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Man loses appeal to revoke spousal maintenance

November 10, 2015

An ex-husband who sought “all-or-nothing” relief when he asked the court to terminate his ex-wife’s incapacity support instead of reducing it after she remarried lost his appeal before the Indiana Supreme Court.

The justices agreed with the trial court that Anne Stokes’ finances had not changed so substantially that revocation of spousal maintenance was warranted once she remarried. When she and Kevin Gertiser divorced after 25 years of marriage in 2007, the court ordered Gertiser to pay Stokes $1,182.50 in incapacity maintenance per month, finding her legal blindness materially affected her ability to support herself. At the time, her income was under $10,000 per year in Social Security disability benefits and under $1,000 in earnings from part-time medical transcription work from home. Gertiser earned about $144,000 a year at that time.

Both remarried and Gertiser sought to terminate Stokes’ spousal maintenance on the basis that her remarriage created a substantial and continuing change in her financial condition that made any further maintenance unreasonable because Stokes’ husband brought substantial assets and income into the marriage and has a statutory duty to support her. The trial court disagreed and kept the maintenance order in place. The Court of Appeals reversed.

“We recognize this record could have supported Kevin’s position, if the trial court had accepted it. But there is also ample evidence to support the contrary view reflected in the trial court’s findings — and those findings support the refusal to revoke maintenance,” Chief Justice Loretta Rush wrote.

The justices held that courts may revoke incapacity maintenance for recipients whose ability to support themselves is no longer materially affected, even if they are still disabled. Stokes had argued maintenance could only be modified, but never revoked, if one is still disabled.

Addressing the trial court’s findings, the high court noted that proving that a change in circumstances is so “substantial and continuing” as to require revoking maintenance is a steep showing.  The justices also noted that $253,000 of Stokes’ marital assets do not constitute any change in her financial circumstances, and the remaining value of the $371,000 of assets her husband brought to their marriage can be discounted. Of that money, nearly half is his legal interest in a trust that holds title to his parents’ property; and most of the remaining amount is held in retirement accounts for which withdrawals would incur substantial penalties, Rush wrote. She also pointed out that while Stokes’ husband’s income is higher than Gertiser’s, he has to pay more than $2,500 each month in maintenance to his ex-wife and child support.

“Again, revoking maintenance required Kevin to prove not merely that the maintenance award had become unreasonably excessive, but its very existence had become unreasonable. And under the facts as found by the trial court, any change in Anne’s finances was not of a magnitude that made it unreasonable to leave a maintenance order in place. Since Kevin made no alternative argument for a reduction, we need not consider (and express no opinion about) whether a modification might have been warranted. In this procedural posture, where Kevin chose to seek all-or-nothing relief, we agree that these findings support denying the drastic remedy he requested,” Rush wrote in Kevin Gertiser v. Anne Stokes f/k/a Gertiser, 29S02-1511-DR-643.

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