Court of Appeals of Indiana | Memorandum Decision 29A02

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), 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.

A TTORNEY S FOR A PPELLANT Eric J. Benner Laurie D. Johnson Boje, Benner, Becker, Markovich & Hixson, LLP Noblesville, Indiana A TTORNEY FOR A PPELLEE Rodney T. Sarkovics Sarkovics Law Carmel, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Mark A. Laesch , Appellant

- Respondent

,

v. 

### Kathryn B. Laesch , Appellee

- Petitioner

. A ugust 24, 2016 Court of Appeals Ca se No. 29A02

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Pyle , Judge
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### Statement of the Case

[1] Mark A. Laesch (“Husband”) appeals the trial court’s order , which: (1) required him to pay interest on the unpaid balance of a settlement judgment he owed to his former wife, Kathryn B. Laesch (“Wife”), pursuant to their dis solution decree; (2) found him in contempt of court for f ailing to obtain life insurance as the trial court had ordered him to do in the dissolution decree; and (3) required him to p ay Wife’s attorney fees as a sanction for his contempt of

court

.

[2] On appeal, Husband challenges the trial court’s conclusion that he should pay interest on the balance of Wife’ s judgment , arguing that: (1) the dissolution decree pr ovided that interest wo uld ac crue only if he did not pay his monthly installment payments in a timely manner ; and (2) the equitable doctrine of laches should bar Wife from recovering interest. Husband also challenges the trial court’s contempt finding and sanction , arguing that : (1) the trial court violated his right to due process by failing to inform him of the factual ba sis for the contempt allegation prior to the contempt hearing; (2) there was no evidence that he willfully disobeyed the dissolution decree; and (3) the tria l court did not offer him the opportunity to purge his contempt before sanctioning him.

[3] With respect to Husband interest arguments, we conclude that the dissolution decree provided that interest would accrue on the balance of Wife’s judgment and that Husband waived his laches claim by failing to raise it as an affirmative defense. As for Husband’s contempt and sanction arguments, we conclude thatCourt of Appeals of Indiana | Memorandum Decision 29A02

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the trial court did not violate his right to due process, there was evidence that he willfully disobeyed t he dissolution decree, and the trial court was not required to offer him the opportunity to purge his contempt. Accordingly, we conclude that the trial court did not abuse its discretion, and we affirm its decision.

[4] We affirm.


### Issues

1. Whether the tria l co urt erred when it determined that Husband w as required to pay Wife interest on the balance of the judgment he owed her under their dissolution decree.
2. Whether the trial court abused its discretion when it found Husband in contempt of court for failing to obtain life insurance as previously ordered.
3. Whether the trial court abused its discretion when it ordered Husband to pay Wife’s attorney fees as a sanction for his contempt of court. 

### Facts

[5] Husband and Wife married on June 17, 1978 , and they dissolved their marriage on October 7, 2013. In their dissolution decree, the trial court ordered , in relevant part, that:

8. Wife shall have a judgment against the Husband in the amount of $272,020.78, which shall be paid to Wife either in a lump sum or in eighty

- four (84) monthly installments at the rate of $3,238.38 per month beginning sixty (60) days from the date of the Decree and monthly thereafter until such judgment is fully satisfied. Wife is entitled to legal interest ra te on any unpaid balance of this judgment; this judgment shall be in the nature of domestic support and shall not be dischargeable in bankruptcy.Court of Appeals of Indiana | Memorandum Decision 29A02

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Husband is ordered to obtain a life insurance policy in the full amount of this judgment naming the Wife as t he irrevocable beneficiary; Husband shall be entitled to reduce the face value of the life insurance annually concurrent with the reduction in his obligation to Wife. (App. 36

- 37). Subsequently, Husband timely paid Wife the monthly installments authorized by the decree but failed to obtain life insurance naming Wife as an irrev ocable beneficiary

.

[6] On September 11, 2015, Wife filed a motion requesting that the trial court clarify the dissolution decree’s provision that she was entitled to the “legal intere st rate on any unpaid balance of [the] judgment.” (App. 44). She argued that the court should interpret this provision as requiring Husband to pay interest on the unpaid balance of the entire settlement judgment because, otherwise, he would have no incen tive to pay the judgment in a lump sum and would essentially “receive[] an interest

- free loan.” (App. 44). Husband responded and argued that interest should only accrue if he did not make a monthly installment payment in a timely manner.

[7] In addition to her motion for clarification, Wife filed a verified motion for rule to show cause on September 11, 2015. In this motion, she asked for the trial court to hold a hearing and find Husband in contempt of court for fai ling to obtain life insurance

. S he al so requested , as a sanction for the contempt, that the trial court all ow her to recover the attorney fees she had accrued filing b oth her motion for clarification and her motion for rule to s how cause

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[8] On October 26, 2015, the t rial court held a hearing on both of Wife’s motions. At the hearing, Husband testified regarding his attempts to obtain life insurance. He revealed that, prior to the dissolution, he had experienced three blood clots

— a “very bad one” in 2009, a “not quite as bad one” in 2011 or 201 2, and a “pretty significant one” in late July or early August 2013. (Tr. 76, 77). After his first two clots, he had been required to take medic ation for about nine months. A fter the third clot, he had been diagnosed with “DVT.” 1 (Tr. 77). Husband tes tified that at that point, he had ta lked to a “third party ” and discovered that his clots could prevent him from obtaining life insurance. (Tr. 79). He discussed the issue with his financial advisor, Dan Bru nett e (“ Bru nett e ”) , in March 2014, and Brunette agreed. He advised Husband that h e would not have a chance of obtaining life insurance within a year of his DVT diagnosis and that it would likely be “two years before anybody would really look at [his application] seriously.” (Tr. 81). Accordingly, Br unette recommended that Husband wait to apply for insurance until he was “cleared.” 2 (Tr. 81).

[9] Thereafter, Husband testified , he waited for a year until Brunette told him , in June or July of 2015, that enough time had passed that he might have a chance

1 Husband did not clarify the meaning of the acronym “DVT” at the hearing, but he explained in his Appellant’s Brief that “DVT ” stands for “d eep vein t hrombosis.” (Husband’s Br. 18) (capitalization removed)

. 2 One of Brunette ’s employees explained at the hearing th at any time a n insurance company denies a person ’s i nsur ance application , that denial is filed with the medic al information bureau, and that record might cause t rouble to the person obtaining af fordable insurance at a later time

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of obtaining insurance. At that time, Husband applied to John Hancock Life
Insurance for a life insurance policy with a face value of $500,000 . In response to his application, h e r eceived a “rating” of 250% , which meant that if he were to obtain his requ ested policy, he would have to pay a raised premium of $23,000 per year. Husband testified that because this quote was so high, he had submitted another application to Prudential Insurance

. As of the hearing, this second application was still pending.

[10] Br unette’s employee also testified at the hearing regarding Husband’s attempts to obtain life insurance . She said that throughout the application process, Husband had “called on many occasions wa nting to know the progress of [the application] ;” had schedule d his exam “right away;” had c ompleted the application “right away;” and had “gotten anything back to [her] that [she had] needed.” (Tr. 44).

[11] Although Husband admitted at the hearing that he had failed to obtain life insurance as ordered, he testified that h e had tried to secure Wife’s judgment through other means. Specifically, he said that he had kep t Wife as the beneficiary of a life insurance policy worth approximately $41,000 that he had obtained prior to the dissolution. He also testified that h e had named Wife asCourt of Appeals of Indiana | Memorandum Decision 29A02

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the beneficiary of his net estate in his will . He claimed that the amount in his

net estate was “absolutely” m ore than the amount he owed Wife

. 3 (Tr. 83).

[12] However, a t the conclusion of the hearing, the trial court found Husband in contempt of court for failing to obtain life insurance that complied with its decree. The court ordered Husband to obta in an insurance policy within forty

five days and to provide proof of the policy to Wife. The court then took the issue of sanctions for the contempt and interest on Wife’s judgment under advisement.

[13] A little over a month later , on December 9, 2015, the trial court issued an order

on the remaining issues Wife had raised i n her motion to clarify and motion for rule to show cause. It found that the monthly payments Husband owed Wife under the dissolution decree were “for a property settlement money judgment” rather than support and that , accordingly, Husband owed 8% interes t on the unpaid balance of the judgment regardless of whether his monthly payments were timely . (App. 18). Based on this finding , the trial court concluded that Husband owed Wife $34,434.38 for the interest that had accrued and was past

due by the time o f the hearing

. It also ordered Husband to pay $4,500 of Wife’s attorney fees , which totaled $5,790, as a sanction for his c ontempt. Husband now appeals.

3 Husband’s life insurance application submitted to John Hancock , which was admitted as Respondent’s Exhibit B, reflected that hi s net worth was greater than the amount that he owed Wife

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### Decision

[14] On appeal, Husband challenges the trial court’s conclusion that he was required

to pay inter est on the unpaid balance of Wife’s settlement judgment . In addition, he argues that the trial court abused its discretion when it found that he was in contempt of court for failing to obtain life insurance and when it ordered him to pay Wife’s attorney f ees as a sanction for that contempt of

court . We will address each of these issues in turn.

1. Interest
[15] First, Husband asserts that the trial court erred when it concluded that he was required to pay interest on the unpaid balance of Wife’s settlement judgment.
He argues that the dissolution decree provid ed that he mu st pay interest only in the even t that h e makes an untimely or incomplete monthly installment payment. Alternatively, he contends that Wife should be barred from receiving interest on the judgment balance under the equitable doctrine of laches because she waited two years after the trial court issued the dissolution decree to petition the trial court to clarify its terms regarding interest.

[16] Preliminarily, we must note that when a party asks a court to clarify a settlement agreement, the court’s task is one of contract interpretation. Ryan v. Ryan , 972 N.E.2d 359, 363 (Ind. 2012). Unless the terms of the agreement are ambiguous, we will give them their plain and ordinary meaning and deem them conclusive. Id . at 364. Terms are not ambiguous just because the partiesCourt of Appeals of Indiana | Memorandum Decision 29A02

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disagree as to their interp retation. Shorter v. Shorter , 851 N.E.2d 378, 383 (Ind. Ct. App. 2006)). On appeal, our standard of review is de novo. Id

.

[17] In support of his argument that interest should accrue under the decree only if he makes an incomplete or untimely monthly instal lment payment, Husband

c ites to Van Riper v. Keim , 437 N.E.2d 130, 132 (Ind. Ct. App. 1982) . There, we held that “a lump sum division of property, payable in installments, does not bear interest on the unpaid balance, unless, and until, an installment is delinquent or unless the decree specifically orders that the sum bears interest .” Id. ( emphasis added ). However, w e do not find Van Riper on point because the decree here fits within Van Riper ’s exception as it does order that the sum of Wife’s judgment bears interest . Specifically, the dissolution decree provided that: “Wife is entitled to legal interest rate on any unpaid balance of this judgment .” (App. 36) (emphasis added). On its face, the plain language of the provision explicitly established th at: (1) Wife is entitled to le gal interest rate; and (2) this interest rate applies to the balance of the judgment . The provision omits any reference to Husband’s monthly payments. Accordingly, we conclude that the trial court did not err when it ruled that interest accrued on the unpaid balance of Wife’s judgment rather than Husband’s monthly payments

.

[18] Nevertheless, Husband argues that Wife should be barred from receiving interest on the balance of the judgment under the equitable doctrine of laches.
H e contends that it is not equitable to make him pay interest because if he had known earlier that the balance of the judgment would accrue interest, he couldCourt of Appeals of Indiana | Memorandum Decision 29A02

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have paid the judgment in a lump sum or re

- financed the balance to obtain a lower interest rate.

[19] We need not address this argument because lach es is an affirmative defense that Husband did not assert at the trial level

. Huff v. Huff , 892 N.E.2d 1241, 1249 (Ind. Ct. App. 2008). Under Indiana Trial Rule 8(C), a party seeking the benefit of an affirma tive defense must raise and specifically plead that defense or it is waived. Willis v. Westerfield , 839 N.E.2d 1179, 1185 (Ind. 2006). Husband did not raise laches in his response to Wife’s motion to clarify or at the hearing on the motion. Accordingly, we conclude that he has waived his argument for appeal , and we will not address it

. See Reel Pipe & Valve Co., Inc. v. Consolidated City of Indianapolis

- Marion Cnty. , 633 N.E.2d 274, 280 (Ind. Ct. App. 1994) (waiving a laches argument for failure to rais e it as an affirmative defense), trans. denied , cert. denied.
2. Contempt
[20] Next, Husband argues that the trial court abused its discretion when it found him in contempt of court for failing to obtain court

- ordered life insurance. H e asserts that the trial court violated his right to due process by failing to notify him of the facts underlying his alleged contempt prior to the contempt hearing

. Alternatively, he contends that there was no evidence that his disobedience of the trial court’s order was “willful,” as is required for a finding of contempt.

[21] The determination of whether a party is in contempt of court is a matter within the sound discretion of the trial court. Williams v. State ex. rel. Harris , 690Court of Appeals of Indiana | Memorandum Decision 29A02

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N.E.2d 315, 316 (Ind. Ct. App. 1997). We will reverse the trial court’s dete rmination only if the court has abused its discretion. Id. A trial court has abused its discretion when its decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Id.

[22] There are two types of contempt: direct and indirect contempt

. In re Adoption of
A.A. , 51 N.E.3d 380, 385 (Ind. Ct. App. 2016), reh ’ g denied. Indirect contempt , such as the trial court found here, is defined as “ w illful disob edience of any lawfully

- entered court order of which the offender had notice

. ” Id. The order must have been so clear and certain that there could be no question as to what the party was required to do, or not do, and whether the order was violated. Id. “‘A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.’” Id. (quoting City of Gary v. Major , 822 N.E.2d 165, 170 (Ind. 2005)).

[23] Husband asserts that the trial court violated his due process rights when it found him in contempt at the October 26, 2015 hearing because it did not follow the procedural requirements for finding a person in contempt of court. Specifically, he claims that, although the trial court entered an order on Wife’s verified motion for rule to show cause prior to the October 26 contempt hearing , it did not properly advise him of the facts underlying her contempt allegation.

[24] As Husband argues, i ndirect contempt hearings “‘require an array of due process protections, including notice and the opp ortunity to be heard.’” Akiwumi v. Akiwumi , 23 N.E.3d 734, 737

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Henderson v. Henderson , 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010)). Due process protections for indirect contempt proceedings are codified in I NDIANA C ODE § 34

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(a) In all cases of indirect contempt[], the person charged with indirect contempt is entitled: (1) before answering the charge; or (2) being punished for the contempt; To be served with a rule of the court against which the contempt was alleged to have been committed. (b) The rule to show cause must: (1) clearly and distinctly set forth the facts that are alleged to constitute the contempt; (2) specify the time and place of the facts with reasonable certainty , as to inform the defendant of the nature and circumstances of the charge against the defendant; and (3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attache d and punished for such contempt.

[25] In response to Husband’s argument, we first must note that a party who fails to raise an argument at the trial level waives that argument on appeal. McKibben v. Hughes , 23 N.E.3d 819, 828 (Ind. Ct. App. 2014) (citing Breneman v. Slusher , 768 N.E.2d 451, 463 (Ind. Ct. App. 2002) (“An appellant who presents an issue for the first time on appeal [] waives the issue for purposes of appellate review.”)). Because Husband failed to argue at the October 26 hearing tha t he was withoutCourt of Appeals of Indiana | Memorandum Decision 29A02

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knowledge of the allegations against him, we therefore must conclude that he waived his argument for appeal. See id.

[26] W aiver notwithstanding, we do not find merit in Husband’s argument. I n Stanke v. Swickard , 43 N.E.3d 245, 248 (Ind. Ct. App. 2015), we noted that:
Strict compliance with the rule to show cause statute may be excused if it is clear the alleged contemnor had clear notice of the accusations against him, for example because he received a copy of an original contempt information that contained detailed fa ctual allegations, or if he appears at the contempt hearing and admits to the factual basis for a contempt finding.
(Emphasis added). Here, it is clear that Husband had notice of the accusations against him. He appeared at the contempt hearing and ad mitted to the factual basis for the trial court’s contempt finding

— that he had failed to obtain adequate life insurance. In addition, one of his witnesses, Brunette’s employee, testified solely regarding Husband’s attempts to obtain life insurance. In li ght of these factors, we conclude that the trial court did not violate Husband’s due process rights by failing to inform him of the factual circumstances underlying his contempt allegation as it is clear that he had notice of the factual circumstances

.

[27] Alternatively, Husband argues that the trial court abused its discretion when it determined that he “willfully disobeyed” the dissolution decree. He contends that, even though he did not obtain life insurance, he was prevented from doing so by his health. He also notes that he attempted to comply with the trial court’s order by securing Wife’s judgment through other methods, includingCourt of Appeals of Indiana | Memorandum Decision 29A02

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listing Wife as the beneficiary of his pre

- existing life insurance policy and his

net estate.

[28] As stated above, willful di sobedience of any lawfully

- entered court order of which the offender has notice constitutes indirect contempt

. In re Adoption of
A.A. , 51 N.E.3d at 385. Our su preme court has previously explained that “‘ a person’s state of mind, that is, whether the alle ged contempt uous conduct was done willfully ’” is “‘[c]rucial to the determination of contempt.’” Steel

- Giri v. Steele , 51 N.E.3d 119, 129 (Ind. 2016) (quoting Witt v. Jay Petroleum, Inc. , 964 N.E.2d 198, 202 (Ind. 2012)). “‘When a person fails to abide b y a court’s order, that person bears the burden of showing that the violation was not willfull.’” Wilson v. State , 988 N.E.2d 1211, 1219 (Ind. Ct. App. 2013). The determination of whether a person is in contempt “permits the trial court to consider matters which may not, in fact cannot, be reflected in the written record.” Witt , 964 N.E.2d at 202

- 03. T his is because t he trial court possesses unique knowledge of the parties before it and is in the best position t o determine whether a party’s disobedience was done willfully. Id. at 203. Accordingly, w e will reverse a trial court’s finding of contempt only if there is no evidence or inference therefrom to support the finding. Wilson , 988 N.E.2d at 1218.

[29] While Husband presented evidence that he attempted to obtain life insurance within the limits created by his health issues, he also admitted that he had been offered a life insurance policy that h e chose not to accept because , even though he could afford the pol icy, he considered the monthly premium cost a “waste of

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was based on his application for a policy worth $500,000. As Wife notes, the premium would not have been as expensive f or a policy worth the balance of her judgment of $272,020.78. In li ght of this evidence, we conclude that the trial court did not abuse its discretion in determining that Husband ’s disobedience of the dissolution decree was willful and that he , therefore, was in contempt of court. 4
3. Attorney Fees
[30] Finally, Husband argues that the trial court abused its discretion when it ordered him to pay a portion of Wife’s attorney fees as a sanction for his contempt of court. He claims that the trial court was required to give him the opportunity to purge himself of contempt before sanctioning him , but it did not do so.

[31] A trial court has inherent power to fashion an appropriate punishment for disobedience of its order. MacIntosh v. MacIntosh , 749 N.E.2d 626, 631 (Ind. Ct. App. 2001), trans. denied. We have previously held that “‘[w]ithout regard to economic resources, once a party is found in contempt, the trial court has the inherent authority to compensate the aggrieved party for losses and damages resulting from another’s contemptuous actions, including the award of attorney’s fees.’” In re Paternity of Pickett , 44 N.E.3d 756, 770

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4 Notably, Husband’s other attempts to secure Wife’s judgment also failed to comply with the intent of the trial court’s order as he did no t present any evidence that Wife’s status as his beneficiary under his pre

existing life insurance policy and his will was irrevocable . Nor did he present evidence that the value of the pre - existing life insurance policy was sufficient to cover the entire balance of Wi fe’s judgment.Court of Appeals of Indiana | Memorandum Decision 29A02

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2015) (quoting Scoleri v. Scoleri , 766 N.E.2d 1211, 1222 (Ind. Ct. App. 2002) (int ernal quotations omitted) )

.

[32] In support of his argument, Husband quotes Stanke , where we stated that “a contempt order must offer an opportunity for the recalcitrant party to purge himself or herself of the contempt.” Stanke , 43 N.E.3d at 249. However,
Hu sband ignores the context of that statement in Stanke . In full, we held that:
[A] jail sentence for civil contempt must be coercive or remedial rather than punitive in nature. To avoid being purely punitive, a contempt order must offer an opportunity for the recalcitrant party to purge himself or herself of the contempt.

Id. Our emphasis in this passage was that a sanction for contempt may not be purely punitive in nature. Id. Thus, in the case of a sanction of imprisonment , the sanctioned party must be offered the opportunity to purge the contempt to prevent the sanction from being purely punitive

. Id. We did not state that a party must be offered an opportunity to purge contempt when the purpose of the sanction is compensatory rather than punitive

. See id. Nor has Husband directed us to any s uch precedent. Here, the sole purpose of the trial court’s sanction was to partially compensate Wife for a portion of the attorney fees she accrued attempting to enforce her rights under the dissolution decree, rather than to punish Husband. Accordingly, we conclude that the trial court did not abuse its discretion in requiring Husband to pay the fees.Court of Appeals of Indiana | Memorandum Decision 29A02

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[33] We affirm.

K irsch, J., and Riley, J., concur.