Branham v. Varble

• Decision Date: 10 March 2011
• Docket Number: No. 62A04-1004-SC-256.,62A04-1004-SC-256.
• Citation: 937 N.E.2d 340
• Parties: Quincy and Shannon BRANHAM, Appellants, v. Rodney and Carol VARBLE, Appellees.
• Court: Indiana Appellate Court

937 N.E.2d 340

Quincy and Shannon BRANHAM, Appellants,
v.
Rodney and Carol VARBLE, Appellees.

No. 62A04-1004-SC-256.

Court of Appeals of Indiana.

Oct. 28, 2010.
Transfer Granted March 10, 2011.

937 N.E.2d 342

Stephen E. Culley, Katherine J. Rybak, Indiana Legal Services, Inc., Evansville, IN, Attorneys for Appellants.

OPINION

FRIEDLANDER, Judge.

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 July 3, 2008, the trial court entered a judgment in favor of Rodney and Carol Varble and against the Branhams in the amount of $2750.50, plus $96.00 in court costs. According to the entry in the chronological case (the CCS) summary for that date, Quincy agreed to pay $100.00 per week toward the judgment and Shannon agreed to pay $300.00 per month (payable on the 3rd of every month). In November, the Varbles notified the court that the Branhams had stopped making payments toward the judgment. At a contempt hearing held on February 5, 2009, the Branhams were ordered to pay $250 a month until the judgment was satisfied. On April 9, 2009, the parties again appeared before the court and the Branhams agreed to pay $50.00 per week toward the judgment. The Branhams appeared for a status hearing on May 14, 2009, but the matter was continued. On July 7, 2009, the Varbles again notified the court that the Branhams had stopped making payments. The court issued an order for Quincy Branham to appear for a hearing on August 27, 2009. The following day,

937 N.E.2d 343

the court issued a garnishment order to Quincy's employer, Harrison Auto Salvage, requiring payment of $20.00 a week toward the judgment. On September 28, 2009, an attorney filed an appearance on behalf of the Branhams and challenged the amount of the garnishment through a motion to correct error. Following a hearing on November 10, 2009, the trial court issued an amended garnishment order on November 13, 2009.¹

On March 30, 2010, the parties appeared for a status hearing in Cause No. 62C01-0902-SC-00036, a different case in which Rodney Varble was also a plaintiff. Without advance notice to the Branhams or to counsel of record in this case, the court heard evidence relating to both cases. During the hearing, the court was informed that no monies had been received as a result of the garnishment order. Subsequent questioning by the attorney representing the Varbles revealed that Quincy had 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 the judgment remained unsatisfied. 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 hearing, the court issued the same order for both causes thereby requiring the Branhams to pay $50 per month toward this judgment and obligating Quincy to do a job search by submitting five applications a week. The court scheduled a second status hearing for June 16, 2010.² 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.

1.

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,

937 N.E.2d 344

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.³ The Branhams appropriately observe, however, that the judgment debtor must assert an exemption at the appropriate time during the proceedings supplemental. See Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628 (Ind.Ct.App.2008); Mims v. Commercial Credit Corp., 261 Ind. 591, 307 N.E.2d 867 (1974).

Here, the Branhams previously asserted their exemptions through their motion to correct error challenging the amount of the initial garnishment order. The parties thereafter agreed to a modified garnishment order that complied with the protections of I.C. § 24-4.5-5-105. The Branhams argue that the court "circumvented the statutory protections for earned income by ordering Branham to pay $50.00 per month directly, since the prior lawful garnishment order had been fruitless." Appellants' Brief at 5. We disagree.

Here, the parties were present at the March 30 hearing and counsel for the creditors (i.e., the Varbles) questioned the Branhams about their incomes and expenses.⁴ 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 somehow had sufficient funds to pay $200 toward a truck that he recently purchased for $2500.00. 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...