Lysa Wefler v. Mark Wefler ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
Aug 26 2013, 5:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
THOMAS F. GODFREY LYNN HAMMOND
Gordon A. Etzler & Associates, LLP Valparaiso, Indiana
Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LYSA WEFLER, )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1206-DR-268
)
MARK WEFLER, )
)
Appellee-Petitioner. )
APPEAL FROM THE LAKE CIRCUIT COURT
The Honorable George C. Paras, Judge
The Honorable Michael A. Sarafin, Magistrate
Cause No. 45C01-0708-DR-663
August 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Lysa Wefler (“Lysa”) appeals the trial court’s finding of contempt for violating the
settlement agreement in the dissolution of her marriage to Mark Wefler (“Mark”).
We affirm.
ISSUES
1. Whether the trial court can award a monetary judgment in a contempt
proceeding.
2. Whether there was sufficient evidence to support the trial court’s contempt
order.
FACTS
Lysa and Mark were married on June 18, 1996. Lysa and Mark separated in 2007,
and Lysa filed for divorce. On March 10, 2008, Lysa and Mark entered into a settlement
agreement, which provided in relevant part that:
11. Real Estate. The parties agree that Wife shall be awarded all right,
title, and interest in and to the marital home located at 1637 Vine Court in
Hobart, Lake County, Indiana. Wife shall be exclusively responsible for
the payment of all costs associated with said home including, but not
limited to, mortgage, home loans, maintenance and upkeep, insurance,
taxes, etc. If Wife is more than forty-five (45) days late on the mortgage
payment, the parties agree the house shall be immediately placed on the
market for sale.
The parties further agree that Wife shall have four (4) years from the
entry of this Order in which to refinance the property and remove
Husband’s name from the mortgage. The parties also agree that Husband
shall equally share with the garage [sic] door replacement expenses;
however, his share shall not exceed Two Hundred Fifty ($250.00) Dollars.
(Lysa’s App. 4-5). The trial court accepted the settlement agreement and entered an
order dissolving the marriage on April 11, 2008.
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On April 20, 2011, Mark filed a petition to hold Lysa in contempt for not
complying with the settlement agreement. In the relevant parts of his petition, Mark
alleged that Lysa did not make full monthly mortgage payments, thereby increasing the
amount owed to the mortgage company. On February 8, 2012, the trial court entered an
order finding Lysa in contempt and entering a judgment in favor of Mark for $8,571.87.
Lysa filed a motion to correct error, essentially alleging that Mark suffered no damages
that would require a monetary judgment and that the trial court erred in releasing an
escrow check to Mark. The trial court denied the motion.
DECISION
Lysa argues that the trial court could not enforce a monetary judgment in the
contempt proceedings and that the evidence was insufficient to support a finding of
contempt and an award of damages. We address these issues separately.
1. Monetary Judgment in Contempt Proceeding
Lysa argues that the trial court improperly enforced a monetary judgment through
contempt proceedings. She relies on our decisions in Coleman v. Coleman, 539 N.E.2d
34 (Ind. Ct. App. 1989) and Dawson v. Dawson, 800 N.E.2d 1000 (Ind. Ct. App. 2003).
In those cases, we held that monetary judgments were enforceable through execution
instead of contempt proceedings. Coleman, 539 N.E.2d at 34; Dawson, 800 N.E.2d at
1003. Here, the trial court did not attempt to enforce a judgment in the contempt
proceedings. Rather, the trial court found Lysa in contempt and awarded damages in the
form of a judgment to compensate Mark for his alleged loss. “Once a party has been
found in contempt, monetary damages may be awarded to compensate the other party for
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injuries incurred as a result of the contempt.” Cowart v. White, 711 N.E.2d 523, 531
(Ind. 1999). Thus, the trial court could issue a monetary judgment in this circumstance.
2. Sufficiency of Evidence for Contempt Finding and Monetary Judgment
Lysa further argues that, even if the trial court could issue a monetary judgment as
part of a contempt order, there was insufficient evidence to support the trial court’s
decision.
“Contempt is for the benefit of the party who has been injured or damaged by the
failure of another to conform to a court order issued for the private benefit of the
aggrieved party.” Id. at 530. Whether a party is in contempt is left to the discretion of
the trial court. Mitchell v. Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007). An abuse
of discretion occurs when the trial court’s decision is against the logic and effect of the
facts and circumstances before the court. Id. “As with other sufficiency matters, when
reviewing a trial court’s determination on contempt matters, we will neither reweigh
evidence nor judge witness credibility.” Id. “We will affirm unless, after a review of the
entire record, we have a firm and definite belief that a mistake has been made.” Id. Our
Indiana Supreme Court has stated that “[w]hen the sufficiency of the evidence is
challenged, the burden is upon the defendant to convince the reviewing court that the
evidence is insufficient.” Cato v. State, 396 N.E.2d 119, 121 (Ind. 1979); It is not
appropriate for a reviewing court to reach a conclusion or make assumptions about
evidence heard by a fact-finder that were not included in the record on appeal. Id. This
position is not limited to criminal cases. In Sears, Roebuck & Co. (Auto Dept.) v. Roque,
414 N.E.2d 317, 322 (Ind. Ct. App. 1980), this Court stated that “[w]e agree that the
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sufficiency of the evidence cannot be examined on appeal without presenting all of the
evidence that may have been taken into consideration by the trial court.”
Here, the only substantive evidence for our consideration is the transcript from the
motion to correct error hearing. The trial court makes mention of evidence that it
considered in finding Lysa in contempt; none of that evidence was provided in the record
on appeal. Pursuant to Indiana Appellate Rule 9(F)(5), a Notice of Appeal shall
designate “all portions of the Transcript necessary to present fairly and decide the issues
on appeal.” App. R. 9(F)(5) further states that, “[i]f the appellant intends to urge on
appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is
contrary to the evidence, the Notice of Appeal shall request a Transcript of all the
evidence.” “‘Although not fatal to the appeal, failure to include a transcript works as a
waiver of any specifications of error which depend upon evidence.’” In re Walker, 665
N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Grp., 605 N.E.2d 150, 160
(Ind. 1992)). Accordingly, Lysa’s argument as to the sufficiency of the evidence to
support the trial court’s contempt finding and award of damages is waived.
Affirmed.
VAIDIK, J., and KIRSCH, J., concur.
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