Linton v. Linton

Annotate this Case

339 N.E.2d 96 (1975)

Ray LINTON, Jr., Appellant, v. Nancy Anne LINTON, Appellee.

No. 2-374A56.

Court of Appeals of Indiana, Second District.

December 10, 1975.

Stephen B. Caplin, Indianapolis, for appellant.

Richard A. Young, Young & Young, Indianapolis, for appellee.

*97 OPINION ON PETITION FOR REHEARING

SULLIVAN, Presiding Judge.

Appellant Ray Linton, Jr., has filed his Petition for Rehearing asserting, inter alia, that our opinion on the merits (Linton v. Linton (1975), Ind. App., 336 N.E.2d 687), was in error in holding that the trial court correctly denied Ray's Motion For Change of Venue from the County. In that opinion we disposed of the issue upon the sole ground that a civil contempt proceeding is not considered a civil action so as to contemplate a change of venue under TR. 76.

Ray, however, correctly points out that in other portions of our opinion, we noted that the proceeding was not restricted to a prayer for a contempt judgment but that Appellee Nancy Linton sought nullification of the modification agreement and reinstatement of the original divorce decree. It is Ray's position that such issues, additional to the contempt issue, render our reliance solely upon State ex rel. Grile v. Allen Circuit Court (1967), 249 Ind. 173, 231 N.E.2d 138, an inadequate basis for our determination that the Motion for Change of Venue was properly denied.

We deem it appropriate to resolve hereby any real or apparent inconsistency which might be drawn in this regard from our original opinion.

Insofar as the issues to be resolved by the trial court were not directly related to the matter of contempt, they involved the continuing matter of child support and unpaid alimony. The latter was involved only tangentially, i.e., as to whether Ray had breached the agreed modification order by failing to pay previously ordered installments.

Whether Ray breached the modification agreement and insofar as that determination rested upon his failure to pay alimony, we deem the proceeding but a continuation of the court's previously established jurisdiction.

A court has inherent power to see that its orders and judgments are carried out. 60 C.J.S. Motions and Orders ยง 67. Normally, such power is exercised through the contempt process but contempt need not be the exclusive tool for remedying failures to honor judgments and orders. For example, Proceedings Supplemental pursuant to TR. 69, are a means of remedying a failure by a defendant to pay a money judgment. Such proceedings are but a continuation of the original proceeding, and notwithstanding ancient cases which construed the law when proceedings supplemental were deemed separate actions, [See Burkett v. Holman (1885), 104 Ind. 6, 3 N.E. 406] and which held a change of venue from the county to be appropriate, a change of venue from the county is not now contemplated. See 4 Indiana Practice, Harvey & Townsend at pp. 469-470.

With respect to matters of child support and modifications thereof it is established that the jurisdiction of the court which entered the original decree is continuing. Changes of venue from the county as to requested modifications are not contemplated nor permitted. Julian v. Julian (1916), 60 Ind. App. 520, 111 N.E.2d 196. See also State ex rel Butcher v. Greene Circuit Court (1964), 245 Ind. 1, 195 N.E.2d 776.

In this instance, the trial court utilized the permissible vehicle (agreed to by the parties and incorporated as an order of the court) of setting aside the modification agreement and reinstating the original decree. The proceeding was not a "civil action" subject to a valid motion for change of venue from the county.

Appellant's Petition for Rehearing is denied.

BUCHANAN and WHITE, JJ., concur.