MEMORANDUM DECISION
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.
                                                                        FILED
                                                                    Jul 05 2017, 8:45 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT
Meeks Cockerill
Winchester, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dale Bond,                                               July 5, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         68A01-1612-DR-2856
        v.                                               Appeal from the Randolph
                                                         Superior Court
Judylee W. Bond,                                         The Honorable Peter D. Haviza,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         68D01-1310-DR-1019



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017         Page 1 of 10
                                          Case Summary
[1]   Appellant-Petitioner Dale Bond and Appellee-Respondent Judylee Bond were

      divorced in December of 2013. According to the terms of the parties’

      settlement agreement, which was incorporated in to the divorce decree, Dale

      agreed to continue making payments on the land contract related to the marital

      residence until the contract was paid in full. Dale failed to fulfill this obligation.

      On August 17, 2016, Judylee requested that the trial court find Dale in

      contempt for failing to fulfill his obligation under the terms of the parties’

      settlement agreement. Following a hearing, Dale was found to be in contempt.

      Dale subsequently challenged the contempt finding by filing a motion to correct

      error, which was denied by the trial court.


[2]   Dale contends on appeal that the trial court abused its discretion in denying his

      motion to correct error and finding him in contempt. Concluding otherwise,

      we affirm.



                            Facts and Procedural History
[3]   The parties divorced in December of 2013. A settlement agreement entered

      into by the parties was incorporated into the divorce decree issued by the trial

      court. Pursuant to the terms of the parties’ settlement agreement, the parties

      agreed that Dale would make monthly payments in the amount of $250 on the

      land contract connected to the marital residence and Judylee would maintain

      possession of the marital residence.


      Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 2 of 10
[4]   On August 17, 2016, Judylee filed a motion in which she requested that the trial

      court find Dale in contempt (“contempt motion”). In this motion, Judylee

      alleged that Dale had failed to make monthly payments on the land contract, as

      required by the parties’ settlement agreement. The trial court conducted a

      hearing on Judylee’s contempt motion on September 27, 2016.


[5]   During the hearing on Judylee’s contempt motion, Dale admitted that the

      provision in the settlement agreement providing that he would assume the

      responsibility of paying off the balance of the land contract “was my idea,

      because I didn’t feel like arguing with you every day.” Tr. p. 8. Dale admitted

      that he understood that this obligation would entail making payments each

      month until the balance of the contract was paid off. At the time he entered

      into the settlement agreement, Dale was “drawing only Social Security

      Disability” payments of $1357.70 per month. Tr. p. 8. Dale did not have any

      source of income beyond the Social Security Disability payments.


[6]   Dale testified that he had continued to receive this same amount each month

      since the parties’ divorce and was still receiving this same amount as of the date

      of the contempt hearing. Dale further testified that there had been a change of

      circumstances which had impacted his ability to pay his obligation under the

      parties’ settlement agreement. Dale indicated that he had suffered from

      ongoing medical issues and had outstanding medical bills relating to these

      ongoing issues. Dale also testified that he had purchased a new truck the week

      before the hearing and would have payments on the vehicle and insurance

      payments relating to the vehicle going forward. Dale further indicated that he

      Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 3 of 10
      had monthly utility bills, including an electric bill that “runs between [one]

      Hundred Ninety Eight to Three Hundred Dollars a month,” and that he paid

      three hundred dollars per month in rent to his girlfriend with whom he lived.

      Tr. p. 13. Dale claimed that after paying all of the above-mentioned bills, he

      usually had “about Seventy Dollars” left over. Tr. p. 16. Dale explained that

      when he entered into the settlement agreement, his rent payment was

      significantly lower. Dale claimed that he because of his change of living

      arrangements, he was unable to meet his obligation as set forth in the parties’

      settlement agreement.


[7]   In questioning Dale about his finances, Judylee asked the following:

              I am still not understanding though is when you filed for divorce
              and the terms on it, you knew that you would never ever be able
              to work again and you knew you were only going to get this
              amount of Social Security Disability but yet you put all the
              wheels in motion, got it settled in the Court Order as of 23rd of
              December, 2013 and I don’t, I am not understanding why you
              would think it is okay to break that because of change of
              circumstances, is there a reason you think the Court Order
              doesn’t matter or?


      Tr. p. 19. Dale indicated that he did “not want to be homeless” and that he had

      to pay rent to his girlfriend because his girlfriend “can’t meet her obligations on

      her own.” Tr. p. 19. Judylee further questioned Dale about the wisdom of

      purchasing a new truck when he knew he could not meet his outstanding

      financial obligations, stating:




      Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 4 of 10
              Okay. All right. The next question I have for you, why would
              you purchase a new truck with payments when you were in
              Court here before and they postponed it to give you chance to
              come back today and gave you a lawyer why would you go and
              get a new vehicle with payments on it knowing that you are
              already in Court to pay the house payment, it […]


      Tr. p. 19. Dale responded by saying “[w]ould you want to walk from your

      house to this Courtroom?” Tr. p. 20. Dale acknowledged that his girlfriend

      owned a vehicle and that his girlfriend had shown a willingness to allow Dale

      to use her vehicle “when he needed to go somewhere.” Tr. p. 20. Dale further

      acknowledged that even though he knew that Judylee had initiated contempt

      proceedings to compel him to meet the obligations incurred in the parties’

      settlement agreement, he “went ahead a got a vehicle on payments[.]” Tr. p.

      20.


[8]   Following the conclusion of the parties’ presentation of evidence, the trial court

      found as follows:

              All right. At this time, I find [Dale] in contempt. He entered
              into an agreement. He was going to use the Social Security
              Disability payments to make the payment on the agreement. He
              has now jock[ied] himself around so he can now try and claim,
              oh, I don’t have sufficient monies. He gets a car. I know he has
              got some other bills but he has entered into this agreement and it
              is subject to contempt. He is sentenced to sixty days at the
              Randolph County Jail. He can purge himself of contempt by
              resuming to make the payments on this land contract and he can
              go ahead after the land contract is finished up he can repay
              [Judylee] what she’s paid off of it and the rate of Two Fifty per



      Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 5 of 10
               month. That was what the agreement … That’s the Court’s
               decision.


       Tr. p. 21.


[9]    On October 26, 2016, Dale filed a motion to correct error. The trial court

       conducted a hearing on Dale’s motion on November 15, 2016. During this

       hearing, Dale argued that the trial court could not properly find him in

       contempt because in circumstances like those presented before the trial court,

       “the constitution forbids a finding of contempt.” Tr. p. 25. At the conclusion

       of the hearing, the trial court took the matter under advisement. The next day,

       on November 16, 2016, the trial court issued an order denying Dale’s motion to

       correct error. This appeal follows.



                                  Discussion and Decision
                                      I. Standard of Review
[10]   At the outset, we observe that Judylee 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 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).



       Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 6 of 10
       Whittaker v. Whittaker, 44 N.E.3d 716, 719 (Ind. Ct. App. 2015).


[11]   Dale appeals following the denial of his motion to correct error. We review the

       denial of a motion to correct error for an abuse of discretion. Faulkinbury v.

       Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015).


               The trial court’s decision on a motion to correct error comes to us
               cloaked with a presumption of correctness, and the appellant has
               the burden of showing an abuse of discretion. Cox v. Matthews,
               901 N.E.2d 14, 21 (Ind. Ct. App. 2009), trans. dismissed. An
               abuse of discretion will be found when the trial court’s action is
               against the logic and effect of the facts and circumstances before
               it and the inferences that may be drawn therefrom. Id.


       Id.


                                                II. Analysis
[12]           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.


       Whittaker, 44 N.E.3d at 719.


[13]   Indiana Code section 31-15-7-10 provides that “[n]otwithstanding any other

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

       separation decree may be enforced by: (1) contempt[.]” However,



       Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 7 of 10
               [d]ue 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).


       Whittaker, 44 N.E.3d at 719. In interpreting Article I, § 22, we have held that

       while a trial court “may not use its contempt powers to enforce a money

       judgment requiring one party to pay the other party a fixed sum of money,” 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) (emphasis in original).


[14]   In Mitchell, we considered whether the trial court erred in setting aside a

       previously issued contempt citation against former husband. 871 N.E.2d at

       394-396. The parties had entered into a settlement agreement by which former

       husband agreed to pay certain credit card debts and to indemnify former-wife

       against a mortgage lien. Id. at 394. Former husband failed to satisfy his

       obligations under the parties’ settlement agreement. Id. at 391-93. Upon

       review, we concluded that the settlement agreement, as incorporated into the

       dissolution order, “did not constitute a money judgment requiring one party to

       pay a fixed sum of money to the other party, and therefore, the trial court was

       not barred from using its contempt powers to enforce compliance with the

       order.” Id. at 395. Consequently, “the trial court abused its discretion in

       vacating and setting aside the contempt citation.” Id.


       Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 8 of 10
[15]   In Whittaker, we considered whether the trial court erred by refusing to address

       the merits of ex-husband’s contempt petition, stating that it could not find ex-

       wife in contempt for failing to pay ex-husband certain maintenance payments as

       agreed under the parties’ settlement agreement. 44 N.E.3d at 717. Pursuant to

       the terms of the parties’ settlement agreement, ex-wife agreed to pay a

       percentage of certain retirement benefits to ex-husband as maintenance. Id. at

       717-18.     By 2013, ex-wife had fallen $76,173.44 short of meeting this

       obligation. Id. 718. Upon review, we concluded that the case involved “a

       failure to perform an obligation set forth in a dissolution decree” rather than a

       monetary judgment in favor of one party. Id. at 720. In reaching this

       conclusion, we found that 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.” Id. As such, the trial court

       erred in refusing to address the merits of ex-husband’s contempt petition. Id.


[16]   Similarly, in the instant matter, there is no money judgment ordering Dale to

       pay a fixed sum of money to Judylee. Rather, under the terms of the parties’

       settlement agreement, Dale assumed the obligation to make monthly payments

       on the land contract associated with the marital home. Dale has failed to do so.

       In filing her contempt petition, Judylee merely sought to enforce Dale’s

       obligation under the parties’ settlement agreement. Given these facts

       considered with the plain language of Indiana Code section 31-15-7-10 and our




       Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 9 of 10
       conclusions in Mitchell and Whittaker, we conclude that contempt was an

       available avenue for enforcement of Dale’s obligations.


[17]   On appeal, Dale claims that the trial court abused its discretion in denying his

       motion to correct error and in finding him in contempt, arguing that the record

       does not support the trial court’s determination that he had the ability to pay.

       The trial court conducted a hearing on Judylee’s motion, after which it found

       Dale in contempt. The trial court specifically found that despite Dale’s claims

       to the contrary, Dale had the means to make the required payments. Upon

       review of the record, we cannot say that the trial court’s determination that

       Dale had the means to make the required payments was against the “logic and

       effect of the facts and circumstances before it and the inferences that may be

       drawn therefrom.” Faulkinbury, 28 N.E.3d at 1122. We therefore conclude that

       the trial court did not abuse its discretion in finding Dale in contempt or in

       denying Dale’s motion to correct error.


[18]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 68A01-1612-DR-2856 | July 5, 2017   Page 10 of 10
