      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                    FILED
      regarded as precedent or cited before any                                Feb 28 2018, 10:48 am

      court except for the purpose of establishing                                  CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Lisa M. Joachim                                          Jonathan R. Deenik
      Mann Law, P.C.                                           Deenik Law, LLC
      Indianapolis, Indiana                                    Greenwood, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Marriage of:                                  February 28, 2018

      Brent R. McIntosh,                                       Court of Appeals Case No.
                                                               41A04-1710-DR-2410
      Appellant-Petitioner,
                                                               Appeal from the Johnson Superior
              v.                                               Court
                                                               The Honorable Marla K. Clark,
      Catherine B. McIntosh,                                   Judge
                                                               Trial Court Cause No.
      Appellee-Respondent.
                                                               41D04-1411-DR-684



      Najam, Judge.


                                       Statement of the Case
[1]   Brent R. McIntosh (“Husband”) appeals the trial court’s order to show cause.

      Husband raises two issues for our review, which we restate as the following


      Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018          Page 1 of 11
      issue: whether the trial court abused its discretion when it found him in

      contempt.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Husband and Catherine McIntosh (“Wife”) were married on June 18, 1977.

      On November 5, 2014, Husband filed a petition for dissolution of the marriage.

      During the course of the dissolution proceedings, Husband, who had previously

      been employed as a physician by American Health Network (“AHN”),

      discovered that AHN had overpaid him and that he owed AHN $299,632. The

      parties entered into a Final Settlement Agreement, which the trial court

      incorporated into its Decree of Dissolution issued on March 15, 2016. The

      Final Settlement Agreement provided, in relevant part, as follows:


              Husband shall be solely responsible for the American Health
              Network Debt which at the date of filing was Two Hundred and
              Ninety-Nine Thousand Six Hundred and Thirty-Two Dollars
              ($299,632.00). Husband may pay that debt either directly or
              indirectly by reducing his salary[ or] reducing potential benefits
              and contributions. If Husband has not paid, or entered into a
              payment arrangement with AHN to repay[,] the debt within one
              (1) year of this Order, or if the debt is forgiven before
              commencement of any payments, then Husband shall pay to
              [W]ife the sum of Five Thousand Dollars ($5[,]000.00) a month
              for a period of five (5) years. The payments shall be in the form
              of maintenance to Wife and shall terminate upon Wife’s death.


              On an annual basis, Husband shall notify Wife of his attempts
              (and provide documentary proof of the same), the amount he

      Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 2 of 11
              was required to pay, if any, and the reduction of the debt.
              Should Husband make no attempts to reduce the debt for a
              period of more than 1 (one) year, then Husband shall have to pay
              Wife the balance of what is owed under the maintenance
              provision as detailed above. In the event Husband is only
              required to pay a portion of the debt, or a portion is forgiven, he
              shall make the maintenance payments in an equal ratio to the
              amount that has been forgiven as detailed above.


      Appellant’s App. Vol. II at 20.


[4]   On May 31, 2017, Wife moved the court for a rule to show cause on the

      grounds that Husband had not repaid the debt or entered into a payment

      arrangement with AHN and, thus, that Husband was required to make monthly

      payments of $5,000 to Wife pursuant to the Final Settlement Agreement, which

      Husband had not done. Further, Wife alleged that Husband had failed to

      provide Wife with any documentary proof of his attempts to pay the debt or the

      amount he was required to pay.


[5]   The trial court held a hearing on the motion on August 3, 2017. Neither Wife

      nor Husband testified at the hearing. Instead, their attorneys made their

      arguments to the trial court. Wife’s attorney asserted that Husband had not

      entered into a repayment agreement with AHN, he had not repaid the debt, and

      he had not provided any documentary proof to Wife that he had taken steps to

      pay off the debt. Wife’s attorney further stated that Husband was required to

      begin paying Wife the maintenance payments as of March 2017.




      Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 3 of 11
[6]   Husband’s attorney contended that Husband had taken the following steps in

      an attempt to pay down the debt: he had reduced his salary for three months

      before he had left AHN; he had left behind his long-term equity plan when he

      had terminated his employment with AHN, the balance of which was

      $38,827.33; and he had left AHN his deferred compensation plan, the balance

      of which was $25,587.57. Husband’s attorney also asserted that Husband had

      requested documentation numerous times from AHN on the amount he had

      repaid, but he had been unable to obtain that documentation because AHN had

      been bought out.


[7]   To support his position, Husband’s attorney moved to admit an undated letter

      from AHN’s Chief Financial Officer as evidence, which the trial court

      admitted. That letter provided that Husband’s “balance in the Long Term

      Equity Plan is $38,827.33. This balance will be paid out in equal installments

      over a period of 5 years upon retirement from AHN.” Ex. at 5. It further

      provided that Husband “had participat[ed] in the Deferred Compensation Plan

      in 2003 and 2004. Your balance in this plan as of February 28, 2015[,] is

      $25,587.57. This balance will be paid out in equal installments over 3 years.”

      Id. Finally, the letter provided that “Your Due from physician balance as of

      Jan[uary] 31, 2015[,] is $299,632. This is a cumulative balance representing

      earned physician compensation being lower than paid compensation and is

      owed back to AHN.” Id.


[8]   The trial court issued its order to show cause on August 8. In its order, the trial

      court found that “[t]here is no dispute that the debt has not been repaid and that

      Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 4 of 11
      payment arrangements have not been made.” Appellant’s App. Vol. II at 43.

      Further, the trial court found that the “maintenance provision of the Settlement

      Agreement is not contingent on why the debt was not repaid. Rather, it states

      only that the maintenance requirement is triggered if the AHN debt was not

      repaid or payment arrangements entered within one year, by March 15, 2017.”

      Id. (emphasis in original). The trial court also found that


              [e]ven if Husband’s intent is to satisfy a portion of the debt by
              applying earned benefits, there is no evidence that AHN has
              accepted this as a payment arrangement. The letter he entered
              into evidence shows that the amount of the AHN debt has
              remain[ed] unchanged since the Settlement Agreement was
              entered.


      Id. Based on the Settlement Agreement’s language, the trial court found that

      Husband was in contempt and ordered him to begin paying the maintenance

      payments to Wife, to pay the missed payments to Wife by December 31, 2017,

      and to pay Wife’s attorney’s fees.


[9]   On August 17, 2017, Husband filed a motion to correct error in which he

      alleged that the trial court had erred when it found that the maintenance

      provision had been triggered because he had made payments on the debt and

      because AHN had kept the balance of his long-term equity plan and his

      deferred compensation plan. He also contended that the trial court erred when

      it found him in contempt because he did not “willfully refuse[] to comply” with

      the order and because property settlement agreements may not be enforced by



      Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 5 of 11
       contempt citations. Id. at 46. The trial court denied Husband’s motion to

       correct error on September 18. This appeal ensued.


                                        Discussion and Decision
[10]   Husband contends that the trial court abused its discretion when it found him in

       contempt because the settlement agreement may not be enforced by contempt.

       He also contends that the trial court abused its discretion when it found him

       contempt because that finding was not supported by the evidence. We address

       each argument in turn.


                                        Trial Court’s Contempt Powers

[11]   Husband first asserts that the trial court abused its discretion when it found him

       in contempt because the settlement agreement may not be enforced by

       contempt. Specifically, Husband contends that the clause in the settlement

       agreement that requires Husband to pay Wife $5,000 per month is a property

       settlement agreement and “[p]roperty settlement agreements incorporated into a

       final decree of dissolution may not be enforced by contempt citation.”

       Appellant’s Br. at 9. Wife, however, asserts that the clause that provides for

       Husband to pay her is not a property settlement but, rather, is a maintenance

       payment, which can be enforced by contempt.1




       1
         We note that the maintenance statute, Indiana Code Section 31-15-7-2, is not at issue here because the
       settlement agreement, and its apparent provision for maintenance, was created by the agreement of the
       parties. While a trial court only has three, limited options in ordering maintenance “[t]he parties may

       Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018         Page 6 of 11
[12]   We consider various factors to determine whether the clause is one for

       maintenance or one for property settlement. Deel v. Deel, 909 N.E.2d 1028,

       1034 (Ind. Ct. App. 2009). The factors that indicate a payment was

       maintenance are: “(1) the designation as maintenance;[2] (2) provision

       terminating the payments upon death of either party; (3) payments made from

       future income; (4) provisions for termination upon remarriage; (5) provisions

       calling for the modification based upon future events; (6) and payments for an

       indefinite period of time.” Id. On the other hand, the factors that indicate a

       provision was actually intended to be marital property are:


                (1) the payments are for a sum certain payable over a definite
                period of time; (2) there are no provisions for modification based
                on future events; (3) the obligation to make payments survives
                the death of the parties; (4) the provisions call for interest; and (5)
                the award does not exceed the value of the marital assets at the
                time of dissolution.


       Id.


[13]   We conclude that the provision at issue here was a maintenance provision.

       First, the agreement itself designated that the “payments shall be in the form of

       maintenance to Wife[.]” Appellant’s App. Vol. II at 20. Second, the provision




       themselves provide for maintenance in settlement agreements where the court could not otherwise order it.”
       Voigt v. Voigt, 670 N.E.2d 1271, 1277 (Ind. 1996).
       2
         Because the designation by the parties of a particular provision as “maintenance” is not dispositive to the
       question of whether that provision is, as a matter of law, maintenance, the parties’ are not estopped on appeal
       by their designations below.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018          Page 7 of 11
       specifies that Wife’s entitlement to the sums “shall terminate upon Wife’s

       death.” Id. Third, it appears that payments to Wife would be made from

       Husband’s future income. Fourth, there is no provision that calls for interest to

       be paid. Finally, there is a provision that calls for modification based on future

       events. In their Final Settlement Agreement, the parties agreed that Husband

       would pay Wife $5,000 per month for five years if Husband did not pay the

       AHN debt or enter into an arrangement to pay that debt. The settlement

       agreement further provided that,


               Should Husband make no attempts to reduce the debt for a
               period of more than (1) year, then Husband shall have to pay
               Wife the balance of what is owed under the maintenance
               provision as detailed above. In the event Husband is only
               required to pay a portion of the debt, or a portion is forgiven, he
               shall make the maintenance payments in an equal ratio to the
               amount that has been forgiven as detailed above.


       Id. That language demonstrates that the provision allows for modification of

       the amount Husband is required to pay Wife based on any number of events

       that may occur in the future.


[14]   While the provision does require Husband to pay a specific sum total to Wife

       over a definite period of time, which is a factor that weighs in favor of the

       clause describing a property distribution, that one factor alone does not

       overcome the numerous factors that demonstrate that the clause was intended

       by the parties to be a maintenance provision. As such, we hold that the

       provision of the Final Settlement Agreement at issue is a maintenance


       Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 8 of 11
       provision, and “an order to pay maintenance is enforceable by contempt.” 3

       Thompson v. Thompson, 458 N.E.2d 298, 300 (Ind. Ct. App. 1984). As such, the

       trial court was within its discretion when it exercised its contempt authority.


                                               Finding of Contempt

[15]   Husband next contends that the trial court abused its discretion when it found

       him in contempt because the trial court’s finding of contempt was not supported

       by the evidence. The Indiana Supreme Court has recently outlined our

       standard of review.


               “It is soundly within the discretion of the trial court to determine
               whether a party is in contempt, and we review the judgment
               under an abuse of discretion standard.” Witt v. Jay Petroleum,
               Inc., 964 N.E.2d 198, 202 (Ind. 2012) (citation omitted). “We
               will reverse a trial court’s finding of contempt only if there is no
               evidence or inference therefrom to support the finding.” Id. The
               trial court has the inherent power to “maintain[ ] its dignity,
               secur[e] obedience to its process and rules, rebuk[e] interference
               with the conduct of business, and punish[ ] unseemly behavior.”
               Id.


       Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). And, “[a]s with other

       sufficiency matters, we will neither reweigh the evidence nor judge witness

       credibility.” Deel, 909 N.E.2d at 1032.




       3
         Husband makes no contention that maintenance provisions cannot be enforced through contempt
       proceedings. Husband’s contention that the trial court erred when it found him in contempt relies entirely on
       his assertion that the agreement that he pay Wife is a property settlement agreement and that property
       settlement agreements cannot be enforced through contempt proceedings.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018         Page 9 of 11
[16]   Husband contends that the trial court abused its discretion when it found him in

       contempt because there was no evidence to support that finding. Specifically,

       Husband asserts that “[t]he evidence presented to the trial court was that

       [Husband] had been repaying the debt and had made arrangements with AHN”

       to repay the debt. Appellant’s Br. at 8. As such, Husband contends that

       “[t]here is a lack of evidence” to show that Husband had disobeyed the trial

       court’s order. Id. at 9.


[17]   During the hearing, Husband’s attorney stated that, before he left AHN,

       Husband “reduced his salary. They kept collections of at least three (3) months

       of surgeries which he performed and didn’t collect any money from.” Tr. Vol.

       II at 7. Further, he left AHN with “his Long-Term Equity Plan which is

       approximately thirty-eight thousand, eight hundred and twenty-seven dollars

       and thirty-three cents ($38,827.33)” and “his Deferred Compensation Plan of

       twenty-five thousand, five hundred eighty-seven dollars and fifty-seven cents

       ($25,587.57)” in order to repay some of the debt. Id. at 7-8.


[18]   However, the only evidence Husband presented at the hearing was the undated

       letter from AHN’s Chief Financial Officer, which simply provided the balances

       of Husband’s long-term equity plan and Deferred Compensation Plan and the

       balance of Husband’s debt, which, as the trial court found, showed that the

       amount due on the debt was the same amount due as stated in the Final

       Settlement Agreement. Husband presented no evidence that he had actually

       paid any of the debt or entered into an agreement with AHN to pay back the

       debt. Further, Husband presented no evidence that he had attempted to obtain

       Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 10 of 11
       documentation from AHN that would indicate that he had actually paid down

       some of the debt. Because Husband failed to present any evidence to the trial

       court that he had actually paid any of the debt, that he had entered into a

       payment arrangement with AHN, or that he had provided documentary proof

       to Wife of his attempts to pay or the amount he was required to pay, the trial

       court did not abuse its discretion when it found him in contempt.


[19]   In conclusion, the clause of the settlement agreement that required Husband to

       pay Wife was a maintenance provision and was enforceable through contempt.

       And the trial court did not abuse its discretion when it found Husband in

       contempt. Accordingly, we affirm the trial court’s order on rule to show cause.


[20]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018   Page 11 of 11
