In Re: The Marriage of: Brent R. McIntosh v. Catherine B. McIntosh (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2018, 10:48 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Lisa M. Joachim Jonathan R. Deenik Mann Law, P.C. Deenik Law, LLC Indianapolis, Indiana Greenwood, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Marriage of: February 28, 2018

Brent R. McIntosh, Court of Appeals Case No. 41A04-1710-DR-2410 Appellant-Petitioner, Appeal from the Johnson Superior v. Court The Honorable Marla K. Clark, Catherine B. McIntosh, Judge Trial Court Cause No. Appellee-Respondent. 41D04-1411-DR-684

Najam, Judge.

Statement of the Case [1] Brent R. McIntosh (“Husband”) appeals the trial court’s order to show cause.

Husband raises two issues for our review, which we restate as the following

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issue: whether the trial court abused its discretion when it found him in

contempt. [2] We affirm.

Facts and Procedural History [3] Husband and Catherine McIntosh (“Wife”) were married on June 18, 1977.

On November 5, 2014, Husband filed a petition for dissolution of the marriage.

During the course of the dissolution proceedings, Husband, who had previously

been employed as a physician by American Health Network (“AHN”),

discovered that AHN had overpaid him and that he owed AHN $299,632. The

parties entered into a Final Settlement Agreement, which the trial court

incorporated into its Decree of Dissolution issued on March 15, 2016. The

Final Settlement Agreement provided, in relevant part, as follows:

Husband shall be solely responsible for the American Health Network Debt which at the date of filing was Two Hundred and Ninety-Nine Thousand Six Hundred and Thirty-Two Dollars ($299,632.00). Husband may pay that debt either directly or indirectly by reducing his salary[ or] reducing potential benefits and contributions. If Husband has not paid, or entered into a payment arrangement with AHN to repay[,] the debt within one (1) year of this Order, or if the debt is forgiven before commencement of any payments, then Husband shall pay to [W]ife the sum of Five Thousand Dollars ($5[,]000.00) a month for a period of five (5) years. The payments shall be in the form of maintenance to Wife and shall terminate upon Wife’s death.

On an annual basis, Husband shall notify Wife of his attempts (and provide documentary proof of the same), the amount he

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was required to pay, if any, and the reduction of the debt. Should Husband make no attempts to reduce the debt for a period of more than 1 (one) year, then Husband shall have to pay Wife the balance of what is owed under the maintenance provision as detailed above. In the event Husband is only required to pay a portion of the debt, or a portion is forgiven, he shall make the maintenance payments in an equal ratio to the amount that has been forgiven as detailed above.

Appellant’s App. Vol. II at 20. [4] On May 31, 2017, Wife moved the court for a rule to show cause on the

grounds that Husband had not repaid the debt or entered into a payment

arrangement with AHN and, thus, that Husband was required to make monthly

payments of $5,000 to Wife pursuant to the Final Settlement Agreement, which

Husband had not done. Further, Wife alleged that Husband had failed to

provide Wife with any documentary proof of his attempts to pay the debt or the

amount he was required to pay. [5] The trial court held a hearing on the motion on August 3, 2017. Neither Wife

nor Husband testified at the hearing. Instead, their attorneys made their

arguments to the trial court. Wife’s attorney asserted that Husband had not

entered into a repayment agreement with AHN, he had not repaid the debt, and

he had not provided any documentary proof to Wife that he had taken steps to

pay off the debt. Wife’s attorney further stated that Husband was required to

begin paying Wife the maintenance payments as of March 2017.

Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018 Page 3 of 11 [6] Husband’s attorney contended that Husband had taken the following steps in

an attempt to pay down the debt: he had reduced his salary for three months

before he had left AHN; he had left behind his long-term equity plan when he

had terminated his employment with AHN, the balance of which was

$38,827.33; and he had left AHN his deferred compensation plan, the balance

of which was $25,587.57. Husband’s attorney also asserted that Husband had

requested documentation numerous times from AHN on the amount he had

repaid, but he had been unable to obtain that documentation because AHN had

been bought out. [7] To support his position, Husband’s attorney moved to admit an undated letter

from AHN’s Chief Financial Officer as evidence, which the trial court

admitted. That letter provided that Husband’s “balance in the Long Term

Equity Plan is $38,827.33. This balance will be paid out in equal installments

over a period of 5 years upon retirement from AHN.” Ex. at 5. It further

provided that Husband “had participat[ed] in the Deferred Compensation Plan

in 2003 and 2004. Your balance in this plan as of February 28, 2015[,] is

$25,587.57. This balance will be paid out in equal installments over 3 years.”

Id. Finally, the letter provided that “Your Due from physician balance as of

Jan[uary] 31, 2015[,] is $299,632. This is a cumulative balance representing

earned physician compensation being lower than paid compensation and is

owed back to AHN.” Id. [8] The trial court issued its order to show cause on August 8. In its order, the trial

court found that “[t]here is no dispute that the debt has not been repaid and that

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payment arrangements have not been made.” Appellant’s App. Vol. II at 43.

Further, the trial court found that the “maintenance provision of the Settlement

Agreement is not contingent on why the debt was not repaid. Rather, it states

only that the maintenance requirement is triggered if the AHN debt was not

repaid or payment arrangements entered within one year, by March 15, 2017.”

Id. (emphasis in original). The trial court also found that

[e]ven if Husband’s intent is to satisfy a portion of the debt by applying earned benefits, there is no evidence that AHN has accepted this as a payment arrangement. The letter he entered into evidence shows that the amount of the AHN debt has remain[ed] unchanged since the Settlement Agreement was entered.

Id. Based on the Settlement Agreement’s language, the trial court found that

Husband was in contempt and ordered him to begin paying the maintenance

payments to Wife, to pay the missed payments to Wife by December 31, 2017,

and to pay Wife’s attorney’s fees. [9] On August 17, 2017, Husband filed a motion to correct error in which he

alleged that the trial court had erred when it found that the maintenance

provision had been triggered because he had made payments on the debt and

because AHN had kept the balance of his long-term equity plan and his

deferred compensation plan. He also contended that the trial court erred when

it found him in contempt because he did not “willfully refuse[] to comply” with

the order and because property settlement agreements may not be enforced by

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contempt citations. Id. at 46. The trial court denied Husband’s motion to

correct error on September 18. This appeal ensued.

Discussion and Decision [10] Husband contends that the trial court abused its discretion when it found him in

contempt because the settlement agreement may not be enforced by contempt.

He also contends that the trial court abused its discretion when it found him

contempt because that finding was not supported by the evidence. We address

each argument in turn.

Trial Court’s Contempt Powers [11] Husband first asserts that the trial court abused its discretion when it found him

in contempt because the settlement agreement may not be enforced by

contempt. Specifically, Husband contends that the clause in the settlement

agreement that requires Husband to pay Wife $5,000 per month is a property

settlement agreement and “[p]roperty settlement agreements incorporated into a

final decree of dissolution may not be enforced by contempt citation.”

Appellant’s Br. at 9. Wife, however, asserts that the clause that provides for

Husband to pay her is not a property settlement but, rather, is a maintenance

payment, which can be enforced by contempt.1

1 We note that the maintenance statute, Indiana Code Section 31-15-7-2, is not at issue here because the settlement agreement, and its apparent provision for maintenance, was created by the agreement of the parties. While a trial court only has three, limited options in ordering maintenance “[t]he parties may

Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018 Page 6 of 11 [12] We consider various factors to determine whether the clause is one for

maintenance or one for property settlement. Deel v. Deel, 909 N.E.2d 1028,

1034 (Ind. Ct. App. 2009). The factors that indicate a payment was

maintenance are: “(1) the designation as maintenance;[2] (2) provision

terminating the payments upon death of either party; (3) payments made from

future income; (4) provisions for termination upon remarriage; (5) provisions

calling for the modification based upon future events; (6) and payments for an

indefinite period of time.” Id. On the other hand, the factors that indicate a

provision was actually intended to be marital property are:

(1) the payments are for a sum certain payable over a definite period of time; (2) there are no provisions for modification based on future events; (3) the obligation to make payments survives the death of the parties; (4) the provisions call for interest; and (5) the award does not exceed the value of the marital assets at the time of dissolution.

Id. [13] We conclude that the provision at issue here was a maintenance provision.

First, the agreement itself designated that the “payments shall be in the form of

maintenance to Wife[.]” Appellant’s App. Vol. II at 20. Second, the provision

themselves provide for maintenance in settlement agreements where the court could not otherwise order it.” Voigt v. Voigt, 670 N.E.2d 1271, 1277 (Ind. 1996). 2 Because the designation by the parties of a particular provision as “maintenance” is not dispositive to the question of whether that provision is, as a matter of law, maintenance, the parties’ are not estopped on appeal by their designations below.

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specifies that Wife’s entitlement to the sums “shall terminate upon Wife’s

death.” Id. Third, it appears that payments to Wife would be made from

Husband’s future income. Fourth, there is no provision that calls for interest to

be paid. Finally, there is a provision that calls for modification based on future

events. In their Final Settlement Agreement, the parties agreed that Husband

would pay Wife $5,000 per month for five years if Husband did not pay the

AHN debt or enter into an arrangement to pay that debt. The settlement

agreement further provided that,

Should Husband make no attempts to reduce the debt for a period of more than (1) year, then Husband shall have to pay Wife the balance of what is owed under the maintenance provision as detailed above. In the event Husband is only required to pay a portion of the debt, or a portion is forgiven, he shall make the maintenance payments in an equal ratio to the amount that has been forgiven as detailed above.

Id. That language demonstrates that the provision allows for modification of

the amount Husband is required to pay Wife based on any number of events

that may occur in the future. [14] While the provision does require Husband to pay a specific sum total to Wife

over a definite period of time, which is a factor that weighs in favor of the

clause describing a property distribution, that one factor alone does not

overcome the numerous factors that demonstrate that the clause was intended

by the parties to be a maintenance provision. As such, we hold that the

provision of the Final Settlement Agreement at issue is a maintenance

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provision, and “an order to pay maintenance is enforceable by contempt.” 3

Thompson v. Thompson, 458 N.E.2d 298, 300 (Ind. Ct. App. 1984). As such, the

trial court was within its discretion when it exercised its contempt authority.

Finding of Contempt [15] Husband next contends that the trial court abused its discretion when it found

him in contempt because the trial court’s finding of contempt was not supported

by the evidence. The Indiana Supreme Court has recently outlined our

standard of review.

“It is soundly within the discretion of the trial court to determine whether a party is in contempt, and we review the judgment under an abuse of discretion standard.” Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012) (citation omitted). “We will reverse a trial court’s finding of contempt only if there is no evidence or inference therefrom to support the finding.” Id. The trial court has the inherent power to “maintain[ ] its dignity, secur[e] obedience to its process and rules, rebuk[e] interference with the conduct of business, and punish[ ] unseemly behavior.” Id.

Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). And, “[a]s with other

sufficiency matters, we will neither reweigh the evidence nor judge witness

credibility.” Deel, 909 N.E.2d at 1032.

3 Husband makes no contention that maintenance provisions cannot be enforced through contempt proceedings. Husband’s contention that the trial court erred when it found him in contempt relies entirely on his assertion that the agreement that he pay Wife is a property settlement agreement and that property settlement agreements cannot be enforced through contempt proceedings.

Court of Appeals of Indiana | Memorandum Decision 41A04-1710-DR-2410 | February 28, 2018 Page 9 of 11 [16] Husband contends that the trial court abused its discretion when it found him in

contempt because there was no evidence to support that finding. Specifically,

Husband asserts that “[t]he evidence presented to the trial court was that

[Husband] had been repaying the debt and had made arrangements with AHN”

to repay the debt. Appellant’s Br. at 8. As such, Husband contends that

“[t]here is a lack of evidence” to show that Husband had disobeyed the trial

court’s order. Id. at 9. [17] During the hearing, Husband’s attorney stated that, before he left AHN,

Husband “reduced his salary. They kept collections of at least three (3) months

of surgeries which he performed and didn’t collect any money from.” Tr. Vol.

II at 7. Further, he left AHN with “his Long-Term Equity Plan which is

approximately thirty-eight thousand, eight hundred and twenty-seven dollars

and thirty-three cents ($38,827.33)” and “his Deferred Compensation Plan of

twenty-five thousand, five hundred eighty-seven dollars and fifty-seven cents

($25,587.57)” in order to repay some of the debt. Id. at 7-8. [18] However, the only evidence Husband presented at the hearing was the undated

letter from AHN’s Chief Financial Officer, which simply provided the balances

of Husband’s long-term equity plan and Deferred Compensation Plan and the

balance of Husband’s debt, which, as the trial court found, showed that the

amount due on the debt was the same amount due as stated in the Final

Settlement Agreement. Husband presented no evidence that he had actually

paid any of the debt or entered into an agreement with AHN to pay back the

debt. Further, Husband presented no evidence that he had attempted to obtain

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documentation from AHN that would indicate that he had actually paid down

some of the debt. Because Husband failed to present any evidence to the trial

court that he had actually paid any of the debt, that he had entered into a

payment arrangement with AHN, or that he had provided documentary proof

to Wife of his attempts to pay or the amount he was required to pay, the trial

court did not abuse its discretion when it found him in contempt. [19] In conclusion, the clause of the settlement agreement that required Husband to

pay Wife was a maintenance provision and was enforceable through contempt.

And the trial court did not abuse its discretion when it found Husband in

contempt. Accordingly, we affirm the trial court’s order on rule to show cause. [20] Affirmed.

Mathias, J., and Barnes, J., concur.

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