Ex-wife loses appeal in property, contempt dispute

A woman who sought to hold her ex-husband in contempt for failing to sell or refinance their family home has lost her appeal of the contempt denial, with the Indiana Court of Appeals noting the woman repeatedly “thwarted” the man’s attempts to comply with their dissolution agreement.

In Rhea A. Harris v. Kevin L. Copas, 20A-DR-1938, Kevin Copas filed for divorce from Rhea Harris in December 2016. The parties entered a property settlement agreement the following June, with Copas receiving the marital home in Frankfort and agreeing to hold Harris harmless for the $82,000 mortgage. Copas also agreed to make a good-faith effort to refinance the mortgage and to release Harris from the debt. Finally, Copas agreed to pay Harris $500 a month up to $75,000 or until her death.

Copas was rejected for refinancing in March 2018. The following October, Harris moved to show cause and to amend the dissolution decree, alleging Copas had purchased another home but had not refinanced the home in Frankfort or released her from the debt.

Copas found a buyer in May 2019, but the sale fell through when Harris rejected his offer to pay her $2,500 from the proceeds in the sale in exchange for her dropping the litigation. Copas later qualified for refinancing, but Harris declined to execute a necessary quitclaim deed. Instead, she filed a lis pendens notice alleging she held a judgment and $75,000 judgment lien against the home.

The refinance could not proceed until the lis pendens notice was released, so Copas moved for contempt and for an order dismissing the notice, noting he was current on his payments to Harris and outlining his efforts to refinance and/or sell the home. Harris, however, claimed Copas had failed to pay her in April 2018 – that was true, but Copas said he had made a double payment the following month. She also moved to hold Copas in contempt.

The trial court denied Harris’ contempt motion, finding Copas made a good-faith effort to refinance the home, but his efforts were thwarted by Harris. While the court determined it could not dismiss the lis pendens notice, it also found that Harris had only a “contingent judgment” that fell outside the purview of the judgment lien statute.

Further, if Copas refinanced or sold the home with a cash-out option, the proceeds would go to him unless the lending institution failed to comply with the lis pendens notice. Then, the proceeds would be escrowed until the court could determine if Harris had a right to them. If the lis pendens notice blocked refinancing or sale, the court ruled, Copas’ failure to remove Harris from the mortgage and indebtedness “will be by her own doing… .”

Harris’ motion to correct error was denied, and her subsequent appeal likewise failed on Wednesday.

Harris first argued on appeal that she was denied due process because she did not know before the trial court entered judgment that it would address Copas’ right to the proceeds of any sale or cash-out refinancing. She also claimed the court issued an impermissible “advisory opinion.”

“In addressing these arguments, we note that it was Harris’ contention, as set forth in her response to Copas’ motions to have her held in contempt and for dismissal of the lis pendens notice, that she held a judgment lien against the marital home upon which she was entitled to collect upon its sale or refinancing,” Judge Patricia Riley wrote Wednesday. “Thus, Harris herself placed the issue of whether she held a judgment lien before the trial court, the resolution of which necessitated that the trial court determine the nature of her judgment interest.

“Having determined that Harris did not hold a judgment lien against the marital home and having evidence before it that Copas was awarded sole ownership of the marital home under the PSA, the trial court made findings and conclusions thereon that flowed from its determinations and the evidence. In addition, the PSA required Copas to refinance the marital home, and evidence was presented … that the refinancing effort was still on-going,” Riley continued. “Indeed, Harris expressed her willingness to execute a quitclaim deed, subrogation agreement, and a release of the lis pendens notice prior to closing to aid that effort. As such, the trial court’s findings regarding the different outcomes of that financing effort pertained to a matter squarely and actively before it, and the trial court did not issue an impermissible advisory opinion and Harris’ right to due process was not violated.”

The COA also upheld the finding that Harris did not have a statutory judgment lien against Copas, citing to Hicks v. Fielman, 421 N.E.2d 716 (Ind. Ct. App. 1981).

“Although Hicks differs from the instant case in the type of interest involved, the result of the language used by Harris and Copas in the PSA, which neither party contends is ambiguous, is the same,” Riley wrote. “If the parties had simply agreed that Copas would pay Harris $75,000 in monthly $500 installments, there would be no dispute that Harris held a money judgment against Copas. … However, the inclusion of the term ‘until paid or death of [Harris]’ made the amount ultimately due to Harris unknowable and unascertainable because it could not be predicted when Harris would die.

“… Because Harris did not hold a money judgment against Copas,” Riley wrote, “she did not hold a judgment lien against his real estate, including the marital home.”

Finally, the COA rejected Harris’ challenges to the trial court’s findings and its decision not to hold Copas in contempt.

“… Copas made continuous efforts from at least March 2018 to remove Harris’ name from the mortgage, culminating in two attempts at refinancing and one attempted sale, and all of which Harris had a hand in making unsuccessful,” the panel held. “We conclude that the trial court’s determination that Copas had made good-faith and timely efforts to discharge his obligation under the PSA was supported by the evidence and was not an abuse of its discretion.”