Slagle v. Slagle

• Decision Date: 22 February 1973
• Docket Number: No. 3--872A39,3--872A39
• Citation: 155 Ind.App. 304,292 N.E.2d 624
• Parties: Paul C. SLAGLE, Appellant, v. Lanora A. SLAGLE, Appellee.
• Court: Indiana Appellate Court

Page 624

292 N.E.2d 624

155 Ind.App. 304

Paul C. SLAGLE, Appellant, v. Lanora A. SLAGLE, Appellee.

No. 3--872A39.

Court of Appeals of Indiana, Third District.

Feb. 22, 1973.

Rehearing Denied March 27, 1973.

Roger S. Moliere, Fort Wayne, for appellant.

Patrick Purdy, Howard S. Grimm, Jr., Grimm & Grimm, Auburn, for appellee.

HOFFMAN, Chief Judge.

This appeal arises from the judgment of the trial court ordering appellant incarcerated until appellant purges himself of contempt by payment of support arrearage, attorney's fee and damages.

The factual background as disclosed in the record before us is as follows:

When Paul C. Slagle and Lanora A. Slagle were granted an absolute divorce Paul C. Slagle was ordered to pay $28 per week for the support of their two minor children in the custody of Lanora Slagle. On November 16, 1970, Lanora A. Slagle filed a petition seeking the issuance of a rule to show cause requiring Paul C. Slagle to appear and show cause why he should not be attached and punished for contempt of court for allegedly failing to comply with the support order. The trial court, having examined such petition, ordered Paul C. Slagle to appear and show cause. Paul C. Slagle subsequently petitioned the trial court to abate the support order for the reasons that petitioner has not been gainfully employed since October 3, 1969; that petitioner has been beset by medical problems and has been unable to pursue employment and petitioner does not own or possess any property.

The trial court, after hearing the evidence, made the following findings: that Paul C. Slagle is guilty of contempt of court, that the arrearage as of April 7, 1972, is $3,612, that a reasonable attorney's fee is $350, and that Paul C. Slagle failed to produce sufficient evidence to sustain his motion to abate support. The trial court then ordered the clerk to issue a writ of body attachment to the Sheriff of Noble County. The Sheriff was ordered to incarcerate Paul C. Slagle until such time as he purged himself of contempt by payment of the arrearage in the amount of $3,612, reasonable attorney's fees in the amount of $350, and damages for inconvenience in the amount of $100. The writ of body attachment was stayed for two weeks to permit payment of such sums. No payment was made and the writ of body attachment issued on May 4, 1972. The motion to correct errors filed by appellant-Slagle was overruled, and Slagle was released pursuant to bond to await the determination of this appeal.

On appeal, appellant-Slagle preserves arguments one and two of his motion to correct errors: 1) that the judgment of the trial court is contrary to law, and 2) that the judgment of the trial court is contrary to the evidence. Inasmuch as both arguments are closely interrelated we will combine our consideration of them in the following discussion.

The scope of review to be applied by this court is equivalent to the scope of reviewing a negative judgment. The burden was on appellant-Slagle to establish the fact that his failure to comply with the original order was due to his inability to render obedience. Carey v. Carey (1961), 132 Ind.App. 30, 33, 171...