Foley v. Mannor, 20A05-0509-CV-509.

• Decision Date: 17 March 2006
• Docket Number: No. 20A05-0509-CV-509.,20A05-0509-CV-509.
• Parties: Allen Francis FOLEY, Appellant-Respondent, v. Sharon Lee MANNOR, Appellee-Petitioner.
• Court: Indiana Appellate Court

844 N.E.2d 494

Allen Francis FOLEY, Appellant-Respondent, v. Sharon Lee MANNOR, Appellee-Petitioner.

No. 20A05-0509-CV-509.

Court of Appeals of Indiana.

March 17, 2006.

COPYRIGHT MATERIAL OMITTED

Allen Francis Foley, Washburn, ME, Appellant Pro-Se.

Beverly S. Peters, Elkhart, for Appellee.

OPINION

BAKER, Judge.

Appellant-respondent Allen Francis Foley (Allen) appeals the trial court's judgment representing a $12,000 child support arrearage in favor of his former wife, appellee-petitioner Sharon Lee Foley Mannor (Sharon). Specifically, Foley challenges¹ the trial court's exercise of jurisdiction over this case, as well as the order directing him to pay attorney's fees in the amount of $400 to Sharon's counsel. Allen also argues that the trial court erroneously ordered a body attachment against him, as well as the amount of the bond that the trial court had set.

We conclude that the trial court had jurisdiction over this matter, and that the award of $400 in attorneys' fees to Sharon was proper. However, we note that the issuance of a body attachment was improper in these circumstances. Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

When the parties were married and living in Texas, they had one son, M.F., who was born in Dallas on August 9, 1978. Sharon and Allen divorced nearly one year later, and the dissolution decree issued by the Dallas County District Court on February 22, 1979, provided that Sharon was to have custody of M.F., and that Allen was to pay child support in the amount of $50 per week "until [M.F.] reached the age of 18 years or is otherwise emancipated." Appellee's App. p. 11.

Shortly after the dissolution decree was entered, Allen apparently moved to Indiana. On January 2, 1980, Sharon filed a complaint in the Elkhart Superior Court (trial Court) pursuant to the Indiana Uniform Reciprocal Enforcement of Support Act (URESA)², in an effort to have the Texas child support order enforced. The trial court conducted a hearing on April 2, 1980, and Allen appeared by counsel. At no time during this hearing did counsel challenge the trial court's jurisdiction over this matter. Moreover, Allen admitted that he was an Indiana resident for a "brief period of time from 1979 to 1981." Appellant's Br. p. 10. Following the hearing, the trial court's order provided that Allen was to pay $50 per week for M.F.'s support beginning on May 15, 1980, and "the question of arrearage [was to] be determined upon further order of [the] court." Id.

Sharon filed a showing of noncompliance on January 8, 1981. However, the date set for the hearing was removed from the docket on July 24, 1981, because Allen had not been served with notice. Thereafter, on October 4, 1984, Sharon filed another verified showing of noncompliance, and the trial court set the matter for hearing on November 19, 1984. Following this hearing, which Allen did not attend,³ the trial court found that Allen was approximately five years in arrears on his support payments. Hence, a judgment in the amount of $12,000 plus interest "at the legally acceptable rate" was entered against him. Appellant's App. p. 9. The trial court also considered this judgment to be a continuing order of garnishment in the amount of $50 per week for M.F.'s support. Hence, the trial court ordered a monthly deduction for support and the arrearage on the judgment from Allen's military disability check. Sharon then moved to enforce the judgment by filing a verified motion in proceedings supplemental. Allen was ordered to appear on February 5, 1985.⁴

Sharon subsequently remarried, and, on December 7, 1990, she and her husband filed a petition in a Maricopa County, Arizona, trial court to adopt M.F. The Arizona court ultimately granted the adoption on August 7, 1991.⁵ Thereafter, in August 2002, the trial court received a letter from Allen indicating —for the first time—that M.F. had been adopted and was twenty-five years old. Hence, Allen requested that the trial court terminate the garnishment of his military disability payments. In response, the trial court made the following entry:

[The Court] directs the Clerk to hold all support payments in escrow pending further order. Court notes that the child's DOB is 8-9-78 per the Decree of Divorce. Court further notes that a judgment for child support arrears was entered on 11-19-84 in the amount of $12,000. Mr. Foley is directed to provide the current address for his ex-wife, Sharon Foley along with proof of the adoption. Upon receipt of the same, cause will be scheduled for hearing.

Appellant's App. p. 4.

On February 13, 2003, the trial court directed the Clerk to release the sums held in escrow and forward the payments to Sharon. After receiving additional information from Allen on March 14, 2005, the trial court determined that his child support obligation should be terminated because M.F. had been adopted or, in the alternative, because M.F. was emancipated. Thus, the trial court ordered any support payments held in escrow to be returned to Allen. The order also noted that Allen had not responded to the trial court's request for information for nearly two years. Finally, the trial court ordered any future funds that may have been collected from Allen to be returned to him.

However, on April 21, 2005, the trial court noted that it had received a letter from Sharon indicating that Allen was approximately $8600 in arrears in his child support payments. As a result, Allen was given twenty-one days to respond. The trial court then scheduled a hearing for June 27, 2005, on the arrearage matter. Allen reported to the trial court that he would not attend this hearing. The trial court noted that the only matter pending was an attempt by Sharon to collect the 1984 judgment on the arrearage. Moreover, the trial court indicated in the CCS on June 17, 2005, that Allen had filed a number of unsubstantiated allegations and irrelevant material in the case. Moreover, the trial court determined that appropriate sanctions would be imposed if Allen failed to appear at the hearing. Allen did not appear at the June 27, 2005, hearing, and the trial court ordered a body attachment with a bond set in the amount of $12,000. Sharon appeared by counsel, and the trial court awarded $400 in attorney's fees to her counsel. Allen now appeals.

I. Jurisdictional Challenge

Allen first claims that the trial court lacked jurisdiction in this case. Specifically, Allen maintains that the trial court was without authority to hear this matter because neither he, Sharon, nor M.F. were Indiana residents.

In addressing this contention, we first note that Indiana courts administering the provisions of URESA (now the Uniform Interstate Family Support Act, or "UIFSA") have subject matter jurisdiction to address matters of child support. Beach v. Beach, 642 N.E.2d 269, 273 (Ind. Ct.App.1994). With regard to matters involving personal jurisdiction, our Supreme Court has determined that the existence of personal jurisdiction over a defendant is a constitutional requirement to rendering a valid judgment. Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind.2000). When a challenge to jurisdiction is made, the plaintiff must present evidence to show the existence of personal jurisdiction. The defendant bears the burden of proving the lack of personal jurisdiction by a preponderance of the evidence. Id.

In this case, the record shows that Allen appeared by counsel for the 1980 hearing. He has also acknowledged that he was an Indiana resident at the time. Appellee's Ex. A. Hence, Allen's argument that the trial court did not have jurisdiction over this matter fails. Even so, in the absence of Allen's admission that he was an Indiana resident, the provisions of UIFSA allow Indiana courts to exercise personal jurisdiction under certain circumstances. In relevant part, Indiana Code section 31-18-2-1 provides that:

In a proceeding to establish, enforce, or modify a support order or to determine paternity, an Indiana tribunal may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

(1) the individual is personally served with notice in Indiana; (2) the individual submits to the jurisdiction of Indiana by:

(a) consent;

(b) entering an appearance, except for the purpose of contesting jurisdiction; or

(c) filing a responsive document having the effect of waiving contest to personal jurisdiction.

(Emphasis added). Inasmuch as Allen's counsel appeared at the hearing on his behalf, and the issue of jurisdiction was not challenged, Allen's claim fails on this basis as well.

II. Abuse of Discretion In Entering Judgment

Allen also seeks to attack the propriety of the judgment that was entered against him in 1984. In essence, Allen argues that the support order and judgment on the arrearage were erroneous.

First, we note that our review of the record indicates that in 2005, the trial court was simply reiterating the terms of the judgment that were set forth in the 1984 order. Appellee's App. p. 42-45. To be sure, the trial court specifically determined that "no further action is necessary in this cause other than a body attachment with an escrow bond in the amount of . . . $12,000 for his failure to appear." Id. Inasmuch as Allen never appealed the original order in a timely manner, he cannot now complain that the judgment was erroneous.

III. Body Attachment and Award of Attorney's Fees

Allen next contends that the trial court's issuance of a body attachment and the award of attorneys fees to Sharon were improper. In essence, Allen is arguing that the trial court's actions amounted to an abuse of discretion.

A. Body Attachment

We initially observe that a trial court may enforce a child support order by contempt. See Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind.1993). It has also been held that an order to pay accrued child support...