concurring-in-part-and-dissenting-in-part">SULLIVAN, Judge,

concurring in part and dissenting in part.

While I agree that the trial court should reconsider the matter of rehabilitative maintenance and enter amended findings and conclusions, I do not agree that the order appealed is disrespectful or contemptuous of this court's prior decision. In my *1283view, the trial judge was merely stating, at least in part and albeit erroneously, that only the education which is interrupted is the proper subject of rehabilitative maintenance.

Furthermore, I do not believe that the trial court "ignored or disregarded" the evidence concerning the education necessary for "appropriate employment". I construe his order to evidence an understandable degree of difficulty in determining what is or is not "appropriate" employment and what is or is not a "sufficient" education for that appropriate employment. Although the court may have inadvertently or erroneously confused appropriate employment with appropriate education, and may have thought an interruption of education was essential to an award of maintenance, the message, I think is clear. To me, the trial court was stating that, in this case, employment as a nurse was not so "'appropriate" as to require Stephen Dahnke to pay for two years of nursing school. If I am correct in this regard, and if the trial court enters proper findings and conclusions or a clear-cut statement of reasons for denying maintenance, it may be necessary that we affirm that decision as an appropriate exercise of discretion. Under Issue II, we straightforwardly and properly affirm the trial court's determination with respect to retention of the two life insurance policies on the grounds that we may reverse "only where an abuse of discretion is clearly shown, i.e., when the determination is clearly against the logic and effect of the facts and circumstances...." at 1281. Given appropriate findings and conclusions it would appear necessary to afford the same deference to an exercise of discretion as to rehabilitative maintenance.

In this connection, I do not read this court's earlier decision in Dahnke v. Dahnke (1989) 4th Dist. Ind.App., 535 N.E.2d 172, to mandate an award of maintenance. Judge Shields' separate opinion in that case correctly observed that the trial judge was focusing upon the wrong question. An interruption in education, if it occurred, is only one factor in the determination. Even assuming that the majority in the earlier case was correct in stating that Pamela's high school education was interrupted, such fact does not necessarily mandate an award of maintenance to pay for a higher level of academic achievement as essential to appropriate employment.

It is incumbent upon the trial court to demonstrate that he carefully considered the four factors set forth in the statute and to grant or deny an award accordingly. However, in light of the fact that Pamela Dahnke did not take the SAT test or make application to any school of higher learning during her last year in high school, the observation made by Judge Shields that her "intent was speculative at best" seems a valid consideration.

I must dissent from the holding under Issue III. A trial court is not empowered to award appellate attorney fees "at any stage" of the proceedings. Hudson v. Hudson (1985) 2d Dist. Ind.App., 484 N.E.2d 579; Scheetz v. Scheetz (1987) 2d Dist., Ind.App., 509 N.E.2d 840, 850 (Sullivan J., concurring in part and dissenting in part).

Citation profile

Relationships

How this case has been treated — in progress