Nathan Graves, Appellant-Petitioner v. April Graves, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Nathan Graves (Husband) appeals the trial court's decree dissolving his marriage to April Graves (Wife), challenging (1) the court's award of primary physical custody of the couple's two children to Wife, (2) the valuation of certain marital assets, (3) the inclusion of certain assets in the marital pot, (4) the unequal distribution of the marital pot, (5) the award of spousal maintenance, and (6) the award of attorney's fees. We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] Husband and Wife married on September 18, 2010. The marriage produced two children: B.G., born September 2011, and E.G., born January 2014. After B.G. was born, Wife became a stay-at-home mother and was the children's primary caretaker. Prior to this, she worked “in the mortgage department at Wells Fargo” making approximately fifteen dollars an hour. Tr. Vol. II p. 142. Husband is a podiatrist whose weekly income is over $13,600.00. In 2016, Wife was diagnosed with multiple sclerosis. On August 16, 2023, Husband filed a petition for dissolution of marriage in the Hamilton Circuit Court.

[3] The court held a final hearing on March 6, 2025. Guardian Ad Litem (GAL) Jenna Heavner testified, and a copy of the GAL report was admitted. Heavner recommended Wife have primary physical custody of the children with Husband exercising parenting time. In explaining her recommendation, Heavner stated that Husband entered into a new relationship with Kate Goins (Girlfriend) in early 2024 and that the children had negative feelings regarding the relationship that continued to “worse[n].” Id. at 71. Heavner testified that Girlfriend and her young daughter often slept at Husband's home while he was exercising parenting time. Heavner stated that Husband “pushed” the relationship on the children and the children had expressed frustration that Husband did not spend time with them when Girlfriend was there. Id. at 75. According to Heavner, despite she and the children discussing these issues with Husband, he refused to limit the amount of time Girlfriend and her daughter spent at the home, and in fact by the time of the factfinding they had moved in. Heavner also spoke to the children's therapist, who noted “the kids are still struggling with the transition with [Husband] and his new relationship and the dynamic between the two parents[’] homes.” Id. at 74. “[G]iven the kids[’] strong negative feelings” toward Girlfriend and her living at Husband's residence, Heavner was “not inclined to recommend” additional parenting time for Husband. Id. at 71.

[4] Following the hearing, the trial court issued an order dissolving the marriage. The court ordered joint legal custody of the children but granted Wife primary physical custody, with Husband exercising parenting time in accordance with the Indiana Parenting Time Guidelines. The court found there should be a deviation from the presumed equal division of the marital property, citing that Wife “by agreement of the parties ․ bore nearly all of the child-rearing responsibilities, maintained the home, and was a stay-at-home mom,” allowing Husband to work as a surgeon with a significantly higher earning capacity. App. Vol. II p. 24. The court thus ordered the marital estate be divided 80% to Wife and 20% to Husband. The court further awarded Wife the marital home but ordered Husband to pay the mortgage to “to maintain Wife and the parties’ children in the home.” Id. at 25. The court also ordered Husband to pay $30,000.00 worth of Wife's attorney's fees. Husband now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Findings of Fact

[5] Husband first challenges three of the trial court's findings of fact. We review a trial court's sua sponte findings and conclusions under a two-tiered standard of review to determine whether the evidence supports the findings and whether the findings support the judgment. Kakollu v. Vadlamudi, 175 N.E.3d 287, 295 (Ind. Ct. App. 2021), trans. denied. We will not set aside the trial court's findings or its judgment unless it is clearly erroneous, giving due regard to the trial court's opportunity to judge witness credibility. Id. Findings of fact are only clearly erroneous where the record lacks any evidence or reasonable inferences to support them. Wyzard v. Wyzard, 771 N.E.2d 754, 756-57 (Ind. Ct. App. 2002). When determining whether a finding or judgment is clearly erroneous, we consider only the evidence most favorable to the judgment, along with all reasonable inferences therefrom, neither reweighing the evidence nor assessing witness credibility. Id. at 757. Issues not covered by the findings are reviewed under the general judgment standard, which means that, as a reviewing court, we should affirm based on any legal theory that is supported by the evidence. Kakollu, 175 N.E.3d at 295.

[6] Husband challenges Findings 9-11, which state:

9. [Husband] has been in a relationship over essentially the entirety of this divorce. [Husband] regularly had his girlfriend and her young daughter spend the night at his home while the minor children were there.

10. The GAL testified that the children have expressed to [Husband] that they want to spend time with him without his girlfriend, but the girlfriend is now present ever more so than before. Despite the children repeatedly asking [Husband] to refrain from having his significant other present during parenting time, [Husband] made the choice to cohabitate with his girlfriend.

11. [Husband's] refusal to abide by his children's wishes has made the already difficult transition between two households [ ] even harder for the children. The Court finds that [Husband's] choice to cohabitate with his significant other is negatively impacting his time with the children.

App. Vol. II p. 21.

[7] As to Finding 9, Husband argues he had not been in a relationship with Girlfriend “over essentially the entirety of this divorce.” Husband testified he began his relationship with Girlfriend “[a]bout a year” after the date of filing the petition for dissolution. Tr. Vol. II p. 134. The date of filing was August 2023, meaning Husband testified his relationship with Girlfriend began in approximately August 2024. Notably, as early as May 2024, the children were discussing the relationship with the GAL. It may have been more accurate for the trial court to say the majority of the proceedings, rather than the entirety. In any event, it is clear Husband began a new relationship in early 2024 and the remainder of the Finding—that Husband regularly has Girlfriend and her young daughter spend the night during parenting time—is undisputed.

[8] Husband next challenges Finding 10, arguing the “only evidence presented revealed that B.G. was the only child to make a request to [Husband] about [Husband] spending time with his girlfriend, and [Husband] honored B.G.’s wishes.” Appellant's Br. p. 13. This is incorrect. In July 2024, Husband acknowledged to the GAL that “the children asked that his significant other not be present during parenting time[.]” Ex. Vol. III p. 174. Husband stated he “respected” this but that “as the parent” he “makes the ultimate decision.” Id. Furthermore, the GAL sent an email a week prior to the hearing as an “update” to her report in which she stated both children expressed wanting to spend time with Husband without his girlfriend, that they repeatedly expressed this to him, and that he does not listen. Id. at 227. As such, Finding 10 is not clearly erroneous.

[9] As to Finding 11, Husband simply argues it is “unsupported by the evidence.” Appellant's Br. p. 13. However, a bald assertion that a finding is erroneous is insufficient to show that it is in fact clearly erroneous. Clow Corp. v. Ross Tp. School Corp., 384 N.E.2d 1077, 1082 (Ind. Ct. App. 1979); see also Ind. Appellate Rule 46(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.”). Husband has failed to show Finding 11 is clearly erroneous.

II. Custody

[10] Husband first challenges the trial court's physical custody determination. In making an initial custody determination, the trial court shall “enter a custody order in accordance with the best interests of the child.” Ind. Code § 31-17-2-8 (2017). “[T]here is no presumption favoring either parent.” Id. The court must consider all relevant factors, including in part:

(1) The age and sex of the child.

(2) The wishes of the child's parent or parents.

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parent or parents;

(B) the child's sibling; and

(C) any other person who may significantly affect the child's best interests.

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

Id.

[11] Husband argues “the trial court's sole basis for its custody award being Husband's cohabitation [with Girlfriend], where no findings of detriment to the Minor Children's welfare were made, is legally insufficient[.]” Appellant's Br. p. 15. In support, he cites Dunlap v. Dunlap, 475 N.E.2d 723 (Ind. Ct. App. 1985). In that case, the trial court modified child custody from the father to the mother because the father was “living with a lady to whom he is ․ not married[.]” Id. at 725. The father appealed, and we reversed, stating:

Although this living arrangement may not be the optimum one, the evidence clearly shows [the child] has not been adversely affected by it. In order to deprive a parent of the custody of a child because of sexual misconduct, the misconduct must be shown to have an adverse effect upon the welfare of the child.

***

Without some evidence that the living arrangement is in some way detrimental to the welfare of [the child], a modification of custody, based solely upon that relationship, is improper.

Id. at 726. Husband argues that, as in Dunlap, the trial court here awarded Wife primary physical custody solely due to his cohabitation with Girlfriend. As an initial matter, we disagree with Husband that his cohabitation was the “sole basis” for awarding primary physical custody to Wife. At least one of the children expressed a desire to live predominantly with Wife. See Ex. Vol. III p. 182. Further, Wife was the children's primary caretaker throughout their lives as a stay-at-home mother. This evidence further supports the trial court's custody determination.

[12] And in Dunlap, it was undisputed that the child in that case was not adversely affected by the father's relationship. That is not the case here. The August 2024 GAL report indicates both children were struggling with the relationship and reported concerns and frustrations with Husband's expectations that they spend time with Girlfriend and her daughter. At the final hearing six months later, Heavner testified that the children's “strong negative feelings” of Girlfriend had gotten “worse” and that the children feel “slighted” by Husband in favor of Girlfriend and her daughter. Tr. Vol. II p. 71. Heavner also stated that “[Husband] has pushed [his new relationship] on the kids,” refused to limit his time with Girlfriend despite the children's requests and the GAL's recommendation, and “has not made sufficient efforts to help ease the transition” for the children. Id. at 75; Ex. Vol. III p. 184. The children's therapist also reported the children were “struggling with the transition with [Husband] and his new relationship[.]” Tr. Vol. II p. 74. This evidence clearly supports the trial court's conclusion that Husband's “refusal to abide by his children's wishes [to spend time with him without Girlfriend] has made the already difficult transition between two households [ ] even harder for the children” and “is negatively impacting his time with” them. App. Vol. II p. 21. Given all the evidence presented, we cannot say the trial court abused its discretion in awarding primary physical custody to Wife.

III. Spousal Maintenance

[13] Husband challenges the trial court's order that he pay the monthly mortgage on the family home, arguing it was an improper award of spousal incapacity maintenance to Wife.¹ In making this award, the trial court found:

Wife shall receive the marital residence ․ and Husband shall be obligated to sign a Quitclaim Deed to relinquish his interest in said residence within thirty (30) days of the date of this Decree. Husband shall continue to make the mortgage payments on the home until the same is paid off. Wife suffers from Multiple Sclerosis, which can affect her ability to maintain fulltime employment. Husband's payment of the mortgage is to maintain Wife and the parties’ children in the home.

Id. at 25.

[14] Indiana Code section 31-15-7-1 authorizes the trial court to order spousal maintenance “after making the findings required” in Indiana Code section 31-15-7-2. That section provides, in pertinent part, as follows:

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.

I.C. § 31-15-7-2 (1997) (emphasis added). “A trial court's power to award spousal maintenance is wholly within its discretion.” Barton v. Barton, 47 N.E.3d 368, 375 (Ind. Ct. App. 2015), trans. denied. On appeal, we presume the court correctly applied the law in awarding maintenance—“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.” Id.

[15] Husband argues the trial court abused its discretion in awarding Wife maintenance because it did “not make a specific finding that Wife is incapacitated to the point that her ability to work and support herself is materially affected.” Appellant's Br. p. 25. But the trial court did find that Wife suffers from multiple sclerosis and that this affects her ability to maintain fulltime employment. While not explicitly citing the language of Indiana Code section 31-15-7-2, it is clear from this finding that the trial court found Wife to be incapacitated to the extent her ability to support herself was materially affected. See Augspurger v. Hudson, 802 N.E.2d 503, 508-09 (Ind. Ct. App. 2004) (upholding trial court's award of spousal maintenance despite lack of explicit finding of incapacity where it was clear from its findings that the court determined the wife was incapacitated). Given the strong presumption the court correctly applied the law in awarding spousal maintenance, we cannot say the court made an improper award of spousal maintenance here.

[16] Finally, Husband argues the trial court erred in awarding spousal maintenance, pointing to evidence that suggests Wife is not incapacitated. This is a request to reweigh evidence which we do not do. Wyzard, 771 N.E.2d at 757.

IV. Property Division

[17] We turn now to the division of marital property, which is a two-step process in Indiana. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), reh'g denied, trans. denied. First, the trial court determines what property must be included in the marital estate, then the court must divide that property. Id. Husband first argues the court erred in determining that certain property constituted marital property. He then argues the court erred in ordering an unequal split of the marital property.

A. Marital Property.

[18] We first turn to the inclusion of certain assets in the marital pot. All marital property goes into the marital pot for division, whether it was owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts. Ind. Code § 31-15-7-4(a) (1997); Webb v. Schleutker, 891 N.E.2d 1144, 1149 (Ind. Ct. App. 2008). Additionally, a trial court may distribute property acquired after the filing of the petition for dissolution if acquired by the parties’ joint efforts. In re Marriage of Adams, 535 N.E.2d 124, 127 (Ind. 1989). The “one-pot” theory ensures that all assets are subject to the trial court's power to divide and award. Thompson, 811 N.E.2d at 914. While the trial court may ultimately determine that a particular asset should be awarded solely to one spouse, it must first include the asset in its consideration of the marital estate to be divided. Id.

[19] Husband argues the trial court abused its discretion by including “non-marital assets in the marital estate[.]” Appellant's Br. p. 17. Specifically, he argues the court improperly included in the marital pot (1) the $34,284.58 down payment on his new home (the 151st Street Property) and (2) $98,600.00 in predissolution withdrawals.

[20] As to the 151st Street Property, the trial court included as marital property the down payment Husband paid in November 2023. Husband argues this is not marital property because it was acquired by him after the final separation of the parties. “Final separation” means “the date of filing of the petition for dissolution of marriage[.]” Ind. Code § 31-9-2-46 (1997). Here, Husband filed his petition for dissolution of marriage on August 16, 2023, a few months before paying the down payment. He testified that he earned the money for the down payment after the dissolution of marriage was filed, which is certainly possible given his weekly income. Wife agreed the 151st Street Property was purchased after the date of final separation and that Husband did not use joint funds for the payment. See Tr. Vol. II p. 200. Notwithstanding this evidence, the court included the down payment amount—$34,284.58—in the marital pot and attributed it as an asset of Husband's. This was incorrect.

[21] Husband also argues the court abused its discretion in including in the marital pot $98,600.00 worth of withdrawals he made in the months prior to filing the petition for dissolution. Specifically, Husband argues that this money was not in his possession at that point in time and thus could not be included in the marital pot for division. We agree. A trial court cannot include as part of the marital estate assets that are no longer in the parties’ possession. Thompson, 811 N.E.2d at 914. Yet Wife argues Husband dissipated this marital property and thus it was properly included in the marital pot as recompense to her. But we note the trial court made no findings that Husband dissipated assets. Furthermore, even if Husband had dissipated marital assets, the trial court still may not include those assets in the marital pot for distribution. Pitman v. Pitman, 721 N.E.2d 260, 267 (Ind. Ct. App. 1999), trans. denied. Instead, the proper remedy is for Wife to seek a larger portion of the marital estate due to the alleged dissipation. Id.; see also Layne v. Layne, 77 N.E.3d 1254, 1262-63 (Ind. Ct. App. 2017) (affirming trial court's decision to exclude dissipated assets from the marital estate but then deviating from the presumption of equal distribution to award the other spouse the value of those dissipated assets), trans. denied.

[22] In conclusion, the trial court erred in including two sums—the $34,284.58 down payment and the $98,600.00 pre-dissolution withdrawals—in the marital pot.

B. Unequal Distribution

[23] We next turn to Husband's contention that the court erred in distributing the marital property. After determining what constitutes marital property, the trial court must then divide the marital property under the presumption that an equal split is just and reasonable. Ind. Code § 31-15-7-5 (1997). This presumption may be rebutted by a party who presents relevant evidence, including evidence of the following factors, that an equal division would not be just and reasonable:

(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.

Id. The division of marital assets is a matter within the sound discretion of the trial court. Webb, 891 N.E.2d at 1153. When a party challenges the trial court's division of marital property, he must overcome a strong presumption that the court considered and complied with the applicable statute, and that presumption is one of the strongest presumptions applicable to our consideration on appeal. Id. When we review a claim that the trial court improperly divided marital property, we must decide whether the trial court's decision constitutes an abuse of discretion, considering only the evidence most favorable to the court's disposition of the property, without reweighing the evidence or assessing the credibility of witnesses. Id.

[24] Husband argues the trial court abused its discretion in ordering the division to be 20% of the marital estate to Husband and 80% to Wife. We disagree, as the evidence here supports an unequal distribution of property in favor of Wife. By agreement of the parties, Wife became a stay-at-home mother after their first child was born in 2011. For the next twelve years, she was the children's primary caretaker while Husband worked. Prior to this, she worked at Wells Fargo making approximately fifteen dollars an hour. Furthermore, she has been diagnosed with multiple sclerosis, which affects her ability to maintain employment. In contrast, Husband works as a podiatrist and has various income streams. His weekly income is over $13,600.00. In sum, there is a significant disparity between the economic circumstances of the parties at the time of dissolution as well as a disparity in their future earnings capability. This warrants an unequal distribution in Wife's favor. See Johnson v. Johnson, 181 N.E.3d 364, 378 (Ind. Ct. App. 2021) (unequal division in favor of the wife was warranted due to a disparity in earnings capability and economic circumstances at the time of separation).

[25] Husband nonetheless asserts that the court abused its discretion in awarding Wife both spousal maintenance and 80% of the marital estate. In support, he cites Augspurger, 802 N.E.2d at 503. There, we found the trial court did not abuse its discretion in declining to award the wife more than half the marital estate, “despite [her] poor health and meager earning ability[,]” because it had already awarded her spousal maintenance and attorney's fees. Id. at 513. But unlike in Augspurger, here the trial court did elect to give Wife an unequal distribution of the marital estate, notwithstanding its decision to award spousal maintenance and attorney's fees. Just as it was within the trial court's discretion to not order an unequal division of the marital estate in Augspurger, it is within the trial court's discretion here to do so. The court did not err in ordering an unequal distribution of the marital property.²

V. Valuation

[26] Husband next argues the trial court abused its discretion in valuing certain marital assets, including (1) the marital home, (2) Husband's vehicle, and (3) Husband's luxury watch collection. The trial court has broad discretion in ascertaining the value of property in a dissolution action. Campbell v. Campbell, 118 N.E.3d 817, 821 (Ind. Ct. App. 2019), reh'g denied, trans. denied. Its valuation will only be disturbed where the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id. “If the trial court's chosen valuation is within the range of values supported by the evidence, we will affirm.” Id.

[27] Husband first challenges the trial court's valuation of the marital home. The trial court valued the home at $346,800.00, which was the value proposed by Wife based on a 2024 tax assessment. Husband argues this does not reflect the property's “fair market value.” Appellant's Br. p. 22. But this value was within the range supported by the evidence. Husband's argument is merely a request to reweigh this evidence, which we will not do. Wyzard, 771 N.E.2d at 757.

[28] Husband also argues the court erred in valuing his vehicle because the court “used a valuation date that did not fall between the date of filing the dissolution petition and the date of the final hearing.” Appellant's Br. p. 22. “The trial court has discretion to set any date between the date of filing the dissolution petition and the date of the final hearing as the date for marital property valuation.” Granzow v. Granzow, 855 N.E.2d 680, 685 (Ind. Ct. App. 2006). Here, the trial court did not give an explicit valuation date for the vehicle. Husband presumes the trial court used a valuation date prior to the final separation because it valued the vehicle at its purchase price, and it was purchased prior to the date of final separation. But we have previously rejected this type of inference. In Thompson, 811 N.E.2d at 919, the husband argued the trial court abused its discretion in valuing the marital residence based on a home appraisal value that occurred before the final separation. Our court declined to find an abuse of discretion, finding the court's decision to value the residence in line with that appraisal “was not necessarily an indication that it chose a date prior to final separation to value the residence.” Id. at 919-20. Similarly here, we cannot say the trial court's decision to value the vehicle at its purchase price means it used a valuation date outside the proper range.

[29] As to Husband's luxury watch collection, Husband testified he owns approximately thirty-four watches and estimated the collection was worth approximately $39,000.00. See Ex. Vol. III pp. 117-19. Wife valued the watches between $120,000.00 and $150,000.00 based on their purchase prices. Notably, Husband testified he purchased a watch in April 2023—a few months prior to filing for dissolution—for $22,000.00. At the final hearing, he valued that watch at only $4,769.00. The trial court specifically cited this testimony in finding that Husband's valuation of the watches was not credible, which is entirely within the trial court's discretion. Ultimately, the court valued the watch collection at $150,000.00. Given that this was within the range of evidence presented, we cannot say the court abused its discretion here. Husband argues the court should not have accepted Wife's valuation because “she does not know anything about the watch market.” Appellant's Br. p. 24. Again, this is a request to reweigh evidence, which we do not do. Wyzard, 771 N.E.2d at 757.

VI. Attorney Fees

[30] The trial court's decision concerning an award of attorney's fees is reviewed for an abuse of discretion. Minser v. DeKalb Cnty. Plan Comm'n, 170 N.E.3d 1093, 1102 (Ind. Ct. App. 2021). “An abuse of discretion occurs when the court's decision either clearly contravenes the logic and effect of the facts and circumstances or misinterprets the law.” Id. Typically, under the American Rule, both parties pay their own fees. Id. “In the absence of statutory authority or an agreement between the parties to the contrary—or an equitable exception—a prevailing party has no right to recover attorney fees from the opposition.” Id. (citation omitted).

[31] Indiana Code section 31-15-10-1(a) provides, in relevant part, that “[t]he court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding” stemming from a dissolution of marriage, including “attorney's fees.”

In determining whether to award attorney's fees in a dissolution proceeding, trial courts should consider the parties’ resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors bearing on the reasonableness of the award. A party's misconduct that directly results in additional litigation expenses may also be considered. Consideration of these factors promotes the legislative purpose behind the award of attorney's fees, which is to ensure that a party who would not otherwise be able to afford an attorney is able to retain representation. When one party is in a superior position to pay fees over the other party, an award is proper.

Haggarty v. Haggarty, 176 N.E.3d 234, 251 (Ind. Ct. App. 2021) (quoting Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018)).

[32] Here, the trial court awarded Wife $30,000.00 in attorney's fees, citing the significant disparity in the parties’ incomes. Notably, $30,000.00 is roughly half Husband's monthly income; whereas Wife, if able to hold employment while suffering from multiple sclerosis, anticipates earning only minimum wage. A trial court is well within its discretion to award fees where one party—here Husband—is in a superior position to pay.

Conclusion

[33] We affirm the trial court's award of primary physical custody of the children to Wife. We further find no error in the award of spousal maintenance or attorney's fees, nor in the trial court's decision to divide the marital estate unequally. However, because the trial court erroneously included the $34,284.58 down payment and the $98,600.00 pre-dissolution withdrawals as marital property, we remand for the court to recalculate the division of marital property.

[34] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   While the trial court did not characterize this award as incapacity maintenance, both parties presume that was the intent. We agree. Notably, in its order the court stated the purpose of this award was to “maintain” the home for Wife and the children. App. Vol. II p. 25. Additionally, we have previously found payments from one former spouse to another to be spousal maintenance—even where not characterized as such by the trial court—where the payment would have to be made from post-dissolution income. See Thompson v. Thompson, 811 N.E.2d 888, 909 (Ind. Ct. App. 2004) (trial court's order that the husband pay for wife's medical insurance coverage post-dissolution constituted spousal maintenance), trans. denied.

2.   Husband also argues the trial court's division did not equate to an 80/20 split because it failed to include that Husband would be paying the mortgage on the marital residence. But as Husband acknowledges, the order for him to pay the mortgage is an award of spousal maintenance, not current marital property subject to division.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.