Breedlove v. Breedlove

421 N.E.2d 739, 1981 Ind. App. LEXIS 1481
CourtIndiana Court of Appeals
DecidedJune 17, 1981
Docket2-181A33
StatusPublished
Cited by21 cases

This text of 421 N.E.2d 739 (Breedlove v. Breedlove) 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
Breedlove v. Breedlove, 421 N.E.2d 739, 1981 Ind. App. LEXIS 1481 (Ind. Ct. App. 1981).

Opinions

SHIELDS, Judge.

The marriage of the parties to this appeal, appellant Charles Breedlove and ap-pellee Jean Breedlove, was dissolved in November 1968. As part of the divorce decree, Charles was ordered to pay the sum of $175 per week for the support of the five (5) minor children. In July 1979, Jean brought this action to recover $83,015 in support arrearages. After Charles answered the complaint, Jean propounded interrogatories to Charles, some of which Charles failed to answer even though he was twice ordered to do so by the trial court. As a result of Charles’s disobedience of the trial court’s orders, default judgment was entered against him. Following a hearing on the amount of support owed, Jean was awarded $90,540 in support ar-rearages and $2,250 attorney fees.

Charles appeals from this judgment raising the issues that the trial court erred:

I. In defaulting Charles for violation of orders compelling discovery because of an inadequate factual basis and because it failed to make adequate findings;
II. In not giving him adequate notice of the hearing on damages;
III. In not retroactively reducing the support order as a result of the emancipation of children of the marriage;

and

IV. In not crediting Charles’s obligation of support with amounts paid directly to the children.

We affirm.

[741]*741Issue I

Charles first argues the trial court erred in defaulting him for violation of the trial court’s order compelling discovery.1 First he reasons the trial court erred because it had an inadequate factual basis for the sanction.

The record reveals Jean filed interrogatories on September 11, 1979. Answers were designated due within 30 days after service. Ind.Rules of Procedure, Trial Rule 33(A). Jean’s first motion to compel answers to the interrogatories, filed December 19, 1979, was denied because the motion failed to comply with a local court rule. Her amended motion was filed January 4, 1980 and, after a hearing on January 28,1980, Charles was ordered to answer the interrogatories, without objection, within 15 days. Although late, answers to most of the interrogatories were filed February 26, 1980. Objections were propounded to the unanswered interrogatories. Jean filed a motion for default on February 29, 1980 which the trial court struck as moot because answers had been filed. On April 3, 1980 another motion for default with affidavits2 was filed. After a hearing Charles was ordered to answer, without objection, the objected-to questions within 15 days of May 22,1980. ,Jean’s next motion for default with accompanying affidavits3 was filed June 20,1980; Charles filed a motion to dismiss; both motions were heard on July 8, 1980. There was no evidence submitted at this hearing on the issue of the default itself.

Although discovery is designed to be self-executing with little, if any, supervision or assistance by the trial court, Ind.Rules of Procedure, Trial Rule 37 provides the trial court with tools to enforce compliance in order to encourage a just and speedy determination of the lawsuit. The trial court may impose various sanctions ranging from allowance of expenses to entry of dismissal or judgment by default.4 The choice of [742]*742sanction is a matter within the discretion of the trial court. Chrysler Corporation v. Reeves (1980) Ind.App., 404 N.E.2d 1147; Hawkins v. Means Auto, Inc. (1980) Ind.App., 403 N.E.2d 1106; Farinelli v. Campagna (1975) 166 Ind.App. 587, 338 N.E.2d 299.

The sanction of dismissal or default is obviously more drastic and severe than other available sanctions. Because the law favors the disposition of cases on their merits, the imposition of these sanctions is appropriate only under limited circumstances or in extreme situations. Where an alternate less drastic sanction would be effective it must be utilized. T.R. 37(B)(4). However, where a responsible party has in bad faith abusively resisted or obstructed discovery or violated a court order enforcing discovery, and the court finds such conduct has delayed or obstructed, or threatens to so delay or obstruct, the rights of the opposing party so that other relief would be inadequate, it is within the discretion of the trial court to dismiss the action or to render judgment by default against the party responsible for the noncompliance. National Hockey League v. Metropolitan Hockey Club, Inc. (1976) 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747; Margoles v. Johns (1978 7th Cir.) 587 F.2d 885; G-K Properties v. Redevelopment Agency, Etc. (1978 9th Cir.) 577 F.2d 645; Norman v. Young (1970 10th Cir.) 422 F.2d 470; Hawkins v. Means Auto, Inc. (1980) Ind.App., 403 N.E.2d 1106; Clark County State Bank v. Bennett (1975) 166 Ind.App. 471, 336 N.E.2d 663.

As was stated by the United States Supreme Court in National Hockey League v. Metropolitan Hockey Club, Inc. (1976) 427 U.S. 639 at 642-3, 96 S.Ct. 2778 at 2980-1:

“There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal he will nonetheless comply promptly with future discovery orders of the district court.
“But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. If the decision of the Court of Appeals remained undisturbed in this case, it might well be that these respondents would faithfully comply with all future discovery orders entered by the District Court in this case. But other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts.”

In reviewing the dismissal or default judgment (total or partial), the question before this court is whether the trial court abused its discretion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bankmark of Florida, Inc. v. Star Financial Card Services, Inc.
679 N.E.2d 973 (Indiana Court of Appeals, 1997)
Beemer v. Elskens
677 N.E.2d 1117 (Indiana Court of Appeals, 1997)
Jones v. Wasserman
656 N.E.2d 1195 (Indiana Court of Appeals, 1995)
Marriage of Bendix v. Bendix
550 N.E.2d 825 (Indiana Court of Appeals, 1990)
O'Neil v. O'Neil
535 N.E.2d 523 (Indiana Supreme Court, 1989)
Mulroe v. Angerman
492 N.E.2d 1077 (Indiana Court of Appeals, 1986)
Pitts v. Johnson County Department of Public Welfare
491 N.E.2d 1013 (Indiana Court of Appeals, 1986)
Foote v. Baltimore & Ohio Railroad
465 N.E.2d 219 (Indiana Court of Appeals, 1984)
Flynn v. Barker
450 N.E.2d 1008 (Indiana Court of Appeals, 1983)
Fruehauf Corp. v. Review Bd. of Ind. Employment
448 N.E.2d 1193 (Indiana Court of Appeals, 1983)
Fulton v. Van Slyke
447 N.E.2d 628 (Indiana Court of Appeals, 1983)
Payson v. Payson
442 N.E.2d 1123 (Indiana Court of Appeals, 1982)
Isler v. Isler
425 N.E.2d 667 (Indiana Court of Appeals, 1981)
Associates Financial Services Co. of Kentucky v. Knapp
422 N.E.2d 1261 (Indiana Court of Appeals, 1981)
ASSOCIATES FINANCIAL SERV., ETC. v. Knapp
422 N.E.2d 1261 (Indiana Court of Appeals, 1981)
Breedlove v. Breedlove
421 N.E.2d 739 (Indiana Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
421 N.E.2d 739, 1981 Ind. App. LEXIS 1481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breedlove-v-breedlove-indctapp-1981.