Sharon DeLater, formerly Hudak, appeals from a garnishment of wages order entered in favor of her ex-husband, Paul Hudak. This order came as a result of a proceedings supplemental commenced by Paul and based initially on a part of the dissolution decree requiring Sharon to pay the balance of a debt owing to FBT Capital Corporation. When Sharon failed to pay this joint indebtedness FBT garnisheed Paul's wages and he subsequently brought a proceedings supplemental against Sharon.
The issues raised are:
2. Was there evidence to support the proceedings supplemental garnishment order in the sum of $766.63?
3. Was the discharge of Sharon in bankruptcy as to the FBT debt available to her as a special defense in the proceedings supplemental brought by Paul?
FACTS AND CASE SUMMARY
Sharon and Paul lived together for a period of time before their marriage which occurred on November 27, 1975. In September, before their marriage, they jointly executed a promissory note to FBT. The parties separated in September of 1976 and shortly thereafter Sharon filed a bankruptcy proceeding and listed among her debts the FBT obligation. On December 16, 1976, she was granted a discharge by the bankruptcy court.
Paul filed a petition for dissolution of the marriage on September 23, 1976, and the court dissolved the marriage on April 19, 1977, with the question of property rights to be later incorporated in a final decree. The court entered this decree on May 3, 1977 and one of its provisions required Sharon to pay the balance of the FBT debt and to hold Paul harmless as to this obligation.
Sharon did not make any payments to FBT and this ultimately resulted in a garnishment of Paul's wages by FBT. On March 15, 1978, he filed a verified application to institute supplementary proceedings stating:
A hearing on this petition was held on March 27, 1978, with Paul and his attorney present, as well as Sharon's attorney. Briefs by counsel were later filed and the following is the pertinent portion of the court's subsequent entry on April 3, 1978.
Paul filed a verified motion and proceedings supplementary on May 5, 1978, stating he owned a judgment against Sharon which was recovered on April 3, 1978, and in the sum of $766.63. On July 18, 1978, the court entered a final order of garnishment against Sharon's wages from her employer RACO, Inc. for $808.21. This order was subsequently set aside by the court on August 3, 1978, and immediately Paul filed
I. Validity of Judgment as to Subsequent Garnishment Order
Sharon argues strenuously that Paul was not the owner of a judgment entered on April 3, 1978, for $766.63 which would form the basis of a subsequent garnishment order in favor of her ex-husband. Paul admits the dissolution decree of May 3, 1977, as it applied to the FBT debt, was executory in form and was not enforceable by way of a proceedings supplemental until it was reduced to a sum certain but then contends the court reduced the May 3, 1977, decree to the sum of $766.63 by its action of April 3, 1978. Hence, there was a valid judgment upon which the court could enter its final garnishment order of October 30, 1978. We disagree.
We have carefully examined the record provided and conclude there was no evidence submitted on April 3, 1978, to substantiate a judgment of $766.63. In fact, Paul's verified application filed March 15, 1978, states his wages "to date have been garnished in the sum of $373.68 by FBT Capital Finance Company."
In examining the entry made by the court on April 3, 1978, we conclude this was merely a finding that was never reduced to a judgment. Indiana Rules of Procedure, Trial Rule 69(E) provides:
Obviously the rule anticipates that prior to the granting of a final order in the proceedings supplemental a valid judgment must be entered against the defendant and in the case before us this did not occur.
II. Sufficiency of Evidence
The record in this case contains many irrelevant documents and court entries not even remotely germane to the appeal, but the two hearings which might establish facts to support the findings of April 3, 1978, as to the sum of $766.63 are devoid of any such information. The first hearing occurred on March 27, 1978, and the entire record reads as follows:
The second hearing was held on April 3, 1978, with only the attorneys present and the only evidence submitted was the verified answer of Sharon. We have previously pointed out this merely set forth her claim that Paul was not the owner of a judgment.
We agree with Sharon's contention that there was a lack of evidence to support even the finding of the court that Paul's wages had been previously garnisheed in the sum of $766.63. What is further confusing is Paul's verified application to institute supplementary proceedings filed approximately three weeks before the hearing of April 3, 1978, states that his wages had been garnisheed by FBT in the total sum of $373.68.
III. Bankruptcy Discharge as a Special Defense
Even though we have reversed this cause based on the first two issues, we will address the third issue raised by appellant since it will probably arise in further proceedings. Sharon contends her discharge in bankruptcy prior to the dissolution relieved her of any responsibility she might have had as to the FBT debt. We conclude this issue cannot properly be raised at this time since it is a collateral attack on the dissolution decree of May 3, 1977.
Even though proceedings supplemental are an extension of the underlying action, the parties cannot during their course collaterally attack the underlying judgment. "The TR 69 petition speaks only to how the claim is to be satisfied, whereas the complaint in the original action speaks to whether the claim should be satisfied." Citizens National Bank of Grant County v. Harvey, (1976) Ind. App., 339 N.E.2d 604, 609:
State v. Dossett, (1977) Ind. App., 368 N.E.2d 259, 262.
This is equally true here even though the issue of discharge in bankruptcy was not actually litigated. It is sufficient that it could have been litigated.
Matter of Estate of Apple, (1978) Ind. App., 376 N.E.2d 1172, 1176.
During the dissolution proceedings the issue of the FBT debt and Sharon's discharge in bankruptcy could have properly been before the trial court. However, Sharon did not raise the issue. Judgment was entered and no appeal on the merits was taken after the court denied Sharon's motion to correct errors. Sharon is thereby bound by that judgment.
Reversed and remanded for further proceedings.
MILLER, P.J., and YOUNG, J., concur.