Bessolo v. Rosario

966 N.E.2d 725, 2012 WL 1327784, 2012 Ind. App. LEXIS 181
CourtIndiana Court of Appeals
DecidedApril 17, 2012
Docket29A02-1108-DR-789
StatusPublished
Cited by36 cases

This text of 966 N.E.2d 725 (Bessolo v. Rosario) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bessolo v. Rosario, 966 N.E.2d 725, 2012 WL 1327784, 2012 Ind. App. LEXIS 181 (Ind. Ct. App. 2012).

Opinion

OPINION

VAIDIK, Judge.

Case Summary

Following dissolution of their marriage, Barbara (Rosario) Bessolo (“Mother”) and William Rosario (“Father”) were involved in disputes concerning their young daughter. In response to the many motions that followed, the trial court found that Mother failed to dismiss the protective order against Father as required by the dissolution decree, held her in contempt, and awarded compensatory damages and attorney’s fees to Father. While we conclude that these rulings were proper, we reach a contrary result regarding the ten-day suspended sentence imposed on Mother for future violations of any of the court’s orders. We affirm in part and reverse in part.

Facts and Procedural History

Mother and Father have one child together, S.R., born December 4, 2005. In June 2010, Mother filed a petition for dissolution. During dissolution proceedings, Mother and Father reached a mediated *728 settlement agreement. A key feature of the agreement was the requirement that Mother dismiss a protective order against Father on or before November 12. However, the settlement agreement expressly provided that its terms were not binding until the agreement was approved by the court. Mother signed the agreement on November 5, 2010. After a brief delay, Father also signed the agreement. 1 The dissolution court approved and incorporated the agreement into the dissolution decree and dissolved the parties’ marriage on November 30, 2010. The clerk file-stamped the decree and delivered it to counsel the next day, December 1. Mother did not dismiss the protective order.

One incident is relevant to this appeal. On December 5, 2010, a parenting-time exchange was scheduled. Mother sent the parties’ former housekeeper, Vita, to pick up S.R. S.R. entered Vita’s car while Father was making a phone call. Mother was also in the car Vita was driving, though she did not make her presence known to Father and Father could not see her through the car’s tinted windows. Vita drove away with S.R. while Father was on the phone. Father followed the vehicle and contacted the Carmel Police Department. Mother also contacted the Carmel Police Department and informed a dispatcher that Father was following their car and that the parties’ divorce had recently been finalized, which made Father upset. She told the dispatcher a number of times that she had a protective order against Father. The dispatcher instructed Mother to go with Vita and S.R. to a public place, a nearby grocery store parking lot, instead of returning to Mother’s home. Meanwhile, the dispatcher speaking to Father told him to pull into the same grocery store parking lot and wait in his car for authorities.

Officers met Mother and Father in the parking lot. Mother told them that she had a protective order against Father. The officers confirmed that a protective order was still in place. Father was arrested and spent twenty hours in jail before being released on his own recognizance. No charges were filed against him. Mother filed a motion to dismiss the protective order two days later, which was granted. On December 21, Father filed a verified motion to show cause requesting that Mother be held in contempt for her actions on December 5. 2

The trial court heard evidence on Father’s contempt motion at a number of hearings with the final hearing held in June. At the hearings, both parties discussed the December 5 incident. Father stated that he spoke with Mother during the exchange but did not know Mother was in Vita’s car. He explained that he contacted authorities and followed the car because Vita left suddenly with S.R. without his consent and because he wanted to know that S.R. was being returned to Mother’s care. Father also said that he thought the protective order had been dismissed. Tr. p. 240. He testified that his arrest and imprisonment caused him to be absent from work for one day and lose $450 in income. Id. at 229. He also stated that he later had his record expunged, which cost $2500, and submitted evidence *729 of his attorney’s fees. See Respondent’s Exs. I, K.

Mother testified that she sent Vita to pick up S.R. because “there was a protective order in place and I didn’t want to have any trouble.” Id. at 287. When asked about the requirement that she dismiss that very order, the following exchange occurred:

MR. BENNER [Father’s Counsel]: It says right there when you are to dismiss the protective order, doesn’t it?
[Mother]: My understanding is that this is valid assuming that the divorce decree was signed on November 5, which it wasn’t.
MR. BENNER: Judge Campbell signed it on November 30, didn’t he?
[Mother]: Yes.
MR. BENNER: It went into [e]ffect on November 30, didn’t it?
[Mother]: I believe so.
MR. BENNER: Okay, I think you just testified just a few minutes ago you wanted it to go into [e]ffect immediately didn’t you?
[Mother]: Yes.
MR. BENNER: You wanted both yourself and [Father] to be bound by this immediately, didn’t you?
[Mother]: The minute it was signed.
MR. BENNER: And you knew what you signed, didn’t you?
[Mother]: Say that again, sorry?
MR. BENNER: You knew exactly what your obligations were under this agreement when you signed it, didn’t you? [Mother]: When I signed it on November 5, yes. But he signed it many days later.

Id. at 295-96.

Mother also confirmed that she spoke to Father by phone during the exchange but did not inform him of her presence. Mother implied, however, that Father knew she was in the car with Vita and S.R., and that after their car pulled away, Father began “speeding and chasing” the car. Id. at 290. Officer Bryan Martin, one of the officers at the scene, also testified about the exchange. Officer Martin stated that Mother indicated that there was a protective'order in place, and when the officers confirmed the validity of the order, he was required to arrest Father. Id. at 319-20.

In July 2011, the trial court ruled on the parties’ motions. In pertinent part, the court found Mother in contempt for failing to timely dismiss the protective order against Father, explaining that Mother “used the protective order as a way to have [Father] arrested,” despite knowing “she was obligated to dismiss the protective order pursuant to the divorce decree.” Appellant’s App. p. 10. Mother was ordered to pay Father a total of $10,000 in compensatory damages — $2500 to expunge his arrest record and $7500 for “[Father’s] arrest and time in jail ... for his inconvenience, embarrassment, and mental suffering.” Id. at 11. The court also “impose[d] a 10-day suspended jail sentence which may be served if [Mother] violates this Court’s orders in the future.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
966 N.E.2d 725, 2012 WL 1327784, 2012 Ind. App. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bessolo-v-rosario-indctapp-2012.