DeBaun v. DeBaun

• Decision Date: 27 September 2021
• Docket Number: 21A-DR-576
• Parties: Danny R. DeBaun, Appellant-Respondent, v. Cathy L. DeBaun, Appellee-Petitioner
• Court: Indiana Appellate Court

Danny R. DeBaun, Appellant-Respondent,
v.
Cathy L. DeBaun, Appellee-Petitioner

No. 21A-DR-576

Court of Appeals of Indiana

September 27, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Interlocutory Appeal from the Switzerland Circuit Court The Honorable W. Gregory Coy, Judge Trial Court Cause No. 78C01-1910-DR-303

Attorney for Appellant Matthew L. McDaniel McDaniel Law LLC Lawrenceburg, Indiana

MEMORANDUM DECISION

Crone, Judge

Case Summary

[¶1] In this interlocutory appeal, Danny R. DeBaun (Husband) challenges a March 2021 contempt order, which was issued due to his failure to comply with a 2006 decree dissolving his marriage to his ex-wife Cathy L. DeBaun (Wife) and a 2007 agreed order entitling Wife to half of his retirement account distributions upon his retirement. Among other things, he claims that the trial court erred in finding him in contempt and ordering him to satisfy a money judgment from exempt sources of income. We affirm.

Facts and Procedural History^[1]

[¶2] Husband and Wife were married in 1984 and divorced in 2006. At the time of the divorce, Husband was a member of the Indiana Teachers Retirement Fund, which is part of the Public Employees Retirement Fund (PERF). The 2006 dissolution decree states that Husband's retirement funds "shall be equally divided with each party to receive a one half share of it as valued on December 31, 2005, their date of separation." Appellant's App. Vol. 2 at 16-17. In 2007, the trial court and parties executed an agreed order requiring that, upon Husband's date of eligibility to receive withdrawals from his PERF accounts, he would be required to pay Wife half of the $33, 901.78 value of the PERF Annuity as of the date of separation, i.e., $16, 950.39, as well as half of his monthly pension (PERF Pension) payments. Husband did not appeal the decree or agreed order.

[¶3] In January 2016, Husband became eligible to receive his PERF Annuity and PERF Pension. He withdrew the full balance from his PERF Annuity but did not pay Wife her portion. Instead, he used the full balance to purchase a home for himself and his new wife. He also failed to pay Wife her one-half share of his monthly PERF Pension disbursements.

[¶4] In November 2019, Wife filed a motion for rule to show cause why Husband should not be held in contempt for willful noncompliance with the dissolution decree and agreed order. On February 14, 2020, the trial court granted Wife's motion and entered a money judgment for $22, 537.24 on the PERF Annuity and $32, 400.00 on the PERF Pension.^[2] Appellant's App. Vol. 2 at 25-26. In the same order, the court issued a qualified domestic relations order (QDRO) directing the administrator of Husband's PERF Pension to withhold one half of the monthly payment for Wife, with a provision requiring him to pay $497.32 to the court clerk each month until the QDRO took effect. Husband did not appeal this judgment.

[¶5] In March 2020, Wife filed a motion for writ of attachment. The trial court granted the motion, and Husband was arrested. Husband filed a motion to reconsider, which was denied. He then filed a motion to stay the trial court's attachment order. Following a hearing in July 2020, the writ of attachment was canceled. The chronological case summary (CCS) reflects that between March and August 2020, Husband made six payments of $497.32 each, for a total of $3, 978.56. See id. at 14.^[3] He made no further payments toward the arrearages after August 2020. Nor did he pay Wife half of his monthly PERF Pension disbursements going forward.

[¶6] In October 2020, Wife filed another motion for rule to show cause. In November 2020, the trial court conducted a hearing. Meanwhile, Wife filed a motion to freeze Husband's bank accounts, which the trial court granted. She filed a motion for release of funds from Husband's financial institutions, but she was unable to recover because Husband had closed the accounts. When she was unable to secure any payment, she filed motions for rule to show cause and garnishment of one half of Husband's PERF pension and/or social security benefits.

[¶7] In March 2021, the trial court conducted a hearing via Zoom and issued an order finding Husband in contempt of its orders to provide copies of certain motor vehicle titles and to pay Wife her one-half share of his monthly PERF Pension disbursements. The court ordered that Husband pay the clerk of the courts, for Wife's benefit, within five days of each monthly disbursement and imposed a daily penalty for nonpayment. The court also ordered that Husband pay $300 to Wife's counsel for attorney's fees. This interlocutory appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 - The trial court acted within its discretion in finding Husband in contempt for willful disobedience of court orders to provide Wife with copies of his vehicle titles and pay her one half of his monthly pension disbursements.

[¶8] Husband maintains that the trial court erred in finding him in contempt for willful disobedience of court orders. As a preliminary matter, we note that this marital property division spans fifteen years and two cause numbers. In that time, the trial courts have issued several orders addressing the division of Husband's PERF accounts and enforcement of payments therefrom. See, e.g., Appellant's App. Vol. 2 at 15-19, 25-27, 34-35. Until now, Husband has not appealed any of those orders. As such, our review is limited to the appealed order dated March 5, 2021. To the extent that Husband attempts to challenge aspects of certain unappealed orders, we cannot oblige, as he is foreclosed from challenging orders that he did not appeal. See Edwards v. Edwards, 132 N.E.3d 391, 397 (Ind.Ct.App. 2019) (unappealed prior order was res judicata as to the parties and precluded further litigation on same issue), trans. denied. That said, we will address the previous orders as relevant to our review of the appealed order.

[¶9] In family law matters, we have a well-established preference "for granting latitude and deference to our trial judges," recognizing that the judge has seen the witnesses and observed their demeanor. Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). We review a contempt finding for an abuse of discretion and will reverse it only if there is no evidence or reasonable inference to be drawn therefrom that supports the finding. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). We neither reweigh evidence nor reassess witness credibility. Steele-Giri, 51 N.E.3d at 124. Where, as here, the parties have entered into a contract (here, the agreed order), we apply a de novo standard of review in interpreting its provisions. Ferrill v. Ferrill, 143 N.E.3d 350, 355 (Ind.Ct.App. 2020). "Unless the terms of the agreement are ambiguous, they will be given their plain and ordinary meaning, but if there is an ambiguity, we may consider extrinsic evidence to resolve it, with the aim of carrying out the parties' likely...