ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
EDWARD SQUIER NEAL DENNIS V. PANARISI
Christ, Hadler & Brothers Anthony M. Campo & Associates
Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOYCE G. CANNON, ) ) Appellant, ) ) vs. ) No. 49A05-9908-CV-366 ) GERALD W. CANNON, ) ) Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Jester, Judge
Cause No. 49D019-9408-DR-827
June 14, 2000
OPINION - FOR PUBLICATION
R. 417. However, because several exhibits dealing with Wifes request for
spousal maintenance were inadvertently omitted from the trial courts exhibit file, they were
not considered in the making of the decision regarding maintenance, and the trial
court took that issue under advisement upon Wifes motion to correct the record.
Wife also filed a motion to correct errors, which addressed additional alleged
errors in the trial courts decree.
The trial court entered an order on Wifes pending motions on June 16, 1999. With respect to the issue of Wifes disability and spousal maintenance, the trial court found, in pertinent part, as follows:
The Court finds that it committed error in its finding . . . stating that Wife is not physically or mentally incapacitated to the extent her ability to support herself is materially affected[.] The Court, in so finding, did not consider . . . Wifes Exhibit #46. . . . Therefore, the Court erred in failing to consider all of the evidence before it in reaching its findings. The Court has since reviewed the Exhibit #46 and does now make the amended findings on the issue of Wifes entitlement to spousal maintenance:
. . .
2. [T]he Court finds that the evidence as to whether the Wife is disabled to the point that her ability to support herself is materially affected is inconclusive.
. . .
5. . . . The Court finds that its [sic] order denying [Wifes] request for spousal maintenance is not erroneous under the circumstances.
R. 22-24. Wife now appeals. Additional facts will be provided
Ind. Code § 31-15-7-2(1). Wife contends that the trial court erred in
failing to award her maintenance pursuant to this provision.
Ind. Code § 31-15-7-2(3). This statute is written in the conjunctive, so the
trial court should consider each factor in determining whether an award of spousal
maintenance is warranted. However, the statute does not require the court to
make findings as to all of the enumerated factors. Rather, the statute
requires only that the court consider the factors before granting or denying a
request for maintenance.
See Moore, 695 N.E.2d at 1008.
The evidence submitted to the trial court regarding Wifes incapacitation consisted primarily of letters from two doctors, Wifes own physician and a physician who conducted an independent medical examination of Wife. Wifes physician, Dr. Marlene Aldo-Benson, submitted a letter which stated that Wife is physically incapacitated by her vasculitic condition to the extent that her ability to support herself is materially affected. R. 527. Dr. John Hague, a doctor hired by Husband to conduct a medical examination of Wife, acknowledged that Dr. Aldo-Benson had diagnosed vasculitis, but did not believe that such a condition had been adequately documented in her medical records. However, based upon Wifes other medical conditions, including Raynauds phenomenon, fibromyalgia and depression, Dr. Hague stated that he believed that Wife was unable to perform full time work, although he expected the magnitude of her impairment to be much less once her depression was controlled. R. 532, 534.
Also, there was limited testimony regarding Wifes medical condition. Wife testified that her health had deteriorated since the doctors reports referred to above, and that she had most recently been confined to the hospital for a bacterial infection in her lungs which left her partially dependent on oxygen. R. 739. Her daughter also testified to her mothers poor health. R. 963-64. Wife testified that there was no way she could work on a full-time basis to support herself. R. 838. However, she also testified that she had not applied for any jobs. I have put no applications in. I do what I can at home. R. 880. Various witnesses testified to the extensive and profitable garage sales which Wife conducted at her residences during the marriage, from each of which she earned from $3,000 to as much as $12,000. R. 820-23, 866-68, 983-89. That income was not reported on the parties income tax returns. R. 1111.
The trial court found that the evidence as to whether the Wife is disabled to the point that her ability to support herself is materially affected is inconclusive. R. 23. Wife argues that the trial court abused its discretion in making this determination. We disagree. The evidence most favorable to the trial courts decision supports the determination that Wife was not so incapacitated by her medical condition as to be unable to support herself; for many years, Wife had generated a substantial income by conducting garage sales at her home, and had continued to do so even after her medical problems began to worsen. The doctors statements supported only that she would be unable to do full time work, not that she was unable to work at all, and Wife herself testified that she had not even tried to find a job that might accommodate her condition.
Moreover, even if the trial court had found that Wife was incapacitated to that extent, it would not have been obligated to award her maintenance. Under the terms of the applicable statute, even if a trial court finds that a spouses incapacity materially affects her self-supportive ability, a maintenance award is not mandatory. In re Marriage of Richmond, 605 N.E.2d 226, 228 (Ind. Ct. App. 1992). See also Ind. Code § 31-15-7-2 (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 . . . .) (emphasis added). In further support of its determination, the trial court cited evidence that Wife had depleted the marital assets while this litigation was pending by installing an exercise room in her home, taking a vacation, and having cosmetic surgery. She had also had the benefit of the use of the marital home on which Husband was paying the mortgage, as well as $300.00 per week in temporary maintenance. Under these circumstances, we cannot say that the trial court abused its discretion in denying Wifes request for spousal maintenance.
Order, No. 49A05-9908-CV-366 (Ind. Ct. App. Dec. 20, 1999). The Record was
filed on January 14, 2000, within the thirty days allowed by the Order.
Husband has devoted a majority of his appellees brief to the timeliness issue, first arguing that Wife has forfeited her right to appeal by not filing the Record in a timely manner, and then by asking for appellate attorney fees for defending this appeal. Husband asserts that [t]his appeal has dealt in large part with the issue of how to count to 90, an issue which is a waste of this Courts time and judicial resources. Brief of Appellee at 12.
The law of the case doctrine mandates that when an appellate court decides a legal issue, both the trial court and the court on appeal are bound by that determination in any subsequent appeal involving the same case and relevantly similar facts. Williams v. State, 715 N.E.2d 882, 886 (Ind. Ct. App. 1999). See also Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985), cert. denied, 474 U.S. 920 (1985). The doctrines important purpose is to minimize unnecessary relitigation of the legal issues once they have been resolved by an appellate court. Williams, 715 N.E.2d at 886. There is, however, a very narrow exception to the law of the case doctrine. This exception was explained by our supreme court as follows:
With due respect for the doctrine of res judicata this Court has always maintained the option of reconsidering earlier cases in order to correct error. A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work manifest injustice. Finality and fairness are both important goals. When faced with an apparent conflict between them, this Court unhesitatingly chooses the latter.
State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994) (citations omitted).
To the extent Husband argues that Wifes method of calculating ninety days was erroneous, we agree; however, we do not believe we can disregard this courts Order granting Wife the benefit of an alleged ambiguity in the Appellate Rules leading to the error. Thus, not only have we considered this case on its merits rather than holding that Wifes right to appeal was forfeited, as Husband contends, but we refuse to grant Husband appellate attorney fees for the same reason: Wife proceeded according to a valid Order of this court which was issued after due consideration of the timeliness issue. Husbands request is denied.