Family Law Blog: Trial Court Abused Discretion Failing to Terminate Incapacity-Based Maintenance Award

Case: In Re: The Marriage of Gertiser; Kevin Gertiser v. Anne Stokes (formerly Gertiser) 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court abused its discretion when it failed to terminate an incapacity-based maintenance award after the ex-Wife receiving maintenance remarried a new husband with substantial income and assets.

FACTS AND PROCEDURAL HISTORY:
The parties divorced in 2007. Ex-wife is blind and, at the time of divorce, had no real ability to support herself, while ex-Husband was earning about $145,000/yr. As a result, the divorce included an incapacity-based maintenance award, in favor of ex-Wife, of $1,182 per month.

Ex-Wife remarried in late 2012. Her new husband earns over $160,000/yr, pays the majority of the marital bills, and together with ex-Wife they have assets of over $600,000. Meanwhile, ex-Husband now earns slightly more than the $145,000/yr he earned at the time of the divorce.

Ex-Husband filed a petition to terminate maintenance after ex-Wife remarried. After a hearing, the trial court declined to modify the maintenance award, finding that there had been no significant change in circumstances that warranted modification. Ex-Husband appealed.

The Court of Appeals reversed the trial court’s order. In its analysis, the trial court appears to have focused on ex-Wife’s financial circumstances in a narrow and personal way, whereas the Court of Appeals concluded it was appropriate to include the change in ex-Wife’s financial circumstances that arose from her remarriage, effectively imputing the new husband’s resources to ex-Wife. As a result of those changed circumstances, the Court of Appeals concluded, termination of the maintenance order was appropriate.

The Court of Appeals also agreed with ex-Husband that the trial court’s $7,000 attorney fee award against him and in favor of ex-Wife was improper, again, based upon the greater combined net worth of ex-Wife with her new husband.

To view the text of this opinion in its entirety, click here: In Re: The Marriage of Gertiser; Kevin Gertiser v. Anne Stokes (formerly Gertiser)

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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