Henry Coyne Woodward v. Kimberlee Ann Norton ( 2012 )

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.
ATTORNEYS FOR APPELLANT:
FILED
Dec 14 2012, 9:21 am
Thomas R. Hamilton
Hunt Suedhoff Kalamaros, LLP CLERK
South Bend, Indiana of the supreme court,
court of appeals and
tax court
IN THE
COURT OF APPEALS OF INDIANA
HENRY COYNE WOODWARD, )
)
Appellant-Respondent, )
)
vs. ) No. 71A03-1207-DR-00311
)
KIMBERLEE ANN NORTON, )
)
Appellee-Petitioner. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Michael G. Gotsch, Special Judge
Cause No. 71D07-0405-DR-00267
December 14, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Henry C. Woodward (“Woodward”) appeals the St. Joseph Superior Court’s order
holding him in contempt for failing to pay a judgment owed to his former wife,
Kimberlee A. Norton (“Norton”). The judgment was entered against Woodward after he
failed to transfer a retirement account to Norton pursuant to the terms of the parties’
dissolution decree. Woodward argues that the trial court erred as a matter of law when it
held him in contempt of court for failing to pay a money judgment.
We affirm in part, reverse in part and remand for proceedings consistent with this
opinion.
Facts and Procedural History
In 2004, Norton filed a petition to dissolve the parties’ marriage. After several
hearings, a dissolution decree was entered in 2007. In its division of the marital assets,
the trial court awarded Norton an SEP/IRA account with Edward D. Jones that was held
in Woodward’s name. On June 26, 2008, Norton filed a Rule to Show Cause alleging
that Woodward had not complied with the trial court’s order to transfer the account and
that he had removed the funds from the account and failed to transfer them to her.
After a hearing was held on Norton’s Rule to Show Cause, the trial court found
that on or about November 1, 2007, Woodward removed and disposed of the funds in the
SEP/IRA account. However, the trial court did not issue an order on the Rule to Show
Cause, several additional hearings were held, and the matter continued to pend before the
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trial court until April 1, 2010.1
On that date, the trial court issued an order concluding that Woodward “knowingly
and willfully disobeyed the orders of the court” concerning the transfer of the Edward
Jones SEP/IRA funds to Norton “as part of the division of the martial estate.”
Appellant’s App. p. 53. The court entered judgment in favor of Norton in the amount of
$33,127 “representing the balance of the funds due by Husband to Wife from the funds
that had been in the Edward Jones SEP account and which were removed and spent by
Husband.” Id. The trial court’s order also provided that:
The court shall impose no further sanction upon [Woodward], for his acts
of contempt since . . . the court has now entered a money judgment in favor
of Wife and against former Husband in the amount of the Edward Jones
SEP account funds that were not transferred by Husband to Wife as
required by the terms of the Decree of Dissolution.
Id. at 54.
Woodward appealed the trial court’s April 1, 2010 order, and our court affirmed.
Woodward v. Norton, 939 N.E.2d 657 (Ind. Ct. App. 2010). After Woodward wholly
failed to pay this judgment, Norton filed a “Rule to Show Cause Verified Motion in
Proceedings Supplementary.” On May 21, 2012, Special Judge Michael Gotsch issued a
Rule to Show Cause instructing Woodward to appear and show why he should not be
held in contempt for failing to pay the judgment owed to Norton.
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The trial court’s delay in ruling on Norton’s Rule to Show Cause was caused in part by Woodward’s
challenge to Judge Michael Scopelitis’s and Special Judge Gotsch’s jurisdiction over matters pending
before the respective judges. The parties were also embroiled in disputes over child support, the
children’s private school tuition, and costs for extracurricular activities.
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At the show cause hearing, Woodward moved to have the Rule to Show Cause
discharged because the matter of his contempt for failing to transfer the SEP/IRA account
to Norton was disposed of by the trial court’s April 1, 2010 order. The trial court denied
the motion. On June 7, 2012, the court issued the following order:
Court finds that Husband continues to be in contempt of court under the
prior order issued by the Hon. Michael P. Scopelitis when he had
jurisdiction over this matter as well as the prior order of this Court after it
had assumed jurisdiction. While the Court finds that Husband continues to
be in contempt of court, the Court withholds sentencing at this time based
on the Husband’s anticipated compliance with the following payment
arrangement:
(1) Husband shall make periodic payments in the sum of $300 per month;
(2) Each payment is due on the 16th of the month;
(3) First payment shall be payable on July 16, 2012, and each month
thereafter until the amount is satisfied; and
(4) Payment shall be made to the Clerk of the Court, and shall be forward to
the Wife as she directs.
Appellant’s App. p. 43. Woodward now appeals.
Discussion and Decision
First, we observe that Norton has failed to file an appellee’s brief. We will not
undertake the burden of developing arguments for the appellee. Painter v. Painter, 773
N.E.2d 281, 282 (Ind. Ct. App. 2002). Applying a less stringent standard of review, we
may reverse the trial court if the appellant establishes prima facie error. Id. Prima facie
error is defined as at first sight, on first appearance, or on the face of it. Id.Indiana Code § 31-15-7-10(1) provides, “Notwithstanding any other law, all
orders and awards contained in a dissolution of marriage decree or legal separation
decree may be enforced by . . . contempt.” Consistent with this statute, in the trial court’s
April 1, 2010 order, Woodward was held in contempt for failing to transfer the funds in
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the SEP/IRA account to Norton. But in that order, the trial court entered a money
judgment in Norton’s favor due to Woodward’s failure to transfer those funds.
Woodward’s continued failure to satisfy that judgment led to the trial court’s most recent
order holding him in contempt of court.
Woodward argues that the trial court erred when it held him in contempt of court
because contempt powers are generally unavailable to enforce a money judgment.2 We
agree that judgments requiring one party to pay the other party a fixed amount of money
are not enforceable by contempt. See Mitchell v. Mitchell, 871 N.E.2d 390, 395 (Ind. Ct.
App. 2007). Because the Indiana Constitution Article 1, Section 22 forbids imprisonment
for a debt, 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. Id.See also Cowart v. White, 711 N.E.2d 523, 531 (Ind. 1999); Coleman v. Coleman, 539
N.E.2d 34, 34 (Ind. Ct. App. 1989) (“Because the Indiana Constitution Article 1, Section
22 forbids imprisonment for debt, it has been held that contempt may not be used to
enforce a dissolution decree ordering one party to pay the other a fixed sum of money,
either in a lump sum or installments. These cases rest on the theory that such a money
2
However, “[c]ontempt is always available to assist in the enforcement of child support, at least in
respect of unemancipated children, including orders to pay accrued arrearages and money judgments
against delinquent parents for past due amounts.” Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993). There
is no evidence in the record that would lead us to conclude that the money judgment Woodward was
ordered to pay included any amount for child support, but that the money judgment was entered to
enforce the trial court’s division of the marital assets. See Appellant’s App. p. 54; Tr. p. 218 (Norton
testified that had Woodward transferred the SEP/IRA account funds to her as required by the dissolution
decree, she had intended to roll those funds “into her account with no [tax] penalty.”). And on June 7,
2012, the date the trial court issued the appealed order, Woodward was nearly current in his child support
obligation. Appellant’s App. p. 67.
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judgment, like any other judgment debt, may be enforced by execution.”) (citation
omitted). In this instance, Indiana Trial Rule 69 and applicable statute provide several
effective remedies for nonpayment of a money judgment.3
In its April 1, 2010 order, the trial court entered a money judgment in favor of
Norton for Woodward’s failure to transfer the funds in the SEP/IRA account to her.
Contempt powers to enforce payment of that civil judgment are no longer available to
Norton. Although we reverse the trial court’s June 7, 2012 order to the extent that the
court found Woodward in contempt, we affirm the court’s order in all other respects.
Affiirmed in part, reversed in part and remanded for proceedings with this opinion.
VAIDIK, J., and BARNES, J., concur.
3
Execution, proceedings supplemental to execution, attachment and garnishment are remedies that when
used with patience and ingenuity, either individually or in combination, have proved over the course of
Indiana’s history to be effective to make civil creditors whole, in tandem with statutory interest rates,
currently imposed at the annual rate of 8%. See Ind. Code § 24-4.6-1-101.
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