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Court tosses use of contempt as way to order debt payment

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The Indiana Court of Appeals says that a southern county’s local rule permitting the use of contempt powers to enforce civil judgment payments violates the Indiana Constitution.

In a unanimous 14-page decision today in Deidre Carter v. Grace Whitney Properties,  No. 82A04-1003-SC-177, the appellate court reversed and remanded a small claims case that had come from Vanderburgh Superior Court.

The appeal involved a small claims complaint that Grace Whitney Properties had filed against Carter back in October 2003 and a post-trial judgment against the woman in the amount of $401.60 plus $44 in court costs and interest. The company later filed proceedings supplemental and in March 2004 the small claims court entered a personal order of garnishment against Carter pursuant to Vanderburgh County Local Rule 1.23(C) and Local Rule 1.05(E).

Those rules detailed how she’d be garnished the lesser of either: 25 percent of the defendant’s maximum disposable earnings, or the amount by which that person’s disposal earnings for the week exceed 30 times the federal minimum hourly wage.

Following that order, Grace Whitney Properties filed a dozen contempt notices against Carter and the small claims court made various orders about how she should make payments on the debt and at one point ordered Carter serve 30 days in jail. She contended that she’d been on disability since early 2004 and had a fixed income, and she requested the garnishment order be rescinded in part because it failed to state a claim upon which relief could be granted. The small claims court denied that request, leaving the garnishment order in place and pushing Carter to appeal.

One of the arguments Carter makes is that Article 1, Section 22 of the Indiana Constitution prohibits the court from using its contempt power to force a payment for a debt because that falls under imprisonment for a debt.

The appellate panel agreed.

“We conclude that (the Vanderburgh local rules), as applied here, violate Article I, Section 22 of the Indiana Constitution because they contemplate the use of contempt to enforce an obligation to pay money even where, as here, the debt does not involve child support or fraud,” Judge Michael Barnes wrote for the court. “Although a ‘personal order of garnishment’ is permitted under Indiana proceedings supplemental statutes, the small claims court erred by continuing the personal order of garnishment where Carter presented evidence that she had no non-exempt assets or income available to pay the judgment and that her circumstances were unlikely to change.”

Also referencing the many “fishing expeditions” initiated by Grace Whitney Properties in this matter, the appellate court noted that future proceedings supplemental against Carter in this case must be supported by a showing that new facts justifying a new order or examination have come to the court’s knowledge.
 

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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