Linton v. Linton
| Decision Date | 05 November 1975 |
| Docket Number | No. 2374A56,2374A56 |
| Citation | 166 Ind.App. 409,336 N.E.2d 687 |
| Parties | Ray LINTON, Jr., Appellant, v. Nancy Anne LINTON, Appellee. |
| Court | Indiana Appellate Court |
Stephen B. Caplin, Indianapolis, for appellant.
Richard A. Young, Young & Young, Indianapolis, for appellee.
Ray Linton, Jr. (Ray) appeals from the judgment below, which found him in contempt of court for breach of an Agreed Modification of Divorce Decree, reinstated the original decree, and ordered him to pay arrearages of alimony and child support. He also appeals the grant of attorney fees on appeal to appellee Nancy Linton (Nancy).
The facts are essentially undisputed. Nancy Linton was granted a decree of absolute divorce from Ray Linton on August 12, 1970. Under that decree, Ray was to pay alimony of $2400.00, payable in monthly installments of $100.00. He was also ordered to pay child support of $70.00 per week, together with hospitalization insurance and the ordinary medical expenses of their two children. Ray paid only one $70.00 support payment, no alimony, and no hospitalization insurance under the original decree.
On September 8, 1971, Nancy and Ray entered into a modification agreement which was approved by the court. Under that agreement, Ray was to pay Nancy $2,200.00 and transfer certain stock to her in full discharge of the support and alimony arrearages accrued as of September 7, 1971. Of this sum,.$1000.00 and the stock was designated as support, 1 and was to be paid immediately. The remaining $1200.00 was designated as alimony and was to be paid in monthly installments of $100.00. The balance of the alimony payments due under the original divorce decree was to be paid in monthly installments of $100.00, beginning a year after the modification agreement went into effect.
The modification agreement also reduced the weekly child support payments to $30,00 per week for each of the two children until September of 1972, when they would be further reduced to $25.00 per week per child.
The agreement concluded with this paragraph, which is the root of the dispute:
Ray paid the.$1000.00 of support arrearages to Nancy and, being unable to transfer the stock to her, sold it and gave her the proceeds. He has paid all of the support under the modification agreement.
He had, however, paid only the first $100.00 alimony payment as of September, 1973, the time of the contempt hearing, making him $1100.00 in arrears under the agreement.
Nancy filed her petition for contempt on October 16, 1972, asking that Ray be adjudged in contempt under the modification agreement, that the agreement be declared null and void, and that Ray be adjudged in contempt of the original decree. Ray filed motions to strike the petition for contempt, for change of venue, and for summary judgment. All were overruled, and the matter was heard in September of 1973. The court determined that Ray had not performed pursuant to the modification agreement, that because of the breach Ray was in contempt of court, that the agreement was therefore null and void, and that Ray's duties and obligations were those ordered under the original decree for divorce. The Court ordered Ray to pay $6910.00 in arrearages, $450.00 in attorney's fees and dental bills upon receipt and decreed that the original obligations under the divorce decree continue.
Ray perfected an appeal to this court, Subsequently, Nancy petitioned the trial court for attorney's fees on appeal, and fees of $2000.00 were granted. Ray also appeals that determination. The issues on appeal are numerous, and will be enumerated in the course of the opinion.
I. CHANGE OF VENUE IS NOT MANDATORY IN A CONTEMPT PROCEEDING
Ray maintains that under the Indiana Rules of Procedure, Trial Rule 76, he is entitled to a change of venue upon timely filed application, and that the overruling of his motion was an error of law. However, Rule 76 applies only to civil actions. In Indiana, a civil contempt proceeding is not considered a civil action, and TR. 76 therefore is inapplicable. As the Supreme Court said in State ex rel. Grile v. Allen Circuit Court (1967), 249 Ind. 173, 231 N.E.2d 138:
'It has been held in our jurisdiction that a defendant in a civil contempt is not entitled to a change of venue. Vol. VI, I.L.E. Contempt § 25, p. 28, and State ex rel. Trotcky v. Hutchinson (1946), 224 Ind. 443, 68 N.E.2d 649, which appears to apply to the case at bar, wherein it is stated:
There was no error in the denial of Ray's Motion for Change
of Venue. II. AS A MATTER OF LAW, APPELLANT
Ray's principal argument for reversal is that as a matter of law, he could not be held in contempt for breach of the modification agreement. He urges this result on a number of grounds, one of which we find to be correct.
Ray admits he has failed to pay alimony, but argues that payment of alimony is not a matter enforceable by contempt in Indiana. It is unclear from the record whether Ray was adjudged in contempt for failure to pay support or failure to pay alimony. However, there is ample evidence that he was current on the support payments contemplated by the modification agreement.
It has long been the rule in Indiana that alimony decrees which take the form of a simple money judgment are not enforceable through contempt. Marsh v. Marsh (1904), 162 Ind. 210, 70 N.E. 154. Enforcement through contempt would constitute imprisonment for debt in violation of Article 1, § 22, of the Indiana Constitution. Appellee contends that two recent cases, State ex rel. Schutz v. Marion Superior Court, Room No. 7 (1974), Ind.,307 N.E.2d 53; and Wellington v. Wellington (1973), Ind.App., 304 N.E.2d 347 (trans. den. 5/21/74), have sufficiently modified the law to allow contempt as a remedy in this case. See also State ex rel. Roberts v. Morgan Circuit Court (1968), 249 Ind. 649, 232 N.E.2d 871. She is mistaken in this interpretation.
In Roberts and Schutz, the Supreme Court drew a distinction between enforcement of alimony which is a simple specific sum money judgment awarded to the spouse, and enforcement of alimony which requires other types of payments or property transfer, e.g., an order for conveyance of real estate, or to pay creditors of the spouse. When the latter type alimony award has been made, contempt may be a proper means of enforcement. Thus in Roberts, the husband was ordered to continue retiring the mortgage on the marital home, and his failure to do so resulted in a finding of contempt. While the distinction drawn in Wellington, supra, between an alimony money judgment without specific words of command and such a money judgment containing requisite commands, may have been rendered meaningless by Schutz, that case did not preclude alimony from taking a form other than a money judgment which would be enforceable by contempt. Wellington also suggested that a further distinction might be drawn between alimony as a means of property distribution and alimony as support or maintenance. It is not suggested by the record before us that the alimony award here is other than a specific sum money judgment effectuating a property distribution.
Although appellee here seeks to characterize the alimony payments as performance of a contract and thus within the Roberts rule, the payments here involved are under a traditional money judgment alimony award, i.e., Ray was ordered to pay installments on a lump sum alimony award. Therefore, Marsh, supra, limits the available enforcement procedures to those appropriate for a money judgment. The contempt judgment against Ray for breach of the agreement
is contrary to law, and is hereby reversed. III. THE
Ray's appeal necessarily places in question the legal effect of the
modification agreement. A. The Modification Agreement
The ambiguity of Paragraph 8 of the modification agreement, quoted in full supra, leaves considerable doubt as to the intent of the parties. It is therefore difficult to assess the legal effect of the agreement.
Paragraph 8 provides in part that the agreement '. . . shall be contingent upon defendant's performance of the agreed obligation herein and compliance with the Court's orders herein for a period of 12 months from the date of this order . . ..' It is unclear from this language what effect the modification was intended to...
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