*1 Employer single further claims that
hearing member’s recital of the evidence is in that Employee
erroneous such recital had
having supervisor, a discussion with her Cioroianu,
John when the evidence shows Carter, the discussion was with Mr.
Employer further claims that the time Employee Employer’s prem-
when had left incorrectly.
ises is stated
Employer argues that these errors are
material to the matter of whether the as- personal.
sault was work-related or Be-
cause we base our decision on the street doctrine,
peril these supposed errors are im-
material and harmless.
Judgment affirmed. RATLIFF, JJ.,
ROBERTSON and concur. BREEDLOVE, Appellant
(Plaintiff Below) BREEDLOVE, Appellee
(Defendant Below).
No. 2-181A33. Indiana,
Court District.
Second
June 4, 1981.
Rehearing August Denied *2 Kiefer, Kiefer,
Michael A. Garrison & Indianapolis, appellant. for Pairmount, Payne, appellee. David M. SHIELDS, Judge. marriage ap- of the to this аp- and
peal, appellant Charles Breedlove Breedlove, dissolved in No- pellee Jean part of the divorce de- vember 1968. As cree, pay was ordered to the sum of Charles support of the five per week for the $175 July minor children. In Jean $83,015 brought this action to recover in support arrearages. After Charles answer- complaint, propounded inter- ed rogatories Charles, of which some though Charles failed to answer even he was twice ordered to do so court. As a result of Charles’s disobedience orders, default trial court’s Following was entered him. owed, on the amount of $90,540 Jean was awarded ar- $2,250 attorney fees. rearages and from this appeals rais- ing the issues that the trial court erred: defaulting I. Charles for violation compelling discovery of orders because of inadequate an factual basis and because adequate findings; it mаke failed to giving adequate II. In not him notice damages; reducing retroactively III. In not emancipa- order as a result of the marriage; tion of children of the obliga- crediting IV. In not Charles’s paid tion of with amounts direct- ly to the children.
We affirm.
February
I
for default on
Issue
which the
trial court struck as moot because answers
trial
first
court erred
April
had been filed. On
1980 another
defaulting
him for violation of the trial
motion
with
for default
affidavits2 was
compelling discovery.1 First
court’s order
filed. After a
Charles was ordered
erred
he reasons the trial court
because it
*3
answer,
objection,
objeсted-
to
without
inadequate
had an
factual basis for
22,1980.
questions
days
to
within 15
of May
sanction.
,Jean’s next motion for default with accom-
interrogato-
The record reveals Jean filed
panying
20,1980;
was
affidavits3
filed June
11,
September
ries on
1979. Answers were
dismiss;
a motion to
filed
both mo-
designated
days
due within 30
after service.
8,
July
tions were heard on
1980. There
Procedure,
33(A).
Ind.Rules
Trial Rule
of
no
was
evidence submitted at this
compel
Jean’s first motion to
answers to the
on the issue of the default
itself.
19, 1979,
interrogatories,
filed December
Although discovery
was denied because the motion failed to
designed
is
to be
little,
сomply
self-executing
any, supervision
with a local court rule. Her amend-
with
if
and,
court,
January
by
ed motion was filed
or assistance
the trial
Ind.Rules of
28,1980,
January
Procedure,
after
provides
a
on
Trial Rule 37
interrogatories,
answer
compliance
ordered to
court with tools to enforce
in
objection,
days.
encourage
just
without
within 15
Al-
speedy
order to
a
and
deter
late,
though
answers to most of the inter- mination of the lawsuit. The trial court
rogatories
February
may impose
ranging
were filed
1980.
various sanctions
from
Objections
propounded
expenses
were
to the unan-
allowаnce
entry
of
to
of dismissal
interrogatories.
judgment
swered
Jean filed a motion
or
by default.4 The choice of
interesting
speculate
by party,
person
1. It is
to
on the default.
tion and notice
to
a
witness or
any
sought hearing
persons
thereby:
Jean’s motion for default
a
fol-
affected
(1)
by judgment.
mаy ,enforce
sought
a
The court
the attendance
lowed
Charles’s motion
attachment,
by
punish
of witnesses
obedience of a
made under these
and
dis-
the dismissal of the motion for default because
and, hence,
subpoena
seeking
Jean was
much”
or order issued or
“too
a
discovery
granted
con-
default
she
should not be
until
rules as a
tempt
provided
proved
specific
of court in the manner as
in
amount due. At the
45(G).
just
Rule
all the evidence was directed
to
Thus,
(2)
may
expenses,
The court
allow
includ-
that issue.
the
the issue of the amount of
fees,
ing
attorney’s
by
arrearage,
аny,
litigated.
incurred
a
if
was in fact
reasonable
party,
person, against
party,
Consequently, although
witness or
the trial court in its
person, responsible
entry, “grants
witness or
for unexcused
defendant’s Motion for Default
plaintiff
upon
that is:
and enters a default
and
such
conduct
(a) punishable
subpoe-
of a
that the
is
to
disobedience
default finds
recover
plaintiff
defendant
entitled
(B)(1)
attorney
against
or
of this
na
rule;
order under subdivision
fees
or
...we
are at a loss to determine
issues,
(b)
seeking deposition, interrogatories, produc-
abusively making
upon
any,
faith and
bad
or
what
if
Charles was in fact
effect,
any,
defaulted or indeed the
default.
of a default
if
examination,
evidence,
However,
inspection,
tion of
quest question,
protective
re-
address the issue
order,
and,
subpoena,
consequently,
enforcement
so do we.
any
remedy
order or
other
under
rules;
discovery provisions
2. The affidavits concerned the amount of un-
of these
or
paid support
by
(c)
abusively resisting
and the services rendered Jean
in bad faith and
attorney.
obstructing
interrogatories, pro-
deposition,
her
evidence,
examination,
inspection,
duction
request, question,
order,
of un-
3.
affidavits сoncerned the amount
enforcement
sub-
paid support
poena, protective
remedy
and the services rendered Jean
order or
other
attorney.
discovery
her
provisions
under the
of these rules.
(3)
may
upon
The court
order evidence
37(B) provides:
4. T.R.
may
matters to be tаken as established or
order that evidence
as
(B)(2)
discovery proceedings
upon
“To avoid abuse of
matters be refused
discovery
party subject
and to secure enforcement of the
provisions
to subdivision
of this rule.
these rules
enforcement
(4)
may
protective proceеdings
partial
or
covery provisions
under the dis-
The court
enter total or
upon
judgment by
preju-
these rules or
mo-
default or dismissal with
subjected
is a matter within the discretion of
who has been
sanction
to such order will
Chrysler Corporation
chastened,
duly
though
the trial court.
feel
so that even
(1980) Ind.App.,
Rеeves
404 N.E.2d
he
in having
succeeds
the order reversed
Auto,
appeal
v. Means
Inc.
Ind.
he will
Hawkins
nonetheless
1106; Farinelli v. Cam
App.,
promptly
discovery
403 N.E.2d
with future
orders of
Ind.App.
pagna
district court.
here,
law,
“But
as in other areas of the
the most
spectrum
severe in the
of sanc-
The sanction оf dismissal or de
provided
tions
by statute or rule must be
more drastic
obviously
fault
and severe
appropri-
available to the district court in
than other available sanctions. Because the
cases,
merely
penalize
ate
those
disposition
law favors the
of cases on their
may
whоse
deemed to
conduct
be
warrant
merits,
imposition
of these sanctions is
sanction,
such a
but to deter those who
*4
appropriate only under
circumstanc
limited
might
tempted
be
to such conduct in the
es or in extreme situations. Where an al
absence of
If
such deterrent.
the deci-
tеrnate less drastic sanction would be effec
sion of the Court of
remained
37(B)(4).
tive it must be utilized. T.R.
case, might
undisturbed in this
it
well be
However,
responsible party
where a
has in
respondents
that
these
faithfully
would
bad
abusively
faith
resisted or obstructed
comply with
discovery
all future
orders
discovery or
violated
court order enforc
by
entered
the District Court in this case.
ing discovery, and the court finds such con
But other
to other lawsuits would
obstructed,
delayed
duct has
or
or threatens
feel freer than we think Rule 37 contem-
obstruct,
delay
to so
or
rights
the
plates they should feel to flout other dis-
opposing party so that other relief would be
covery orders of other district courts.”
inadequate, it is within the discretion of the
trial court to dismiss the action or to render
reviewing
the dismissal or default
judgment by
against
default
the party re
(total
partial),
question
the
sponsible
noncompliance.
for the
National
before this court is whether the trial court
Hockey League
Metropolitan
v.
Hockey
Here,
abused its discretion.
Charles failed
Club,
(1976)
639,
Inc.
427 U.S.
96 S.Ct.
timely
objections
to make
answers or
to
747; Margoles
(1978
49 L.Ed.2d
v. Johns
7th
interrogatories.
Jean’s
He further failed to
885;
Cir.)
Properties
587 F.2d
G-K
v. Rede
comply with the trial court’s ordеr to an
velopment Agency,
(1978
Cir.)
Etc.
9th
interrogatories,
swer the
objection,
without
645;
(1970
F.2d
Young
Cir.)
Norman v.
10th
within 15 days. When he did file late an
470;
Auto,
422 F.2d
v.
Hawkins Means
Inc.
interrogatories,
swers to most of the
he also
(1980)
Ind.App., 403 N.E.2d
Clark
objections
some,
filed
to
contrary to the
County
State Bank v. Bennett
166 trial court’s
disobeyed
order. Charles
an
Ind.App.
dice rights who is under threatens to so or obstruct (B)(2) opposing party subdivision of this rule if the court that other relief party’s inadequate.” determines that conduct has or would be tute abuse of rights that an discretion without first obstruct” Jean’s delay or inadequate. Delay However, attempting would be “lessеr” sanctions. other relief defaulted, day circumstances, here, Charles was apparent. The such as rare sanc- interrog- to without answers Jean remained inappropriate imposition tion is not as ten months requested earli- atories she had of other “lesser” sanctions without reasona- er. merely ble belief their effectiveness adds party’s delay to the innocent and frustra- suggest other sanctions does not Charles tion. his produced him which would have against Contempt was not a viable alter- answers. also the court failed court earlier dis- native because the trial findings required by make T.R. petition Jean’s for citation missed 37(B)(4). argu There is no merit to this based on the trial court’s determi- ment. When the trial court enters a dis not a resident of nation that Charles was oppos a default on the missal or subject powers to the court’s Indiana sanctions, ing party’s implicit it motion we convinced that an contempt. Nor are findings. There is no re expenses ly incurred Jean in ob- makes these order for obtain- taining 37(B)(4) orders to would have quirement within T.R. indifference to ed the answers. Charles’s findings written of fact specific court make readily apparent. court’s orders is uрon apply. its own motion nor does T.R. 52 Interestingly, the basis for Charles’s mo- *5 last motion for de- tion to dismiss Jean’s II Issue arrearage was that the amount of the
fault
complains
Charles next
there was no
disputed
and not that
proceeding
court erred in
to assess the ar-
inappro-
was an
arrearage or that default
rearage immediately
entry
after the
of de
fact,
sanction.
In
his motion to dis-
priate
“[g]iven
fault. He
that
the necessi
miss asserts:
damages
ty
for a
on
the Court’s
(Jean)
of . ..
.. . are
“That the efforts
reasonably alert counsel that
notice did not
seeking
one
a
the efforts оf
immediately
proceed
the Court intended to
Therefore, ...
larger
much
than is due.
damages.”
to an assessment of such
(Jean)
granted a default
should not be
proved
specif-
judgment until she has
the
record, however,
support
not
The
does
(Our emphasis)
due.”
ic amount
that he was without
Charles’s contention
encompass
would
notice the
the two motions
At
owed.
support
issue of the amount of
similarly
failed in
manner to
sanction,
of the
dispute
appropriateness
prayed
for default
for
Jean’s third motion
solely on the
choosing to introduce evidence
of
hearing,
in the amount
arrearage.
issue of the amount of the
$90,540
support arrearages, and attor-
$15,000.
was ac-
ney fees of
This motion
the trial court did not
conclude
We
and her
companied by affidavits
application of the
abuse its discretion in its
support
setting forth the amount of
counsel
then,
37(B)(4)
Necessarily
T.R.
sanction.
legal
services rendered
owed and the
Chrys
exception
we take
to the footnote
countered with a
counsel to Jean. Charles
(1980) Ind.App.,
ler
v. Reeves
Corporation
the motion for default in
motion to dismiss
1147, 1154, that: “the sanction
404 N.E.2d
only challenged
which he
the amount
aрpropriate
is never
without en
of default
addition,
by Jean.
the court’s
claimed
We cannot
try of a lesser sanction first.”
matters
provided
pending
notice
that all
agree
unsupported
with such an
broad abso
Further,
hearing.
at the hear-
were set for
and cir
lute statement.
In most situations
objеct to the
ing,
only
did not
or de
cumstances the sanction of dismissal
to introduce sev-
proceeding
proceeded
but
extreme it would consti-
fault would be so
BUCHANAN,
J.,
and indeed called the only
eral exhibits
C.
concurs.
witnesses.5
SULLIVAN, J., concurs, with opinion.
Under these circumstances we do not find
SULLIVAN, Judge, concurring.
error.
concur,
I
except to the extent
Issue III
majority implies that under no circumstanc-
argues the
Charles next
trial court com-
may
payment
es
expenditure
directly
mitted
error when it
reversible
refused to
to or for the
support
child be credited to a
emancipation
consider the issue
obligation.
(2d
See Whitman v. Whitman
determining
children
amount of
1980)
Dist.
Ind.App.,
We required order Charles to
pay per week for the $175
five minor children. undivided,
When order is
the emancipation of less than all the chil automatically dren does not reduce the obli FOSTER, Claimant-Appellant, Janet E. gated parent’s duty under the or modified, der. Unless the order is the obli gated parent required to make REVIEW pay BOARD OF the INDIANA EM- manner, amount, ments in the DIVISION, and at the PLOYMENT SECURITY required by original Skinner, time Adams, order William long as H. David L. Hutson, as an unemancipated minor child remains. Paul M. as Members of and Reffeitt constituting v. Reffeitt Ind.App., 419 as the Review Board of the Employment N.E.2d Ross v. Ind.App., Security Division, Ross Indiana Empire, Employer and Animal of Claim- *6 ant, Appellees. argument Charles’s that this order is divi- sible is without merit. No. 2-780A247. Issue IV Indiana, Court of
Charles contends the court erred First District. when it refused to consider direct payments June to the children as credits upon arrearage.
Again, disagree. we must
Recently in Whitman v. Whitman
Ind.App., expressly we held
that expenditures payments which did
not with the terms
order may not be allowed as credits. question order in did not
provide payments directly to the chil-
dren and therefore Charles was not entitled
to credit for such nonconforming payments.
Judgment affirmed.
5. The trial court indicated it would consider the affidavits in of Jean’s case. Charles object. did