Ex-husband may argue contempt in seeking arrearage

September 21, 2015

An ex-husband who a trial court determined is owed $76,173 from his wife’s teacher retirement benefits was wrongly denied an opportunity to argue the arrearage can be pursued through contempt, the Indiana Court of Appeals ruled Monday.

In James Whittaker v. Wilma Sharlene Whittaker, 02A03-1503-DR-79, the court reversed a trial court order concluding the sum was enforceable by execution but not contempt. “We reverse and remand with instructions to the trial court to address the merits of Husband’s petition for contempt,” Judge L. Mark Bailey wrote for the panel.

The prohibition against imprisonment for debt generally precludes collection or enforcement through contempt, but the court noted this case “involves a failure to perform an obligation set forth in a dissolution decree,” Bailey wrote. Wilma Whittaker had agreed to evenly divide her retirement benefits as maintenance for James Whitaker, but failed to do so after beginning to receive benefits in May 2008. The couple divorced in 2000.

“(T)he computation of delinquency was not an original order for payment of a fixed sum,” the court held. “Nor did it transform an obligation incorporated into a dissolution decree into a fixed money judgment outside the parameters of Indiana Code Section 31-15-7-10,” allowing enforcement by contempt.



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