Connell v. Connell

583 N.E.2d 791, 1991 Ind. App. LEXIS 2200, 1992 WL 46
CourtIndiana Court of Appeals
DecidedDecember 31, 1991
Docket01A02-9102-CV-00051
StatusPublished
Cited by4 cases

This text of 583 N.E.2d 791 (Connell v. Connell) 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
Connell v. Connell, 583 N.E.2d 791, 1991 Ind. App. LEXIS 2200, 1992 WL 46 (Ind. Ct. App. 1991).

Opinions

SHIELDS, Judge.

Harold E. Connell appeals the trial court's judgment finding him in contempt.

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

1. Whether the evidence is sufficient to support the trial court's. determination Harold E. Connell violated the court's order [792]*792by removing family photographs from the family home.

2, Whether an affirmative defense must be set forth in a written response to a contempt petition.

FACTS

The marriage of Harold E. Connell (Harold) and Martha A. Connell (Martha) was dissolved on March 23, 1987. At that time, two of the couple's four children, Christine, age 20, and Jennifer, age 17, were uneman-cipated. Martha was granted custody of the two children. Harold was ordered to pay child support in the amount of $80 per week for Christine and $60 per week for Jennifer, for a total of $90 per week. Under the terms of the parties' property settlement agreement, which was approved by the trial court, Martha was awarded, among other things, the family home and "[alll household ... furnishings, decora tions, [and] effects ... presently in [her] ... possession," at the family home. Record at 28.

Shortly after the dissolution, Harold removed photographs of the children and family from the family home.

Harold ceased making support payments after June 83, 1988 because Christine was twenty-one on June 7, 1988 and Harold believed Jennifer was emancipated; she had graduated from high school and had full-time employment.

Martha filed a contempt petition on July 26, 1990 claiming Harold was in contempt of court for removing the photographs and for failing to pay child support. On September 12, 1990 a hearing was held on Martha's petition. At the hearing Harold offered evidence of Jennifer's emancipa tion. The trial court admitted the evidence but later determined it was inadmissible because Harold had failed to file a written response to Martha's petition alleging emancipation as an affirmative defense.

On September 21, 1990 the trial court determined Harold was in arrears in child support, determined he had removed photographs from Martha's residence in violation of the property settlement agreement approved by the trial court and incorporated in the dissolution decree, adjudged Harold in contempt of the court's order, and ordered him to return the photographs, pay $7,440 in child support by December 31, 1991, and pay Martha's attorney fees of $500.

DISCUSSION

I.

Harold argues the evidence is insufficient to support the trial court's determination he removed photographs from the family home in violation of the property settlement agreement.

When reviewing the sufficiency of the evidence we will not disturb the trial court's findings unless they are clearly erroneous and we will not reweigh the evidence or reassess witness credibility. Eden United, Inc. v. Short (1991), Ind. App., 573 N.E.2d 920, 924. Our review is limited to considering the evidence and reasonable inferences drawn therefrom that support the trial court's judgment. Id. Unless after a review of the entire record we have a firm and definite belief a mistake has been made by the trial court, the trial court's judgment will be affirmed. Id.

At the hearing, Martha Connell testified family photographs were in her possession at the family residence after the effective date of the property settlement, that shortly thereafter the photographs were removed from the family home, and that Harold admitted taking the photographs. This evidence is sufficient to support the trial court's determination Harold removed family photographs from the family home in violation of the property settlement agreement and the court's order that Harold return "any and all pictures and photographs belong to [Martha] ... within 80 days of this Order." Record at 80.

II.

Harold argues the trial court erred in striking evidence of Jennifer's alleged emancipation merely because Harold had not specifically pled the defense in a written response to Martha's contempt petition. [793]*793Martha argues emancipation is an affirmative defense that "must be properly raised by some appropriate document." Appel-lee's Brief at 11. The legal authority Martha cites to support her argument is Ross v. Ross (1979), Ind.App., 397 N.E.2d 1066. She argues the citation of T.R. 8(C) in the following quote from Ross requires Harold to raise his affirmative defense of emancipation through an unspecified written response to her contempt petition:

Because it was an affirmative defense to his delinquency, Husband had the burden of proving the asserted effect of emancipation upon the original support order. - Indiana Rules of Procedure, Trial Rule 8(C); State v. Boyle (1976) [168] Ind.App. [643], 344 N.E.2d 302, 304; Slagle v. Slagle (1978) 155 Ind. App. 304, at 306, 292 N.E.2d 624, at 626.

397 N.E.2d at 1068.

Indiana Trial Rule 8(C) provides that if a responsive pleading is necessary, the party filing the pleading must include within that responsive pleading any affirmative defense it seeks to assert. The Rule further provides the pleader bears the burden of proving the affirmative defense. However, an indirect civil contempt proceeding, initiated by a petition or motion to show cause, does not require a responsive pleading; the respondent typically is ordered only to appear in open court, at a designated time, "and then and there show cause why he should not be punished for contempt of an Order of this Court." 15 J. Eric Smith burn, Indiana Practice, Family Law § 9.89 (1991). Therefore, the responsive pleading requirement of T.R. 8(C) is not applicable and the citation of that section in Ross is intended to support only the proposition that the party raising an affirmative defense bears the burden of proving that affirmative defense.

However, whether the trial court's error in striking the proffered evidence constitutes reversible error depends upon the validity of Martha's argument that, as a matter of law, the trial court could not determine Jennifer was emancipated prior to the hearing. According to Martha, to allow a trial court to determine a child has been emancipated prior to the hearing on emancipation violates the principle that emancipation is never presumed, but must be proven, and further, would have the effect of shifting "the burden of bringing the issue of support payments to the Court onto the custodial parent." - Appellee's Brief at 19.

The trial court erred when it struck evidence of Jennifer's alleged emancipation because the law allows the trial court to determine Jennifer was emancipated prior to the date of hearing on the only issue before the trial court: Harold's alleged contempt for nonpayment of the Sixty Dollars ($60.00) per week previously ordered for Jennifer's support.1 In Ross this court specifically acknowledged the validity of the holding of the supreme court in Corbridge v. Corbridge (1952), 230 Ind. 201, 102 N.E.2d 764.

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Connell v. Connell
583 N.E.2d 791 (Indiana Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
583 N.E.2d 791, 1991 Ind. App. LEXIS 2200, 1992 WL 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connell-v-connell-indctapp-1991.