Branham v. Varble

937 N.E.2d 348, 2010 Ind. App. LEXIS 1966, 2010 WL 4253672
CourtIndiana Court of Appeals
DecidedOctober 28, 2010
Docket62A01-1004-SC-192
StatusPublished
Cited by2 cases

This text of 937 N.E.2d 348 (Branham v. Varble) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branham v. Varble, 937 N.E.2d 348, 2010 Ind. App. LEXIS 1966, 2010 WL 4253672 (Ind. Ct. App. 2010).

Opinions

OPINION

FRIEDLANDER, Judge.

Quincey and Shannon Branham appeal from an order of the Perry Cireuit Court, Small Claims Division, in the enforcement of a civil money judgment. The Branhams present two issues for review:

1. Did the trial court abuse its discretion and act contrary to law when it ordered the Branhams to pay $50 per month toward a small claims judgment?
2. Did the trial court abuse its discretion and act contrary to law when it ordered the Branhams to make repeated court appearances and for Quincey to seek five jobs per week?

We affirm in part and reverse in part.

[350]*350On March 13, 2009, the trial court entered a consent judgment in favor of Rodney Varble and Norman Chastain and against the Branhams in the amount of $4350.75, plus $99.00 in court costs. On November 12, 2009, the parties appeared before the court and an agreed garnishment order was entered.1 The parties were also ordered to reappear on March 30, 2010 for a status hearing. The Bran-hams appeared without counsel for each of the hearings.

At the March 30 hearing, the court was informed that no monies had been received as a result of the garnishment order. During subsequent questioning by the attorney representing the judgment-creditors, Quincey informed the court that he has worked for Harrison Auto Salvage, earning $20.00 per day, $100.00 per week, for approximately 3 years. Quincey acknowledged that he has not looked for alternative employment since he began working for Harrison Auto Salvage. Out of his earnings, Quincey testified that he pays $200 per month for a truck that he uses as his means of transportation. Quincy admitted that he purchased the truck for $2500.00 while this action was pending. Shannon advised the court that she receives Supplemental Security Income of $674.00 per month, out of which she pays rent of $400.00. Quiney and Shannon both contribute to the cost of food and utilities. At the conclusion of the evidence, the court ordered the Branhams to pay $50.00 per month toward the judgment and further ordered Quiney to do a job search by submitting five applications a week. The court scheduled a second status hearing for June 16, 2010. This appeal ensued.

We begin by noting that the ap-pellees did not file a brief. When appel-lees do not submit an answer brief we need not undertake the burden of developing an argument on their behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind.2006). Rather, we will reverse if the appellant's brief presents a case of prima facie error. Id. Prima facie error in this context is error "at first sight, on first appearance, or on the face of it." Trinity Homes, LLC v. Fang, 848 N.E.2d at 1068. If an appellant does not meet this burden, we will affirm. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065.

1.

The Branhams argue that the court violated their rights under article 1, seetion 22 of the Indiana Constitution, which provides:

The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.

This provision is not self-executing, but requires legislative enactment to make it effective. Beard v. Indianapolis Fancy Grocery Co., 180 Ind. 536, 103 N.E. 404 (1913).

The Branhams direct us to Ind. Code Ann. § 24-4.5-5-105(2)(b) (West, Westlaw through 2010 2nd Regular Sess.), which exempts from garnishment the first $215.50 (thirty times minimum wage) of income per week. The Branhams also direct us to Ind.Code Ann. § 34-55-10-2 (West, Westlaw through 2010 2nd Regular [351]*351Sess.), which provides a list of various types of property that is exempt from execution to satisfy a judgment.2 The Branhams appropriately observe, however, that the judgment debtor must assert an exemption at the appropriate time during the proceedings supplemental. See Mims v. Commercial Credit Corp., 261 Ind. 591, 307 N.E.2d 867 (1974).

Here, the Branhams, who were not represented by counsel, did not assert any exemptions or in any way object to the trial court's order that they pay $50 toward the consent judgment in favor of Varble and Chastain. Nevertheless, on appeal the Branhams assert that when a debtor is unrepresented, it is incumbent upon the court to protect the debtor's constitutional rights and sua sponte "determine which exemptions result in the least burdensome order for the debtor." Appellants' Brief at 4. Although the dissent relies upon Mims v. Commercial Credit Corp. to eredit the Branhams's assertion in this regard, we do not agree that Mims should be so broadly construed.

In Mims, a debtor who had defaulted on a retail installment contract appealed from a garnishment order entered against her. The trial court's garnishment order complied with limitations set forth in the Uniform Consumer Credit Code (UCCC), resulting in a garnishment of $2.25 per week, but did not take into account the resident householder exemption, which would have resulted in a garnishment of $4.20 per week.3 The debtor, who was apparently not represented by counsel, did not assert the resident-householder exemption during the proceeding supplemental. The debtor obtained pauper appellate counsel, who questioned whether the legislature had effectively repealed the resident-householder exemption by enacting the UCCC, and, if not, whether the burden to assert such exemption rested with the debtor.

Concluding that the residential-householder exemption survived the adoption of the UCCC, the court addressed the second issue. The Court expressly acknowledged that this court had correctly ascertained the general rule that the burden is upon the debtor to claim the exemption "at an appropriate time during proceedings supplemental." Id. at 869. The court then expressed its belief that the general rule "should admit of exceptions and modifications consistent with fairness and practical realities." Id. Keeping in mind the constitutional underpinnings of garnishment exemption statutes, the court prescribed the following procedure:

If a debtor-defendant is represented by counsel during proceedings supplemental, the burden is upon the debtor to affirmatively interpose the resident-householder claim. This, of course, is the general rule cited by the Court of Appeals. If, however, a debtor-defendant is not represented by counsel, the [352]*352trial court must determine: (1) whether the debtor is a resident-householder, and (2) if the debtor is a resident-householder, which exemption (either the UCCC or resident-householder) would be least burdensome on the debtor.

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Related

Branham v. Varble
952 N.E.2d 744 (Indiana Supreme Court, 2011)
Branham v. Varble
937 N.E.2d 348 (Indiana Court of Appeals, 2010)

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Bluebook (online)
937 N.E.2d 348, 2010 Ind. App. LEXIS 1966, 2010 WL 4253672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branham-v-varble-indctapp-2010.