in full.

“Mindful of the ‘great restraint’ which we should exercise in reviewing settlement agreements, we cannot say that the trial court abused its discretion in denying Michael’s request to revoke the spousal maintenance and instead modified the payment terms of the accumulated rehabilitative maintenance,” Judge Patricia Riley wrote in Michael W. Palmby v. Karen M Palmby, 32A04-1310-DR-506.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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