Branham v. Varble

CRONE, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court exceeded its authority in ordering Quincey to submit five job applications per week. Therefore, I fully concur in that portion of the majority's opinion.

I respectfully disagree, however, with the majority's determination that the trial court committed no error in ordering the Branhams to pay $50 a month toward the judgment and in requiring repeated court appearances. - Regarding the former, it is well settled that "[tlhe creditor has the burden of showing that the debtor has property or income that is subject to execution." Kirk, 585 N.E.2d at 1369 (emphasis added). Stated differently, a creditor has the burden of showing that the debtor has property or income that is not subject to applicable exemptions.5 The meager evidence before us strongly suggests that, notwithstanding Quiney's acquisition of the $2500 truck,6 the Branbhams' property and *347income would fall within the exemptions provided by law. See Ind.Code § 34-55-10-2(c) (exempting, among other things, "Irleal estate or personal property constituting the personal or family residence of the debtor ... of not more than fifteen thousand dollars ($15,000)";7 "[olther real estate or tangible personal property of eight thousand dollars ($8,000)"; and "(intangible personal property, including chos-es in action, deposit accounts, and cash (but excluding debts owing and income owing) of three hundred dollars ($300)"); Ind.Code § 24-4.5-5-105(2) (providing in pertinent part that "the maximum part of the aggregate disposable earnings [8] of an individual for any workweek which is subjected to garnishment to enforce the payment of one (1) or more judgments against him may not exceed: (a) twenty-five percent (25%) of his disposable earnings for that week; or (b) the amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage ... in effect at the time the earnings are payable [currently $7.25]; whichever is less."); Esteb v. Enright by State, 563 N.E.2d 139, 141 (Ind.Ct.App.1990) ("[Supplemental Security Income] benefits are exempt from any legal process brought by any creditor.") (citing 42 U.S.C. § 1383(d)(1)). I believe that it was appellees' burden to demonstrate otherwise and that they failed to carry this burden. The majority states, "Implicit in the court's order is that the court did not find Quincy's and Shannon's testimonies regarding their incomes and expenses to be completely credible." Op. at 344. Even assuming that appellees' counsel demonstrated that the Branhams were less than candid, this falls far short of showing that the Branhams in fact had property or income that is subject to execution.

Regarding the trial court's requirement of repeated court appearances, it is important to remember that "proceedings supplemental are a creditor's remedy and not the court's." Kirk, 585 N.E.2d at 1369. "A second order or examination of the debtor requires a showing by the creditor that new facts justifying a new order or examination have come to the knowledge of the creditor." Id. Or, put another way,

"If several examinations within a short time of one another have recently taken place, then facts should be shown from which it may be inferred that the judgment ereditor will obtain useful information, and the examination is not being used as a club to enforce settlement of claims which the debtor is without property to pay."

Id. (quoting 33 C.J.S. Executions § 365(8)(g) (1942)). I do not believe that appellees made such a showing here, and I do not believe that Small Claims Rule 11(C) may be used to justify the multiple status hearings scheduled by the trial court in this case.9 As a practical matter, it is difficult to see how the trial court's order could lawfully be enforced, given that the Branhams may not be imprisoned for failing to pay the judgment and do not have identified property or income that is subject to execution.

In sum, I would reverse the trial court's order in its entirety and remand with instructions to stay further proceedings sup*348plemental until such time as the appellees can show "new facts justifying a new order or examination."

. The majority states, "'The Branhams appropriately observe ... that the judgment debtor must assert an exemption at the appropriate time during the proceedings supplemental." Op. at 344 (citing, inter alia, Mims, 261 Ind. 591, 307 N.E.2d 867). On the contrary, the Branhams assert that "when a debtor is unrepresented the court must take steps to protect the debtor's rights under the Indiana Constitution" and "determine which exemptions result in the least burdensome order for the Appellants' Br. at 5 (emphasis added).

. Quincy testified that he was purchasing the truck so that he "could make it back and forth to make money." Tr. at 11.

. Quincy testified that Shannon pays their rent, which indicates that the Branhams do not own their residence. Tr. at 6.

8. "Disposable earnings" is defined as "that part of the earnings of an individual, including wages, commissions, income, rents, or profits remaining after the deduction from those earnings of amounts required by law to be withheld[.]" Ind.Code § 24-4.5-5-105(1).

. At the conclusion of the March 30 hearing, the trial court set another status hearing for June 15, 2009.