Caitilin Ashley v. Richard F. Ashley, Jr. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 15, 2019
• Docket: 19A-DR-354
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 15 2019, 9:25 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Carl Paul Lamb Ryan M. Spahr Matthew L. Fox Spahr Law Office, LLC Lamb & Fox LLP Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Caitilin Ashley, August 15, 2019 Appellant-Petitioner, Court of Appeals Case No. 19A-DR-354 v. Appeal from the Marion Superior Court Richard F. Ashley, Jr., The Honorable Patrick J. Dietrick, Appellee-Respondent. Judge The Honorable Caryl F. Dill, Magistrate Trial Court Cause No. 49D12-1510-DR-35333

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 1 of 13 Case Summary [1] Caitilin Ashley (“Wife”) appeals an order finding her in contempt of court and

ordering that she pay attorney’s fees on behalf of Richard Ashley (“Husband”).

Additionally, she challenges the trial court’s denial of her motion for contempt

against Husband. We affirm in part and reverse in part.

Issues [2] Wife presents the following consolidated and restated issues: 1

I. Whether the trial court abused its discretion by finding her, as opposed to Husband, in contempt of court; and

II. Whether the sanction for contempt is an abuse of discretion.

Facts and Procedural History [3] In 2016, after thirty years of marriage and the acquisition of several real

properties, Wife and Husband divorced. Their mediated settlement, adopted by

the dissolution court, provided that Husband would have possession of

properties at 3650 Washington Boulevard and 3755 Washington Boulevard in

Indianapolis (“the Properties”), pending their sale. Wife was to be afforded

1 Because we reverse, we do not reach the issue of whether Wife was entitled to a continuance of the trial proceedings to obtain successive counsel.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 2 of 13 access as reasonably necessary for the sale process. Each spouse was awarded

other parcels of real estate as his or her individual property.

[4] The settlement agreement contained provisions that the trial court would later

describe as “conflicting.” Appealed Order at 3. The agreement provided that

each of the properties should be listed for sale in its current condition and

“neither party shall be obligated to make improvements or remediations except

as mutually agreed in writing through the sale process.” Id. Another paragraph

of the settlement agreement stated: “Each party shall cooperate fully with all

reasonably necessary sales efforts including but not limited to allowing access

for reasonable walk-throughs, open houses, showings appraisals, inspections,

cleanings, etc., and reasonably maintaining the ‘show-ready’ condition.” Id.

[5] On April 21, 2017, the trial court approved an Agreed Modification to the

Mediated Marital Settlement Agreement. Pursuant to that agreement, Husband

was to receive as his sole property an additional parcel of real estate located at

3920 Washington Boulevard, and Wife was to be paid her equity in 3920

Washington Boulevard from the proceeds of the sale of 3755 Washington

Boulevard.

[6] At the expiration of a one-year listing contract, neither of the Properties had

been sold and thus Wife had not received her equity in 3920 Washington

Boulevard. For a time, the former spouses amicably discussed re-listing the

Properties. Wife, who had obtained a realtor’s license, considered listing the

Properties but learned that she could not list 3755 Washington Boulevard

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 3 of 13 because she was not licensed to sell commercial property. Cooperative efforts

broke down when Husband and Wife could not agree on a successive realtor or

listing price.

[7] More fundamentally, and eventually giving rise to the instant litigation,

Husband and Wife did not agree on the extent of Husband’s obligation to clean

and present the Properties for showing. Wife requested, in writing, that

Husband perform landscaping tasks, eliminate rust stains from sinks or re-glaze

them, repair water damage, and remove construction debris, items stored in a

garage, and numerous boxes of business records. She opined that these efforts

would bring the Properties to a show-ready condition and, without the

measures, the commercial property would be devalued by $100,000.00.

Husband’s position was that, under the decree adopting the mediated

settlement, the Properties were being offered for sale in an as-is condition.

[8] On April 12, 2018, Wife filed her “Petition for Rule to Show Cause,

Enforcement of Decree, and Request for Attorney’s Fees.” (App. Vol. II, pg.

59.) She alleged that Husband was in contempt of court for failing to keep the

Properties in a “show-ready” condition, denying her reasonable access, refusing

to agree upon a realtor, refusing to refinance the mortgage for 3920 Washington

Boulevard, and delaying the tender of her vehicle title and proceeds from an

IRA. Id. She asked that Husband be ordered to better maintain the Properties

and pay her for the claimed reduction in value. She also requested that final

proceeds of the sale be used to pay 2015 income taxes and a $4,400.00 medical

bill. On August 31, 2018, Husband filed a petition for rule to show cause,

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 4 of 13 alleging Wife was in contempt of court because she had “continued to make

unjustified and outlandish demands on Husband before she would agree to

participate and cause the listing of the properties.” Id. at 84.

[9] The trial court conducted a hearing on the respective contempt petitions on July

9 and October 5, 2018.2 By the final hearing date, Husband had cleared out his

personal and business property and vacated the Properties, moved into the

residence at 3920 Washington Boulevard, and delivered to Wife the title to her

vehicle and $2,000.00 from an IRA. He had paid $14,000.00 of the 2015

income taxes but had not paid any part of the medical bill. A sale of the 3755

Washington Boulevard property was pending. The property at 3650

Washington Boulevard was listed for sale at an agreed listing price of

$395,000.00.

[10] Although the property distribution was substantially completed, each party

desired that the other be held in contempt for wrongfully interpreting their

settlement and causing delays. Wife had incurred approximately $25,000.00 for

attorney’s fees, and Husband had incurred approximately $28,000.00. Each

desired a sanction order against the other for payment of fees.

[11] Realtors Larry Gregerson (“Gregerson”) and Ken George (“George”) testified

regarding the condition of the Properties during the time they were listed

2 Wife had filed, and later moved to dismiss, a petition for modification of child support. She had also twice petitioned for appointment of a receiver; the trial court summarily denied those petitions.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 5 of 13 without selling. Gregerson described the Properties as having construction

debris, water leaks, rusty sinks, and “pretty overgrown landscaping.” (Tr. Vol.

II, pg. 11.) The biggest concerns, according to George, were stored boxes and

the need for exterior upkeep. Wife testified that, in her opinion, Husband had

not kept the Properties in show-ready condition. She described being “horrified

by so much clutter, boxes, and junk.” Id. at 32. She also claimed that Husband

had denied her access and she had not refused to agree upon a successive

realtor. She acknowledged that Husband had provided her with a vehicle title

and IRA funds but faulted his delay.

[12] In turn, Husband testified that he had followed the court order and had not

been obligated to improve the Properties beyond their condition at the time of

the initial listing (which predated the divorce). He claimed that he had allowed

Wife reasonable access to the Properties and the lack of sale was traceable to

her “adamant” refusal to lower the price. Id. at 190. Husband testified that he

was compliant with court-ordered payments and transfers (but he

acknowledged that neither spouse had paid a portion of the medical bill despite

each receiving $25,000.00 from a prior real estate transaction). He further

testified that he had not immediately refinanced the mortgage for 3920

Washington Boulevard because, upon investigation, he learned that only he

was liable on the mortgage.3

3 Nonetheless, Husband stated that he had recently applied to refinance the mortgage for his own budgetary purposes.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 6 of 13 [13] On January 4, 2019, the trial court issued an order finding Wife in contempt of

court and ordering that she pay $15,000.00 of Husband’s attorney’s fees. The

order specified that Wife was found in contempt of court “for her unreasonable

refusal to agree on listing prices, act as listing agent, agree on a listing agent and

reduce the listing prices of the properties as well as her refusal to acknowledge

that the properties were to be listed and sold in ‘their current condition.’”

Appealed Order at 8.

[14] With respect to Husband, the order stated:

The Court finds [Husband] was not in contempt of court for refusing to allow [Wife] access to the properties or for failing to maintain the properties in “show ready” condition. The Court finds he was required to put forth additional efforts and expend funds in an effort to clean and unclutter the properties to placate [Wife] because of her unreasonable refusal to act as listing agent, agree on a listing agent and agree on listing prices to sell the properties “IN THEIR CURRENT CONDITION.”

Id. Additionally, the trial court found that Husband’s delay in providing the

vehicle title and IRA funds was “inadvertent and not willful” and he was not

required to refinance a mortgage solely in his name. Id. The order further

provided that “outstanding debts, if any, as outlined in the Settlement, shall be

paid from the proceeds of the sale of 3650 and 3755 Washington Boulevard.”

Id. at 8-9. Wife now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 7 of 13 Discussion and Decision Finding of Lack of Contempt – Husband [15] When dissolving a marriage, parties are free to negotiate their own settlement

agreements and may incorporate those into a dissolution decree. Ind. Code §

31-15-2-17. Such agreements are contractual in nature, and once incorporated

into a trial court’s final order, the agreements become binding on both parties.

Whittaker v. Whittaker, 44 N.E.3d 716, 719 (Ind. Ct. App. 2015). All orders

contained within a divorce decree may be enforced in contempt proceedings.

I.C. § 31-15-7-10.

[16] Whether a party is in contempt of court is a matter within the trial court’s

discretion, and its finding will be reversed only for an abuse of that discretion.

In re Adoption of A.A., 51 N.E.3d 380, 385 (Ind. Ct. App. 2016). “A court has

abused its discretion when its decision is against the logic and effect of the facts

and circumstances before the court or is contrary to law.” In re Paternity of M.F.,

956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).

[17] There are two types of contempt, that is, direct and indirect. In re A.A., 51

N.E.3d at 385. Indirect contempt, at issue here, is defined as “willful

disobedience of any lawfully-entered court order of which the offender had

notice.” Id. The order must “command the accused to do or refrain from doing

something.” Piercey v. Piercey, 727 N.E.2d 26, 32 (Ind. Ct. App. 2000). The

contemptuous act must be done willfully and with the intent to show disrespect

or defiance. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). Also,

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 8 of 13 the order must have been so clear and certain that there could be no question

concerning what the party must do, or refrain from doing, such that there could

be no question as to whether the order is violated. City of Gary v. Major, 822

N.E.2d 165, 170 (Ind. 2005). A party may not be held in contempt of court for

failure to comply with an order that is either ambiguous or indefinite. Id.

[18] Wife argues that the trial court abused its discretion by refusing to find Husband

in contempt of court when, by his own admission, he delayed beyond the

parameters of the dissolution decree in refinancing a mortgage and tendering to

Wife the title to her vehicle and $2,000.00 from an IRA. However, he testified

to the following circumstances: he discovered Wife was not obligated on the

mortgage; he paid off her vehicle and put aside the title, remembering it only

during mediation; and it was a mere oversight when he withheld the $2,000.00

IRA proceeds while focusing on larger IRA accounts. “Crucial to the

determination of contempt is the evaluation of a person’s state of mind, that is,

whether the alleged contemptuous conduct was done willfully.” Witt, 964

N.E.2d at 202. Here, the trial court found that Husband’s conduct was

inadvertent and not willful. We will not reweigh the evidence to conclude

otherwise. Piercey, 727 N.E.2d at 32.

Finding of Contempt – Wife [19] Wife argues that Husband’s motion for a rule to show cause did not sufficiently

allege facts constituting contempt, thus denying her due process. She further

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 9 of 13 argues that the trial court then abused its discretion by finding her in contempt

without identifying a court-ordered act that she willfully refused to perform.

[20] Indiana Code Section 34-47-3-5(b) requires in relevant part that a rule to show

cause must:

(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt; [and]

(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant[.]

[21] However, a party may waive a due process violation claim by failing to raise an

argument at the trial level. McKibben v. Hughes, 23 N.E.3d 819, 828 (Ind. Ct.

App. 2014). Wife failed to argue to the trial court that she was denied due

process because she lacked knowledge of the allegations against her. She thus

waived this argument for appeal. We turn to her contention that the trial court

abused its discretion when deciding the merits of the contempt allegation

against her.

[22] The trial court determined that the settlement agreement, adopted by the

dissolution court, contained conflicting provisions regarding how the parties

were to present the Properties for sale. It did not define show-ready, nor did it

specify the steps to be taken if the initial real estate listing expired without a

sale. Yet Wife was found in contempt of court for “refusal to agree on listing

prices, act as listing agent, agree on a listing agent and reduce the listing prices

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 10 of 13 [and] acknowledge the properties were to be listed and sold in their current

condition.” Appealed Order at 8. Critically, Wife was not ordered to do any of

these things in either the dissolution decree or order adopting the modification

settlement. The finding of contempt was an abuse of discretion.

Attorney’s Fees [23] To support his testimony that he incurred attorney’s fees, Husband submitted

his Respondent’s Exhibit C, which provides in full:

Olson Law Office – Ashley – Attorney Fee Summation

March $ 1,750.00 April $ 600.00 May $ 4,075.00 June $ 895.00 July $ 4,625.00 August $ 4,750.00 September $ 4,200.00 October $ 3,390.00 November $ 3,955.00 (7.8 paralegal, 3.7 attorney prep on 10-4 $28,240.00 and 9 hours on 10-5)

[24] The trial court ordered Wife to pay $15,000.00 of the fees, reasoning:

[Husband] incurred attorney fees in excess of $28,000.00 in defending [Wife]’s Rule to Show Cause and in prosecuting his own. The Court finds that the fees were reasonable and that a substantial portion was incurred because of [Wife]’s lack of cooperation and unreasonable interpretation of the terms of the Settlement Agreement.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 11 of 13 Appealed Order at 9.

[25] A trial court may impose sanctions to compensate a party for injuries incurred

as a result of contempt and this may include attorney’s fees. Witt, 964 N.E.2d

at 204. We review for an abuse of discretion and reverse only when there is no

evidence to support the award. Id. Here, assuming that Wife unreasonably

interpreted the settlement agreement, there is no evidence that she was in

contempt of court. The attorney’s fees award may not be justified as a sanction

for Wife’s contempt.

[26] Husband testified that he “had filed for frivolous litigation fees.” (Tr. Vol. II,

pg. 54.) But it is not apparent that the partial fees award included any

compensation for frivolous litigation. The trial court did not reference a

statutory basis and did not specifically address the parties’ respective financial

positions. See In re Marriage of Lewis, 638 N.E.2d 859, 861 (Ind. Ct. App. 1994)

(observing that misconduct directly resulting in added litigation expense may be

considered in awarding attorney’s fees in a dissolution proceeding, but the court

must consider the respective economic conditions of the parties). As the trial

court observed in its order, Wife had filed two motions for appointment of a

receiver and a motion to have the elected judge hear the case. But these

motions were summarily denied and did not lead to protracted litigation. And

Husband’s Exhibit C, which appears to include charges for one month before

the instant litigation ensued, does not allocate any charge to a particular task

performed. In short, the $15,000.00 award appears to be supported only by the

trial court’s erroneous conclusion that Wife was in contempt and should be

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 12 of 13 sanctioned therefor. The sanction order is an abuse of the trial court’s

discretion.

Conclusion [27] The motion for contempt against Husband was properly denied in that his

actions were found to be inadvertent and not willful. Lacking evidentiary

support, the contempt order against Wife must be reversed as an abuse of the

trial court’s discretion. The award of attorney’s fees as a sanction for contempt

is also an abuse of the trial court’s discretion.

[28] Affirmed in part; reversed in part.

Najam, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019 Page 13 of 13