FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

NANCY G. ENDSLEY     ERIC J. BENNER
Landman & Beatty    Richards, Boje, Pickering, Benner & Becker
Indianapolis, Indiana    Noblesville, Indiana

WILLIAM T. COWART,             )
                                    )
    Appellant-Petitioner,           )
                                    )
        vs.                         )     

No. 29A02-9803-CV-275
              

                                    )
CATHY JO (COWART                    ) WHITE,    )
                                    )    
    Appellee-Respondent.            )
                                    )

    Appellant-petitioner William T. Cowart (Tom) appeals from a 1997 trial court order which found him in contempt of the 1996 dissolution decree ending his marriage to Cathy Cowart. Tom maintains that the court improperly modified a final judgment. He claims that the court order is contrary to law in denying him the protection he had been granted under the federal Bankruptcy Code. He argues that the court improperly exercised its contempt powers. Finally, he contests the court's requirement that he pay Cathy's attorney fees.

the Dissolution Decree and a Motion for Rule to Show Cause requesting that the court find Tom in contempt of the dissolution decree, alleging that Tom had allowed the real estate of the marriage to run down in an attempt to reduce the amount she would receive from the sales, and had failed to pay taxes and insurance on the properties.
    The court denied Cathy's Motion to Modify the Dissolution Decree, but it found Tom in contempt for failure to abide by orders of the court as set forth in the decree, for allowing the real estate in his control to fall into disrepair, and for failing to pay real estate taxes and mortgage payments, causing economic hardship to Cathy. It found that his obligations under the decree were “in the nature of support and maintenance.” Thus, it found the obligations were not dischargeable in bankruptcy and ordered Tom to compensate Cathy for the losses she sustained. This entailed awarding to Cathy the marital residence previously awarded to Tom, recalculating the worth of the properties involved, ordering a cash payment from Tom, and payment of Cathy's attorney fees. Tom now appeals.

until a party made a motion to correct error within the time provided by the trial rules (30 days) to amend or modify its judgment. Ind. Trial Rules 52(B) and 59(C). Particularly in dissolution, this court has noted, there is a strong policy preference for finality of property division. Dusenberry v. Dusenberry, 625 N.E.2d 458, 461 (Ind. Ct. App. 1993).
    In the instant case, the trial court denied Cathy's Motion to Modify the Dissolution Decree, but in its contempt order, it reevaluated and redistributed property. Record at 21, 23, 150, 152-53; 21, 25, 150, 152; 152-53. It entered a new monetary judgment against Tom which exceeded that ordered in the dissolution decree. R. at 24-28. The 1997 order of the trial court comes well outside the time limits of Trial Rules 52(B) and 59(C). Because Cathy did not timely file a motion to correct errors, we find that the trial court impermissibly modified a final judgment in its contempt order.

There are two methods available to the nondebtor spouse for keeping control over property in a post-dissolution bankruptcy. One is to request relief from stay so as to take control of the property. 11 U.S.C. § 362(a) and (d). The second method involves petitioning the

bankruptcy court to make the obligations in the dissolution decree nondischargeable. The Bankruptcy Code provides that certain debts are nondischargeable. These include debts:
to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a . . . divorce decree . . . but not to the extent that . . . such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support;

11 U.S.C. § 523(a)(5). The Code also includes in nondischargeable debts those:
not of the kind described in paragraph (5) that [are] incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court record.

11 U.S.C. § 523(a)(15).
    Thus, under bankruptcy law, debts in the nature of alimony, maintenance and support are never dischargeable. However, other debts incurred in connection with a divorce are only nondischargeable where the nondebtor spouse files a timely claim in bankruptcy court under 11 U.S.C. § 524(c)(1), which provides that:
the debtor shall be discharged from a debt of a kind specified in paragraph . . . (15) [debt incurred in divorce other than one for alimony, maintenance or support], of subsection (1) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge.

Bankruptcy Rules further provide that:
[a] complaint to determine the dischargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to section 341(a).

Bankruptcy Rule 4007(c).

nature of support or maintenance. R. at 25, 28. Only Cathy was ordered to pay support for their minor child. R. at 19-20. In deciding whether the trial court decision was contrary to law, our standard is to determine whether the trail court erred in its application of the law. Trook v. Lafayette Bank and Trust Company, 581 N.E.2d 941 (Ind. Ct. App. 1991), trans. denied. We hold that the trial court's action is contrary to law because it denied Tom the protection he received under the Bankruptcy Code's discharge injunction. 11 U.S.C. § 542(a)(2).

order in violation of the discharge injunction of the Bankruptcy Code. We remand the question of the attorney fee award.
    Judgment reversed in part, remanded in part.
DARDEN, J., and BAILEY, J., concur.

Converted by Andrew Scriven