Branham v. Varble
| Decision Date | 28 October 2010 |
| Docket Number | Cause No. 62C01-0902-SC-36,No. 62A01-1004-SC-192,62A01-1004-SC-192 |
| Parties | QUINCY and SHANNON BRANHAM, Appellants, vs. RODNEY VARBLE and NORMAN CHASTAIN, Appellees. |
| Court | Indiana Appellate Court |
FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: STEPHEN E. CULLEY, KATHERINE J. RYBAK, Indiana Legal Services, Inc., Evansville, Indiana
APPEAL FROM THE PERRY CIRCUIT COURT
The Honorable Lucy Goffinet, Judge
The Honorable Karen A. Werner, Magistrate
Quincy and Shannon Branham appeal from an order of the Perry Circuit Court, Small Claims Division, in the enforcement of a civil money judgment. The Branhams present two issues for review:
1. Did the trial court abuse its discretion and act contrary to law when it ordered the Branhams to pay $50 per month toward a small claims judgment?
2. Did the trial court abuse its discretion and act contrary to law when it ordered the Branhams to make repeated court appearances and for Quincy to seek five jobs per week?
We affirm in part and reverse in part.
On March 13, 2009, the trial court entered a consent judgment in favor of Rodney Varble and Norman Chastain and against the Branhams in the amount of $4350.75, plus $99.00 in court costs. On November 12, 2009, the parties appeared before the court and an agreed garnishment order was entered.1 The parties were also ordered to reappear on March 30, 2010 for a status hearing. The Branhams appeared without counsel for each of the hearings.
At the March 30 hearing, the court was informed that no monies had been received as a result of the garnishment order. During subsequent questioning by the attorney representing the judgment-creditors, Quincy informed the court that he has worked for Harrison Auto Salvage, earning $20.00 per day, $100.00 per week, for approximately 3 years. Quincy acknowledged that he has not looked for alternative employment since he began working for Harrison Auto Salvage. Out of his earnings, Quincy testified that he pays $200 per month for a truck that he uses as his means of transportation. Quincy admitted that he purchased the truck for $2500.00 while this action was pending. Shannon advised the court that she receives Supplemental Security Income of $674.00 per month, out of which she pays rent of $400.00. Quincy and Shannon both contribute to the cost of food and utilities. At the conclusion of the evidence, the court ordered the Branhams to pay $50.00 per month toward the judgment and further ordered Quincy to do a job search by submitting five applications a week. The court scheduled a second status hearing for June 16, 2010. This appeal ensued.
We begin by noting that the appellees did not file a brief. When appellees do not submit an answer brief we need not undertake the burden of developing an argument on their behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind. 2006). Rather, we will reverse if the appellant's brief presents a case of prima facie error. Id. Prima facie error in this context is error "at first sight, on first appearance, or on the face of it." Trinity Homes, LLC v. Fang, 848 N.E.2d at 1068. If an appellant does not meet this burden, we will affirm. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065.
The Branhams argue that the court violated their rights under article 1, section 22 of the Indiana Constitution, which provides:
The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter
contracted: and there shall be no imprisonment for debt, except in case of fraud.
This provision is not self-executing, but requires legislative enactment to make it effective. Beard v. Indianapolis Fancy Grocery Co., 180 Ind. 536, 103 N.E. 404 (1913).
The Branhams direct us to Ind. Code Ann. § 24-4.5-5-105(2)(b) (West, Westlaw through 2010 2nd Regular Sess.), which exempts from garnishment the first $215.50 (thirty times minimum wage) of income per week. The Branhams also direct us to Ind. Code Ann. § 34-55-10-2 (West, Westlaw through 2010 2nd Regular Sess.), which provides a list of various types of property that is exempt from execution to satisfy a judgment.2 The Branhams appropriately observe, however, that the judgment debtor must assert an exemption at the appropriate time during the proceedings supplemental. See Mims v. Commercial Credit Corp., 261 Ind. 591, 307 N.E.2d 867 (1974).
Here, the Branhams, who were not represented by counsel, did not assert any exemptions or in any way object to the trial court's order that they pay $50 toward the consent judgment in favor of Varble and Chastain. Nevertheless, on appeal the Branhams assert that when a debtor is unrepresented, it is incumbent upon the court to protect the debtor's constitutional rights and sua sponte "determine which exemptions result in the least burdensome order for the debtor." Appellants' Brief at 4. Although the dissent relies upon Mims v. Commerical Credit Corp. to credit the Branhams's assertion in this regard, we do not agree that Mims should be so broadly construed.
In Mims, a debtor who had defaulted on a retail installment contract appealed from a garnishment order entered against her. The trial court's garnishment order complied with limitations set forth in the Uniform Consumer Credit Code (UCCC), resulting in a garnishment of $2.25 per week, but did not take into account the resident-householder exemption, which would have resulted in a garnishment of $4.20 per week.3 The debtor, who was apparently not represented by counsel, did not assert the resident-householder exemption during the proceeding supplemental. The debtor obtained pauper appellate counsel, who questioned whether the legislature had effectively repealed the resident-householder exemption by enacting the UCCC, and, if not, whether the burden to assert such exemption rested with the debtor.
Concluding that the residential-householder exemption survived the adoption of the UCCC, the court addressed the second issue. The Court expressly acknowledged that this court had correctly ascertained the general rule that the burden is upon the debtor to claim the exemption "at an appropriate time during proceedings supplemental." Id. at 869. The court then expressed its belief that the general rule "should admit of exceptions and modifications consistent with fairness and practical realities." Id. Keeping in mind the constitutionalunderpinnings of garnishment exemption statutes, the court prescribed the following procedure:
If a debtor-defendant is represented by counsel during proceedings supplemental, the burden is upon the debtor to affirmatively interpose the resident-householder claim. This, of course, is the general rule cited by the Court of Appeals. If, however, a debtor-defendant is not represented by counsel, the trial court must determine: (1) whether the debtor is a resident-householder, and (2) if the debtor is a resident-householder, which exemption (either the UCCC or resident-householder) would be least burdensome on the debtor. The trial court, after due consideration of these matters, shall enter the appropriate garnishment order, being always mindful of the fact that the amount garnished shall never exceed 25% of disposable weekly earnings in excess of $48.00.
The dissent interprets the court's newly established "procedure" to mean that trial courts are required to assert, presumably, all exemptions on behalf of debtors who are not represented by counsel in addition to exemptions applicable to garnishments. To adopt the dissent's view that Mims requires a trial court to assert the myriad of exemptions on behalf of unrepresented debtors in every instance essentially recasts the role of the judiciary from traditional decision-making to one of advocacy for one of the parties. As noted in footnote 2, supra, there are numerous exemptions that a debtor is privileged to assert, some of which are applicable only in certain factual situations that may or may not be apparent. To place the burden on the court to assert all exemptions a debtor is entitled to claim would require the court to hold a mini-trial and flush out evidence pertaining to the various exceptions and then determine which exemptions yield the result most beneficial to the debtor.
In our view, the procedure proposed by the Court in Mims was specific to the case before it. Indeed, we note that in the thirty-six years since Mims was decided, there has beenno other case to adopt the interpretation of Mims proposed by the dissent. In fact, there is only one reference to Mims pertinent to this case found in Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628 (Ind. Ct. App. 2008), wherein the court cited Mims for the proposition that the burden is upon the debtor to assert an exemption. This is the rule we apply here.
The Branhams acknowledge that they did not assert any exemptions at the appropriate time during the proceeding supplemental. Nevertheless, it is clear from the record that the court considered the Branhams' ability to pay and found their credibility lacking. During the proceedings supplemental, Quincy and Shannon each informed the court of their weekly/monthly earnings and expenses (without any supporting documentation). As meager as those amounts appear to be, the court recognized that at the end of the month, after the family bills had been paid and food purchased, Quincy had sufficient funds to pay $200 toward a truck that he purchased for $2500.00 during the pendency of these proceedings. It was on this basis that the court found that Quincy and Shannon had sufficient funds to pay $50 a month toward this judgment. Implicit in the court's order is that the court did not find Quincy's and Shannon's testimonies to be completely credible. The court considered the evidence before it and concluded that the Branhams established they had sufficient funds to pay on the judgment...
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