James Whittaker v. Wilma Sharlene Whittaker
2015 Ind. App. LEXIS 636
| Ind. Ct. App. | 2015Background
- Husband and Wife divorced in 2000; their Marital Settlement Agreement required Wife to notify Husband when she began receiving Indiana State Teacher’s Retirement Fund benefits and to pay Husband one-half of a fractional share of those benefits, treated as maintenance for tax purposes.
- The Agreement stated payments would be enforceable as maintenance and could immediately become a lien on Wife’s property if she defaulted.
- Wife began receiving benefits May 1, 2008, rolled funds into an IRA, and initially delayed/withheld some payments; Husband filed motions to enforce the decree beginning in 2008 and received periodic payments starting March 2009.
- After discovery and hearings, the trial court found in October 2013 that Wife breached the Agreement and owed Husband $76,173.44 plus attorney fees (fees later partially satisfied).
- Husband later filed a verified information for contempt; the trial court acknowledged the judgment amount but ruled the judgment "is not subject to enforcement or collection by contempt." Husband appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing to allow contempt to enforce Wife’s obligation under the dissolution decree | Whittaker: the obligation is enforceable as maintenance under the decree and may be enforced by contempt under I.C. §31-15-7-10; refusal improperly treats it as ordinary money judgment | Wife: arrearage is a fixed money judgment enforceable by execution/Trial Rule 69, not by contempt | Reversed: trial court erred in refusing to address Husband’s contempt petition; contempt may be available because obligation arose from dissolution decree and remedy depends on whether order is a fixed money judgment or an enforceable performance obligation |
Key Cases Cited
- McKinney v. McKinney, 820 N.E.2d 682 (Ind. Ct. App. 2005) (failure of appellee to brief allows appellant to establish prima facie error)
- Cowart v. White, 711 N.E.2d 523 (Ind. 1999) (general rule: contempt unavailable to enforce fixed-sum money judgments, but contempt may be used to enforce decree-based obligations)
- Mitchell v. Mitchell, 871 N.E.2d 390 (Ind. Ct. App. 2007) (if obligation in decree is not a fixed-sum money judgment, contempt remains available)
- Dawson v. Dawson, 800 N.E.2d 1000 (Ind. Ct. App. 2003) (trial court may use contempt to coerce performance of decree obligations rather than to collect a fixed monetary judgment)