Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of
FILED establishing the defense of res judicata, collateral estoppel, or the law of the case. Dec 26 2012, 9:37 am ATTORNEY FOR APPELLANT: CLERK of the supreme court, DEBRA LYNCH DUBOVICH court of appeals and tax court
Levy & Dubovich Highland, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF C.C.M.: ) ) M.M., ) ) Appellant, ) ) vs. ) No. 64A03-1205-JP-230 ) V.K.H., ) ) Appellee. ) )
APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Mary A. DeBoer, Special Judge Cause No. 64C01-0602-JP-501
December 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
1 M.M. (Father) and V.K.H. (Mother) are the parents of a young daughter, C.M. Father
appeals from the trial court’s order concerning parenting time, as well as its ruling on
Father’s numerous petitions for rule to show cause and Mother’s request for attorney fees.
Father presents the following restated issues for our review:
1. Did the trial court improperly delegate the authority to modify the parenting- time schedule to a parenting-time coordinator?
2. Did the trial court abuse its discretion in declining to hold Mother in contempt?
3. Did the trial court abuse its discretion in ordering Father to pay a portion of Mother’s attorney fees?
We affirm in part, reverse in part, and remand with instructions.
C.M. was born out of wedlock to Mother in September 2005. Pursuant to an agreed
order entered on May 19, 2006, paternity was established in Father and Father was awarded
parenting time and ordered to pay child support. Pursuant to another agreed order entered on
February 22, 2007, Father’s child support obligation was increased and Mother was ordered
to provide Father with reasonable notice of C.M.’s medical appointments. Yet another
agreed order was entered on May 12, 2009, pursuant to which Mother and Father agreed to
share joint legal custody of C.M., with Mother having primary physical custody and Father
receiving expanded parenting time as outlined in the order.
Despite the entry of three agreed orders, the record reveals that the relationship
between Father and Mother has been highly contentious and combative throughout the
entirety of the paternity proceedings. On December 15, 2009, Father filed a Petition for
Modification seeking a decrease in his child support obligation and an order giving “Father
2 and Mother equal decision making control concerning [C.M.’s] education, health care,
religious, and extracurricular activities.” Appellant’s Appendix at 54. On the same date,
Father filed a Petition for Rule to Show cause seeking to have Mother held in contempt for
various alleged violations of the agreed orders, including denying and interfering with
Father’s parenting time, failing to consult Father concerning C.M.’s educational and
extracurricular activities, failing to notify Father in advance of C.M.’s medical appointments,
refusing to send changes of clothes with C.M. for her overnight visits with Father, and failing
to return a baseball cap belonging to the child. Thereafter, Father filed six additional
petitions for rule to show cause seeking to have Mother held in contempt. In these petitions,
he cited many of the same issues set forth in the December 15 petition, as well as some new
alleged violations.
On August 23, 2010, Mother filed a Verified Petition for Modification of Custody and
Parenting Time and for Rule to Show Cause seeking sole legal custody of C.M. and
requesting that Father’s parenting time be reduced to that set forth in the Indiana Parenting
Time Guidelines. Mother also sought to have Father held in contempt, alleging that Father
had not paid child support as ordered, and that he “continue[d] to file frivolous pleadings in
this case.” Id. at 66. On September 14, 2010, Father filed another Petition for Modification,
this time seeking “primary care” or, in the alternative, “sole custody.” Id. at 69.
Due to the appointment of a custody evaluator and delays in receiving the evaluator’s
report, a hearing on these motions was not held until April 18, 2012. Thereafter, on April 26,
2012, the trial court issued a detailed, twenty-page order addressing issues of custody,
3 parenting time, child support, and contempt. In the order, the trial court set a parenting-time
schedule and appointed a parenting-time coordinator. The trial court’s order gave the
parenting-time coordinator the authority to revise the trial court’s parenting-time schedule “to
accommodate summer vacation, holidays, extended parenting time and extra-curricular
activities.” Id. at 34.
With respect to contempt matters, the trial court determined that Mother was in
contempt for failing to notify Father of some of C.M.’s medical appointments and that Father
was in contempt for failing to pay child support as ordered. The trial court did not impose
sanctions on either contempt finding, although it did calculate Father’s outstanding child
support arrearage and order him to begin making payments thereon. The trial court declined
to hold Mother in contempt for the other allegations set forth in Father’s rules to show cause.
The trial court also ordered Father to pay a portion of Mother’s attorney fees. The trial court
deferred ruling on Father’s request to modify child support, however, because Father had not
yet filed his business and personal income tax returns for 2010 and 2011, and the trial court
concluded that this information was necessary to allow it to accurately calculate Father’s
income. 1 Father now appeals.
As an initial matter, we note that Mother did not file an appellee’s brief. Accordingly,
we apply a less stringent standard of review and may reverse if the appellant establishes
1 Because the trial court declined to rule on this issue, Father is not, as he claims, appealing from a final judgment. See Ind. App. R. 2(H)(1) (providing that a “final judgment” is one which “disposes of all claims as to all parties”); Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct. App. 2002) (holding that a final judgment is one that puts an end to the particular case and reserves no further question for future determination). Nevertheless, because the trial court ordered Father to pay Mother’s attorney fees and to begin making payments toward his support arrearage, we have jurisdiction over this matter as an interlocutory appeal as of right from an order for the payment of money. See Ind. App. R. 14(A)(1); Rowe v. Ind. Dep’t of Correction, 940 N.E.2d 1218 (Ind. Ct. App. 2011), trans. denied.
4 prima facie error. Aiken v. Stanley, 816 N.E.2d 427 (Ind. Ct. App. 2004). Prima facie means
“‘at first sight, on first appearance, or on the face of it.’” Id. at 430 (quoting Parkhurst v.
Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003)). However, this rule is not intended
to benefit the appellant, but rather to relieve this court of the burden of developing arguments
on the appellee’s behalf. State v. Moriarty, 832 N.E.2d 555 (Ind. Ct. App. 2005). The
burden of demonstrating trial error remains with the appellant. State v. Combs, 921 N.E.2d
846 (Ind. Ct. App. 2010).
Additionally, where, as here, the trial court enters findings of fact sua sponte, the
specific findings control only as to the issues they cover, while a general judgment standard
applies to any issue upon which the court has not found. Julie C. v. Andrew C., 924 N.E.2d
1249 (Ind. Ct. App. 2010). We will set aside the trial court’s specific findings only if they
are clearly erroneous, that is, when there are no facts or inferences drawn therefrom to
support them. Id. In reviewing the trial court’s findings, we consider only the evidence most
favorable to the judgment and the reasonable inferences therefrom, and we will not reweigh
the evidence or judge witness credibility. Id. We will affirm a general judgment on any legal
theory supported by the evidence. Id.
1.
First, Father argues that the trial court erred by delegating authority to modify the
parenting-time schedule to the parenting-time coordinator. “When reviewing a trial court’s
determination of a parenting time issue, we grant latitude and deference to the trial court and
will reverse only when the trial court abuses its discretion.” In re Paternity of C.H., 936
5 N.E.2d 1270, 1273 (Ind. Ct. App. 2010), trans. denied. A trial court abuses its discretion if
its decision is clearly against the logic and effect of the facts and circumstances before it. Id.
Ind. Code Ann. § 31-14-14-2 (West, Westlaw current though 2012 2nd Reg. Sess.)
provides that “[t]he court may modify an order granting or denying parenting time rights
whenever modification would serve the best interests of the child.” (emphasis supplied). In
Matter of Paternity of A.R.R., this court addressed a situation in which a trial court had
delegated discretion over the frequency and supervision of a child’s visits with her mother to
a court-appointed family therapist. 634 N.E.2d 786 (Ind. Ct. App. 1994). This court
reversed, concluding that
a modification of visitation may not be granted absent a determination by the court that the modification would serve the best interests of the child. No statute permits this determination to be delegated to a caseworker, probation officer, guardian, or other authority, and to do so would be to undermine the safeguards inherent in reserving to a detached and impartial court the task of weighing the many considerations relevant to visitation. By authorizing the [therapist] to determine when supervised visitation is no longer needed and when the frequency of visitation may be increased, the court impermissibly endowed that agency with judicial powers.
Id. at 789; see also Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001) (holding that a
court may not delegate decisions concerning the frequency and availability of visitation to
other parties).
In this case, the trial court’s order set forth a parenting-time schedule, but gave the
parenting-time coordinator the authority to revise that schedule “to accommodate summer
vacation, holidays, extended parenting time and extra-curricular activities.” Appellant’s
Appendix at 34. The trial court’s order also provided that “[i]t is not the intention of the
6 Court to bind [the parenting-time coordinator] to the parenting time guidelines in any way.
He is free to construct a workable schedule that is best overall for [C.M.].” Id. at 35. The
order also indicated that the trial court encouraged Mother and Father to attempt to reach
agreements on parenting-time issues, but “if the parties are unable to reach an agreement on
an issue, [the parenting-time coordinator] shall determine the outcome of the issue for
purposes of acting as an Order of this Court.” Id.
Based on this language, we conclude that the trial court impermissibly delegated
decision-making authority with respect to the frequency and availability of parenting time to
the parenting-time coordinator. Although the court set forth a parenting-time schedule, it
granted the parenting-time coordinator broad latitude to revise that schedule, and indicated
that the parenting-time coordinator was not bound by the Indiana Parenting Time Guidelines.
Indeed, the order went so far as to grant the parenting-time coordinator the authority to
resolve parenting-time disputes between the parties, and provided that the parenting-time
coordinator’s resolution of those issues would have the force of a court order. Under these
facts and circumstances, we conclude that Father has satisfied his burden of establishing
prima facie error in this regard. We therefore reverse the trial court’s parenting-time order
and remand for a redetermination of that issue in accordance with this opinion.
2.
Next, Father argues that the trial court abused its discretion by declining to hold
Mother in contempt for various alleged violations of court orders. The determination of
whether a party is in contempt of court is a matter within the trial court’s discretion. Van
7 Wieren v. Van Wieren, 858 N.E.2d 216 (Ind. Ct. App. 2006). An abuse of discretion occurs
when the decision is contrary to law or against the logic and effect of the facts and
circumstances before the court. Kicken v. Kicken, 798 N.E.2d 529 (Ind. Ct. App. 2003). In
reviewing a trial court’s contempt ruling, we will consider only the evidence and reasonable
inferences supporting the judgment, without reweighing the evidence or judging the
credibility of witnesses. Id.
“In general, contempt of court involves disobedience of a court which undermines the
court’s authority, justice, and dignity.” City of Gary v. Major, 822 N.E.2d 165, 169 (Ind.
2005). There are two types of contempt—direct and indirect. In re Paternity of M.F., 956
N.E.2d 1157 (Ind. Ct. App. 2011). Direct contempt involves actions occurring near the court
that interfere with the court’s business and of which the judge has personal knowledge. Id.
Indirect contempt, on the other hand, involves actions outside the trial court’s personal
knowledge. Id. Willful disobedience of any lawfully entered court order of which the
offender had notice constitutes indirect contempt. Id.
Father points to various trial court findings concerning Mother’s actions and claims
that, based on these factual findings, the trial court was required to hold Mother in contempt.
Specifically, Father notes the trial court found that Mother: (1) failed to communicate with
Father about which schools C.M. should attend; 2 (2) “restricted Father’s access to [C.M.],”
and (3) “failed to provide Father with information to which he was entitled[.]” Appellant’s
2 Father claims that the trial court found that Mother’s failure to communicate with Father regarding the schools C.M. should attend was “contemptuous.” Appellant’s Brief at 11. The finding Father cites in support of this argument, however, contains no such statement. Rather, the finding states that Mother’s failure to invite Father to C.M.’s preschool or kindergarten registration was not contemptuous behavior. Appellant’s Appendix at 23.
8 Appendix at 27. Father also notes that Mother was held in contempt for failing to notify him
in advance of C.M.’s medical appointments, but seems to argue that the trial court was
required to impose sanctions for Mother’s contempt in this regard and erred by not doing so.
To the extent the evidence establishes that Mother willfully violated court orders, we
cannot conclude that the trial court abused its discretion in concluding that contempt and/or
sanctions are not warranted in this case. We acknowledge Father’s reliance on DeBoer v.
DeBoer, 669 N.E.2d 415 (Ind. Ct. App. 1996), for the proposition that failure to hold a party
in contempt where there is uncontroverted evidence of willful disobedience of a court order
is reversible error. The overarching principle in family law matters, however, is that we grant
latitude and deference to the trial court. Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct. App.
2007), trans. denied. To that end, this court has declined to substitute its judgment for that
of the trial court with regard to the necessity of contempt findings or sanctions, particularly in
the context of acrimonious child custody proceedings like the one at hand. See Van Wieren v.
Van Wieren, 858 N.E.2d 216; Kicken v. Kicken, 798 N.E.2d 529.
In Van Wieren v. Van Wieren, the father alleged that the trial court erred in refusing to
hold the mother in contempt because she admitted to some of the acts he alleged were
contemptuous. This court agreed that the trial court would have acted within its discretion in
finding the mother in contempt; however, the court held that “we will not require the trial
court to find a party to be in contempt where . . . the court has found that those actions fall
short of necessitating contempt sanctions.” Van Wieren v. Van Wieren, 858 N.E.2d at 223
(emphasis in original). Similarly, in Kicken v. Kicken we affirmed trial court’s decision not
9 to hold the mother or father in contempt, in part because the decision was an attempt to
“improve upon an acrimonious family situation” by providing the parties with a “clean
slate[.]” 798 N.E.2d at 534. Rather than finding error, “we commend[ed] the trial court’s
efforts to impress upon Mother and Father the larger picture: the well-being of their
children.” Id.
Here, the trial court made extensive findings regarding Father’s allegations of
contempt. The court acknowledged that Mother had not always complied with orders that
required her to communicate with Father—specifically, she did not provide Father with
advance notice of C.M.’s medical appointments and not discussed schools with him. The
trial court found Mother to be in contempt for her failure to provide advance notice of C.M.’s
medical appointments because a previously entered agreed order expressly required her do
so. The trial court concluded, however, that Mother’s contempt did not warrant sanctions, in
part because of the contentious relationship between Mother and Father. Specifically, the
court found that “[g]iven the parties’ inability to agree on even the most simple things, the
Court finds that having both parties at each and every appointment would be stressful for all
and potentially harmful to [C.M.] to witness their lack of civility toward each other.”
Appellant’s Appendix at 23. Moreover, although the trial court did not find Mother to be in
contempt for failing to communicate with Father about what schools C.M. should attend
before enrolling her, it expressly noted that it did not condone her behavior in this regard.
The trial court’s rulings on the contempt petitions reflect its desire to put the parties’
past disagreements to rest without creating more hostility between them. We believe it was
10 reasonable for the trial court to conclude that granting contempt petitions and imposing
sanctions for every technical violation of its orders would serve only to increase the
animosity between Mother and Father, without any discernible benefit to C.M. We also note
that Father benefitted from the trial court’s circumspectness in this regard, as the trial court
declined to impose sanctions against him for his failure to pay child support as ordered.
When viewed in light of this fact, Father’s insistence that Mother be sanctioned for contempt
rings hollow. For all of these reasons, we cannot conclude that the trial court abused its
discretion in declining to hold Mother in contempt.
3.
Finally, Father argues that the trial court abused its discretion in ordering him to pay a
portion of Mother’s attorney fees. Ind. Code Ann. § 31-14-18-2 (West, Westlaw current
through 2012 2nd Reg. Sess.) permits the trial court to order a party to pay attorney fees in
paternity actions. We review such an order for an abuse of discretion. In re Paternity of
McGuire-Byers, 892 N.E.2d 187 (Ind. Ct. App. 2008), trans. denied. In determining whether
to award attorney fees, the trial court must consider the resources of the parties, their
economic conditions, their ability to engage in gainful employment and earn adequate
income, and other factors that bear of the reasonableness of the award. Id. “‘When one party
is in a superior position to pay fees over the other party, an award of attorney fees is proper.’”
Id. at 193 (quoting A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120, 127 (Ind. Ct. App.
2004)), trans. denied.
Father argues there is insufficient evidence of the parties’ financial conditions to
11 support the trial court’s order that he pay $5,200 toward Mother’s attorney fees. Specifically,
he argues that because the trial court concluded that it had insufficient evidence before it to
rule on Father’s request to modify child support, it ipso facto had insufficient evidence before
it to award attorney fees.
We cannot agree with Father’s argument that the quantum of evidence concerning a
party’s financial condition required to support an award of attorney fees is the same as that
necessary to support a modification of child support, and he has not directed our attention to
any authority supporting that proposition. The Indiana Child Support Guidelines set forth a
specific and detailed method for calculating child support obligations based on the parents’
income. There is no similar formula for calculating attorney fee awards. While it is true that
the trial court must consider the parties’ relative financial conditions, it is enough if the
evidence presented establishes that one party is in a better position to pay the fees.
Moreover, it appears that the trial court withheld judgment on Father’s petition to modify
child support because it wanted to use Father’s 2010 and 2011 income tax returns to ensure
that Father was not underreporting his income, as Mother’s counsel had suggested at the
hearing. But even assuming Father was underreporting his income, the evidence presented at
the hearing was more than sufficient to establish that Father was in a better position to pay
the attorney fees. Mother has three young children, including C.M., and does not work
outside the home. Father, on the other hand, owns two sporting goods stores and testified
that he pays himself a biweekly salary of $800.
Father also argues that the attorney fee award was an abuse of discretion because “the
12 [r]ecord in the case at bar is devoid as to either parties’ investments or savings or any other
evidence which might establish their economic circumstances.” Appellant’s Brief at 15. As
noted above, the record contained significant information regarding the parties’ incomes.
Father never argued before the trial court that Mother had significant savings or investments,
and he cannot raise the argument for the first time on appeal. See Whitfield v. State, 699
N.E.2d 666 (Ind. Ct. App. 1998) (holding that arguments raised for the first time on appeal
are waived and will not be considered on appeal), trans. denied. To the extent Father
argues that evidence that Mother had managed to pay a significant portion of her attorney
fees prior to the hearing establishes that an attorney-fee award was not warranted, the
argument amounts to a request to reweigh the evidence, which we will not do on appeal. For
all of these reasons, we cannot conclude that the trial court abused its discretion in awarding
attorney fees.
Finally, Father cites Deel v. Deel, 935 N.E.2d 183 (Ind. Ct App. 2010), for the
proposition that if he prevails on any of the issues raised in this appeal, we should also
remand the attorney-fee award for reconsideration. In Deel v. Deel, the trial court made
various errors that resulted in its conclusion that the father did not have an outstanding child
support arrearage. Id. On appeal, this court concluded that Father had an arrearage of nearly
$10,000 and remanded with instructions to correct the error and reconsider the mother’s
request for prejudgment interest. Id. This court also instructed the trial court to reconsider
its attorney fee award to in light of these corrections. Id. The case at hand is readily
distinguishable; because the only issue on which Father prevailed, the delegation of excessive
13 authority to the parenting-time coordinator, had no bearing on matters relevant to the
determination of an attorney fee award, reconsideration of the award is not warranted.
Judgment affirmed in part, reversed in part, and remanded with instructions.
NAJAM, J., and BRADFORD, J., concur.