Wooten v. Gary Community School Corp.

563 N.E.2d 636, 1990 Ind. App. LEXIS 1573
CourtIndiana Court of Appeals
DecidedDecember 6, 1990
DocketNo. 45A03-8905-CV-00198
StatusPublished
Cited by1 cases

This text of 563 N.E.2d 636 (Wooten v. Gary Community School Corp.) 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
Wooten v. Gary Community School Corp., 563 N.E.2d 636, 1990 Ind. App. LEXIS 1573 (Ind. Ct. App. 1990).

Opinion

STATON, Judge.

In this consolidated appeal, Shirley Wooten and her attorneys contest two separate judgments arising out of a dissolution and property settlement proceeding. After consolidation, however, the appeal pertaining to the trial court's March 13, 1989 order was resolved by the parties’ stipulation.1 Thus, we need only address the appeal directed to the trial court’s order of April 28, 1989. This appeal raises the sole issue of whether the trial court erred when it refused to enforce an order of garnishment retroactive to the time interrogatories were [638]*638served on the garnishee, Gary Community School Corporation (the School).

Reversed and remanded.

On November 1, 1985, Wooten recovered a judgment against her ex-husband, James, in the amount of $71,195.56, while her attorneys secured a judgment of $5,821.95. Wooten and her attorneys filed proceedings supplemental petitions to collect their respective awards. The School, as garnishee, was ordered to answer interrogatories. The petitions, orders and interrogatories were served, without summons, by certified mail. The School filed its answers to the interrogatories on February 7, 1986, and did not file any defenses nor object to the sufficiency of process.

On March 11, 1988, the trial court found that the School had been served with process on or before February 7, 1986, and ordered James’ earnings to be garnished from that date. The School did not appeal from that order. A few months later, Wooten and her attorneys filed petitions to enforce the order, and the School filed its motion for relief from the March 11, 1988 order. The trial court denied Wooten’s petitions to enforce the order against the School.

Wooten acknowledges that she now appeals a negative judgment. For this court to reverse we must find that the judgment is contrary to law; that is, where the evidence is without conflict and leads to a conclusion opposite to that reached by the trial court. General Collections, Inc. v. Ochoa (1989), Ind.App., 546 N.E.2d 113, 114. In addressing the question of whether a negative judgment is contrary to law, we consider only the evidence on the record most favorable to the prevailing party without reweighing the evidence or judging the credibility of witnesses. Id.; Craig v. ERA Mark Five Realtors (1987), Ind.App., 509 N.E.2d 1144, 1146.

Wooten alleges that the trial court committed reversible error by failing to enforce the order because a creditor acquires an equitable lien on funds owed by a third party to the judgment debtor from the time the third party receives service of process in proceedings supplemental. Radiotelephone Co. of Indiana, Inc. v. Ford (1988), Ind.App., 531 N.E.2d 238. In his opinion in Radiotelephone, Judge Buchanan traced the origin of such a creditor’s lien to the equitable powers of the court, as stated in Butler v. Jaffray (1859), 12 Ind. 504. Our supreme court went on to recognize that a lien arose in favor of the creditor from the time of service of process on the judgment debtor and on third parties indebted to the judgment debtor. Cooke v. Ross (1864), 22 Ind. 157.

The principle that a judgment debtor could not make valid assignments after the creation of the lien “was extended to hold a third party liable for funds wrongfully paid to a judgment debtor after the third party was named a defendant in proceedings supplemental.” Radiotelephone, supra, at 241 (emphasis in original). Judge Buchanan, recognizing the necessity of preserving the judgment debtor’s property pending the resolution of proceedings supplemental, observed:

If it were not for the equitable lien created at the time of service of process in proceedings supplemental, a judgment debtor could easily defeat a lien by assignment of the debt or otherwise collecting money owed him - by third parties. The equitable lien is intended to preserve the property of the judgment debtor in the hands of a third party pending review and disposition by the proceedings supplemental court.

Id. at 241. We agree with Wooten, and find that she acquired an equitable lien on funds from the moment the interrogatories were served upon the School.

The School argues, however, that Wooten actually brought a prejudgment attachment and garnishment action under IND.CODE 34-1-11-1 (1988), and that the procedural safeguards required by the statute, such as an affidavit by the plaintiff and the posting of a bond,2 were not complied with. Therefore, they conclude that [639]*639no order of garnishment could properly have been entered in this case.

This argument completely mischaracter-izes the nature of the proceedings below. The record discloses that on February 3, 1986, the School received two sets of interrogatories attached to a document with the appellation “PETITION FOR PROCEEDINGS SUPPLEMENTAL.” The petitions indicated that the plaintiffs, Wooten and her attorneys, owned judgments in the amounts of $74,795.56 and $5,821.95, respectively. The statutes referred to by the School have no application where a judgment has already been secured. There can be no doubt that this proceeding is a post-judgment action, and not prejudgment attachment and garnishment pursuant to IC 34-1-11-1 et seq.

On March 11, 1988, the trial court issued the following findings and its orders:

1. That the Garnishee-Defendant, Gary Community School Corporation, was served with process on or before February 7, 1986.
2. That since said date, the Judgment-Debtor has had and received earnings from the Garnishee-Defendant.
3. That since said date, the Garnishee-Defendant may have collected voluntary contributions from the Judgment-Debt- or’s earnings for distribution to various annuities as part of a deferred income plan.
IT IS THEREFORE ORDERED that the Garnishee-Defendant, Gary Community School Corporation, forthwith pay to the Clerk of this Court, to be credited against the judgment(s) in the within cause, a sum equal to any and all amounts or sums contributed by the Judgment-Debtor, or withheld from his earnings, since February 7, 1986, as part of any deferred income plan including, but not limited to, the General American Life Insurance Company and/or the Variable Annuity Life Insurance Company, or their agent(s), servant(s), nominee(s) or designee(s).
IT IS FURTHER ORDERED that the Garnishee-Defendant pay to the Clerk of this Court, to be applied toward satisfaction of the judgment(s) in the within cause, the following amount(s) which were, or should have been withheld from the earnings of the Judgment-Debtor since February 7, 1986. Those withhold-ings shall be in an amount equal to the lesser of the following sums:
(a) Twenty-five percent (25%) of said earnings after subtracting income taxes and social security withholdings per week, or
(b) All of said earnings after subtracting income taxes, social security with-holdings and One Hundred and 50/100 Dollars ($100.50) per week.

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Related

In Re Marriage of Wooten
563 N.E.2d 636 (Indiana Court of Appeals, 1990)

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Bluebook (online)
563 N.E.2d 636, 1990 Ind. App. LEXIS 1573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wooten-v-gary-community-school-corp-indctapp-1990.