De Later v. Hudak
| Decision Date | 31 January 1980 |
| Docket Number | No. 3-179A28,3-179A28 |
| Parties | Sharon DE LATER, formerly Sharon Hudak, Appellant-Respondent, v. Paul HUDAK, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
George T. Patton, South Bend, for appellant-respondent.
Timothy P. McLaughlin, Smith & McLaughlin, South Bend, for appellee-petitioner.
Sharon DeLater, formerly Hudak, appeals from a garnishment of wages order entered in favor of her ex-husband, Paul Hudak. This order came as a result of a proceedings supplemental commenced by Paul and based initially on a part of the dissolution decree requiring Sharon to pay the balance of a debt owing to FBT Capital Corporation. When Sharon failed to pay this joint indebtedness FBT garnisheed Paul's wages and he subsequently brought a proceedings supplemental against Sharon.
The issues raised are:
1. Was there a valid judgment in favor of Paul against Sharon upon which the court could issue a garnishment order as to her wages in a proceedings supplemental?
2. Was there evidence to support the proceedings supplemental garnishment order in the sum of $766.63?
3. Was the discharge of Sharon in bankruptcy as to the FBT debt available to her as a special defense in the proceedings supplemental brought by Paul?
We reverse.
Sharon and Paul lived together for a period of time before their marriage which occurred on November 27, 1975. In September, before their marriage, they jointly executed a promissory note to FBT. The parties separated in September of 1976 and shortly thereafter Sharon filed a bankruptcy proceeding and listed among her debts the FBT obligation. On December 16, 1976, she was granted a discharge by the bankruptcy court.
Paul filed a petition for dissolution of the marriage on September 23, 1976, and the court dissolved the marriage on April 19, 1977, with the question of property rights to be later incorporated in a final decree. The court entered this decree on May 3, 1977 and one of its provisions required Sharon to pay the balance of the FBT debt and to hold Paul harmless as to this obligation.
Sharon did not make any payments to FBT and this ultimately resulted in a garnishment of Paul's wages by FBT. On March 15, 1978, he filed a verified application to institute supplementary proceedings stating:
Petitioner is the owner of a Judgment against the respondent rendered in this case on the 3rd day of May, 1977, which Judgment in part, states:
'And now the Court orders the respondent, Sharon Hudak, to pay the obligations of the parties to FBT Capital Finance Company'.
Said Judgment further states that the respondent shall hold harmless the petitioner as to any payments he may be required to make upon said obligation.
The respondent has failed and refused to obey said Judgment and the petitioner's wages to date have been garnished in the sum of $373.68 by FBT Capital Finance Company.
Petitioner has no cause to believe that levy of execution against the respondent will satisfy the Judgment.
Petitioner demands that the respondent be ordered to appear before the Court to answer against her nonexempt property subject to execution.
A hearing on this petition was held on March 27, 1978, with Paul and his attorney present, as well as Sharon's attorney. Briefs by counsel were later filed and the following is the pertinent portion of the court's subsequent entry on April 3, 1978.
And now the Court grants the application to institute Supplementary Proceedings and finds that the petitioner herein, Paul Hudak, has had wages at Mastic Corporation garnished to the extent of $766.63 on an account of the F.B.T. Capital Corporation debt which was the subject of the Court's decree of dissolution herein ordering respondent to pay same or to hold the petitioner harmless.
And now the Court's ruling is based on the fact that the respondent was discharged in bankruptcy in December of 1976 which was prior to this Court's order of May 3, 1977.
And now in addition, the Court ordered that the parties save each other harmless from the debts which the Court ordered them to pay respectively.
Paul filed a verified motion and proceedings supplementary on May 5, 1978, stating he owned a judgment against Sharon which was recovered on April 3, 1978, and in the sum of $766.63. On July 18, 1978, the court entered a final order of garnishment against Sharon's wages from her employer RACO, Inc. for $808.21. This order was subsequently set aside by the court on August 3, 1978, and immediately Paul filed
another verified motion in proceedings supplementary again stating he owned a judgment against Sharon dated April 3, 1978, in the sum of $766.63. Sharon filed a verified answer denying Paul owned such a judgment. The court entered its final order against Sharon and RECO, Inc. on October 30, 1978, and this appeal follows.
Sharon argues strenuously that Paul was not the owner of a judgment entered on April 3, 1978, for $766.63 which would form the basis of a subsequent garnishment order in favor of her ex-husband. Paul admits the dissolution decree of May 3, 1977, as it applied to the FBT debt, was executory in form and was not enforceable by way of a proceedings supplemental until it was reduced to a sum certain but then contends the court reduced the May 3, 1977, decree to the sum of $766.63 by its action of April 3, 1978. Hence, there was a valid judgment upon which the court could enter its final garnishment order of October 30, 1978. We disagree.
We have carefully examined the record provided and conclude there was no evidence submitted on April 3, 1978, to substantiate a judgment of $766.63. In fact, Paul's verified application filed March 15, 1978, states his wages "to date have been garnished in the sum of $373.68 by FBT Capital Finance Company."
In examining the entry made by the court on April 3, 1978, we conclude this was merely a finding that was never reduced to a judgment. Indiana Rules of Procedure, Trial Rule 69(E) provides:
Proceedings supplemental to execution. Notwithstanding any other statute to the contrary, proceedings supplemental to execution may be enforced by a verified motion or with affidavits in the court where the judgment is rendered alleging generally
(1) that the plaintiff owns the described judgment against the defendant . . . .
Obviously the rule anticipates that prior to the granting of a final order in the proceedings supplemental a valid judgment must be entered against the defendant and in the case before us this did not occur.
The...
To continue reading
Request your trial
-
Lewis v. Rex Metal Craft, Inc.
...of the underlying action, the parties cannot during their course collaterally attack the underlying judgment. De Later v. Hudak, 399 N.E.2d 832 (Ind.Ct.App.1980). At a proceeding supplemental, it is the duty of the judgment debtor to pay the judgment or come forward with property so that ex......
-
First Bank of Whiting v. Sisters of Mercy Health Corp.
...judgment must be entered against the defendant." North v. Newlin (1982), Ind.App., 435 N.E.2d 314, 317-318, quoting DeLater v. Hudak (1980), Ind.App., 399 N.E.2d 832. Here, the Hospital's judgment against Clarice was void at the time the trial court entered its January 6, 1988 order. "If th......
-
Davis v. Carey
...in a proceeding supplemental is merely a continuation of the underlying claim on the merits."), trans. denied; De Later v. Hudak, 399 N.E.2d 832, 834-35 (Ind.Ct.App. 1980) (same). Unless the injured first obtains a judgment against the tortfeasor/insured, the injured party has no right of a......
-
Marriage of Hudak, In re
...order? We reverse. This appeal presents issues similar to those raised in a previous appeal involving Sharon and Paul. DeLater v. Hudak (1980), Ind.App., 399 N.E.2d 832. The first appeal arose out of the same factual circumstances as does the present appeal. Sharon and Paul incurred jointly......