Thompson v. Thompson, 29A04-0307-CV-366.

• Docket Nº: No. 29A04-0307-CV-366.
• Citation: 811 N.E.2d 888
• Case Date: July 15, 2004
• Court: Court of Appeals of Indiana

811 N.E.2d 888

Jack E. THOMPSON, Appellant-Respondent, v. Dana L. THOMPSON, Appellee-Petitioner.

No. 29A04-0307-CV-366.

Court of Appeals of Indiana.

July 15, 2004.

Deborah M. Agard, Indianapolis, IN, Attorney for Appellant.

Belle T. Choate, Choate & Haith, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

The marriage of Jack Thompson ("Jack") and Dana Thompson ("Dana") was dissolved in Hamilton Superior Court on May 1, 2003. Jack appeals the various orders issued pursuant to the proceedings associated with the dissolution and presents the following eleven restated issues for review:

I. Whether the trial court was within its discretion when it denied Jack's Trial Rule 60(B)(1) Motion for Relief from Judgment;

II. Whether the trial court issued orders pursuant to an improper use of its contempt power;

III. Whether the trial court was within its discretion when it denied Jack's Verified Motion for a Continuance;

IV. Whether the trial court's order for Jack to provide Dana with extended COBRA medical insurance coverage was an improper award of spousal maintenance;

V. Whether the trial court properly adjudicated Jack's $70,000.00 dissolution debt to be non-dischargeable for the purpose of federal bankruptcy proceedings;

VI. Whether the trial court's division of the Thompson marital estate was clearly erroneous;

VII. Whether the trial court improperly ordered Jack to pay his children's medical benefits;

VIII. Whether the trial court was within its discretion when it calculated Jack's child support obligations;

IX. Whether the trial court's order for Jack to provide for various aspects of his children's high school and college education was clearly erroneous;

X. Whether the trial court was within its discretion in awarding Dana trial attorney fees; and

XI. Whether this court may remand this case to the trial court so that the trial court may determine whether Dana is entitled to appellate attorney fees.

We affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.

Facts and Procedural History

Jack and Dana were married on October 22, 1983. Jack and Dana's daughter, M.T., was born to the marriage on August 25, 1985, and Jack and Dana's son, J.T., was born to the marriage on June 29, 1987.

Jack and Dana's combined salaries were able to provide the Thompson family with an extremely comfortable lifestyle supported by substantial income. Dana is a real estate broker with the Remax Corporation and, before the divorce proceedings, had enjoyed a gross income of roughly $150,000.00 per year. Jack is a regional vice-president of the Xerox Corporation and has enjoyed gross income of well over $200,000.00 per year.

On January 11, 2001, Dana filed a petition to dissolve her marriage with Jack.¹ Dana also filed a simultaneous petition for a protective order, alleging that Jack had physically abused her and J.T. and had verbally abused her in front of both their children. Appellee's Supp. App. pp. 2-4. Pursuant to Indiana Code section 31-15-4-3,² the trial court granted Dana's petition. Appellant's Supp. App. p. 6.

On May 22, 2001, Dana filed a petition for rule to show cause, requesting the trial court to find Jack in contempt for violating its protective order. Appellant's App. pp. 190-91. On July 11, 2001, the trial court found Jack in contempt for violation of its no-contact order. However, because it found that Jack had only violated the order as a result of accepting his son's invitation to play basketball in his driveway, the trial court did not issue a punishment for Jack's contempt. Appellant's App. pp. 199-203.

The trial court also issued its preliminary order on July 11, 2001 and required Jack (1) to pay Dana $318.92 per week in child support, payable through the Clerk of Hamilton County, (2) to pay Dana $300.00 per month in spousal maintenance,³ and (3) to pay Dana fourteen percent of all bonuses that he might receive during the pendency of the dissolution proceedings. Id. The trial court also granted Dana custody of M.T. and J.T. and provided Jack with visitation rights.

On January 16, 2002, Dana filed a motion for rule to show cause, alleging that Jack was in arrears for child support of $2494.00 and that Jack had failed to pay Dana the percentage of his bonuses required by the trial court. Appellant's App. p. 262. A hearing was held on this motion on March 8, 2003.

During this March 8th hearing, when Jack was asked about his failure to comply with the trial court's order, Jack initially asserted that he had received no bonuses during the relevant period. Appellant's App. p. 266. However, when pressed about the subject, Jack "suddenly remembered" that he had received a $10,250.00 and a $23,341.00 bonus, two $16,000.00 retention awards, and a $10,000.00 special employment award. Id.

On March 14, 2002, the trial court found Jack in contempt for (1) his failure to pay $2232.44 in child support, (2) paying portions of his child support directly to his children rather than through the Hamilton County Court Clerk, and (3) for not paying Dana a percentage of his October 2001 bonus. Appellant's App. pp. 265-69. The trial court ordered Jack to pay Dana $1250.00 in attorney fees and, after noting that it had already found Jack in contempt once, stated:

Since Father's respect for this Court's orders is sadly lacking, the Court therefore orders the following punishment for his contempt in this case: Father shall be incarcerated at the Hamilton County Jail for a period of 60 days; 56 days of which are suspended and four days executed to be served in the Hamilton County Intermittent Incarceration Program through Community Corrections. Father is ordered to appear [at the Hamilton County Jail] at 6:00 p.m. on Friday, March 22, 2002 and shall be released at 6:00 p.m. on Sunday, March 24, 2002. Father is to appear once again at 6:00 p.m. on Friday, April 26, 2002 and shall be released at 6:00 p.m. Sunday, April 28, 2002. In addition to the incarceration stated herein, Father is fined $5000.00. Said sum shall be paid to the Clerk of Hamilton County, Indiana, within 60 days of this order. If said sum is not paid within 60 days, Father shall immediately report to the Hamilton County Jail for the execution of all suspended time.

Appellant's App. p. 268.

On March 19, 2002, Jack filed a motion to reconsider jail sentence. Appellant's App. p. 270. The trial court denied this motion on the following day. Appellant's App. p. 274. After serving two days of his jail sentence, Jack filed an April 8, 2002 motion to correct error and an April 18, 2002 motion to suspend remaining contempt incarceration. Appellant's App. pp. 275-77. Both of these motions were denied. Despite the denial of his various motions, Jack refused to serve the remaining two days of his contempt sentence and failed to report to the Hamilton County Jail on April 26, 2002 as ordered. Appellant's App. p. 280.

On July 12, 2002, Dana filed a motion for rule to show cause and petition to modify child support, asserting that, due to Jack's refusal to exercise his allotment of parenting time, her circumstances had substantially changed since the court's issuance of its preliminary order and that Jack had failed to pay $2200.00 in court-ordered arrearages. Appellant's App. p. 282. On August 30, 2002, the trial court found Jack in contempt for not paying one week of child support but did not impose a sanction upon the finding.

On May 1, 2003, the trial court entered its final dissolution decree. The decree contained the following findings and orders of importance to this appeal:

(1) Dana is to have legal custody of M.T. and J.T. and shall have all decision-making rights over the children. Appellant's App. p. 24.

(2) Jack's allotted parenting time with J.T. shall be administered through the Family Access Center at Hamilton Centers as a result of Jack's dysfunctional behavior and supervision over J.T. Appellant's App. p. 24.

(3) Jack has a base salary of $164,000.00 per year plus several other forms of additional compensation. Dana has an annual net income of $66,000.00. Appellant's App. pp. 25-26.

(4) Jack is to pay $354.00 per week and eleven point five percent of any net compensation above his base salary for child support to Dana through the Hamilton County Clerk's Office. Appellant's App. p. 26.

(5) Dana is to pay twenty-nine percent and Jack is to pay seventy-one percent of the costs associated with a private secondary school or post-secondary education for M.T. and J.T. Appellant's App. p. 28.

(6) Jack is to provide M.T. with the 2001 Honda in his possession or with a suitable, comparable, and operable vehicle to be approved by Dana, and Jack shall be solely responsible for the vehicle's upkeep and insurance. Appellant's App. p. 31.

(7) Jack shall reimburse Dana $3240.00 and $6708.00 for various counseling services and uninsured medical costs she accrued in 2001 and 2002. Appellant's App. p. 31.

(8) Jack has failed to serve the period of incarceration in the Hamilton County Jail that he was previously ordered to serve, and he is now ordered to serve the remaining weekend of his sentence. Appellant's App. p. 32.⁴

(9) Jack is again found in contempt for his failure to comply with previous orders of the court and shall be sanctioned on a later date. Appellant's App. pp. 32-33.

(10) Because of Dana's responsibility to the family and household and Jack's lack of responsibility and behavior, Jack has caused Dana's income to be depleted over the years. Accordingly, Dana shall receive seventy percent of the marital estate and Jack shall receive thirty percent of the marital estate. Appellant's App. p. 35.⁵

(11) Jack is to pay Dana the sum of $70,000.00 within thirty days of the entry of this decree in order to provide Dana with seventy percent of the marital estate. This sum is considered maintenance, alimony, and property settlement and, accordingly, not dischargeable in federal bankruptcy

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