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ATTORNEY FOR APPELLANT Mary Lee Schiff Evansville, Indiana

ATTORNEY FOR APPELLEE Scott A. Danks Evansville, Indiana

______________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 82S01-0904-CV-149 SUZANNE HEBERT HAMILTON,

In the

Oct 07 2009, 11:49 am

FILED
of the supreme court, court of appeals and tax court

CLERK

Appellant (Petitioner below), v. RICHARD WAYNE HAMILTON, Appellee (Respondent below). _________________________________ Appeal from the Vanderburgh Superior Court, No. 82D04-0605-DR-516 The Honorable Jeffrey L. Biesterveld, Special Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-0804-CV-151 _________________________________ October 7, 2009

Boehm, Justice. This case involves a Florida child support order registered for enforcement in Indiana pursuant to the Uniform Interstate Family Support Act. The Indiana trial court issued a contempt order requiring the father to pay less than the full amount of the Florida support obligation to avoid incarceration. We hold that the trial court`s order did not impermissibly modify the foreign judgment. We also hold that the Federal Consumer Credit Protection Act, which limits the amount of wages that may be subject to garnishment, does not restrict the amount of support that may be awarded.

Facts and Procedural History Richard and Suzanne Hamilton were granted a divorce in Florida in July 2005. The Florida divorce judgment awarded Suzanne physical custody of the couple`s two children and required Richard to pay support in the amount of $1,473 per month. The judgment also required Richard to pay a $3,619 arrearage in support from the time the couple separated in March 2005. Richard did not fulfill his child support responsibilities, and by January 2006 he owed a total of $11,879. Suzanne sought enforcement of Richard`s support obligation by filing a motion for contempt in the Florida court. Richard did not appear at the hearing on Suzanne`s motion, and on January 13, 2006, the Florida court held Richard in contempt. The Florida court found Richard had the ability to pay Suzanne but had willfully failed to do so, and sentenced him to 170 days in jail unless he tendered $7,500 within twenty days. The court also set up a payment schedule for Richard to satisfy the balance of the arrearages and the ongoing support obligation. Suzanne and the children remained Florida residents, but at some point Richard moved to Evansville in Vanderburgh County, Indiana where he lived with his parents. Suzanne sought enforcement of the Florida orders by registering the Florida support judgment and contempt order in Vanderburgh Superior Court. The Indiana court ruled that the child support judgment was a properly registered foreign order entitled to full faith and credit. The court also extended full faith and credit to the findings and conclusions in the Florida contempt order, except as to its judgment that the Husband is ordered incarcerated in the [county] jail for a time of 170 days. The court concluded that remedies for contempt are discretionary and do not bind responding tribunals. Although the Indiana court found Richard in contempt, it stayed the jail sentence if Richard tendered $3,750 and made monthly payments of $1,250. In a separate order entered November 10, 2006, the court established Richard`s arrearages at $20,466.50. Richard struggled to meet his monthly obligations, and Suzanne soon sought relief through a writ of bodily attachment. On March 29, 2007, the Indiana trial court ordered Richard to serve 170 days in the county jail, but stayed the sentence contingent upon Richard`s paying Suzanne $1,000, obtaining full-time employment, and executing a wage assignment in an amount specified by the Indiana Child Support Guidelines or $150 per week, whichever was greater. 2

In May 2007, Suzanne again sought to hold Richard in contempt for failure to meet the conditions of the court`s orders. Richard testified that he had met the three conditions imposed by the March 29 order, and the court found no contempt. In November 2007, Suzanne again asked the court to find Richard in contempt and asked for larger monthly payments and more aggressive enforcement of the Florida support order. At the hearing on this motion, Richard testified that he was working between thirty and fifty hours per week and earning $7 per hour. Financial exhibits reflected that he was paying an average of $150 per week in support. On March 4, 2008, the trial court ruled that Richard was not in contempt of the Indiana orders. The trial court explained: The Court finds that under the Federal Consumer Credit Protection Act (15 U.S.C. 1673(b)) the federal limit for income withholding applies to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: state, federal, local taxes, Social Security taxes, statutory pension contributions, and Medicare taxes. The Federal CCPA limit is 50% of the ADWE for child support and alimony, which is increased by: 1) 10% if the employee does not support a second family; and/or, 2) 5% if the arrears [are] greater than 12 weeks. At the present time, Respondent/Father is voluntarily paying in excess of the maximum 60% by prior order of this Court. Suzanne appealed this order, arguing that (1) the order constituted an impermissible modification of the Florida support judgment, (2) the trial court erred in finding that the Federal Consumer Credit Protection Act (FCCPA) capped the husband`s child support obligations, and (3) the court abused its discretion in failing to hold Richard in contempt. The Court of Appeals affirmed. Hamilton v. Hamilton, 895 N.E.2d 397, 399 (Ind. Ct. App. 2008). The Court of Appeals held that the trial court`s judgment was a permissible enforcement order, because the trial court gave full faith and credit to the $1,473 Florida support judgment and required Richard to contribute toward that obligation to avoid incarceration. Id. at 403. The Court of Appeals further held that the trial court did not abuse its discretion in declining to hold Richard in contempt, as Richard fulfilled the conditions set forth in the trial court`s March 29 order. Id. at 405. With regard to the findings quoted above, the Court of Appeals agreed with Suzanne that the FCCPA is a wage garnishment limitation but does not limit the amount of child support that may be ordered. The Court of Appeals viewed the trial court`s references to the FCCPA as observations that did not form the basis of its conclusions. Id. at 405

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