Branham v. Varble

¶1concurring in part and dissenting in part.

¶2I agree with the majority that the trial court exceeded its authority in ordering Quiney to submit five job applications per week. Therefore, I fully concur in that portion of the majority's opinion.

¶3I respectfully disagree, however, with the majority's determination that the trial court committed no error in ordering the Branhams to pay $50 a month toward the judgment and in requiring repeated court appearances. - Regarding the former, it is well settled that "[the creditor has the burden of showing that the debtor has property or income that is subject to execution." Kirk, 585 N.E.2d at 1369 (emphasis added). Stated differently, a ereditor has the burden of showing that the debtor has property or income that is not subject to applicable exemptions. The majority contends that the Branhams had the burden to assert those exemptions. I believe that our supreme court's opinion in Mims dictates otherwise. Absent any indication that the debtor in Mims asserted an exemption of any sort at the proceeding supplemental, I believe that Mims unambiguously requires that trial courts assert exemptions on behalf of debtors who are not represented by counsel. Simply put, Mims says what it says, and I believe that the majority construes it far too narrowly in this case.

¶4Furthermore, I take issue with the majority's characterization of the Mims re«quirement as a "newly established 'procedure[.J' " Op. at 352. The supreme court has neither narrowed nor disavowed Mims since it was decided in 1974, and the fact that some trial courts may not follow Mims in the workaday world does not make that case any less binding on them or on us. If our supreme court wants to abandon Mims and abolish the supposed procedural inefficiencies of which the majority complains, that is its prerogative. Until such time, however, all lower courts are bound to follow Mims and its emphasis on "fairness and practical realities." 261 *355Ind. at 595, 307 N.E.2d at 869. In so doing, they protect the constitutional right of unrepresented (and thus perhaps unsophisticated) debtors to "enjoy the meces-sary comforts of life[,]" such as the $2500 truck that Quiney uses for transportation in a largely rural corner of our state.4

¶5The meager evidence before us strongly suggests that, notwithstanding Quincy's acquisition of the truck, the Branhams' property and income would fall within the exemptions provided by law. See Ind. Code § 34-55-10-2(c) (exempting, among other things, "[rleal estate or personal property constituting the personal or family residence of the debtor ... of not more than fifteen thousand dollars ($15,000)"; 5 "[olther real estate or tangible personal property of eight thousand - dollars ($8,000); and "(intangible personal property, including choses in action, deposit accounts, and cash (but excluding debts owing and income owing) of three hundred dollars ($300)"); Ind.Code § 24-4.5-5-105(2) (providing in pertinent part that "the maximum part of the aggregate disposable earnings [6] of an individual for any workweek which is subjected to garnishment to enforce the payment of one (1) or more judgments against him may not exceed: (a) twenty-five percent (25%) of his disposable earnings for that week; or (b) the amount by which his disposable earnings for that week exeeed thirty (30) times the federal minimum hourly wage ... in effect at the time the earnings are payable [eurrently $7.25]; whichever is less."); Esteb v. Enright by State, 563 N.E.2d 139, 141 (Ind.Ct.App.1990) ("[Supplemental Security Income] benefits are exempt from any legal process brought by any creditor.") (citing 42 U.S.C. § 1383(d)(1)). I believe that it was appellees' burden to demonstrate otherwise and that they failed to carry this burden. The majority states that "it is clear from the record that the court considered the Branhamsg' ability to pay and found their credibility lacking." Op. at 352. Even assuming that appellees' counsel demonstrated that the Branhams were less than candid, this falls far short of showing that the Branhams in fact had property or income that is subject to exe-ecution.

¶6Regarding the trial court's requirement of repeated court appearances, it is important to remember that "proceedings supplemental are a creditor's remedy and not the court's." Kirk, 585 N.E.2d at 1369. "A second order or examination of the debtor requires a showing by the creditor that new facts justifying a new order or examination have come to the knowledge of the creditor." Id. Or, put another way,

"If several examinations within a short time of one another have recently taken place, then facts should be shown from which it may be inferred that the judgment ereditor will obtain useful information, and the examination is not being used as a club to enforce settlement of claims which the debtor is without property to pay."

¶7Id. (quoting 33 C.J.S. Executions § 365(3)(g) (1942)). I do not believe that appellees made such a showing here, and I do not believe that Small Claims Rule 11(C) may be used to justify the multiple status hearings scheduled by the trial *356court in this case.7 As a practical matter, it is difficult to see how the trial court's order could lawfully be enforced, given that the Branhams may not be imprisoned for failing to pay the judgment and do not have identified property or income that is subject to execution.

¶8In sum, I would reverse the trial court's order in its entirety and remand with instructions to stay further proceedings supplemental until such time as the appellees can show "new facts justifying a new order or examination."