Thomas D. Bohlsen v. Victoria D. Bohlsen (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                                           Dec 30 2020, 8:12 am
court except for the purpose of establishing
                                                                                        CLERK
the defense of res judicata, collateral                                             Indiana Supreme Court
                                                                                       Court of Appeals
estoppel, or the law of the case.                                                        and Tax Court




ATTORNEY FOR APPELLANT
David W. Stone IV
Anderson, Indiana


                                             IN THE
        COURT OF APPEALS OF INDIANA

Thomas T. Bohlsen,                                      December 30, 2020
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        20A-DC-1395
        v.                                              Appeal from the Hamilton Superior
                                                        Court
Victoria D. Bohlsen,                                    The Honorable David K. Najjar,
Appellee-Petitioner.                                    Judge
                                                        Trial Court Cause No.
                                                        29D01-1709-DC-8533



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020           Page 1 of 8
[1]   Thomas T. Bohlsen (“Husband”) appeals the trial court’s June 29, 2020 order

      finding him in contempt. We affirm in part and reverse in part.


                                      Facts and Procedural History

[2]   On April 15, 2019, the trial court entered a decree of dissolution with respect to

      the marriage of Husband and Victoria D. Bohlsen (“Wife”). The decree divided

      the marital property and included the following provisions:


              31. The marital balance sheet was provided to Court, . . . and
              summarizes the division of marital property for the parties.
              Recognizing the fact that [Husband] dissipated assets not furthering
              the joint enterprise of the marriage by means of squandering personal
              property contained in three different storage containers, by engaging in
              17 different lawsuits involving assets of the marriage and frivolously
              spending untold thousands of dollars of litigation costs, by pleading
              guilty for check fraud, and in borrowing over $1,200,000 from [Wife’s]
              company, . . . a presumption of a 50/50 division of the marital estate
              is not appropriate and equity demands the marital estate will be
              divided on a 57% ([Wife]) 43% ([Husband]) basis.

                                                     *****

              54. The parties own a property held by 1142 Investments, LLC of
              which [Husband] is the registered manager at 1215 Southeastern
              Street, Indianapolis, IN. The parties shall each retain a 50% interest in
              this real estate. At such time the property is sold, the proceeds shall be
              divided equally. This Court shall retain jurisdiction of this property
              and in the event a dispute arises, the Court shall retain jurisdiction to
              appoint a commissioner to oversee sale of the property.


      Appellant’s Appendix Volume II at 37, 42-43. The decree also ordered Husband

      to pay Wife $147 per week in child support.



      Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020   Page 2 of 8
[3]   On April 30, 2020, Wife filed a Verified Motion for Rule to Show Cause

      Regarding Child Support alleging that Husband had not paid any child support

      since October 25, 2019, when he paid her $12,000 to purge himself of contempt.

      She further alleged that Husband had sold the property located at 1215

      Southeastern Street for $359,960 in early April 2020 and owes her $179,980 for

      her share of the proceeds. On June 24, 2020, the court held a hearing.

[4]   On June 29, 2020, the court entered an Order on Contempt which provided in

      part:

              4. [Husband] failed to pay child support as and when it was due,
              accruing a large arrearage. However, [he] has now paid his child
              support arrearage in full. . . .

              5. The real estate at 1215 Southeastern in Indianapolis was sold by
              1142 Investments, LLC [] on or about April 6, 2020. The evidence
              [Husband] produced at the hearing on June 24, 2020 show[s] the
              property was encumbered by a lien held by an entity entitled 1215
              Investments, which received $350,000 from the sale price at closing.
              1215 Investments is an entity in which [Husband] has an interest and
              is one of the managers. [He] testified and produced evidence that
              1215 Investments had a lien on the property for $424,950 which was
              settled as a result of the sale. He further testified the cash received by
              1142 Investments, after the payoff of the loan, taxes, and closing costs
              was only $1,646.42.

              6. The evidence of a loan is in stark contrast to the evidence produced
              at the Final Hearing, and upon which the Court relied in its Decree.
              At that time, the evidence showed the property at 1215 Southeastern
              was worth $400,000. No evidence was submitted regarding any
              mortgages, liens, or encumbrances on the property, or any loans
              secured by the property. Further, no evidence was submitted of the
              existence of 1215 Investments, that [Husband] had any interest in the

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020   Page 3 of 8
        company, or that 1215 Investments had any connection to the
        property at 1215 Southeastern at all.

                                               *****

        9. . . . . Either [Husband] withheld information and documentation
        from [Wife] which would have been relevant at the time of the final
        hearing, but which would have demonstrated an even further
        dissipation of marital assets by [Husband], or [he] has fabricated
        evidence to attempt to defeat [Wife’s] contempt claim and deny her
        the portion of the marital estate granted to her by the Court in its
        Decree. In either case, [Husband], and his proffered evidence, cannot
        be given any credibility by this Court.

        10. The Court finds, pursuant to the Decree, [Wife] is entitled to one-
        half of the proceeds of the sale of the property at 1215 Southeastern.
        The Court finds the proceeds to be the amounts realized from the sale
        less closing costs and tax payments. This sum does not include the
        $350,000.00 set off to 1215 Investments. The total realized for
        purposes of the division of the marital estate, is therefore $351,646.42.
        [Wife’s] share is $175,823.21, which the Court will order paid to her
        within thirty (30) days.

        11. The Court hereby finds [Husband] in contempt of the Court’s
        Decree in that he failed to pay child support as and when it was due,
        and that he failed to pay [Wife] her share of the sale of the 1215
        Southeastern property as ordered.

        12. As a further sanction for his contempt, the Court will order
        [Husband] incarcerated for a period of sixty (60) days. The execution
        of this sentence shall be stayed pending [his] further compliance with
        this Court’s orders. Furthermore, [Husband] shall be ordered to pay
        [Wife’s] attorney fees in this matter, in the amount of $2,100.00. . . .

        13. The amount due and owing to [Wife], in the amount of
        $175,823.21 shall be reduced to judgment in favor of [Wife] and
        against [Husband]. . . .



Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020   Page 4 of 8
      Id. at 23-27.


                                                  Discussion

[5]   Husband maintains the trial court erred in ordering that he be incarcerated for

      contempt unless he made payment. He argues there was no child support

      obligation to be enforced by contempt and the past arrearage provided no proper

      basis for the contempt order. He argues the court improperly sought to use

      contempt to enforce an order for payment of a sum awarded as a property

      division.


[6]   Wife has not filed an appellee’s brief, and we will not develop an argument on

      her behalf and may reverse upon Husband’s prima facie showing of reversible

      error. See Carter v. Grace Whitney Props., 939 N.E.2d 630, 633 (Ind. Ct. App.

      2010), trans. denied. Prima facie error, in this context, means “at first sight, on

      first appearance, or on the face [of] it.” Id. at 633-634. By requiring the appellant

      to show some error on appeal, we ensure that the court decides the law without

      imposing the improper burden of having to act as an advocate for an absent

      appellee. Id.


[7]   In Pettit v. Pettit, the Indiana Supreme Court held that “contempt is always

      available to assist in the enforcement of child support, at least in respect of

      unemancipated children, including orders to pay accrued arrearages and money

      judgments against delinquent parents for past due amounts.” 626 N.E.2d 444,

      447 (Ind. 1993). The Pettit Court stated that its holding was “limited to the use of

      contempt to assist in the enforcement of money judgments for child support.

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020   Page 5 of 8
      Except for this limited situation, grounded in the unique natural relationship of

      parent and child, the general rule that money judgments are not enforceable by

      contempt remains unaffected by our decision today.” Id.


[8]   In Carter, this Court explained:


              Article 1, Section 22 of the Indiana Constitution provides: “The
              privilege of the debtor to enjoy the necessary comforts of life, shall
              be recognized by wholesome laws, exempting a reasonable
              amount of property from seizure or sale, for the payment of any
              debt or liability hereafter contracted: and there shall be no
              imprisonment for debt, except in case of fraud.” Relying on this
              provision, our supreme court has held that, except in the case of
              enforcement of child support orders, money judgments are not
              enforceable by contempt. Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind.
              1993); see also State ex rel. Wilson v. Monroe Superior Court IV, 444
              N.E.2d 1178, 1180 (Ind. 1983) (“The Indiana Constitution, Article
              1, Section 22, prohibits imprisonment for debt. Because she cannot
              be imprisoned for failure to pay the judgment debt, relator may
              not be imprisoned for proposing the judgment remain unsatisfied
              until she obtains attachable assets.”). “[B]ecause parties may
              enforce obligations to pay a fixed sum of money through
              execution as provided in Trial Rule 69, all forms of contempt are
              generally unavailable to enforce an obligation to pay money.”
              Cowart v. White, 711 N.E.2d 523, 531 (Ind. 1999), reh’g granted on
              other grounds, Cowart v. White, 716 N.E.2d 401 (Ind. 1999); see also
              Allee v. State, 462 N.E.2d 1074, 1075 (Ind. Ct. App. 1984)
              (“Indiana law is clear in that money judgments are generally
              enforced by execution. Various other collateral and auxiliary
              remedies are available for the enforcement of money judgments,
              but contempt of court is not one of these.”) (internal citations
              omitted). Even the threat of imprisonment is improper. Button[ v.
              James, 909 N.E.2d 1007, 1009 (Ind. Ct. App. 2009)].



      Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020   Page 6 of 8
       939 N.E.2d at 635. To the extent Husband acknowledges Ind. Code § 31-15-7-

       10,1 we note that the Indiana Supreme Court has held that “[t]his statute is

       certainly subject to the constitutional prohibition on imprisonment for debt.”

       Cowart, 711 N.E.2d at 531.


[9]    Here, while the trial court found Husband in contempt for failing to pay child

       support, the court also found that Husband had paid the child support arrearage

       in full. Thus, a sanction on that basis was improper. As for the 1215

       Southeastern property, the court found that either Husband withheld

       information at the final hearing or fabricated evidence to attempt to defeat

       Wife’s claim. Its order finding Husband in contempt for failing to transfer to

       Wife her share of the proceeds of sale of the property based on this withholding

       or fabrication was not improper. However, the court also reduced Wife’s share

       of the proceeds of the sale to a money judgment. Husband has demonstrated

       prima facie error in the court’s imposition of a sanction of incarceration for his

       failure to pay the money judgment.

[10]   For the foregoing reasons, we affirm in part and reverse in part.




       1
           Ind. Code § 31-15-7-10 provides:
                  Notwithstanding any other law, all orders and awards contained in a dissolution of marriage decree
                  or legal separation decree may be enforced by:
                           (1) contempt;
                           (2) an income withholding order; or
                           (3) any other remedies available for the enforcement of a court order;
                  except as otherwise provided by this article.

       Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020                  Page 7 of 8
[11]   Affirmed in part and reversed in part.


       Vaidik, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-1395 | December 30, 2020   Page 8 of 8