                                                                        Sep 21 2015, 8:34 am




      ATTORNEY FOR APPELLANT
      Stephen P. Rothberg
      Fort Wayne, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      James Whittaker,                                          September 21, 2015
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                02A03-1503-DR-79
              v.                                                Appeal from the Allen Superior
                                                                Court
      Wilma Sharlene Whittaker,                                 The Honorable Charles F. Pratt
      Appellee-Respondent                                       Trial Court Cause No.
                                                                02D07-9511-DR-351



      Bailey, Judge.



                                           Case Summary
[1]   James Whittaker (“Husband”) filed a petition seeking to have his ex-wife,

      Wilma Whittaker (“Wife”) held in contempt of court for her failure to pay sums




      Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015              Page 1 of 9
      designated as maintenance 1 in a settlement incorporated into a dissolution

      decree. The trial court concluded that Wife owed Husband a fixed sum of

      $76,173.44, as of June 25, 2013, enforceable by execution but not contempt.

      Husband presents the sole, consolidated issue of whether the trial court reached

      an erroneous legal conclusion as to enforcement remedies. We reverse and

      remand with instructions to the trial court to address the merits of Husband’s

      petition for contempt.



                             Facts and Procedural History
[2]   Husband and Wife were married on October 25, 1969. On August 2, 2000, the

      trial court dissolved the parties’ marriage and approved and adopted their

      Marital Settlement Agreement (“the Agreement”).


[3]   With respect to Wife’s interest in a deferred benefit retirement plan referred to

      as the Indiana State Teacher’s Retirement Fund, the Agreement provided in

      pertinent part:


              At such time as Wife becomes eligible for and receives
              benefit/payment as a result of her interest in the Indiana State
              Teacher’s Retirement Fund, Wife shall be under an affirmative
              obligation to inform Husband by certified mail of such event, in
              addition to which, she will provide to Husband adequate
              evidence of any benefit paid to and/or received by her by reason




      1
       The sums were to be considered maintenance to Husband to the extent that they were taxable income to
      Wife.

      Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015                   Page 2 of 9
        of her participation and interest in said Indiana State Teacher’s
        Retirement Fund. . . .


        Wife shall pay to husband an amount equal to one-half of the
        following: An amount equal to the fractional share of the total of
        Wife’s benefit, the numerator for which shall be the number of
        months the parties were married (348 months), and the
        denominator of which shall be the total service in number of
        months, or service credit in months, wife had in the Indiana State
        Teacher’s Retirement Fund on the occasion of her retirement and
        commencement of benefit payment. Wife shall be obligated to
        pay to husband the amount indicated above from sums received
        by her, irrespective of such alternate elections Wife may make
        with respect to distribution or payment to her of monies available
        from the Indiana State Teacher’s Retirement Fund. To the
        extent sums paid by the Indiana State Teacher’s Retirement Fund
        to Wife are taxable as income to Wife, then those amounts
        payable and paid by Wife to Husband shall be deemed
        maintenance payments by Wife to Husband and shall be reported
        by Husband as income and deductible to Wife on Husband and
        Wife’s respective income tax returns.


(App. at 20-21.) The Agreement further provided that, if Wife failed to timely

pay Husband sums due, the monies due should immediately become a lien

against Wife’s property. Paragraph 11 of the Agreement provided in relevant

part:

        Husband and Wife expressly agree that payments provided for
        hereunder shall be enforceable in the same manner as
        maintenance payments and not restricted to such remedies as are
        provided for in collection of judgments alone.




Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015   Page 3 of 9
      (App. at 28.) Wife began to receive retirement benefits on May 1, 2008. She

      rolled over $167,500 into a Capital Bank and Trust IRA.


[4]   On July 8, 2008, Husband filed his Motion to Enforce Decree of Dissolution.

      Wife filed a Motion to Clarify or Motion for Relief. On March 28, 2009,

      Husband received his first payment from Wife. Thereafter, Wife paid Husband

      $761.07 on a monthly basis.


[5]   In March of 2010, Wife filed an Amended Motion to Clarify or Motion for

      Relief. The parties filed cross-motions for summary judgment. On May 18,

      2012, the trial court entered an order stating that, “as a matter of law,”

      Husband was granted “a fractional share of Wife’s interest in the Indiana State

      Teacher’s Retirement Fund, which includes both her pension benefit and

      annuity benefit.” (App. at 7.) The order further stated that additional evidence

      was necessary for the court to determine whether Wife had breached the

      Agreement.


[6]   The parties engaged in discovery and, on June 25, 2013, the trial court

      conducted a hearing on the pending motions for enforcement, clarification, and

      relief. On October 16, 2013, the trial court entered an order finding that Wife

      had breached the terms of the Agreement by failing to properly notify Husband

      of her receipt of retirement benefits, delaying monthly payments to Husband,

      and withholding funds from her defined contribution plan (annuity). The trial




      Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015   Page 4 of 9
      court concluded that Wife owed Husband $76,173.44 plus attorney’s fees in the

      amount of $14,083.50. 2


[7]   On November 5, 2014, Husband filed his “Verified Information for Contempt.”

      (App. at 11.) On December 8, 2014, Wife was ordered to provide Husband’s

      counsel with documentation of account balances with Pro Fed Financial

      Advisors. On January 12, 2015, a hearing was conducted. On February 3,

      2015, the trial court issued an order acknowledging that Wife owed Husband a

      judgment of $76,173l.44 as of June 25, 2013, but further providing: “The

      judgment is not subject to enforcement or collection by contempt.” (App. at

      31.) Husband appeals.



                                  Discussion and Decision
[8]   Husband argues that the trial court’s refusal to enforce Wife’s obligation by

      contempt constitutes an impermissible modification of the 2000 dissolution

      decree. At the outset, we observe that Wife 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




      2
       On March 20, 2014, a partial release of judgment was filed, reflecting the payment of $14,083.50 in
      attorney’s fees.

      Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015                       Page 5 of 9
       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).


[9]    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. Nevertheless, because we are reviewing

       the construction of the terms of a written contract, which is a pure question of

       law, our standard of review is de novo. Id.


[10]   When we interpret a binding agreement, we apply the general rules applicable

       to the construction of contracts. Id. Unless the terms of the contract are

       ambiguous, they are to be given their plain and ordinary meaning. Id. Clear

       and unambiguous terms in the contract are deemed conclusive, and when they

       are present we will not construe the contract or look to extrinsic evidence, but

       will merely apply those provisions. Id.


[11]   Here, the parties agreed that, when Wife began to receive her pension benefits,

       she would be liable to Husband for payments that would be treated as spousal

       maintenance for tax purposes. The Agreement further specified that the

       liability was enforceable as an obligation for spousal maintenance. At the same

       time, however, the Agreement contemplated an immediate lien against Wife’s


       Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015   Page 6 of 9
       property in the event of default. According to Husband, the trial court simply

       disregarded any provisions of the Agreement and treated Wife’s obligation for

       delinquent payments as if it were ordinary debt enforceable only through

       execution.


[12]   Due 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). However, Indiana Code

       Section 31-15-7-10 provides in relevant part: “Notwithstanding any other law,

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

       separation decree may be enforced by contempt[.]”


[13]   Thus, we are required to look at the original order sought to be enforced. A

       panel of this Court has observed:

               if a final money judgment – one requiring a person to pay a fixed
               sum of money to the other party – is entered, contempt is not an
               available remedy for noncompliance. Indiana Trial Rule 69 is
               the correct remedy for noncompliance with a money judgment.
               However, 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). In Mitchell, the

       Court concluded that the dissolution order (requiring the husband to pay the

       mortgage and credit card debts) did not constitute a money judgment requiring

       one party to pay a fixed sum of money to the other party and, therefore, the
       Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015   Page 7 of 9
       trial court was not barred from using its contempt powers to enforce

       compliance with the order. Id.


[14]   Similarly, in Dawson v. Dawson, 800 N.E.2d 1000, 1003 (Ind. Ct. App. 2003),

       we recognized that “a trial court may use its contempt power to enforce an

       order that requires performance instead of payment of a fixed sum to coerce a

       party into compliance with an underlying order or decree.” The dissolution

       decree, which had incorporated the parties’ settlement agreement, imposed

       upon the husband an obligation to refinance or pay a second mortgage; he

       claimed that he had been ordered to pay a fixed sum of money and thus the

       obligation could be enforced in proceedings supplemental but not by contempt.

       Id. The wife asserted that she did not hold a money judgment and thus relief

       under Trial Rule 69 was unavailable to her; the Dawson Court agreed. Id. at

       1003-04. The Court explained:

               [T]he trial court has the authority to find [husband] in contempt
               for his failure to comply with the Dissolution Decree precisely
               because of his failure to perform, rather than a failure to pay a set
               amount of money to [wife]. This determination is consistent
               with Cowart, wherein our supreme court held that the trial court’s
               use of its contempt power to compensate White for Cowart’s
               actions was not prohibited because the trial court’s finding of
               contempt was based on Cowart’s actions and failures to act, not
               on his failure to pay financial obligations. See Cowart, 711
               N.E.2d at 531. In fact, here, the trial court is merely ordering
               [husband] to perform the provision in the Dissolution Decree,
               i.e., satisfy the second mortgage by whatever means necessary to
               remove it as a lien on the marital residence. The trial court was
               clearly within its discretion in exercising its contempt authority in
               the instant case.

       Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015   Page 8 of 9
       Id. at 1004-05.


[15]   The instant case also involves a failure to perform an obligation set forth in a

       dissolution decree. In 2013, Wife was making monthly payments to Husband

       but the trial court was asked to determine the amount of arrearage. However,

       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.



                                                Conclusion
[16]   The trial court erred in refusing to address the merits of Husband’s petition for

       contempt.


[17]   Reversed and remanded.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1503-DR-79 | September 21, 2015   Page 9 of 9
