SHIELDS, Presiding Judge.
Jerry Chapman appeals the trial court's judgment finding him in contempt of court and ordering him to pay his former wife's past child visitation expenses, her expenses incurred in attending the contempt hearing, and her attorney fees.
Jerry and Claudia Chapman were divorced in Indiana on June 13, 1980. Pursuant to the dissolution decree, Jerry was awarded custody of the couple's two children, and was ordered not to move outside of Indiana with the children. Immediately after the divorce, Claudia moved to Connecticut. In December of 1982, Jerry petitioned the dissolution court for permission to move out of state with the children. On June 2, 1983, the dissolution court granted Jerry's petition and ordered:
Record at 37.
Jerry moved to Tennessee with the children where Claudia regularly visited them. In February of 1985, Claudia initiated the present action for contempt, alleging Jerry had not paid the $2,500.00 per year visitation expenses as ordered by the court. On November 5, 1985, following a hearing at which Claudia was present but Jerry was not, the dissolution court found Jerry in contempt of court for not appearing at the hearing and for failing to pay the visitation expenses as previously ordered. The court ordered Jerry to pay $7500.00 plus interest, which represented the unpaid visitation expenses, and ordered him confined until the amount was paid. The court also ordered Jerry to pay expenses incurred by Claudia in attending the contempt hearing and her attorney fees.
On appeal, Jerry raises the following issues:
1) whether the court erred in finding it had personal jurisdiction over him;
2) whether the court erred in finding him in contempt for failing to attend the contempt hearing;
3) whether the court erred in finding him in contempt for failing to pay Claudia's visitation expenses; and,
4) whether the court erred in ordering him to pay Claudia's trial and appellate attorney fees.
We affirm in part and reverse in part.
DISCUSSION AND DECISION
I. Jurisdiction Over the Person
Jerry asserts the trial court did not have jurisdiction over his person because the requirements of Indiana Rule of Trial Procedure 4.4(A)(7) were not met. Claudia argues the court had personal jurisdiction over Jerry because an attorney entered an appearance on his behalf, and cites Kirkpatrick Construction Co. v. Central Electric Co. (1903), 159 Ind. 639, 65 N.E. 913 as support.
Contrary to Claudia's argument, with the adoption of the Indiana Rules of Trial Procedure, a general appearance does not act as a waiver of the defense of lack of personal jurisdiction. State v. Omega Painting, Inc. (1984), Ind. App., 463 N.E.2d 287. Jerry preserved his objection to jurisdiction by the timely filing of a T.R. 12(B)(2) motion. Therefore, we must address the merits of Jerry's argument.
The dissolution court did not acquire jurisdiction over Jerry's person for purposes of the contempt proceeding pursuant to T.R. 4.4(A)(7), which, in relevant part, reads:
Because neither Jerry, Claudia, nor their two children reside in Indiana, this rule does not afford the means by which personal jurisdiction can attach. In re the Marriage of Hudson (1982), Ind. App., 434 N.E.2d 107.
However, the dissolution court never lost the personal jurisdiction it acquired over Jerry in the original dissolution proceeding. In Mueller v. Mueller (1972), 259 Ind. 366, 287 N.E.2d 886, the wife had custody of the parties' children pursuant to the dissolution decree entered in 1964. She and the children then moved out of state. In 1970 the husband filed a petition in Indiana to gain custody of the children. The wife argued the Indiana court did not have jurisdiction over her person, and specifically disputed the applicability of T.R. 4.4(A)(7) because the parties' marriage had been dissolved before the effective date of the rule. The supreme court, without reaching the wife's argument, held the trial court retained the jurisdiction which had been established in the original divorce proceeding. Quoting from Reineke v. Northerner (1949), 119 Ind.App. 539, 84 N.E.2d 900, the Mueller court stated:
Mueller v. Mueller, 259 Ind. at 374-75, 287 N.E.2d at 891.
Likewise, the proceeding seeking to have the court hold Jerry in contempt for failing to abide by the terms of the dissolution decree, is "but an incident" of that proceeding and, therefore, the court never lost the personal jurisdiction over Jerry it previously acquired.
II. Contempt for Failure to Appear
The court found Jerry in contempt for failing to appear at the hearing. Jerry argues his failure to appear was not contemptuous because he was ill that day, and consequently did not have the culpable intent to violate the court's order to appear.
III. Contempt for Failure to pay Visitation Expenses
Jerry alleges the court erred in finding him in contempt for failing to pay Claudia's visitation expenses, and ordering him jailed until he complies. Jerry asserts his failure to pay the money was not contemptuous because Claudia never asked him to pay the money in advance; he also asserts the unpaid expenses were reduced to a judgment which cannot be enforced by contempt power, but must be enforced by execution on the judgment.
The court's earlier order setting the terms of visitation reads as follows:
Furthermore, the court's order that Jerry pay Claudia $7500.00 plus interest is enforceable through the court's contempt powers. Because the Indiana Constitution, Article 1, § 22 forbids imprisonment for debt, the court's power of contempt may not be used to enforce a dissolution decree which orders one party to pay the other a fixed sum of money, either in a lump sum, or in installments. See State ex rel Shaunki v. Endsley (1977), 266 Ind. 267, 362 N.E.2d 153 (a money judgment in place of a property division, payable in installments is not enforceable by contempt); Bahre v. Bahre (1967), 248 Ind. 656, 230 N.E.2d 411 (attorney fees awarded in dissolution proceedings not enforceable by contempt). However, an order to pay child support may be enforced by contempt, Isler v. Isler (1981), Ind. App., 422 N.E.2d 416, and an order to pay maintenance under Ind. Code Ann. § 31-1-11.5-9(c) (Burns 1979 Supp.) is enforceable by contempt. Thompson v. Thompson (1984), Ind. App., 458 N.E.2d 298. The court in Thompson reasoned "maintenance orders differ from ordinary judgment debts in that they are open-ended and subject to modification. Orders to pay maintenance are thus very similar to child support orders, which have long been held enforceable by contempt notwithstanding Ind. Const. Art. 1, § 22." 458 N.E.2d at 300. Similarly, the court's visitation expense order is open-ended and subject to modification. Further, it is an order for the benefit of the child in that it assures the beneficial relationship with the non-custodial parent will not be impaired by financial impediments. See Allee v. State (1984), Ind. App., 462 N.E.2d 1074. Consequently, the order for visitation expenses is akin to an order for child-support or maintenance,
The pertinent portions of the dissolution court's judgment reads:
June 2, 1983 to June 1, 1984 - $2,500.00 June 2, 1984 to June 1, 1985 - $2,500.00 June 2, 1985 to September 23, 1985 - $2,500.00
Record at 267-69.
Unquestionably, the trial court entered a judgment against Jerry for an amount which included the visitation expense arrearage. Consequently, the court was enforcing the payment of a debt, the money judgment, by its contempt adjudication. In other words, although the arrearage was enforceable by contempt, once it was reduced to a judgment, it was not. The reduction of the delinquent amount to judgment impairs the trial court's use of its contempt power to enforce compliance with its prior order because the money judgment is a debt. See Marsh v. Marsh (1904), 162 Ind. 210, 70 N.E. 154. Therefore, this order for visitation expenses is not enforceable through the contempt power of the trial court.
IV. Attorney Fees
Jerry argues the $4000.00 awarded to Claudia's attorney is unreasonable. Jerry asserts a portion of the attorney's time was ill spent on repetitious filings, unduly long pleadings and excessive travel. The court's award of attorney fees was made pursuant to the authority of Ind. Code Ann. § 31-1-11.5-16 (Burns 1980), and we will only reverse where the court has abused its discretion. In re Marriage of Boren (1985), Ind., 475 N.E.2d 690. At the contempt hearing, the attorney testified as to the amount of time he spent on the case and his hourly rate. This evidence is sufficient to support the award. Boren, 475 N.E.2d at 696; Rice v. Rice (1984), Ind. App., 460 N.E.2d 1228, 1231. Furthermore, the court had the pleadings before it, and did in fact exercise its discretion to disallow fees for approximately six (6) hours of the attorney's time.
Next, in a separate appeal consolidated with the appeal from the trial court's contempt judgment, Jerry takes issue with the award of appellate attorney fees. He argues the court erred by failing to hold an evidentiary hearing prior to awarding the fees. We agree the award of attorney fees was improper, but for another reason.
The record in this case was filed on June 19, 1986, before the order awarding appellate attorney fees was entered. At the time the Record was filed, this court obtained jurisdiction over the case, and the trial court was without jurisdiction to award appellate attorney fees. Hudson v. Hudson (1985), Ind. App., 484 N.E.2d 579.
SULLIVAN, J., concurs.
HOFFMAN, J., dissents, with separate opinion.
HOFFMAN, Judge, dissenting.
I respectfully dissent from the majority opinion insofar as it holds that a trial court may not enter an award for appellate attorneys' fees once the record has been filed on appeal.
IND. CODE § 31-1-11.5-16 (1984 Supp.) provides, in relevant part:
While the statute does not specifically allow the award of appellate attorneys' fees after an appeal is taken, it arguably contemplates such action. Indeed, it would be unrealistic to expect a trial court to make an award of appellate attorneys' fees before the parties express an intention to appeal. To foreclose a trial court from holding an evidentiary hearing and awarding appellate attorneys' fees after perfection of an appeal, based upon a supposed jurisdictional impediment, would abrogate the clear intent of the statute; in that, the Court of Appeals is not the proper forum for an evidentiary hearing. See, Indiana Constitution Art. 7 § 6 (except direct review of administrative decisions, Court of Appeals has no original jurisdiction).
I am unpersuaded by Hudson v. Hudson (1985), Ind. App., 484 N.E.2d 579, from whence the present procedural conflict arose. Instead, I would follow the line of cases including Inkoff v. Inkoff (1974), 159 Ind.App. 239, 306 N.E.2d 132; Wagner v. Wagner (1986), Ind. App., 491 N.E.2d 549; and Scheetz v. Scheetz (1987), Ind. App., 509 N.E.2d 840. These cases recognize the trial court as the appropriate forum for such an award and note that the issue of the award of appellate attorneys' fees is separate and distinct from the issues on appeal. In examining the issue it is also useful to note that a trial court, in a dissolution proceeding, enjoys continuing jurisdiction over custody and support matters. State ex rel. Werthman v. Superior Court of Marion (1983), Ind., 448 N.E.2d 680, 683.
Consequently, because the majority's resolution of the issue will mislead and confuse practitioners as to when, where, and how to implement a request for appellate attorneys' fees pursuant to IND. CODE § 31-1-11.5-16, I must dissent.