Phillips v. Delks

880 N.E.2d 713, 2008 Ind. App. LEXIS 247, 2008 WL 375962
CourtIndiana Court of Appeals
DecidedFebruary 13, 2008
Docket06A05-0612-CV-744
StatusPublished
Cited by14 cases

This text of 880 N.E.2d 713 (Phillips v. Delks) 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
Phillips v. Delks, 880 N.E.2d 713, 2008 Ind. App. LEXIS 247, 2008 WL 375962 (Ind. Ct. App. 2008).

Opinion

*715 OPINION

VAIDIK, Judge.

Case Summary

Todd H. Phillips (“Husband”), pro se, appeals the trial court’s finding that he is in contempt of the Decree of Dissolution of Marriage, which dissolved his marriage to former wife Dee Anne (Phillips) Delks (“Wife”), for failing to immediately cure the deficiencies on the parties’ rental properties and to timely complete other obligations under the parties’ settlement agreement. He also appeals the trial court’s award of $25,000.00 for damage to Wife’s credit. We affirm the trial court’s contempt finding but reverse the award of damages because Wife offered no evidence in support of her damages claim. We therefore affirm in part, reverse in part, and remand for a calculation of reasonable appellate attorney fees in favor of Wife.

Facts and Procedural History

Husband and Wife were married in 1998. On July 20, 2005, Husband, represented by counsel, filed a Petition for Dissolution of Marriage. At the final hearing on January 26, 2006, the parties, each represented by counsel, came to a verbal agreement regarding disposition of the marital assets and debts, which was later reduced to a writing called the Agreement of Settlement (“Agreement”). Both parties, still represented by counsel, executed the Agreement on March 9, 2006. On March 15, 2006, the trial court issued the Decree of Dissolution of Marriage (“Decree”), which incorporated the Agreement. Paragraph 1(A)(2) of the Agreement provides:

2. Rental Properties at 528 S. Edgehill, Indianapolis; 4.109 Arquette Ct., Indianapolis; and 2883 N. Goodlet Avenue, Indianapolis. The parties currently own rental properties located at 523 S. Edgehill, Indianapolis, Marion County, Indiana, 4109 Arquette Ct., Indianapolis, Marion County, Indiana, and 2333 N. Goodlet Ave., Indianapolis, Marion County, Indiana which residences are jointly deeded to the parties. Husband shall assume and does agree to pay any and all mortgage or other debt as well as any other debt associated with these properties, including an immediate cure of any outstanding deficiency and Husband agrees to indemnify against loss and hold the Wife harmless from the mortgage or other debt on these properties. Husband shall have three (3) years (until January 26, 2009) to either refinance or sell the properties and remove Wife’s name from the indebtedness. Wife agrees to execute Quitclaim Deeds for the properties within ten (10 days) from the date of the decree or upon receipt of such deeds from Husband’s counsel whichever is later. This Court shall have continuing jurisdiction over this action until Husband sells or refinances. In the event Husband defaults on any mortgages (not otherwise in default, or deemed to be in default as of January 26, 2006,) or obligation associated with the rental properties (including a failure to cure all outstanding deficiencies) causing late fees, finance charges, or any other financial detriment which could negatively affect Wife’s credit, Wife can petition the Court for an Order to obtain an immediate sale of the properties for the amount then owed.

Appellee’s App. p. 17 (emphasis added). In addition to addressing the rental properties, the Agreement provided, among other things, that Husband was responsible for the debt on the 2001 Volkswagen Jetta, 1 for his portion of the marital coun *716 seling bill, 2 for the outstanding tax liability for 2001 and 2004, 3 and for filing the 2005 taxes by March 15, 2006, with Wife having an opportunity to review the returns before they were filed. 4

On June 1, 2006, 5 Wife filed a Verified Petition for Rule to Show Cause. In the petition, Wife alleged that Husband was “in contempt for violating the Settlement Agreement heretofore entered by this Court on March 15, 2006.” Id. at 26. Specifically, Wife claimed that Husband “is in default in the mortgage payments for two (2) rental properties,” that payments have been missed on the Jetta loan, that Husband has failed to pay the counseling bill and outstanding tax liability, and that Husband filed for an extension for the taxes and did not obtain Wife’s consent. Id. at 27-29. Wife sought “damages from Husband for the detriment he has caused to her credit rating due to his failure to pay the obligations he is responsible for pursuant to the terms of the Settlement Agreement.” Id. at 29. Wife also asked for the rental properties and Jetta to be sold and for attorney fees.

Following a two-day hearing on August 17 and 30, 2006, at which Husband represented himself, the trial court issued an Order on November 24, 2006, which provides, in pertinent part:

1. The Court finds that Husband has failed to comply with the terms of the Decree and did not immediately cure the deficiencies on the rental properties as required by paragraph 1(A)(2) of the Agreement of Settlement. Furthermore, Husband’s failure is not excusable since he had adequate funds, including, rental income with which to meet these obligations. Therefore, Husband is found in contempt of the Decree. Husband also failed to timely complete other obligations under the Decree, including, the timely preparation and filing of the 2005 tax return and IRS tax liens, his VW payment and counseling bill. Furthermore, Wife has been damaged financially as a result of Husband’s conduct. Therefore, Wife is hereby awarded Twenty-Five Thousand Dollars ($25,000.00) in monetary damages, plus attorney’s fees in the amount of Five Thousand Seventy-Eight Dollars and Ninety-Nine Cents ($5,078.99), which have been incurred in bringing this Contempt Petition against Husband and for her attorney’s efforts in connection with the foreclosure actions on the *717 three (3) rental properties wherein the Default Judgment was set aside and the other foreclosure action was dismissed. Said monies owed to Wife and her attorney shall become a judgment against the Husband and in favor of Wife and/or her attorney, Elizabeth I. Van Tassel, Coots Henke & Wheeler, P.C. effective the date this Order is approved. Husband is ordered to pay these amounts to Wife and her attorney within sixty (60) days.
2. The Court finds that Husband is hereby ordered to either sell or refinance the 2001 Volkswagen Jetta within sixty (60) days. Upon sale or refinance of this vehicle, Husband is ordered to immediately pay off the loan balance due and owing on this vehicle.
3. The Court finds that the property located at 4109 Arquette Ct., Indianapolis, Indiana shall remain on the market for sale until it sells. It shall continue to be listed for Sixty-Nine Thousand Dollars ($69,000.00). In the event this property is not sold by November 1, 2006, the price shall be reduced by Five Thousand Dollars ($5,000.00) each month until the price has reached Forty-Five Thousand Dollars ($45,000.00), which should be sufficient to cover the costs of the sale and the mortgage balance.
4.

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Cite This Page — Counsel Stack

Bluebook (online)
880 N.E.2d 713, 2008 Ind. App. LEXIS 247, 2008 WL 375962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-delks-indctapp-2008.