Dale Bond v. Judylee W. Bond (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 5, 2017
• Docket: 68A01-1612-DR-2856
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. FILED Jul 05 2017, 8:45 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT Meeks Cockerill Winchester, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dale Bond, July 5, 2017 Appellant-Petitioner, Court of Appeals Case No. 68A01-1612-DR-2856 v. Appeal from the Randolph Superior Court Judylee W. Bond, The Honorable Peter D. Haviza, Appellee-Respondent. Judge Trial Court Cause No. 68D01-1310-DR-1019

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 1 of 10 Case Summary [1] Appellant-Petitioner Dale Bond and Appellee-Respondent Judylee Bond were

divorced in December of 2013. According to the terms of the parties’

settlement agreement, which was incorporated in to the divorce decree, Dale

agreed to continue making payments on the land contract related to the marital

residence until the contract was paid in full. Dale failed to fulfill this obligation.

On August 17, 2016, Judylee requested that the trial court find Dale in

contempt for failing to fulfill his obligation under the terms of the parties’

settlement agreement. Following a hearing, Dale was found to be in contempt.

Dale subsequently challenged the contempt finding by filing a motion to correct

error, which was denied by the trial court.

[2] Dale contends on appeal that the trial court abused its discretion in denying his

motion to correct error and finding him in contempt. Concluding otherwise,

we affirm.

Facts and Procedural History [3] The parties divorced in December of 2013. A settlement agreement entered

into by the parties was incorporated into the divorce decree issued by the trial

court. Pursuant to the terms of the parties’ settlement agreement, the parties

agreed that Dale would make monthly payments in the amount of $250 on the

land contract connected to the marital residence and Judylee would maintain

possession of the marital residence.

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 2 of 10 [4] On August 17, 2016, Judylee filed a motion in which she requested that the trial

court find Dale in contempt (“contempt motion”). In this motion, Judylee

alleged that Dale had failed to make monthly payments on the land contract, as

required by the parties’ settlement agreement. The trial court conducted a

hearing on Judylee’s contempt motion on September 27, 2016.

[5] During the hearing on Judylee’s contempt motion, Dale admitted that the

provision in the settlement agreement providing that he would assume the

responsibility of paying off the balance of the land contract “was my idea,

because I didn’t feel like arguing with you every day.” Tr. p. 8. Dale admitted

that he understood that this obligation would entail making payments each

month until the balance of the contract was paid off. At the time he entered

into the settlement agreement, Dale was “drawing only Social Security

Disability” payments of $1357.70 per month. Tr. p. 8. Dale did not have any

source of income beyond the Social Security Disability payments.

[6] Dale testified that he had continued to receive this same amount each month

since the parties’ divorce and was still receiving this same amount as of the date

of the contempt hearing. Dale further testified that there had been a change of

circumstances which had impacted his ability to pay his obligation under the

parties’ settlement agreement. Dale indicated that he had suffered from

ongoing medical issues and had outstanding medical bills relating to these

ongoing issues. Dale also testified that he had purchased a new truck the week

before the hearing and would have payments on the vehicle and insurance

payments relating to the vehicle going forward. Dale further indicated that he

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 3 of 10 had monthly utility bills, including an electric bill that “runs between [one]

Hundred Ninety Eight to Three Hundred Dollars a month,” and that he paid

three hundred dollars per month in rent to his girlfriend with whom he lived.

Tr. p. 13. Dale claimed that after paying all of the above-mentioned bills, he

usually had “about Seventy Dollars” left over. Tr. p. 16. Dale explained that

when he entered into the settlement agreement, his rent payment was

significantly lower. Dale claimed that he because of his change of living

arrangements, he was unable to meet his obligation as set forth in the parties’

settlement agreement.

[7] In questioning Dale about his finances, Judylee asked the following:

I am still not understanding though is when you filed for divorce and the terms on it, you knew that you would never ever be able to work again and you knew you were only going to get this amount of Social Security Disability but yet you put all the wheels in motion, got it settled in the Court Order as of 23rd of December, 2013 and I don’t, I am not understanding why you would think it is okay to break that because of change of circumstances, is there a reason you think the Court Order doesn’t matter or?

Tr. p. 19. Dale indicated that he did “not want to be homeless” and that he had

to pay rent to his girlfriend because his girlfriend “can’t meet her obligations on

her own.” Tr. p. 19. Judylee further questioned Dale about the wisdom of

purchasing a new truck when he knew he could not meet his outstanding

financial obligations, stating:

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 4 of 10 Okay. All right. The next question I have for you, why would you purchase a new truck with payments when you were in Court here before and they postponed it to give you chance to come back today and gave you a lawyer why would you go and get a new vehicle with payments on it knowing that you are already in Court to pay the house payment, it […]

Tr. p. 19. Dale responded by saying “[w]ould you want to walk from your

house to this Courtroom?” Tr. p. 20. Dale acknowledged that his girlfriend

owned a vehicle and that his girlfriend had shown a willingness to allow Dale

to use her vehicle “when he needed to go somewhere.” Tr. p. 20. Dale further

acknowledged that even though he knew that Judylee had initiated contempt

proceedings to compel him to meet the obligations incurred in the parties’

settlement agreement, he “went ahead a got a vehicle on payments[.]” Tr. p.

20.

[8] Following the conclusion of the parties’ presentation of evidence, the trial court

found as follows:

All right. At this time, I find [Dale] in contempt. He entered into an agreement. He was going to use the Social Security Disability payments to make the payment on the agreement. He has now jock[ied] himself around so he can now try and claim, oh, I don’t have sufficient monies. He gets a car. I know he has got some other bills but he has entered into this agreement and it is subject to contempt. He is sentenced to sixty days at the Randolph County Jail. He can purge himself of contempt by resuming to make the payments on this land contract and he can go ahead after the land contract is finished up he can repay [Judylee] what she’s paid off of it and the rate of Two Fifty per

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 5 of 10 month. That was what the agreement … That’s the Court’s decision.

Tr. p. 21.

[9] On October 26, 2016, Dale filed a motion to correct error. The trial court

conducted a hearing on Dale’s motion on November 15, 2016. During this

hearing, Dale argued that the trial court could not properly find him in

contempt because in circumstances like those presented before the trial court,

“the constitution forbids a finding of contempt.” Tr. p. 25. At the conclusion

of the hearing, the trial court took the matter under advisement. The next day,

on November 16, 2016, the trial court issued an order denying Dale’s motion to

correct error. This appeal follows.

Discussion and Decision I. Standard of Review [10] At the outset, we observe that Judylee chose not to file an Appellee’s Brief.

When an appellee fails to submit a brief in accordance with our rules, we need not undertake the burden of developing an argument for the appellee. McKinney v. McKinney, 820 N.E.2d 682, 685 (Ind. Ct. App. 2005). We apply a less stringent standard of review with respect to showings of reversible error when an appellee has failed to file a brief, and may reverse the trial court if the appellant is able to establish prima facie error. Id. In this context, “prima facie” means “at first sight, on first appearance, or on the face of it.” Id. (internal citations omitted).

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 6 of 10 Whittaker v. Whittaker, 44 N.E.3d 716, 719 (Ind. Ct. App. 2015).

[11] Dale appeals following the denial of his motion to correct error. We review the

denial of a motion to correct error for an abuse of discretion. Faulkinbury v.

Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015).

The trial court’s decision on a motion to correct error comes to us cloaked with a presumption of correctness, and the appellant has the burden of showing an abuse of discretion. Cox v. Matthews, 901 N.E.2d 14, 21 (Ind. Ct. App. 2009), trans. dismissed. An abuse of discretion will be found when the trial court’s action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom. Id.

Id.

II. Analysis [12] Divorcing parties are permitted to draft their own settlement agreements. Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006). Such agreements are contractual in nature and, once incorporated into the trial court’s final order, become binding on the parties. Id. The dissolution court that adopted the agreement retains jurisdiction to interpret the terms of property settlement agreements and to enforce them. Id.

Whittaker, 44 N.E.3d at 719.

[13] Indiana Code section 31-15-7-10 provides that “[n]otwithstanding any other

law, all orders and awards contained in a dissolution of marriage decree or legal

separation decree may be enforced by: (1) contempt[.]” However,

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 7 of 10 [d]ue to the prohibition against imprisonment for debt in Article I, § 22 of the Indiana Constitution, and “because parties may enforce obligations to pay a fixed sum of money through execution as provided in Trial Rule 69, all forms of contempt are generally unavailable to enforce an obligation to pay money.” Cowart v. White, 711 N.E.2d 523, 531 (Ind. 1999).

Whittaker, 44 N.E.3d at 719. In interpreting Article I, § 22, we have held that

while a trial court “may not use its contempt powers to enforce a money

judgment requiring one party to pay the other party a fixed sum of money,” in

the “absence of a money judgment, contempt is an available remedy for

noncompliance with a dissolution decree.” Mitchell v. Mitchell, 871 N.E.2d 390,

395 (Ind. Ct. App. 2007) (emphasis in original).

[14] In Mitchell, we considered whether the trial court erred in setting aside a

previously issued contempt citation against former husband. 871 N.E.2d at

394-396. The parties had entered into a settlement agreement by which former

husband agreed to pay certain credit card debts and to indemnify former-wife

against a mortgage lien. Id. at 394. Former husband failed to satisfy his

obligations under the parties’ settlement agreement. Id. at 391-93. Upon

review, we concluded that the settlement agreement, as incorporated into the

dissolution order, “did not constitute a money judgment requiring one party to

pay a fixed sum of money to the other party, and therefore, the trial court was

not barred from using its contempt powers to enforce compliance with the

order.” Id. at 395. Consequently, “the trial court abused its discretion in

vacating and setting aside the contempt citation.” Id.

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 8 of 10 [15] In Whittaker, we considered whether the trial court erred by refusing to address

the merits of ex-husband’s contempt petition, stating that it could not find ex-

wife in contempt for failing to pay ex-husband certain maintenance payments as

agreed under the parties’ settlement agreement. 44 N.E.3d at 717. Pursuant to

the terms of the parties’ settlement agreement, ex-wife agreed to pay a

percentage of certain retirement benefits to ex-husband as maintenance. Id. at

717-18. By 2013, ex-wife had fallen $76,173.44 short of meeting this

obligation. Id. 718. Upon review, we concluded that the case involved “a

failure to perform an obligation set forth in a dissolution decree” rather than a

monetary judgment in favor of one party. Id. at 720. In reaching this

conclusion, we found that the “computation of delinquency was not an original

order for payment of a fixed sum. Nor did it transform an obligation

incorporated into a dissolution decree into a fixed money judgment outside the

parameters of Indiana Code Section 31-15-7-10.” Id. As such, the trial court

erred in refusing to address the merits of ex-husband’s contempt petition. Id.

[16] Similarly, in the instant matter, there is no money judgment ordering Dale to

pay a fixed sum of money to Judylee. Rather, under the terms of the parties’

settlement agreement, Dale assumed the obligation to make monthly payments

on the land contract associated with the marital home. Dale has failed to do so.

In filing her contempt petition, Judylee merely sought to enforce Dale’s

obligation under the parties’ settlement agreement. Given these facts

considered with the plain language of Indiana Code section 31-15-7-10 and our

Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017 Page 9 of 10 conclusions in Mitchell and Whittaker, we conclude that contempt was an

available avenue for enforcement of Dale’s obligations.

[17] On appeal, Dale claims that the trial court abused its discretion in denying his

motion to correct error and in finding him in contempt, arguing that the record

does not support the trial court’s determination that he had the ability to pay.

The trial court conducted a hearing on Judylee’s motion, after which it found

Dale in contempt. The trial court specifically found that despite Dale’s claims

to the contrary, Dale had the means to make the required payments. Upon

review of the record, we cannot say that the trial court’s determination that

Dale had the means to make the required payments was against the “logic and

effect of the facts and circumstances before it and the inferences that may be

drawn therefrom.” Faulkinbury, 28 N.E.3d at 1122. We therefore conclude that

the trial court did not abuse its discretion in finding Dale in contempt or in

denying Dale’s motion to correct error.

[18] The judgment of the trial court is affirmed.

Najam, J., and Riley, J., concur.

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