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Buddy Lee Bailey v. Linda Beth Bailey

May 10, 2013

BUDDY LEE BAILEY
APPELLANT
v.
LINDA BETH BAILEY
APPELLEE



APPEAL FROM SPENCER FAMILY COURT HONORABLE JOHN DAVID MYLES, JUDGE ACTION NO. 04-CI-00061

The opinion of the court was delivered by: Lambert, Judge

RENDERED: MAY 10, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: CAPERTON, LAMBERT, AND MAZE, JUDGES.

Buddy Lee Bailey appeals from the Spencer Family Court's January 5, 2012, order setting aside its previous order denying Linda Beth Bailey's motion to alter, amend, or vacate. Buddy also appeals the trial court's February 20, 2012, order denying his motion to alter, amend, or vacate the January 5, 2012, order. After careful review, we affirm the orders of the trial court.

The Baileys were married on July 12, 1974. During their thirty-year marriage, Buddy was employed with Alcoa, and Linda was primarily a homemaker.*fn1 At all times during his employment with Alcoa, Buddy was an active participant in its retirement pension plan, and throughout the parties' marriage, Buddy accumulated a sizable pension fund by virtue of his employment.

Subsequent to the parties' separation, Buddy was injured and filed a claim for short term disability. Buddy filed a petition for dissolution of the marriage on March 22, 2004. Linda filed her response in April, and the parties were ordered to mediation by the Domestic Relations Commissioner of the Spencer Circuit Court. Thereafter, the mediator filed a report on September 9, 2004, indicating that the parties had reached a settlement. On October 18, 2004, an order captioned "Temporary Order From Mediation" was entered by the court; however, this order included a paragraph which stated, "Husband agrees to provide to wife's counsel information on his retirement account, including a policy, and all pertinent information regarding his disability." Linda claims on appeal that she was not provided with this information.

The trial court entered a limited decree of dissolution on December 10, 2004, which specifically provided that "the issues of marital and non-marital personal and real property and debts are hereby reserved for adjudication." Over the next several years the issues of property and debt division were resolved in piecemeal fashion by the court. On August 22, 2005, the court held a hearing related to the division of tangible personal property and child custody. The parties were before the court arguing over personal property that Buddy was going to retrieve from the marital residence and schooling issues related to their children in January 2006.

On March 30, 2006, the court ordered the parties to prepare a list of personal items that Buddy was not allowed to remove from the marital residence. On August 30, 2006, the court entered a judgment against Linda in the amount of $4,011.94, which represented the value of personal property Linda did not return to Buddy. In September 2006, Buddy's child support obligation was reduced because his short term disability had terminated.

On November 3, 2006, Buddy's application to convert his retirement pension into a disability pension was approved by Alcoa. At that time, the issue regarding the division of Buddy's retirement/disability plan had not been resolved by the parties or the court. In contravention of the trial court's previous order, Linda claims Buddy had still not provided her with a copy of the applicable retirement policy.*fn2

For nearly two years, nothing occurred in the case. On June 23, 2008, Buddy filed a motion to hold Linda in contempt for her failure to satisfy the previous judgment. The matter was continued at the request of the parties and nothing was done for more than a year. It was brought back in front of the court when Linda requested a status conference. In October 2009, the court again ordered the parties to mediation. After another year passed, Linda filed a motion asking for another hearing date. Linda also requested that the court order the parties to exchange "all information including but not restricted to policies, status as to payment and current account amounts regarding any retirement or disability accounts existing during the term of marriage of the parties within 30 days." The trial court granted Linda's motion and entered an order to that effect on September 27, 2010.

On November 1, 2010, the court held another hearing, at which Linda acknowledged her contempt for failure to pay the judgment. The court ordered the parties to brief the issue of the divisibility of Buddy's retirement pension. On June 13, 2011, the trial court entered an order holding that Buddy's retirement pension was not subject to division as marital property. The court concluded that because ...


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