      MEMORANDUM DECISION                                             Mar 02 2015, 10:52 am


      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.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Michael H. Michmerhuizen                                 Thomas C. Allen
      Barrett & McNagny LLP                                    Fort Wayne, Indiana
      Fort Wayne, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In re the Marriage of:                                   March 2, 2015
                                                               Court of Appeals Case No.
                                                               02A03-1407-DR-258
      Dedra L. Fisher,
                                                               Appeal from the Allen Circuit Court
      Appellant-Petitioner,                                    The Honorable Thomas J. Felts,
                                                               Judge
              v.                                               The Honorable John D. Kitch III,
                                                               Magistrate
                                                               Cause No. 02C01-0008-DR-665
      Terry L. Fisher,
      Appellee-Respondent




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Petitioner Deedra Fisher (“Wife”) and Appellee-Respondent Terry

      Fisher (“Husband”) (collectively “the parties”) divorced in 2001. The parties




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      have two children, a son and daughter. The parties executed a Property

      Settlement Agreement (“PSA”) which determined distribution of the marital

      assets and debts and established Husband’s child support obligations. In 2013,

      Wife filed a motion requesting the trial court hold Husband in contempt for

      failure to comply with certain provisions of the PSA. The trial court found that

      Husband had overpaid his child support obligation by $17,582.00 but had failed

      to pay Wife for several other obligations as required by the PSA. The trial court

      awarded Wife a money judgment with regards to the personal property

      obligations and allowed the child support overpayments to be credited against

      prior unpaid childcare expenses and the daughter’s future college expenses.


[2]   On appeal, Wife argues that the trial court erred by (1) declining to find

      Husband in contempt, (2) misinterpreting the PSA regarding what Husband

      was obligated to pay, (3) crediting Husband’s child support overpayments

      toward future college expenses, and (4) not awarding Wife attorney’s fees. We

      affirm the trial court’s determination on the issues of contempt, PSA

      interpretation, and overpayment crediting. However, we reverse the trial

      court’s ruling not to award attorney’s fees to Wife.



                            Facts and Procedural History
[3]   On August 21, 2001, the parties executed the PSA. On August 23, 2001, the

      parties’ marriage was dissolved and the PSA was incorporated into the trial

      court’s dissolution decree. According to the PSA, Husband was responsible for

      paying (1) $210.00 per week in child support, (2) “one half (1/2) of the annual




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      school registration fees[,]” (3) one-half of any orthodontic expenses, (4) the

      balance of a loan for Husband’s truck (“the truck debt”), (5) $9855.77 to Wife

      for personal obligations on which Husband was in arrears, and (6) the balances

      due on several accounts including Discover, Target, AT&T, Best Buy, and

      Marathon credit cards (“Credit Card Debts”). Appellant’s Ex. 1 The PSA also

      provided for the division of real estate equity and debt as follows:

              E. Personal Property Settlement For Husband:
                                                     ***
                     h. It is further agreed that Husband shall assume and pay, and
              shall hold Wife harmless from the payment of one-half of the
              outstanding indebtness on the second mortgage on a monthly basis
              which shall be paid at the rate of Forty-Two and 59/100 Dollars
              ($42.59) per week through a voluntary Wage Assignment.
              F. Division of Real Estate Equity.
                      Parties agree that certain real estate in their joint names … shall
              be held in the sole possession of Wife. Husband shall transfer any and
              all interest he may have in said property to Wife by Quit Claim Deed.
              Wife shall list said property for sale and/or refinance said property.
              The sale or refinance of the marital residence shall be done as
              expeditiously as possible with progress reports of offers, showings or
              mortgage applications being provided to Husband every thirty (30)
              days. Until such time as the property is sold or refinanced, [H]usband
              and [W]ife shall each be responsible for 50% of both the first and
              second mortgages.
      Appellee’s App. p. 18-19.


[4]   After the income withholding order (“IWO”) was made effective pursuant to

      the PSA terms, Husband moved to Florida to live with his parents because he

      could not afford to live on his own. Husband admitted that, following the

      finalization of the divorce, he did not pay the truck debt or several of the Credit




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      Card Debts pursuant to the PSA because he did not have the money to do so.

      Wife paid the outstanding truck debt and the AT&T credit card balance. Wife

      refinanced the marital home on October 22, 2001. Husband did not pay on the

      second mortgage because he did not think it was necessary once the house was

      refinanced.


[5]   Sometime prior to June of 2008, Husband became aware that he had been

      overpaying his child support obligation for several years and subsequently

      called the child support office to inquire about the overpayments. On June 18,

      2008, the trial court entered an order finding that Husband had overpaid his

      child support obligation by $13,255.01 and entered a new IWO. On October

      10, 2012, Husband filed a petition for emancipation regarding the parties’ son

      and for modification of child support. On October 26, 2012, Wife filed a

      motion requesting Husband contribute to the daughter’s college expenses. On

      May 13, 2013, the trial court granted Husband’s request for emancipation,

      ordered the parties to share in funding the daughter’s college education, and

      determined that Husband had overpaid his child support obligation by

      $16,849.00. On June 4, 2013, Wife filed a petition for rule to show cause

      requesting the trial court hold Husband in contempt for failing to comply with

      the PSA. Specifically, she alleged that Husband failed to pay orthodontic and

      school expenses, the truck and AT&T debt, half of the second mortgage, and

      the $9855.77 arrearage. Husband was unaware of the children’s orthodontia

      services or school registration fees until after Wife’s June 4, 2013 petition for




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      contempt was filed. On October 2, 2013, Husband filed a motion for

      emancipation regarding the parties’ daughter and termination of child support.


[6]   On April 14, 2014, the trial court held a hearing on Wife’s petition for show

      cause and Husband’s petition for emancipation and termination of child

      support. In its subsequent order, the trial court held as follows: (1) the daughter

      was emancipated for child support purposes and the IWO was terminated; (2)

      Husband had overpaid child support in the amount of $17,582.00; (3) Husband

      could not be held in contempt for failing to pay $9855.77 to Wife (as required

      by the PSA) because it was a money judgment not enforceable through

      contempt; (4) Husband owes Wife $2440.00 for the truck debt; (5) Husband

      owes Wife $481.25 for the AT&T credit card debt, (6) pursuant to paragraph

      E(1)(h) and Section F of the PSA, Husband owes Wife $183.13 on the second

      mortgage of the marital home ($42.59 for each week after the PSA was

      executed and prior to the refinancing of the home), (7) Husband owes Wife

      $2582.00 for orthodontic expenses, (8) the PSA only required Husband to pay

      for “corporate fees” (totaling $407.69) and not books or consumables, and (9)

      Husband did not comply with the terms of the PSA but was not in contempt

      because, among other things, his noncompliance was due to a financial

      inability. The trial court clarified that the $9855.77 arrearage obligation from

      the PSA, and the additional $3104.39 owed to Wife (total for truck debt, AT&T

      debt, and second mortgage), were money judgments not in the nature of child

      support and as such were collectable through the attachment process and not

      enforceable by contempt. The unpaid orthodontic fees and school expenses




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      were credited to Husband’s child support overpayment leaving a total credit of

      $14,592.31, which would be applied to the daughter’s future college expenses.



                                Discussion and Decision
[7]   Wife makes four contentions on appeal: (1) the trial court erred in declining to

      find Husband in contempt for noncompliance with the PSA; (2) the trial court

      improperly calculated the amounts Husband owes for school expenses and on

      the second mortgage; (3) the trial court erred in crediting Husband’s child

      support overpayments toward future college expenses; and (4) the trial court

      erred in not awarding Wife attorney’s fees.


                                              I. Contempt
[8]           The determination of whether a party is in contempt of court is a
              matter within the sound discretion of the trial court. Jackson v. State,
              644 N.E.2d 607, 608 (Ind. Ct. App. 1994), trans. denied. We will
              reverse the trial court’s determination only if the court has abused its
              discretion. Id. A court has abused its discretion when its decision is
              against the logic and effect of the facts and circumstances before the
              court or is contrary to law.
      Williams v. State ex rel. Harris, 690 N.E.2d 315, 316 (Ind. Ct. App. 1997). “Upon

      review, we neither reweigh the evidence nor judge the credibility of the

      witnesses.” Piercey v. Piercey, 727 N.E.2d 26, 29 (Ind. Ct. App. 2000).


[9]   “To hold a party in contempt for a violation of a court order, the trial court

      must find that the party acted with ‘willful disobedience.’” Williamson v.

      Creamer, 722 N.E.2d 863, 865 (Ind. Ct. App. 2000) (quoting In re Marriage of

      Glendenning, 684 N.E.2d 1175, 1179 (Ind. Ct. App. 1997), trans. denied). The




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       trial court possesses unique knowledge of the parties before it and is in the best

       position to determine whether a party’s disobedience of the order was done

       willfully. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 203 (Ind. 2012).


[10]   Generally, money judgments are not enforceable by contempt. Pettit v. Pettit,

       626 N.E.2d 444, 447 (Ind. 1993). Although contempt may not be used to

       enforce a fixed money judgment, it is an available remedy for noncompliance

       with a dissolution decree that creates non-fixed monetary obligations. Mitchell

       v. Mitchell, 871 N.E.2d 390, 395 (Ind. Ct. App. 2007). Contempt is also an

       option to assist in the enforcement of child support orders when the trial court

       finds that the delinquency in payment was the result of (1) a willful failure by

       the parent to comply with the support order and (2) that the delinquent parent

       has the financial ability to satisfy his or her support obligation. Id.


[11]   Wife concedes that the $9855.77 amount contemplated by the PSA is a fixed

       money judgment not enforceable by contempt. However, she argues that (1)

       the unpaid property debts (AT&T debt, truck debt, and second mortgage) are

       non-fixed money judgments enforceable by contempt and (2) the unpaid

       orthodontic and school expenses are childcare related and thus enforceable by

       contempt. Husband concedes that the personal property debts are not fixed

       money judgments and so may be enforced through a contempt order.

       However, as Husband notes, the trial court also determined that Husband did

       not breach the PSA willfully. As it relates to the truck debt, AT&T debt, and

       second mortgage, Husband’s breach was a result of a financial inability to make

       payments following the dissolution. As it relates to the orthodontic and school




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       expenses, Husband’s breach was not willful both because he was not informed

       of the expenses and because his substantial overpayment of child support far

       exceeded these child-related expenses. The parties disagree as to whether

       Husband’s breach was willful; however, this was a factual determination on

       which the trial court issued findings. As such, we will not reweigh the

       evidence. Piercey, 727 N.E.2d at 29.


[12]   Even if we assume Husband breached the PSA willfully, Wife’s argument still

       fails. The language of Mitchell informs us that contempt may “be used to

       enforce compliance with a property settlement agreement incorporated into a

       dissolution decree,” it does not require a trial court to do so. Mitchell, 871

       N.E.2d at 395. “[I]t is within the inherent power of the trial court to fashion an

       appropriate punishment for the disobedience of the court’s order.” Williamson

       v. Creamer, 722 N.E.2d 863, 867 (Ind. Ct. App. 2000) (quoting Bechtel v. Bechtel,

       536 N.E.2d 1053, 1056 (Ind. Ct. App. 1989)). The trial court was not obligated

       to find Husband in contempt; rather, it chose to enter money judgments in

       favor of Wife for the truck debt, AT&T debt, and second mortgage payments,

       which allows Wife to pursue the collection of those debts through Indiana Trial

       Rule 69. Because Wife has now received a money judgment to remedy

       Husband’s noncompliance with the PSA, it is unclear what she stands to gain

       by having Husband declared in contempt.


                      II. Calculation of Husband’s Obligations
[13]   Wife argues that the trial court erred in its interpretation of the terms of the

       PSA.



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                Settlement agreements become binding contracts when incorporated
                into the dissolution decree and are interpreted according to the general
                rules for contract construction. Unless the terms of the agreement are
                ambiguous, they will be given their plain and ordinary meaning.
                Interpretation of a settlement agreement, as with any other contract,
                presents a question of law and is reviewed de novo.


       Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008) (citations omitted).


                                              A. Second Mortgage
[14]   Section F of the PSA provides that “[u]ntil such time as the property is sold or

       refinanced, [H]usband and [W]ife shall each be responsible for 50% of both the

       first and second mortgages.” Appellee’s App. p. 19. Section E(1)(h) provides

       that “Husband shall assume and pay, and shall hold Wife harmless from the

       payment of one-half of the outstanding indebtness on the second mortgage on a

       monthly basis which shall be paid at the rate of Forty-Two and 59/100 Dollars

       ($42.59) per week through a voluntary Wage Assignment.” Appellee’s App. p.

       18. The trial court read these provisions together and determined that Husband

       was responsible for payments pursuant to Section E(1)(h) for the period after

       the August 23, 2001 dissolution, and prior to the October 22, 2001 refinancing

       of the home.1




                1
                  Although Wife did not raise this issue, we note that the trial court erred in calculating the amount
       Husband owes on the second mortgage. The trial court improperly calculated Husband’s monthly payments
       to be “$183.13 ($42.59 x 4.3 equals $183.13 per month times two months equals $366.27 times 50% equals
       $183.13).” Appellant’s App. p. 16. The weekly payments of $42.59 were not intended to be split by the
       parties but reflected only Husband’s share of the mortgage. Therefore, the total amount Husband owes Wife
       for the second mortgage should be $366.27.




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[15]   Wife contends that these two provisions should be read separately, i.e. that

       Husband was obligated to make weekly payments of $42.59 on the second

       mortgage even after the home was refinanced. We find this to be an illogical

       reading of the PSA. It would make little sense for Husband to continue making

       payments on a mortgage that no longer exists. We think that the voluntary

       wage assignment for $42.59 contained in Section E(1)(h) provided a specific

       means of ensuring that Husband made payments toward the second mortgage

       consistent with the obligations of Section F, thus allowing Wife to avoid the

       risk of Husband’s share of the second mortgage going unpaid prior to refinance

       or sale. Additionally, we note that any perceived ambiguity regarding a

       contract must be construed against the drafter, which was Wife in this instance.

       Rogers v. Lockard, 767 N.E.2d 982, 990 (Ind. Ct. App. 2002).


                                            B. School Expenses
[16]   The PSA states that “[t]he Husband shall also be responsible for one half (½) of

       the annual school registration fees.” Appellee’s App. p. 15. In Exhibit 6, Wife

       outlines the children’s various school expenses, which are separated into three

       categories: books, consumables, and corporate fees. The trial court noted that

       the term “school registration fees” was not defined in the PSA. The trial court

       found that “registration fees” included “corporate fees” and did not include

       books or consumables.


[17]   “If a contract is ambiguous or uncertain, its meaning is determined by extrinsic

       evidence and its construction is a matter for the fact-finder. An ambiguity exists

       where a provision is susceptible to more than one interpretation and reasonable



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       persons would differ as to its meaning.” Claire’s Boutiques, Inc. v. Brownsburg

       Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013) (citations

       omitted). Because the term “annual school registration fees” is not defined in

       the PSA and is susceptible to more than one interpretation, we find it to be

       ambiguous.


[18]   Aside from Wife’s brief testimony generally describing the school registration

       process, neither party provided any extrinsic evidence to assist in the

       interpretation of the ambiguous term. We think that a common-knowledge

       interpretation of “school registration fee” would contemplate a flat fee required

       to enroll in a school and would not typically include additional expenses such

       as books, meals, boarding, or other class materials. Without any evidence to

       the contrary and considering that the PSA must be construed against Wife as

       drafter, we find that the trial court’s interpretation of the PSA was reasonable.


       III. Crediting Overpaid Child Support Payments Against
                      Other Childcare Obligations
[19]   Wife claims that the trial court erred by crediting Husband’s overpayment of

       child support against the amounts owed for unpaid orthodontic and school

       expenses, as well as any future college expenses. In support of this claim, Wife

       argues that “child support payments cannot be applied prospectively to support

       not yet due at the time of the overpayment.” Drwecki v. Drwecki, 782 N.E.2d

       440, 448 (Ind. Ct. App. 2003) (quoting Matson v. Matson, 569 N.E.2d 732, 733

       (Ind. Ct. App. 1991)). However, Wife neglects to mention that this rule only

       applies to voluntary overpayments, not overpayments made by virtue of mistake



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       or as a result of an inaccurate support order (both of which were reasons for

       Husband’s overpayment).


[20]   In Drwecki, we addressed this rule in a situation where a father was making

       child support payments pursuant to a court order which was later modified

       retroactively. The court found that the father could recover the overpayments

       from the mother. Id. at 449.

               In previous cases, we have held that “child support payments cannot
               be applied prospectively to support not yet due at the time of the
               overpayment.” [Matson, 569 N.E.2d at 733].
                       The rationale behind the rule is that it would be unjust for a
                       non-custodial parent to voluntarily build up a substantial credit
                       and then suddenly refuse to make support payments for a
                       period of time. This would thwart the court’s purpose of
                       providing regular, uninterrupted income for the benefit of the
                       children. The regularity and continuity of court decreed
                       support payments are as important as the overall dollar amount
                       of those payments.
               Id. This rule suggests that Father cannot receive credit against future
               support payments.
               However, the rationale underlying this rule does not fully apply here,
               where Father did not voluntarily build up a substantial credit. Rather,
               Father built up a substantial credit because he followed the court’s
               previous order that required him to pay $241 per week in child
               support. If Father had failed to make those payments until the court
               modified the order, the trial court might have found him in contempt.
                                                      ***
               For all these reasons, we hold that Father should be able to recover the
               overpayments that Mother received.
       Id. at 448-49 (emphasis added).




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[21]   In the instant case, the trial court was within its discretion to offset Husband’s

       overpayments with the children’s prior childcare expenses and daughter’s future

       college expenses. It is unclear why Wife is opposed to this arrangement when

       the trial court could have ordered her to reimburse Husband for the entire

       overpayment amount minus the prior orthodontic and school expenses.


                                         IV. Attorney’s Fees
[22]   The PSA provides that “[e]ach party agrees to indemnify and save and hold the

       other harmless from all damages, losses, expenses (including attorney fees),

       costs, and other fees incurred by reason of the other’s violation or breach of any

       of the terms and conditions hereof.” Appellee’s App. p. 20. Wife argues that

       Husband’s admission to not paying certain obligations under the PSA amounts

       to an admission of a breach and, therefore, that the trial court erred in failing to

       award attorney’s fees pursuant to the attorney fee provision. We agree. By his

       own admission Husband violated the terms of the PSA. Additionally, Husband

       provided no argument as to why this provision should not be enforced as

       written. Accordingly, we reverse the trial court’s decision not to award

       attorney’s fees and remand for a determination of the appropriate amount of

       attorney’s fees to which Wife is entitled.



                                               Conclusion
[23]   We reverse and remand with orders that the trial court (1) recalculate the

       amount Husband owes for the second mortgage consistent with our reasoning

       in footnote 1, and (2) determine the amount of attorney’s fees to which Wife is



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       entitled. We affirm the judgment of the trial court with respect to all other

       issues discussed herein.


[24]   Affirmed in part, reversed and remanded in part.


       Najam, J., and Mathias, J., concur.




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