In re the Marriage of: Dedra L. Fisher v. Terry L. Fisher (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 2, 2015
• Docket: 02A03-1407-DR-258
• Status: Published

Opinion

MEMORANDUM DECISION Mar 02 2015, 10:52 am

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.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Michael H. Michmerhuizen Thomas C. Allen Barrett & McNagny LLP Fort Wayne, Indiana Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Marriage of: March 2, 2015 Court of Appeals Case No. 02A03-1407-DR-258 Dedra L. Fisher, Appeal from the Allen Circuit Court Appellant-Petitioner, The Honorable Thomas J. Felts, Judge v. The Honorable John D. Kitch III, Magistrate Cause No. 02C01-0008-DR-665 Terry L. Fisher, Appellee-Respondent

Bradford, Judge.

Case Summary [1] Appellant-Petitioner Deedra Fisher (“Wife”) and Appellee-Respondent Terry

Fisher (“Husband”) (collectively “the parties”) divorced in 2001. The parties

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 1 of 14 have two children, a son and daughter. The parties executed a Property

Settlement Agreement (“PSA”) which determined distribution of the marital

assets and debts and established Husband’s child support obligations. In 2013,

Wife filed a motion requesting the trial court hold Husband in contempt for

failure to comply with certain provisions of the PSA. The trial court found that

Husband had overpaid his child support obligation by $17,582.00 but had failed

to pay Wife for several other obligations as required by the PSA. The trial court

awarded Wife a money judgment with regards to the personal property

obligations and allowed the child support overpayments to be credited against

prior unpaid childcare expenses and the daughter’s future college expenses.

[2] On appeal, Wife argues that the trial court erred by (1) declining to find

Husband in contempt, (2) misinterpreting the PSA regarding what Husband

was obligated to pay, (3) crediting Husband’s child support overpayments

toward future college expenses, and (4) not awarding Wife attorney’s fees. We

affirm the trial court’s determination on the issues of contempt, PSA

interpretation, and overpayment crediting. However, we reverse the trial

court’s ruling not to award attorney’s fees to Wife.

Facts and Procedural History [3] On August 21, 2001, the parties executed the PSA. On August 23, 2001, the

parties’ marriage was dissolved and the PSA was incorporated into the trial

court’s dissolution decree. According to the PSA, Husband was responsible for

paying (1) $210.00 per week in child support, (2) “one half (1/2) of the annual

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 2 of 14 school registration fees[,]” (3) one-half of any orthodontic expenses, (4) the

balance of a loan for Husband’s truck (“the truck debt”), (5) $9855.77 to Wife

for personal obligations on which Husband was in arrears, and (6) the balances

due on several accounts including Discover, Target, AT&T, Best Buy, and

Marathon credit cards (“Credit Card Debts”). Appellant’s Ex. 1 The PSA also

provided for the division of real estate equity and debt as follows:

E. Personal Property Settlement For Husband: *** h. It is further agreed that Husband shall assume and pay, and shall hold Wife harmless from the payment of one-half of the outstanding indebtness on the second mortgage on a monthly basis which shall be paid at the rate of Forty-Two and 59/100 Dollars ($42.59) per week through a voluntary Wage Assignment. F. Division of Real Estate Equity. Parties agree that certain real estate in their joint names … shall be held in the sole possession of Wife. Husband shall transfer any and all interest he may have in said property to Wife by Quit Claim Deed. Wife shall list said property for sale and/or refinance said property. The sale or refinance of the marital residence shall be done as expeditiously as possible with progress reports of offers, showings or mortgage applications being provided to Husband every thirty (30) days. Until such time as the property is sold or refinanced, [H]usband and [W]ife shall each be responsible for 50% of both the first and second mortgages. Appellee’s App. p. 18-19.

[4] After the income withholding order (“IWO”) was made effective pursuant to

the PSA terms, Husband moved to Florida to live with his parents because he

could not afford to live on his own. Husband admitted that, following the

finalization of the divorce, he did not pay the truck debt or several of the Credit

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 3 of 14 Card Debts pursuant to the PSA because he did not have the money to do so.

Wife paid the outstanding truck debt and the AT&T credit card balance. Wife

refinanced the marital home on October 22, 2001. Husband did not pay on the

second mortgage because he did not think it was necessary once the house was

refinanced.

[5] Sometime prior to June of 2008, Husband became aware that he had been

overpaying his child support obligation for several years and subsequently

called the child support office to inquire about the overpayments. On June 18,

2008, the trial court entered an order finding that Husband had overpaid his

child support obligation by $13,255.01 and entered a new IWO. On October

10, 2012, Husband filed a petition for emancipation regarding the parties’ son

and for modification of child support. On October 26, 2012, Wife filed a

motion requesting Husband contribute to the daughter’s college expenses. On

May 13, 2013, the trial court granted Husband’s request for emancipation,

ordered the parties to share in funding the daughter’s college education, and

determined that Husband had overpaid his child support obligation by

$16,849.00. On June 4, 2013, Wife filed a petition for rule to show cause

requesting the trial court hold Husband in contempt for failing to comply with

the PSA. Specifically, she alleged that Husband failed to pay orthodontic and

school expenses, the truck and AT&T debt, half of the second mortgage, and

the $9855.77 arrearage. Husband was unaware of the children’s orthodontia

services or school registration fees until after Wife’s June 4, 2013 petition for

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 4 of 14 contempt was filed. On October 2, 2013, Husband filed a motion for

emancipation regarding the parties’ daughter and termination of child support.

[6] On April 14, 2014, the trial court held a hearing on Wife’s petition for show

cause and Husband’s petition for emancipation and termination of child

support. In its subsequent order, the trial court held as follows: (1) the daughter

was emancipated for child support purposes and the IWO was terminated; (2)

Husband had overpaid child support in the amount of $17,582.00; (3) Husband

could not be held in contempt for failing to pay $9855.77 to Wife (as required

by the PSA) because it was a money judgment not enforceable through

contempt; (4) Husband owes Wife $2440.00 for the truck debt; (5) Husband

owes Wife $481.25 for the AT&T credit card debt, (6) pursuant to paragraph

E(1)(h) and Section F of the PSA, Husband owes Wife $183.13 on the second

mortgage of the marital home ($42.59 for each week after the PSA was

executed and prior to the refinancing of the home), (7) Husband owes Wife

$2582.00 for orthodontic expenses, (8) the PSA only required Husband to pay

for “corporate fees” (totaling $407.69) and not books or consumables, and (9)

Husband did not comply with the terms of the PSA but was not in contempt

because, among other things, his noncompliance was due to a financial

inability. The trial court clarified that the $9855.77 arrearage obligation from

the PSA, and the additional $3104.39 owed to Wife (total for truck debt, AT&T

debt, and second mortgage), were money judgments not in the nature of child

support and as such were collectable through the attachment process and not

enforceable by contempt. The unpaid orthodontic fees and school expenses

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 5 of 14 were credited to Husband’s child support overpayment leaving a total credit of

$14,592.31, which would be applied to the daughter’s future college expenses.

Discussion and Decision [7] Wife makes four contentions on appeal: (1) the trial court erred in declining to

find Husband in contempt for noncompliance with the PSA; (2) the trial court

improperly calculated the amounts Husband owes for school expenses and on

the second mortgage; (3) the trial court erred in crediting Husband’s child

support overpayments toward future college expenses; and (4) the trial court

erred in not awarding Wife attorney’s fees.

I. Contempt [8] The determination of whether a party is in contempt of court is a matter within the sound discretion of the trial court. Jackson v. State, 644 N.E.2d 607, 608 (Ind. Ct. App. 1994), trans. denied. We will reverse the trial court’s determination only if the court has abused its discretion. Id. A court has abused its discretion when its decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Williams v. State ex rel. Harris, 690 N.E.2d 315, 316 (Ind. Ct. App. 1997). “Upon

review, we neither reweigh the evidence nor judge the credibility of the

witnesses.” Piercey v. Piercey, 727 N.E.2d 26, 29 (Ind. Ct. App. 2000).

[9] “To hold a party in contempt for a violation of a court order, the trial court

must find that the party acted with ‘willful disobedience.’” Williamson v.

Creamer, 722 N.E.2d 863, 865 (Ind. Ct. App. 2000) (quoting In re Marriage of

Glendenning, 684 N.E.2d 1175, 1179 (Ind. Ct. App. 1997), trans. denied). The

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 6 of 14 trial court possesses unique knowledge of the parties before it and is in the best

position to determine whether a party’s disobedience of the order was done

willfully. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 203 (Ind. 2012).

[10] Generally, money judgments are not enforceable by contempt. Pettit v. Pettit,

626 N.E.2d 444, 447 (Ind. 1993). Although contempt may not be used to

enforce a fixed money judgment, it is an available remedy for noncompliance

with a dissolution decree that creates non-fixed monetary obligations. Mitchell

v. Mitchell, 871 N.E.2d 390, 395 (Ind. Ct. App. 2007). Contempt is also an

option to assist in the enforcement of child support orders when the trial court

finds that the delinquency in payment was the result of (1) a willful failure by

the parent to comply with the support order and (2) that the delinquent parent

has the financial ability to satisfy his or her support obligation. Id.

[11] Wife concedes that the $9855.77 amount contemplated by the PSA is a fixed

money judgment not enforceable by contempt. However, she argues that (1)

the unpaid property debts (AT&T debt, truck debt, and second mortgage) are

non-fixed money judgments enforceable by contempt and (2) the unpaid

orthodontic and school expenses are childcare related and thus enforceable by

contempt. Husband concedes that the personal property debts are not fixed

money judgments and so may be enforced through a contempt order.

However, as Husband notes, the trial court also determined that Husband did

not breach the PSA willfully. As it relates to the truck debt, AT&T debt, and

second mortgage, Husband’s breach was a result of a financial inability to make

payments following the dissolution. As it relates to the orthodontic and school

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 7 of 14 expenses, Husband’s breach was not willful both because he was not informed

of the expenses and because his substantial overpayment of child support far

exceeded these child-related expenses. The parties disagree as to whether

Husband’s breach was willful; however, this was a factual determination on

which the trial court issued findings. As such, we will not reweigh the

evidence. Piercey, 727 N.E.2d at 29.

[12] Even if we assume Husband breached the PSA willfully, Wife’s argument still

fails. The language of Mitchell informs us that contempt may “be used to

enforce compliance with a property settlement agreement incorporated into a

dissolution decree,” it does not require a trial court to do so. Mitchell, 871

N.E.2d at 395. “[I]t is within the inherent power of the trial court to fashion an

appropriate punishment for the disobedience of the court’s order.” Williamson

v. Creamer, 722 N.E.2d 863, 867 (Ind. Ct. App. 2000) (quoting Bechtel v. Bechtel,

536 N.E.2d 1053, 1056 (Ind. Ct. App. 1989)). The trial court was not obligated

to find Husband in contempt; rather, it chose to enter money judgments in

favor of Wife for the truck debt, AT&T debt, and second mortgage payments,

which allows Wife to pursue the collection of those debts through Indiana Trial

Rule 69. Because Wife has now received a money judgment to remedy

Husband’s noncompliance with the PSA, it is unclear what she stands to gain

by having Husband declared in contempt.

II. Calculation of Husband’s Obligations [13] Wife argues that the trial court erred in its interpretation of the terms of the

PSA.

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 8 of 14 Settlement agreements become binding contracts when incorporated into the dissolution decree and are interpreted according to the general rules for contract construction. Unless the terms of the agreement are ambiguous, they will be given their plain and ordinary meaning. Interpretation of a settlement agreement, as with any other contract, presents a question of law and is reviewed de novo.

Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008) (citations omitted).

A. Second Mortgage [14] Section F of the PSA provides that “[u]ntil such time as the property is sold or

refinanced, [H]usband and [W]ife shall each be responsible for 50% of both the

first and second mortgages.” Appellee’s App. p. 19. Section E(1)(h) provides

that “Husband shall assume and pay, and shall hold Wife harmless from the

payment of one-half of the outstanding indebtness on the second mortgage on a

monthly basis which shall be paid at the rate of Forty-Two and 59/100 Dollars

($42.59) per week through a voluntary Wage Assignment.” Appellee’s App. p.

18. The trial court read these provisions together and determined that Husband

was responsible for payments pursuant to Section E(1)(h) for the period after

the August 23, 2001 dissolution, and prior to the October 22, 2001 refinancing

of the home.1

1 Although Wife did not raise this issue, we note that the trial court erred in calculating the amount Husband owes on the second mortgage. The trial court improperly calculated Husband’s monthly payments to be “$183.13 ($42.59 x 4.3 equals $183.13 per month times two months equals $366.27 times 50% equals $183.13).” Appellant’s App. p. 16. The weekly payments of $42.59 were not intended to be split by the parties but reflected only Husband’s share of the mortgage. Therefore, the total amount Husband owes Wife for the second mortgage should be $366.27.

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 9 of 14 [15] Wife contends that these two provisions should be read separately, i.e. that

Husband was obligated to make weekly payments of $42.59 on the second

mortgage even after the home was refinanced. We find this to be an illogical

reading of the PSA. It would make little sense for Husband to continue making

payments on a mortgage that no longer exists. We think that the voluntary

wage assignment for $42.59 contained in Section E(1)(h) provided a specific

means of ensuring that Husband made payments toward the second mortgage

consistent with the obligations of Section F, thus allowing Wife to avoid the

risk of Husband’s share of the second mortgage going unpaid prior to refinance

or sale. Additionally, we note that any perceived ambiguity regarding a

contract must be construed against the drafter, which was Wife in this instance.

Rogers v. Lockard, 767 N.E.2d 982, 990 (Ind. Ct. App. 2002).

B. School Expenses [16] The PSA states that “[t]he Husband shall also be responsible for one half (½) of

the annual school registration fees.” Appellee’s App. p. 15. In Exhibit 6, Wife

outlines the children’s various school expenses, which are separated into three

categories: books, consumables, and corporate fees. The trial court noted that

the term “school registration fees” was not defined in the PSA. The trial court

found that “registration fees” included “corporate fees” and did not include

books or consumables.

[17] “If a contract is ambiguous or uncertain, its meaning is determined by extrinsic

evidence and its construction is a matter for the fact-finder. An ambiguity exists

where a provision is susceptible to more than one interpretation and reasonable

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 10 of 14 persons would differ as to its meaning.” Claire’s Boutiques, Inc. v. Brownsburg

Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013) (citations

omitted). Because the term “annual school registration fees” is not defined in

the PSA and is susceptible to more than one interpretation, we find it to be

ambiguous.

[18] Aside from Wife’s brief testimony generally describing the school registration

process, neither party provided any extrinsic evidence to assist in the

interpretation of the ambiguous term. We think that a common-knowledge

interpretation of “school registration fee” would contemplate a flat fee required

to enroll in a school and would not typically include additional expenses such

as books, meals, boarding, or other class materials. Without any evidence to

the contrary and considering that the PSA must be construed against Wife as

drafter, we find that the trial court’s interpretation of the PSA was reasonable.

III. Crediting Overpaid Child Support Payments Against Other Childcare Obligations [19] Wife claims that the trial court erred by crediting Husband’s overpayment of

child support against the amounts owed for unpaid orthodontic and school

expenses, as well as any future college expenses. In support of this claim, Wife

argues that “child support payments cannot be applied prospectively to support

not yet due at the time of the overpayment.” Drwecki v. Drwecki, 782 N.E.2d

440, 448 (Ind. Ct. App. 2003) (quoting Matson v. Matson, 569 N.E.2d 732, 733

(Ind. Ct. App. 1991)). However, Wife neglects to mention that this rule only

applies to voluntary overpayments, not overpayments made by virtue of mistake

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 11 of 14 or as a result of an inaccurate support order (both of which were reasons for

Husband’s overpayment).

[20] In Drwecki, we addressed this rule in a situation where a father was making

child support payments pursuant to a court order which was later modified

retroactively. The court found that the father could recover the overpayments

from the mother. Id. at 449.

In previous cases, we have held that “child support payments cannot be applied prospectively to support not yet due at the time of the overpayment.” [Matson, 569 N.E.2d at 733]. The rationale behind the rule is that it would be unjust for a non-custodial parent to voluntarily build up a substantial credit and then suddenly refuse to make support payments for a period of time. This would thwart the court’s purpose of providing regular, uninterrupted income for the benefit of the children. The regularity and continuity of court decreed support payments are as important as the overall dollar amount of those payments. Id. This rule suggests that Father cannot receive credit against future support payments. However, the rationale underlying this rule does not fully apply here, where Father did not voluntarily build up a substantial credit. Rather, Father built up a substantial credit because he followed the court’s previous order that required him to pay $241 per week in child support. If Father had failed to make those payments until the court modified the order, the trial court might have found him in contempt. *** For all these reasons, we hold that Father should be able to recover the overpayments that Mother received. Id. at 448-49 (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 12 of 14 [21] In the instant case, the trial court was within its discretion to offset Husband’s

overpayments with the children’s prior childcare expenses and daughter’s future

college expenses. It is unclear why Wife is opposed to this arrangement when

the trial court could have ordered her to reimburse Husband for the entire

overpayment amount minus the prior orthodontic and school expenses.

IV. Attorney’s Fees [22] The PSA provides that “[e]ach party agrees to indemnify and save and hold the

other harmless from all damages, losses, expenses (including attorney fees),

costs, and other fees incurred by reason of the other’s violation or breach of any

of the terms and conditions hereof.” Appellee’s App. p. 20. Wife argues that

Husband’s admission to not paying certain obligations under the PSA amounts

to an admission of a breach and, therefore, that the trial court erred in failing to

award attorney’s fees pursuant to the attorney fee provision. We agree. By his

own admission Husband violated the terms of the PSA. Additionally, Husband

provided no argument as to why this provision should not be enforced as

written. Accordingly, we reverse the trial court’s decision not to award

attorney’s fees and remand for a determination of the appropriate amount of

attorney’s fees to which Wife is entitled.

Conclusion [23] We reverse and remand with orders that the trial court (1) recalculate the

amount Husband owes for the second mortgage consistent with our reasoning

in footnote 1, and (2) determine the amount of attorney’s fees to which Wife is

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 13 of 14 entitled. We affirm the judgment of the trial court with respect to all other

issues discussed herein.

[24] Affirmed in part, reversed and remanded in part.

Najam, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1407-DR-258 | March 2, 2015 Page 14 of 14