Joel Zivot v. Pamela London , 981 N.E.2d 129 ( 2012 )

FILED
FOR PUBLICATION
Dec 28 2012, 9:46 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
AMY O. CARSON ANDREW Z. SOSHNICK
Mitchell & Associates TERESA A. GRIFFIN
Indianapolis, Indiana STEPHANIE N. RUSSO
Faegre Baker Daniels LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOEL ZIVOT, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1207-DR-613
)
PAMELA LONDON, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Thomas J. Carroll, Judge
Cause No. 49D06-1109-DR-3679
December 28, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Joel Zivot (“Father”) appeals the Order and Judgment on Verified Petition for
Contempt (“Order”) entered by the trial court following a hearing on the Verified Petition
for Contempt Citation filed by Pamela London (“Mother”). Father presents three issues
for review, which we consolidate and restate as:
1. Whether the trial court erred when it entered the Order enforcing the
parties’ Separation Agreement.
2. Whether the trial court erred when it denied Father’s verified
petition to establish custody, parenting time, and child support.
We reverse.
FACTS AND PROCEDURAL HISTORY
Mother and Father were married on April 5, 1992, in Toronto, Ontario, Canada.
During the marriage they had four children: Sa.Z., born August 25, 1992; O.Z., born July
2, 1994; and So.Z., and T.Z., born August 2, 1996. When the parties eventually
separated, they entered into a Separation Agreement, which Father executed on January
10, 2006, and Mother executed on May 3, 2006. The Separation Agreement provided for
the division of marital property and debts, for child support, and for parenting time under
an attached Shared Parenting Plan executed by the parties on January 10, 2006. On
November 21, 2006, the Superior Court of Justice in Ontario dissolved the parties’
marriage effective December 22, 2006.
On February 25, 2011, the parties executed a handwritten Minutes of Settlement
that purported to modify the Separation Agreement on issues relating to child support and
parenting time. At that time, Mother lived in Canada. Mother and Father abided by the
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terms of the Minutes of Settlement, with Father paying child support in the amount
agreed upon in that document.
In July 2011, Mother and the children relocated from Canada to Indiana. Also in
July 2011, Father unilaterally began paying child support in an amount set by the Indiana
Child Support Guidelines, which is substantially lower than the amount he had been
paying pursuant to the Minutes of Settlement or the Separation Agreement. On
September 21, 2011, Mother filed in the Marion Superior Court her Verified Petition to
Register and File Foreign Orders, including as exhibits the Certificate of Divorce, the
Settlement Agreement and attached Shared Parenting Plan, and the handwritten Minutes
of Settlement. Simultaneously Mother filed a verified motion for contempt citation,
asking the trial court in part to find Father in contempt for failing to pay child support and
educational expenses as agreed under the Settlement Agreement and the Minutes of
Settlement.1
On October 6, the trial court entered its Order Registering Foreign Orders. That
order provides in relevant part: “[T]he Court, being duly advised and for good cause
shown, now registers the foreign orders and assumes jurisdiction of this action.”
Appellant’s App. at 144. On May 10, 2012, the trial court held a hearing on Mother’s
petition for contempt citation. And on May 18, the court entered the Order and Judgment
on Verified Petition for Contempt. The Order provides in relevant part:
2. The marriage of the parties was dissolved in Canada on November
21, 2006[,] and the divorce took effect on December 22, 2006[,] per
the order of the Canadian court.
1
Specifically, Mother requested that the trial court find Father in contempt of the “Ontario
Order,” which she defined as the Certificate of Divorce, the Separation Agreement, and the Shared
Parenting Plan collectively.
3
3. The parties had previously entered into a detailed “Separation
Agreement” which was negotiated in the state of Ohio in 2005 and
executed by both parties in 2006 prior to the order dissolving their
marriage.
4. The parties with counsel subsequently entered into a handwritten
agreement titled “Minutes of Settlement” which was executed by the
parties on February 25, 2011[,] and modified the terms of the prior
Separation Agreement.
5. There is no evidence in the record that the Minutes of Settlement
was filed with the Canadian court that dissolved the marriage of the
parties or that it was specifically approved and ordered by that court
or any court.
6. On or about July 1, 2011, [Mother] and the children moved from
Canada to Indiana.
7. [Father] resides in the state of Georgia.
8. On September 21, 2011, [Mother] filed a Verified Petition to
Register and File Foreign Orders which was granted by this Court on
October 6, 2011.
9. On September 21, 2011, [Mother] also filed her Verified Petition for
Contempt Citation requesting that [Father] be found in contempt for
failing to abide by the Certificate of Divorce, Separation Agreement,
and Minutes of Settlement.
10. Although it is not specified in the Certificate of Divorce, it appears
that the Separation Agreement was incorporated into the Divorce
and [it is] therefore enforceable through a contempt petition.
11. As indicated in paragraph 5 above, there is no evidence that the
Minutes of Settlement have ever been approved and ordered by a
court.
12. Therefore the Minutes of Settlement are not enforceable through a
contempt petition.
13. However, the Minutes of Settlement are enforceable as a contract
between the parties as both parties willingly entered into the
agreement with counsel; both parties believes [sic] that the
agreement was valid and set out their obligations on child support
and related issues; and both parties have complied with certain
provisions of the Minutes of Settlement since its execution including
payment of 2010-2011 college expenses for their son [Sa.Z.] and
lump sum payment of spousal support.
14. [Mother] alleges that [Father] is in contempt of Court for failure to
pay the full amount of child support; failure to pay certain other
expenses of the children; and failure to pay his full portion of college
expenses for the 2011-2012 years.
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15. The Separation Agreement provided that [Father] would initially pay
$4,983.33 per month in child support with that amount reduced in
relation to the number of children residing with [Mother].
16. The Minutes of Settlement provided that [Father] would pay
$6,144.00 per month child support for four children and $5,189.00
when [Sa.Z.] is at school.
17. The Minutes of Settlement further provided that child support will
not be reviewed prior to September 2012 at which time it would be
reviewed with mediator/arbitrator Cheryl Goldhart.
18. The last provision of the Minutes of Settlement provided that in the
future [Father] would pay table[2] child support.
19. [Father] paid $6,144.00 child support in May 2011; $6,000.00 in
June 2011; and beginning July 2011 paid significantly less per
month.
20. The amounts paid by [Father] between July 2011 and May 2012
were based upon his calculation of child support under the Indiana
Child Support Guidelines including adjustment for children not
residing at home.
21. [Father] has never filed a petition to modify child support.
22. The amounts paid by [Father] are less than ordered in the Separation
Agreement and less than the amounts specified in the Minutes of
Settlement which specifically provided that there would be no
adjustment in child support prior to September 2012.
23. The Court finds that [Father] has not paid child support as agreed or
ordered and owes [Mother] the sum of $27,522.00
24. The Court enters judgment in favor of [Mother] and against [Father]
in the amount of $27,522.00.
25. The Court orders this judgment paid within thirty days or it shall
accumulate statutory interest.
26. [Mother] also alleges that [Father] has failed to pay his share of
certain expenses referenced in Section 7 of the Separation
Agreement and Paragraph 5 of the Minutes of Settlement.
27. Both documents only reference certain school, camp, bar/bat
mitzvah and health care expenses.
28. The Minutes of Settlement provided that each party would pay their
[sic] share of expenses directly to the provider.
29. [Mother] admits that she has not provided copies of the unpaid
expenses to [Father] prior to the hearing in this matter.
30. The Court also finds that there are certain expenses—passports;
driving test; book rental; music program; IU psych class; College
apps; Depaul; Textbooks; AP exam—which are not specified in
either document as expenses the parties will share.
2
Neither the parties nor anything in the record define “table child support.”
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31. The Court finds that [Father] is not in violation of any agreement to
pay certain expenses based upon the findings in Paragraphs 27-30
above.
32. Finally [Mother] alleges that [Father] has failed to pay his share of
[Sa.Z.’s] college expenses in the amount of $6,924.69.
33. The Separation Agreement is silent as to the payment of college
expenses.
34. The Minutes of Settlement states that the parties will pay their [sic]
proportionate share (75% [Father] and 25% [Mother]) of university
expenses “not to exceed $20,000.00 per year per child. The children
will be expected to contribute to their university expenses . . . to the
extent reasonably possible and practical.”
35. The Minutes of Settlement do not define “university expenses[”]; do
not provide a timeline for payment; and do not indicate how the
child’s contribution shall affect the parents’ contribution.
36. This Court defines college/university expenses for which a parent
may be obligated to contribute to as tuition; room and board; books;
laptop computer; and required fees.
37. No evidence was presented of the actual college/university expenses
for [Sa.Z.] for the 2011-2012 year.
38. The Court finds that although the Minutes of Settlement is poorly
drafted that the parties anticipated that [Father] would contribute up
to a maximum of $15,000.00 per year for [Sa.Z.’s] college expenses
and that [Sa.Z.’s] contribution would reduce the parties’ share.
39. The Court is unable to find that [Father] violated the Minutes of
Settlement in the absence of actual costs (as defined in Paragraph 36
above) incurred and the application of [Sa.Z.’s] loan to said costs.
40. The Court orders [Mother] to provide documentation to [Father]
within thirty days of the actual costs of the 2011-2012 school year
after application of [Sa.Z.’s] loan.
41. The Court orders [Father] to pay within thirty days any amount due
for his 75% share over and above the amount he has paid after
receiving documentation.
42. [Father] shall pay three thousand five hundred dollars ($3,500.00) to
Andrew Soshnick for attorney fees related to his non-payment of
child support within forty-five days or the same shall be reduced to
judgment.
Id. at 6-11.
On June 13, 2012, Father filed a motion to correct error and motion for
clarification, in part challenging the trial court’s conclusion that the Separation
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Agreement was a court order as well as the court’s authority to determine child support
and a child support arrearage. The following day Father filed a motion for stay of
execution of judgment and a verified petition to establish custody, parenting time, and
child support and a request for allocation of post-secondary expenses. Mother filed a
response to Father’s motion to correct error and for clarification and to his motion for
stay of execution of judgment. Father then filed a response to Mother’s response as well
as a motion to strike. On July 10, Father filed a verified petition to modify custody,
parenting time, and child support and for allocation of post-secondary expenses. And on
July 26, he filed a verified petition to register and file foreign orders, attaching as exhibits
a one-page copy of the Divorce Order signed October 31, 2007, in Ontario, Canada, and a
two-page copy of an Order on Motion Without Notice issued June 22, 2010, in Ontario,
Canada.
On July 3, the trial court issued its order denying Father’s motion to correct error,
motion for clarification, motion for stay of execution, and petition to establish custody
without a hearing. In a separate order, the trial court also denied Father’s motion to
strike. Father filed his notice of appeal on July 31.
DISCUSSION AND DECISION
Standard of Review
In ruling on the Mother’s petition, the court entered findings of fact and
conclusions sua sponte. Our standard of review in such cases is well-settled:
Therefore, we apply a two-tiered standard of review. Vega v. Allen County
Dep’t of Family & Children (In re J.V.), 875 N.E.2d 395, 402 (Ind. Ct.
App. 2007)[, trans. denied]. We may not set aside the findings or judgment
unless they are clearly erroneous. Ind. Trial R. 52(A); Perrine v. Marion
7
County Office of Child Servs., 866 N.E.2d 269, 273 (Ind. Ct. App. 2007).
In our review, we first consider whether the evidence supports the factual
findings. Perrine, 866 N.E.2d at 273. Second, we consider whether the
findings support the judgment. Id. “Findings are clearly erroneous only
when the record contains no facts to support them either directly or by
inference.” Id.; Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A
judgment is clearly erroneous if it relies on an incorrect legal standard.
Perrine, 866 N.E.2d at 273. We give due regard to the trial court’s ability
to assess the credibility of witnesses. T.R. 52(A). While we defer
substantially to findings of fact, we do not do so to conclusions of law.
Perrine, 866 N.E.2d at 274. We do not reweigh the evidence; rather we
consider the evidence most favorable to the judgment with all reasonable
inferences drawn in favor of the judgment. Id.Richardson v. Hansrote, 883 N.E.2d 1165, 1171 (Ind. Ct. App. 2008).
Father contends that the trial court erred when it entered its order on Mother’s
verified petition for contempt. In particular, Father maintains that the trial court found
him in contempt but did not have an enforceable court order on which to base a contempt
order. He also argues that the Minutes of Settlement was not an order on which contempt
could be based and that the trial court erred when it interpreted the Minutes of Settlement
and based the enforcement order on that document. As explained below, we reject
Father’s conclusion that the trial court found him in contempt. But we agree that the trial
court did not have before it a foreign support order subject to enforcement, nor could the
trial court enforce child support based on written agreements between the parties where
there is no evidence that such agreements had been approved by a court or incorporated
into a court order. As such, we conclude that the trial court was without jurisdiction to
enter an order on Mother’s verified petition for contempt.
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Issue One: Contempt Based on Registered Foreign Order
Father first contends that the trial court erred when it found him in contempt of the
Order. Regardless of the reasons behind Father’s contention, we cannot agree that the
trial court found Father in contempt. The court made no finding of contempt. At most
the Order notes that Father failed to provide child support as he had agreed in the
Settlement Agreement and the Minutes of Settlement, but it does not include a finding
that he is in contempt. Nevertheless, the trial court entered an order enforcing Father’s
child support obligation. Thus, we are left to consider whether the trial court erred when
it entered the Order to enforce Father’s child support obligations.
Mother filed her verified petition to register and file foreign orders under Indiana
Code Section 31-17-3-3, part of the Uniform Child Custody Jurisdiction Law
(“UCCJL”). But the UCCJL was repealed in 2007. And, in any event, the jurisdictional
provision in the UCCJL, now the Uniform Child Custody Jurisdiction Act, Ind. Code §§
31-21-1-1 through 31-21-7-3 (“the UCCJA”), addresses only the trial court’s authority
regarding child custody determinations, not child support orders. Ind. Code § 31-17-3-3(repealed 2007); Goens v. Rose (In re M.R.), 778 N.E.2d 861, 865-66 (2002), aff’d on
reh’g, 784 N.E.2d 530 (Ind. Ct. App. 2003). And the UCCJA specifically excludes from
its definition of a “child custody determination” an order relating to child support or other
monetary obligation of a person. Tisdale v. Bolick, No. 49A02-1202-DR-138, 2012 Ind.
App. LEXIS 550 (Ind. Ct. App. October 2, 2012), ordered published, 2012 Ind. App.
LEXIS 544 (Ind. Ct. App. Oct. 26, 2012). Mother’s attempt to enforce a foreign child
support order falls under the Uniform Interstate Family Support Act, Ind. Code §§ 31-18-
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1-1 through 31-18-9-4 (“UIFSA”). Therefore, we consider each of Father’s contentions
under that act.
The Uniform Interstate Family Support Act provides a mechanism for cooperation
between state courts in enforcing duties of support. Harris v. Harris, 922 N.E.2d 626,
637 (Ind. Ct. App. 2010). “An Indiana tribunal may enforce a child support order of
another state registered for purposes of modification in the same manner as if the order
had been issued by an Indiana tribunal. . . .” Ind. Code § 31-18-6-10. “State” is defined
under the act to include “a foreign jurisdiction that [has] enacted a law or established
procedures for issuing and enforcing orders that are substantially similar to the
procedures under [UIFSA or its predecessor acts].” Ind. Code § 31-18-1-21. A
“support” order means “a judgment, a decree, or an order . . . for the benefit of a child,
. . . which provides for monetary support, health care, arrearages, or reimbursement, and
may include related costs and fees, interest, income withholding, attorney’s fees, and
other relief.” Ind. Code § 31-18-1-24. “A support order . . . is registered when the order
is filed with the clerk of the appropriate court.”3 Ind. Code § 31-18-6-3(a).
Certificate of Divorce and Settlement Agreement
Here, again, Mother submitted for registration a Certificate of Divorce with two
exhibits: the parties’ 2006 Separation Agreement with its attachment, the Shared
Parenting Plan [and] Schedule, and the handwritten 2011 Minutes of Settlement. The
Separation Agreement set out Father’s child support obligation, and the Minutes of
Settlement purports to modify the Separation Agreement regarding child support. The
3
UIFSA lists specific requirements for registering support orders in Indiana but, as discussed
below, resolution of the issues before us does not require us to detail them.
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trial court found that, “[a]lthough it is not specified in the Certificate of Divorce, it
appears that the Separation Agreement was incorporated into the Divorce and therefore
enforceable through a contempt petition.” Appellant’s App. at 7. Thus, implicit in the
trial court’s order is its determination that the Certificate of Divorce constitutes a child
support order from another state. Again, under UIFSA the court has jurisdiction over
child support matters only if it has before it a registered order from another state. Ind.
Code § 31-18-6-10.
But a review of the face of the Certificate of Divorce shows that that document is
not a judgment, decree, or order. The Certificate of Divorce merely shows the identities
of the parties to the dissolution action, that the parties’ marriage was dissolved, and the
effective date of the dissolution of their marriage.4 It was not signed by a judge,
magistrate, or other official with authority to preside over dissolution proceedings.
Rather, it was signed only by the clerk of the court in Ontario and is dated eleven months
after the parties’ marriage was dissolved and ten months after the dissolution of marriage
became effective. From the face of the document, we cannot conclude that the Certificate
of Divorce is a judgment, decree, or order of a court. Thus, the trial court erred when it
registered the Certificate of Divorce as an order from another state.
Without a registered order from another state, the trial court lacked jurisdiction to
enter an order enforcing child support obligations against Father based on the Certificate
of Divorce or the Settlement Agreement, which the trial court found to be incorporated
4
There is nothing in the record on appeal to show how legal proceedings in Canada are handled,
such as the type of officials who preside over dissolution proceedings. But the burden was on Mother to
demonstrate that she had submitted an order for registration. As discussed above, the record does not
show that she met that burden.
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into the Certificate of Divorce.5 As such, to the extent the trial court based the Order on
the Certificate of Divorce or the Settlement Agreement as “incorporated” into the
Certificate of Divorce, the trial court lacked jurisdiction and, therefore, it erred.
Minutes of Settlement
Father also contends that the trial court erred when it entered the Order enforcing
his child support obligation and ordering him to pay attorney’s fees pursuant to the
Minutes of Settlement. And Father argues that the trial court misinterpreted the terms of
the Minutes of Settlement. We need not reach that issue because we conclude that the
trial court erred when it enforced Father’s child support obligation under Indiana contract
law pursuant to the Minutes of Settlement.
In Indiana, a party is required to make support payments in the manner specified
in a divorce decree until the order is modified or set aside. Pickett v. Pickett, 470 N.E.2d
751, 754 (Ind. Ct. App. 1984) (citation omitted). The trial court that entered the original
dissolution decree and support order retains continuing jurisdiction during the child’s
minority to modify custody and support matters in the decree. Id. (citations omitted).
Therefore, an out-of-court agreement regarding support and visitation is not enforceable
unless it is first approved by the trial court with jurisdiction or merged into an order of
that court. See id. (citations omitted).
Here, the trial court found in relevant part:
the Minutes of Settlement are enforceable as a contract between the parties
as both parties willingly entered into the agreement with counsel; both
5
We also conclude that the evidence does not support the trial court’s conclusion that it “appears
that the Separation Agreement was incorporated into the Divorce[.]” Appellant’s App. at 7. Again, the
Certificate of Divorce is not a judgment, order, or decree. And there is nothing on the face of either the
Certificate of Divorce or the Settlement Agreement referencing the other.
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parties believes [sic] that the agreement was valid and set out their
obligations on child support and related issues; and both parties have
complied with certain provisions of the Minutes of Settlement since its
execution including payment of 2010-2011 college expenses for their son
[Sa.Z.] and lump sum payment of spousal support.
Appellant’s App. at 7-8. In other words, the trial court found that it could enforce the
parties’ written contract regarding child support. But the court did not have jurisdiction
to enforce such a contract, especially where another court has exercised jurisdiction over
the parties’ dissolution. Therefore, to the extent the trial court based its enforcement
order on the Minutes of Settlement, the trial court erred. See Pickett, 470 N.E.2d at 754.
Issue Two: Father’s Petition to Establish Orders
We next consider Father’s contention that the trial court erred when it denied his
request to enter an order establishing custody, parenting time, and child support.
However, his brief lacks law and cogent reasoning in support of his argument that the
trial court erred. Instead, Father states only that the trial court erred. Thus, Father’s
argument was waived. See Ind. Appellate Rule 46(A)(8)(a).
Conclusion
We conclude that the trial court did not find Father in contempt of the Order. But
we also conclude that the trial court lacked jurisdiction to enter an order enforcing
Father’s child support obligations. The trial court did not have before it a child support
order from another state, a prerequisite to enforcing a foreign support order, nor may the
court enforce child support obligations based only on contract that was not approved by a
court or incorporated into a court order. Thus, the trial court erred when it entered the
Order enforcing Father’s child support obligations and ordering Father to pay attorney’s
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fees as a result. Finally, Father waived his argument regarding the order denying his
request to establish custody, parenting time, and child support because he failed to
support that argument with cogent reasoning including citations to authorities or statutes.
See App. R. 46(A)(8)(a). We reverse the trial court’s Order and Judgment on Verified
Petition for Contempt.
Reversed.
FRIEDLANDER, J., and BRADFORD, J., concur.
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