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FOR PUBLICATION

FILED
Jun 22 2009, 9:13 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: KATHERINE J. RYBAK STEPHEN E. CULLEY Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

HERMAN BUTTON, Appellant, vs. SUE JAMES, Appellee,

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No. 62A05-0902-CV-89

APPEAL FROM THE PERRY CIRCUIT COURT The Honorable M. Lucy Goffinet, Judge Cause No. 62C01-0107-SC-474

June 22, 2009 OPINION- FOR PUBLICATION

BARNES, Judge

Case Summary Herman Button appeals the trial court ordering him to pay $25.00 per month toward a $1,865.93 judgment for Sue James. We reverse and remand. Issue Button raises several issues, which we consolidate and restate as whether the trial court properly required him to pay $25.00 per month toward the judgment against him. Facts In 2001, the trial court entered a judgment against Button in the amount of $1,865.93 plus costs. On January 22, 2009, at an assets hearing, the following exchange took place between the trial court and Button, who appeared pro se. The Court: So were here today for you to explain what youre going to do to pay this off. Mr. Button: I cant. The Court: Okay, but youre going to.

Mr. Button: I cant do it. The Court: Okay, Mr. Button.

Mr. Button: Yes, Maam. The Court: For some reason were not communicating. Alright, youre not hearing me for some reason. I am telling you that, yes, you will. Youre going to tell me how youre going to go about doing that. And Im not going to accept I cannot, and if the next words out of your mouth are I cannot, Mr. Button, then youll set with Mr. Glenn at the Sheriffs Department until you find a way that, yes, you can. So what kind of payments can you make to pay this down? Mr. Button: Five dollars ($5.00) a month. 2

The Court: Five dollars ($5.00) a month is--Im going to be an old woman before this is ever paid off. Mr. Button: Thats what I can afford, maam. I live on social security disability. Ive got to pay my rent and my lights and my gas. The Court: Im going to order you pay twenty-five dollars ($25.00) a month until this is paid off. Im going to show that we are to come back March 12, at 1 oclock, at which time Miss James is going to tell me that she has already received fifty dollars ($50.00) towards this. Okay. Mr. Button: Yeah. The Court: Good luck to you, Mr. Button. Tr. pp. 4-5. Button now appeals. Analysis Button argues that he cannot be held in contempt for his failure to pay a debt, that his assets should not be garnished to pay the judgment, and that he should not have to make another court appearance absent a change in his circumstances. Initially we

observe that James has not filed an appellees brief. "Under that circumstance, we do not undertake to develop an argument on the appellees behalf, but rather may reverse upon an appellants prima facie showing of reversible error." Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). "Prima facie error in this context is defined as, ,,at first sight, on first appearance, or on the face it." Id. (citation omitted). Article 1, Section 22, of the Indiana Constitution provides: The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the 3

payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud. Relying on this provision, our supreme court has held that because a debtor may not be imprisoned for his or her failure to pay a judgment debt, the debtor may not be imprisoned for proposing the judgment remain unsatisfied until the debtor obtains attachable assets. State ex rel. Wilson v. Monroe Superior Court IV, 444 N.E.2d 1178, 1180 (Ind. 1983). Likewise, Button may not be imprisoned for either his failure to pay the judgment or his failure to propose a suitable payment plan. To the extent the trial court threatened Button with imprisonment, it erred. Further, any order requiring Button to pay the judgment must be based on evidence of his ability to pay. Here, no evidence was presented indicating that Button had the ability to pay $25.00 per month toward the judgment. Button has established prima facie error. Therefore, we remand for an evidentiary hearing regarding Buttons ability to pay the judgment prior to the entry of an order requiring him to make monthly payments toward it. Conclusion The trial court improperly threatened Button with imprisonment for his failure to propose a plan to pay the judgment, and any order requiring him to pay a judgment must be based on Buttons ability to pay it. We reverse and remand. Reversed and remanded. BAKER, C.J., and MAY, J., concur.

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