IN RE: The Marriage of: Michel Cunningham (2025)

MEMORANDUM DECISION

Case Summary

[1] Michel and Karen Cunningham (“Husband” and “Wife,” respectively) married in 1995, and, in July of 2024, Husband petitioned for dissolution of their marriage. Following a hearing, the trial court issued an order of dissolution, ordered Husband to pay temporary spousal maintenance to Wife, and ordered a 60/40 division of the marital estate in favor of Wife. Husband contends that the trial court abused its discretion in ordering spousal maintenance, dividing the marital estate unevenly, and in dividing his pension. Because we disagree with Husband's first two contentions but agree with his third, we affirm and remand with instructions.

Facts and Procedural History

[2] On September 9, 1995, Husband and Wife were married, and, on July 10, 2024, Husband petitioned for dissolution of the marriage. While Husband had adopted one of Wife's children, there were no children of the marriage. As of the date of the dissolution petition, the parties owned no real property, and their only assets were three motor vehicles, multiple bank accounts, and Husband's retirement accounts and pension. On August 15, 2024, Wife moved for provisional relief (in the form of temporary maintenance) and for a joint preliminary injunction against dissipation of marital assets.

[3] On February 3, 2025, the trial court held a final dissolution hearing. Evidence was admitted indicating that Husband had earned $120,333.00 in 2024 and planned on working for another eleven years before retirement. Wife testified that she was receiving Social Security disability benefits of $629.00 per month (which does not cover her monthly expenses) and was unable to work. In addition to the assets mentioned above, Husband testified regarding a pension through his job, indicating that he would have to work another eleven years before he would be eligible to receive any pension payments. All three of the asset schedules submitted by the parties listed Husband's pension as a marital asset but none included a valuation or valuation date.¹

[4] On February 13, 2025, the trial court entered its dissolution decree and order of allocation of assets and debts. The allocation order provides, in part, as follows:

Indiana Code Section 31-15-7-2 establishes the Court's authority to award spousal maintenance. Because the Social Security Administration has awarded Wife with Supplemental Security Income for being a disabled individual, and both Wife and Husband indicated that Wife has not worked in over twenty (20) years, there is a basis to find that Wife is physically or mentally incapacitated to the extent that it materially affects her ability to support herself. In addition, because Wife has no retirement account set aside and is nearly 55 years old, she lacks sufficient property to provide for her own needs. On this basis, the Court may find that spousal maintenance is necessary during the period of incapacity or for a period that the court considers appropriate. In this case, while the Court believes it reasonable and appropriate to award continued spousal maintenance, the Court is not prepared to find that it should continue until Wife begins receiving pension payments because the Court has no documented evidence of what Wife's limitations and restrictions are. It is possible that Wife can work some to reduce Husband's financial obligations and she should be required to do based upon her restrictions/limitations.

Accordingly, the Court finds that spousal maintenance shall continue for at least nine (9) months so that the Court can conduct another hearing and Wife will be required to present evidence from her healthcare provider demonstrating her restrictions and limitations. A review hearing on this matter is scheduled for September 24, 2025 at 9:00 a.m. with three (3) hours allotted. To be clear, if Husband requests a continuance, the spousal maintenance will continue until the hearing is conducted. If Wife requests a continuance, the spousal maintenance will be temporarily suspended until a hearing occurs. If the attorneys and parties are not available on this scheduled date, they should notify the Court within fifteen (15) days so the hearing can be promptly rescheduled.

Wife testified that she receives $629/month in SSI benefits and has no other source of income. She submitted into evidence Exhibit L which sets forth her monthly expenses. Her claimed monthly expenses just for herself are $2,541.00 and due to the shortfall is requesting $1,903.00/month in spousal maintenance. However, pursuant to an Agreed Provisional Order, Husband was paying $1,250.00/month plus the monthly car payment, but the car is now being returned to Husband. The Court believes that continuing the spousal maintenance at $1,250.00/month until the next hearing is reasonable and appropriate. Wife needs to consider government housing and other ways to reduce her personal expenditures. Government housing would reduce her monthly rent, utilities and obviate the need for lawn service. The attached Exhibit A sets forth the allocation of assets and debts. The Court finds that deviation from the presumption of equal division is reasonable and appropriate in this circumstance. The evidence was clear that Wife has little earning potential, is close to retirement age making it difficult to learn new skills and obtain an education, and has no retirement savings. For this reason, the Court awards Wife her requested 60% allocation of assets.

Appellant's App. Vol. II pp. 18–19 (footnote omitted). The trial court's listing and allocation of marital assets and debts lists Husband's pension and allocates 60% of it to Wife but does not include a value or valuation date.

Discussion and Decision

I. Spousal Maintenance

[5] Husband contends that the trial court abused its discretion in ordering that he pay Wife spousal maintenance. Indiana Code section 31-15-7-2 governs spousal maintenance and provides, in part, as follows:

(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.

[6] As for our standard of review in such cases,

[a] trial court's power to award spousal maintenance is wholly within its discretion. Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct. App. 2007). The presumption that the court correctly applied the law in making an award of spousal maintenance is one of the strongest presumptions applicable to our consideration of a case on appeal. Id. We will reverse a trial court's decision to award spousal maintenance only when the decision is clearly against the logic and effect of the facts and circumstances of the case. Clokey v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind. Ct. App. 2011), aff'd on reh'g, 957 N.E.2d 1288.

Barton v. Barton, 47 N.E.3d 368, 375 (Ind. Ct. App. 2015), trans. denied.

[7] As discussed, the trial court awarded temporary maintenance of $1250.00 per month after finding that there was a basis to find that Wife is physically handicapped to the extent that it materially affects her ability to support herself. At the dissolution hearing, Wife testified that she has to “use a scooter in the stores, because [she] can't walk very far” and cannot stand up to reach groceries on the top shelf. Tr. Vol. II p. 68. Wife described her various ailments as “[r]heumatory [sic] arthritis, [․]depression, anxiety[,] diverticulitis, [and possibly] congestive heart failure.” Tr. Vol. II p. 82. According to Wife, she “can't hardly walk at all, [she] cannot work.” Tr. Vol. II p. 82.

[8] Wife testified that she receives disability benefits from Social Security of $629.00 per month as her only income, which does not cover her expenses. Wife did not graduate from high school; had a newspaper route at one time; and worked at McDonald's, Sony, and Wal-Mart before leaving her last paying job approximately twenty years ago. When asked if she was able to work, Wife answered, “No, I'm not.” Tr. Vol. II p. 86. When asked if anyone else had deemed her unable to work, Wife replied, “[t]he doctor, the disability office and my doctor.” Tr. Vol. II p. 96. In summary, Wife testified to a number of health issues, which, in the opinions of her and at least two medical professionals, have rendered her unable to work. This is sufficient to support the trial court's award of temporary maintenance.

[9] Husband points to a lack of documentary evidence in the record regarding Wife's various ailments and compares this case to Matzat v. Matzat, 854 N.E.2d 918 (Ind. Ct. App. 2006), in which we reversed an order for spousal maintenance for lack of supporting evidence. Id. at 920–01. In that case, however, all that was before the trial court was the recipient's testimony that “that she has back problems that have impeded her ability to work.” Id. at 919. Here, however, the trial court heard considerably more, including a list of medical conditions, specific tasks that were beyond Wife's capabilities, and that she was already receiving disability benefits from Social Security, presumably following some sort of medical determination that she was, in fact, disabled. The trial court's award of spousal maintenance to Wife was not clearly against the logic and effect of the facts and circumstances of the case. See Barton, 47 N.E.3d at 375.

II. Division of the Marital Estate

[10] Husband contends that the trial court abused its discretion in unequally dividing the marital estate. Indiana Code section 31-15-7-4(a) provides that a dissolution court shall divide the property of the parties, whether “owned by either spouse before the marriage[,] acquired by either spouse in his or her own right [․] after the marriage [․] and [․] before final separation of the parties[; or] acquired by their joint efforts.”

[11] In dividing a marital estate, the trial court must first identify all property that is to be included in the marital estate, and second, the trial court must distribute the property just and reasonably. O'Connell v. O'Connell, 889 N.E.2d 1, 10–11 (Ind. Ct. App. 2008). “All marital property” consists of both assets and debts and encompasses any property acquired by a spouse before the marriage, during the marriage or by the parties jointly. Roetter v. Roetter, 182 N.E.3d 221, 227 (Ind. 2022).

[12] Pursuant to Indiana Code section 31-15-7-5, there is a statutory presumption that an equal division of martial property is just and reasonable, which may be rebutted by evidence concerning the following:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the parties.

Ind. Code § 31-15-7-5.

[13] If the trial court determines that an unequal division of a marital estate is just and reasonable, it must state the reasons why an equal division of the marital estate would not be just and reasonable. In re Marriage of Davidson, 540 N.E.2d 641 (Ind. Ct. App. 1989). A reviewing court is not permitted to substitute its judgment for that of the trial court. Roetter, 182 N.E.3d at 228. “A reviewing court will not weigh evidence, but will consider the evidence in a light most favorable to the judgment.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).

[14] Husband argues that the trial court abused its discretion in dividing the marital estate unequally because it is undisputed that Husband was the breadwinner for the entirety of the marriage; the two most valuable assets in the estate (Husband's annuity and pension) were both received through his work; he purchased the couple's vehicles, appliances, and clothing; and he paid the couple's debts. Husband's argument, however, fails to address the trial court's findings on the matter, which focus on Wife's lack of present earning potential, future prospects, or retirement savings. We will not assume that the trial court simply ignored the evidence regarding the degree of Husband's financial contributions, but, rather, we will assume that it found it outweighed by evidence regarding Husband's present and future earning potential and Wife's lack thereof. Husband's argument is simply an invitation to reweigh the evidence, which we will not do. See Fobar, 771 N.E.2d at 59. Husband has failed to establish that the trial court abused its discretion in unequally dividing the marital estate.

III. Valuation of Husband's Pension

[15] Finally, Husband contends that the trial court abused its discretion in failing to value his pension or include a valuation date. Indiana Code section 31-9-2- 98(b) defines “property” under our dissolution statutes as including “the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage[.]” Both parties appear to agree that the pension was correctly included in the marital estate.

[16] Husband, however, notes that Exhibit A to the dissolution decree lists the pension (and indicates that Wife is to receive 60% of it) but does not include a valuation or a valuation date and contends that these omissions are abuses of discretion. As for assigning a particular present value to Husband's pension, we are at something of a loss to understand why this is necessary. A pension is a right to receive benefits in the future, and, for all practical purposes, has no present value. Husband has failed to convince us that the trial court abused its discretion in not assigning a present value to his pension.

[17] That said, Husband also contends that the trial court erred in identifying a date on which his pension is to be valued. While we agree with Husband to a degree, it might be more accurate to characterize his contention as that the trial court failed to name a date on which the pension was to stop accruing future value in favor of Wife. It stands to reason—and our caselaw supports the proposition—that pension benefits that Husband accrues after the end of the marriage should go entirely to him. Wife concedes this point on appeal, agreeing “that she is not entitled to the portion of Husband's pension that accrues after the date of the parties’ dissolution but that she is entitled to 60% of the marital portion.” Appellee's Br. p. 14.

[18] We believe that the approach we described in Thompson v. Thompson, 811 N.E.2d 888 (Ind. Ct. App. 2004), trans. denied, is appropriate in such cases:

In order to give the spouse who contributes to the retirement benefit the value of the proceeds contributed after the filing of separation, but not deprive the other spouse of the interest generated from an asset that was acquired during the marriage, trial courts should:

(1) Choose a date between the final separation date and the final hearing to value the benefit, with the intention of allocating the risk of subsequent change in value of the asset.

(2) Based upon the date of valuation and evidence in the record, assign a value to the benefit[,] and,

(3) Subtract any amount contributed by a spouse after the final separation date.

Id. at 918–19 (citations omitted). We therefore remand for the trial court to (1) choose a date between the final separation and final hearing, (2) determine the amount of Husband's future pension benefits that accrued during the marriage before that date, and (3) award to Wife the right to receive only the amount of future pension payments that represents 60% of the that amount. Put another way, Wife is to receive 60% of the amount of Husband's future pension payments that will have been the result of his work during the marriage but none of the portion of the pension payments that will have been the result of his work after the marriage.

[19] We affirm the judgment of the trial court and remand for further proceedings consistent with this memorandum decision.

[20] I agree with my colleagues that the trial court acted within its discretion by ordering spousal maintenance and dividing the marital estate unevenly, but I write separately to disagree with my colleagues’ resolution of the issue regarding Husband's pension.

[21] First, I note that Husband waived any arguments related to the valuation of the pension or the division of its value into marital and non-marital portions. During his testimony on direct examination, Husband's counsel asked him: “And do you purpose that no matter, to spite any other discretion any other asset you're fine with distributing your pension fifty percent (50%)?” (Tr. Vol. II at 23) (errors in original). Husband responded, “Yes.” (Id.) Husband submitted proposed dissolution worksheets that did not assign a value to the pension or suggest a date on which Wife's portion should be determined.² (Ex. Vol. at 69, 72.) When he introduced the worksheets at trial, Husband again agreed they should “equally distribute” his pension, (Tr. Vol. II at 46), and that Wife should get “half” of his pension. (Id.) Parties cannot present issues to us that were not presented to the trial court, see B.N. v. Health & Hosp. Corp., 199 N.E.3d 360, 363 n.1 (Ind. 2022) (waiving constitutional and statutory claims not raised before the trial court), and we will not assign error to the trial court that was a direct result of the party's own arguments at trial. Isom v. State, 170 N.E.3d 623, 646 (Ind. 2021) (“a party cannot benefit from an error the party commits, invites, or sets into motion by his own neglect”). Accordingly, I would not order the trial court on remand to divide the pension into marital and non-marital portions.

[22] My greater concern is whether Husband's pension is, in fact, vested. Although the parties agree that Husband's pension is vested, that fact is not clear to me from the Record before us. Husband's Exhibit 5 contains a chart about his pension that appears to contain values based on calendar years, but the chart is illegible as provided to us. (Ex. Vol. at 50.) On direct examination, Husband testified as follows:

Q Okay, and what is your current health condition sir?

A Right now, I'm eligible for two (2) knee replacements. I was told I was too young to have that at the job that I do in construction. By the time I could retire I'd need another knee replacement. I have a bad hip and I've had nerves burnt in my back twice so far.

Q Okay, and so you're falling apart?

A Yes.

Q Alright, and what exactly do you do for your job?

A Uh, it's just general construction. I work in tanks, boiler houses which create the electricity. Work in refineries, there's heavy lifting, running impacts, chain falls, welding, cutting, grinding.

Q So, you have limited time to work and make any money that you're going to make?

A Yes.

Q Alright, how much longer do you think you're going to work?

A The way my pension is set up, I have to go until I am sixty-three (63). So, another eleven (11) years.

Q Are you going to make it?

A I don't know, I'm trying.

(Tr. Vol. II at 40-1.) Husband's testimony, in context, indicates to me that he cannot receive a pension unless he works at his job until he is 63 years old, which he may not be able to do, and I would remand for the trial court to confirm the status of Husband's pension, by receiving additional evidence if necessary.

[23] If Husband's pension is vested, then I would require Husband to pay Wife 50% of whatever he receives, because that was what he asserted at trial would be appropriate. If Husband's pension is not vested (and thus technically was not marital property for dissolution purposes, see Ind. Code § 31-9-2-98(b) (property includes vested pensions)), I would nevertheless hold Husband to his agreement that Wife should receive 50% of any pension he receives, but I would clarify that Wife has no recourse against Husband in the event that Husband does not work in his current employment until he is 63 years old.

[24] I accordingly concur with my colleagues’ decision to affirm the trial court's decision and to remand for additional clarification regarding the pension, but I dissent regarding what the trial court should be clarifying on remand.

FOOTNOTES

1.   Husband submitted two asset schedules to the trial court, one representing a 50/50 split of the martial estate and the other a 65/35 split in Husband's favor.

2.   Wife also submitted a proposed worksheet that did not value the pension but indicated “Wife to receive 60% and Husband 40%[.]” (Ex. Vol. at 74.)

Bradford, Judge.

Judge Mathias concurs. Judge May concurs in part and dissents in part with opinion. Mathias, concurs. May, J., concurs in part and dissents in part with opinion.