Opinion
No. 49A04-1012-DR-785
10-05-2011
In re: THE MARRIAGE OF DOROTHY BORGAN, Appellant-Petitioner, v. TERRY R. BORGAN, SR., Appellee-Respondent.
ATTORNEY FOR APPELLANT : YVONNE FERGUSON-WATKINS Ferguson-Watkins & Associates Indianapolis, Indiana
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.
ATTORNEY FOR APPELLANT:
YVONNE FERGUSON-WATKINS
Ferguson-Watkins & Associates
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
Cause No. 49D11-0611-DR-047357
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK , Judge
Case Summary
Dorothy Borgan ("Wife") appeals the order of the trial court granting judgment in favor of Terry Borgan ("Husband"). Wife contends that the trial court erred by modifying the decree of dissolution nearly three years after its entry, refusing to hold Husband in contempt, and declining to grant her request for attorney's fees. We reverse in part and affirm in part.
Facts and Procedural History
Husband and Wife divorced in 2007. The trial court entered an order dividing the marital property, which was incorporated into the decree of dissolution. The order provided in pertinent part:
4.) Husband's Eli Lilly and Company Pension and his Eli Lilly 401K Plan shall be divided equally between the parties. Husband's counsel shall be responsible for drafting whatever documents are necessary to effectuate this division.Appellant's Br. p. 4-5. Husband's counsel prepared a qualified domestic relations order ("QDRO") that was accepted by the court in January 2008 and amended three months later. In early 2008, Husband began paying one-half of his monthly retirement payment, or $1052.62, to Wife as ordered by the court. In November 2008, Husband filed a motion for clarification and intervention. The trial court held a hearing on Husband's motion in February 2009.
7.) Wife shall have sixty (60) days from entry of a Decree of Dissolution of marriage in which to attempt to refinance the mortgage on the parties' marital residence in order to remove Husband's name from the title to the property and to secure the real estate as her sole and separate property. In the event that she is successful in so doing, the Court shall conduct a hearing to determine how to divide the equity, if any, as a result of the refinancing. In the event that she is unsuccessful in obtaining refinancing, the parties shall list the marital residence for sale with an agent selected by Husband as he is the [titled] owner of the property. Upon sale of the property, any equity remaining shall be divided as follows: Wife 60% and Husband 40% after Husband receives a one hundred percent (100%) credit for all mortgage payments which he shall continue to make from this date until such time as the property is sold. Husband shall also receive a one hundred percent (100%) credit for payments made from the date of entry of the Decree [until] such time as the refinancing of the property is complete if Wife is successful in obtaining refinancing of the property. Wife shall be responsible for payment of all utilities while either the refinancing or sale of the real estate is pending.
8.) The Court finds that the 50-50 presumption has been rebutted in Wife's favor due to Husband's greater present and future earning capacity.
9.) Husband shall pay Wife's counsel final attorney fees in the amount of One Thousand and 00/100 Dollars ($1,000.00), as follows: Two Hundred and 00/100 Dollars ($200.00) per month for a period of five (5) months, payable on the first day of each month beginning February 1, 2008.
Wife did not provide a copy of the trial court's December 17, 2007, order dividing the marital property in violation of Ind. Appellate Rule 50(A)(2). We therefore rely on Wife's recitation of the order, which is contained in her brief.
The January 2008 and amended April 2008 QDRO were not provided for our review. It is not completely clear what the January QDRO pertained to and for what reason it was amended. See Appellant's Br. p. 5 (stating that Husband was able to "secure a QDRO with respect to Husband's 401k only."). The transcript implies that there may have been an administrative error in the language used in the January QDRO. See Tr. p. 109.
At the hearing, Husband testified that he had paid the mortgage on the former marital residence since November 2007, for a total of nearly $18,000. He testified that the property had been on the market for seven months, and the list price had recently been lowered. He expressed concern that the amount of reimbursement owed him might exceed any profit realized from a sale, stating, "I was just wondering, you know, if we get so deeply into this debt, how am I going to get my 100% reimbursement on my monthly note." Tr. p. 18.
Wife's counsel argued that Husband's motion was an attempt to modify the court's order dividing the marital property and that such a modification, absent a showing of fraud, was not permitted by statute. SeeInd. Code § 31-15-7-9.1. Husband's counsel argued that Husband was not seeking a modification; rather, he sought direction from the court regarding his responsibility for future mortgage payments. The court denied Husband's motion for clarification and intervention.
In December 2009, Husband reduced his monthly payment to Wife from $1052.62 to $526.31, or one-half. In February 2010, Wife filed a motion for contempt against Husband. In June 2010, Husband filed a motion for contempt against Wife and a request for judgment for monies due. A single hearing was held on both petitions.
At the hearing, Husband admitted he had reduced his monthly payment to Wife without the court's authorization. He stated that this was an attempt to reduce the amount of reimbursement Wife owed him, which had steadily increased since the last hearing. Husband testified that the former marital residence had been on the market for more than two years, until March 2010, when he was no longer able to pay the mortgage. Unable to pay the mortgage herself, Wife signed a deed in lieu of foreclosure, which extinguished all equity in the property. Husband argued that Wife was in contempt because she had not reimbursed him for approximately $32,000 in mortgage payments he made on the property. In addition to seeking the reimbursement balance, Husband also requested attorney's fees from Wife.
Wife argued that Husband should be held in contempt for his unilateral reduction of her monthly payment. She asked the court to order Husband to pay her $3159—the amount he withheld—and all of her attorney's fees.
In July 2010, the trial court granted Wife's motion and found Husband in contempt. As to Husband's motion, the order provided:
(2) The Court now treats [Husband's] Verified Petition for Contempt and Request for Judgment for Monies Due filed June 30, 2010 as a Petition for Modification of the Decree of Dissolution of Marriage. Said modification is Granted and the Court finds as follows:Appellant's App. p. 1 4-15. Wife filed a combined motion to reconsider and correct errors. The court held a hearing on Wife's motion in September 2010. At the hearing, counsel for both parties raised the issue of modification. Wife's counsel again argued that modification of the dissolution decree was not permitted by statute, as there had been no allegation of fraud. Notably, Husband's counsel agreed:
(a) The parties signed a Deed in Lieu of Foreclosure of the parties' marital residence. The parties will receive no proceeds from the sale of the residence and have forfeited any equity in the residence. For this reason, the Court modifies its prior Order to reduce the total amount due and owing to [Husband] for his interest in the marital residence to $12,631.44. Said amount shall be paid to [Husband] by allowing him to reduce his monthly pension obligation paid to [Wife] to $526.31 per month beginning in January 2010 and ending in December 2011. [Wife] has received the benefit of her share of the interest in the property by living in the residence free of charge for a period of two and half (2-1/2) years after entry of the Decree.(3) [Husband] shall pay [Wife's] counsel attorney's fees for his contempt in the amount of Five Hundred and 00/100 Dollars ($500.00) as follows: Two Hundred Fifty and 00/100 Dollars ($250.00) on or before August 10, 2010 and Two Hundred Fifty and 00/100 Dollars ($250.00) on or before September 10, 2010.
(b) [Husband's] counsel shall submit a Qualified Domestic Relations Order to [Husband's] employer to take effect on January 1, 2012, whereby [Husband's] employer shall pay to [Wife] one-half (1/2) of [Husband's] NET monthly pension after taxes and insurance are deducted.
(4) [Husband] shall pay his own attorney fees. [Wife] shall be responsible for payment of the balance owed on her attorney's fees beyond the amount stated in this Order.
I don't think the Court now has the power to come in and say, well, [I'm] going to modify the Decree that I did before the property division, that I did before, I think statute prevents that. I think about the best the Court would be able to do at this point would be to enter a judgment saying this is how much money one party owes the other . . . I don't think your language in treating this as a petition to Modify and relying on that to make modification of the Decree that is two and half, three years old. I don't think that will stand up on appeal.Tr. p. 110. In November 2010, Wife's motion was granted in part and the court entered a corrected order. The corrected order mirrored the July order except that the language in paragraph 2 was altered to read:
(2) [Husband's] Verified Petition for Contempt and Request for Judgment for Monies Due filed June 30, 2010 is Granted. The total unreimbursed amount of mortgage payments made by [Husband], in the amount of $30,495.20, as of February 28, 2010 is hereby reduced to a Judgment in favor of [Husband] and against [Wife]. [Husband] may continue to reduce his monthly pension payments to [Wife] in the amount of $526.31 per month in order to collect this Judgment until the Judgment is paid in full.Appellant's App. p. 17-18. Sections (a) and (b) from the July order, which referred in part to the issuance of another QDRO, were absent from the corrected order. Wife now appeals.
Discussion and Decision
At the outset, we note that Husband did not file an appellee's brief. Under that circumstance, we do not undertake to develop the appellee's arguments. Branham v. Varble, No. 62S01-1103-SC-141, 2011 WL 3808103, at *2 (Ind. Aug. 30, 2011). Rather, we will reverse upon an appellant's prima facie showing of reversible error. Id.
On appeal, Wife raises multiple issues which we combine and restate as two: (I) whether the trial court erred by improperly modifying the decree of dissolution and (II) whether the trial court erred by refusing to hold Husband in contempt and denying Wife's request for attorney's fees.
I. Modification of the Decree of Dissolution
Wife contends that the trial court erred by modifying the decree of dissolution without finding any evidence of fraud, as required by Indiana Code section 31-15-7-9.1. We agree.
When we review a claim that the trial court improperly divided marital property, we must decide whether the trial court's decision constitutes an abuse of discretion, considering only the evidence most favorable to the court's disposition of the property, without reweighing the evidence or assessing the credibility of witnesses. Webb v. Schleutker, 891 N.E.2d 1144, 1153 (Ind. Ct. App. 2008). An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law or disregarded evidence of factors listed in the controlling statute. Id.
Indiana Code section 31-15-7-9.1 provides that orders concerning property disposition may not be revoked or modified, except in the case of fraud. This policy promotes "the finality of marital property divisions" and discourages "vexatious litigation which often accompanies the dissolution of a marriage." Poppe v. Jabaay, 804 N.E.2d 789, 793 (Ind. Ct. App. 2004), reh'g denied, trans. denied.
According to the decree of dissolution, Wife was entitled to receive one-half of Husband's retirement payment each month, or $1052.62. After the parties lost all equity in the former marital residence, the court was faced with the difficult task of giving effect to Husband's right to reimbursement from Wife. Ultimately, the trial court provided for this reimbursement by ordering the reduction of Wife's share of Husband's monthly retirement payment to one-forth, or $526.31. Given that no allegation of fraud was made, modification of Wife's property rights as set forth in the dissolution decree was error.
We find that the trial court erred by modifying the terms of the property distribution as incorporated into the dissolution decree. We reverse the trial court's order as it pertains to modification of Wife's portion of Husband's monthly retirement payment and instruct the trial court, if necessary, to have a new QDRO entered which reflects our decision.
We recognize Husband's right to reimbursement under the decree of dissolution. The trial court's November 2010 order entered judgment in favor of Husband in the amount of $30,495.20. This amount, and any interest, will necessarily be offset by the value of the portion of the monthly pension payments Wife did not receive—a total of $11,578.82, plus any interest. As a judgment creditor, Husband may attempt to execute this money judgment against Wife through proceedings supplemental.
From the record before us, it appears that from December 2009 to September 2011, Wife did not receive the additional $526.31 to which she was entitled.
--------
II. Contempt and Attorney's Fees
Wife argues that "the trial court abused it[s] discretion when it denied Wife's contempt and Attorney's Fees Petition." Appellant's Br. p. 14. Our review of the record before us reveals that the trial court granted Wife's petition for contempt and attorney's fees. See Appellant's App. p. 17. Specifically, the trial court states, "[Husband] is in contempt of the Court's Decree of Dissolution of Marriage entered on December 20, 2007." Id. In paragraph 3, the court again references Husband's contempt and sets forth a method for his payment of Wife's attorney's fees. Id. at 18. Therefore, there is no error.
Reversed in part and affirmed in part. FRIEDLANDER, J., and DARDEN, J., concur.