MEMORANDUM DECISION FILED Jun 03 2016, 5:41 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT April L. Sellers Butler & Sellers, P.C. Elkhart, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy D. Brooks, June 3, 2016 Appellant-Defendant, Court of Appeals Case No. 20A03-1512-DR-2192 v. Appeal from the Elkhart Superior Court Katherene Gardner, The Honorable Stephen R. Appellee-Plaintiff. Bowers, Judge; The Honorable George Biddlecome, Special Judge Trial Court Cause No. 20D02-0502-DR-88
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 1 of 7 [1] Jeremy D. Brooks appeals the trial court’s determination he must report to
work release for non-compliance with a contempt order. As Brooks complied
with the order, we reverse.
Facts and Procedural History [2] Pursuant to divorce proceedings, Brooks and Katherene Gardner (then known
as Katherene Brooks) entered into a Property Settlement Agreement wherein
they stipulated Brooks would “pay . . . all [Gardner’s] student loan obligation in
excess of eighty-five hundred ($8,500) dollars[.]” (App. at 31.) Several years
later, following mediation, the parties agreed Brooks was to make “reasonable
payments on the student loan to keep loan out of default and or [sic] in a matter
[sic] that is acceptable to the creditor.” (Id. at 39.)
[3] On May 8, 2015, Gardner filed a Motion for Contempt alleging Brooks had not
complied with that agreement. In an order dated June 8, 2015 (“June 8
Order”), Judge Stephen R. Bowers found Brooks in contempt, stating:
The Court finds the Husband in contempt of court for failure to pay the student loan as set out in the Decree; which was further confirmed in mediation. The Court finds the Husband completely failed to follow the Court’s order regarding the student loan. The Court commits the Husband to the Elkhart County Community Corrections Program on Work Release. The Court defers the imposition of said commitment and orders the Husband to report for the execution of the commitment on December 11, 2015 by close of business. The Court sets the matter for status conference December 7, 2015 at 1:30 PM. If Husband provides verification the obligation has been paid in full or satisfactory arrangements have been made with the lender for
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 2 of 7 payment of the obligation, the Court will further defer the imposition of the commitment.
(Id. at 43) (emphasis added).
[4] On June 23, 2015, Brooks and Gardner entered into a Rehabilitation
Agreement (“Agreement”) with the owner of the loan, Texas Guaranteed
Student Loan Corporation (“TG”). As part of this Agreement, Brooks and
Gardner agreed to “make at least nine (9) timely monthly payments (during a
ten (10) consecutive month period) in the amount of $5.00[.]” (Id. at 47.) The
Agreement did not permit lump sum payments against future installments.
[5] At the December 7 status hearing, with Special Judge George Biddlecome
presiding, Brooks supplied proof of the Agreement, TG’s acceptance of same,
and proof of timely payments to date. Gardner objected to the terms of the
repayment as the Agreement did not remove her name from the loan. Gardner
then began testifying as to the amount of the loan and interest and to its effect
on her life. Brooks, through counsel, objected to such testimony as being
evidentiary and requiring a hearing beyond the scope of the status hearing.
Special Judge Biddlecome agreed Gardner’s additional testimony was beyond
the scope of the hearing, found Brooks was not in compliance with the June 8
Order, and ordered him to report to work release the following Friday. 1
1 On December 11, 2015, Brooks filed an Emergency Motion to Reconsider. The trial court did not rule on the motion. We therefore review the decision made by Special Judge Biddlecome on December 7.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 3 of 7 Discussion and Decision [6] Gardner did not submit an appellee’s brief. In such a situation, we do not
undertake the burden of developing arguments for the appellee. Applying a less
stringent standard of review with respect to showings of reversible error, we
may reverse the lower court if the appellant can establish prima facie error.
Fisher v. Bd. of Sch. Tr., 514 N.E.2d 626, 628 (Ind. Ct. App. 1986). Prima facie, in
this context, is defined as “at first sight, on first appearance, or on the face of
it.” Johnson Cnty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991
(Ind. Ct. App. 1985). Where an appellant is unable to meet that burden, we
will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind. Ct. App. 1986), reh’g
denied, trans. denied.
[7] We review a contempt sentence for an abuse of discretion. An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Mitchell v. Mitchell, 785 N.E.2d
1194, 1198 (Ind. Ct. App. 2003). When we review a ruling on a petition for
contempt, we do not reweigh evidence or judge the credibility of witnesses. Id.
[8] Contempt of court “involves disobedience of a court which undermines the
court’s authority, justice, and dignity.” Srivastava v. Indianapolis Hebrew
Congregation, Inc., 779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied.
“Willful disobedience of any lawfully entered court order of which the offender
had notice is indirect contempt.” Francies v. Francies, 759 N.E.2d 1106, 1118
(Ind. Ct. App. 2001), reh’g denied, trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 4 of 7 [9] The purpose of civil contempt proceedings is to “coerce action for the benefit of
the aggrieved party.” Marks v. Tolliver, 839 N.E.2d 703, 707 (Ind. Ct. App.
2005). “[A] contempt order which neither coerces compliance with a court
order or [sic] compensates the aggrieved party for loss, and does not offer an
opportunity for the recalcitrant party to purge himself, may not be imposed in a
civil contempt proceeding.” Flash v. Holtsclaw, 789 N.E.2d 955, 959 (Ind. Ct.
App. 2003), reh’g denied, trans. denied.
In order to be held in contempt for failing to comply with a court order, a party must have willfully disobeyed the order. The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated. A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.
Bandini v.
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MEMORANDUM DECISION FILED Jun 03 2016, 5:41 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT April L. Sellers Butler & Sellers, P.C. Elkhart, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy D. Brooks, June 3, 2016 Appellant-Defendant, Court of Appeals Case No. 20A03-1512-DR-2192 v. Appeal from the Elkhart Superior Court Katherene Gardner, The Honorable Stephen R. Appellee-Plaintiff. Bowers, Judge; The Honorable George Biddlecome, Special Judge Trial Court Cause No. 20D02-0502-DR-88
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 1 of 7 [1] Jeremy D. Brooks appeals the trial court’s determination he must report to
work release for non-compliance with a contempt order. As Brooks complied
with the order, we reverse.
Facts and Procedural History [2] Pursuant to divorce proceedings, Brooks and Katherene Gardner (then known
as Katherene Brooks) entered into a Property Settlement Agreement wherein
they stipulated Brooks would “pay . . . all [Gardner’s] student loan obligation in
excess of eighty-five hundred ($8,500) dollars[.]” (App. at 31.) Several years
later, following mediation, the parties agreed Brooks was to make “reasonable
payments on the student loan to keep loan out of default and or [sic] in a matter
[sic] that is acceptable to the creditor.” (Id. at 39.)
[3] On May 8, 2015, Gardner filed a Motion for Contempt alleging Brooks had not
complied with that agreement. In an order dated June 8, 2015 (“June 8
Order”), Judge Stephen R. Bowers found Brooks in contempt, stating:
The Court finds the Husband in contempt of court for failure to pay the student loan as set out in the Decree; which was further confirmed in mediation. The Court finds the Husband completely failed to follow the Court’s order regarding the student loan. The Court commits the Husband to the Elkhart County Community Corrections Program on Work Release. The Court defers the imposition of said commitment and orders the Husband to report for the execution of the commitment on December 11, 2015 by close of business. The Court sets the matter for status conference December 7, 2015 at 1:30 PM. If Husband provides verification the obligation has been paid in full or satisfactory arrangements have been made with the lender for
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 2 of 7 payment of the obligation, the Court will further defer the imposition of the commitment.
(Id. at 43) (emphasis added).
[4] On June 23, 2015, Brooks and Gardner entered into a Rehabilitation
Agreement (“Agreement”) with the owner of the loan, Texas Guaranteed
Student Loan Corporation (“TG”). As part of this Agreement, Brooks and
Gardner agreed to “make at least nine (9) timely monthly payments (during a
ten (10) consecutive month period) in the amount of $5.00[.]” (Id. at 47.) The
Agreement did not permit lump sum payments against future installments.
[5] At the December 7 status hearing, with Special Judge George Biddlecome
presiding, Brooks supplied proof of the Agreement, TG’s acceptance of same,
and proof of timely payments to date. Gardner objected to the terms of the
repayment as the Agreement did not remove her name from the loan. Gardner
then began testifying as to the amount of the loan and interest and to its effect
on her life. Brooks, through counsel, objected to such testimony as being
evidentiary and requiring a hearing beyond the scope of the status hearing.
Special Judge Biddlecome agreed Gardner’s additional testimony was beyond
the scope of the hearing, found Brooks was not in compliance with the June 8
Order, and ordered him to report to work release the following Friday. 1
1 On December 11, 2015, Brooks filed an Emergency Motion to Reconsider. The trial court did not rule on the motion. We therefore review the decision made by Special Judge Biddlecome on December 7.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 3 of 7 Discussion and Decision [6] Gardner did not submit an appellee’s brief. In such a situation, we do not
undertake the burden of developing arguments for the appellee. Applying a less
stringent standard of review with respect to showings of reversible error, we
may reverse the lower court if the appellant can establish prima facie error.
Fisher v. Bd. of Sch. Tr., 514 N.E.2d 626, 628 (Ind. Ct. App. 1986). Prima facie, in
this context, is defined as “at first sight, on first appearance, or on the face of
it.” Johnson Cnty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991
(Ind. Ct. App. 1985). Where an appellant is unable to meet that burden, we
will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind. Ct. App. 1986), reh’g
denied, trans. denied.
[7] We review a contempt sentence for an abuse of discretion. An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Mitchell v. Mitchell, 785 N.E.2d
1194, 1198 (Ind. Ct. App. 2003). When we review a ruling on a petition for
contempt, we do not reweigh evidence or judge the credibility of witnesses. Id.
[8] Contempt of court “involves disobedience of a court which undermines the
court’s authority, justice, and dignity.” Srivastava v. Indianapolis Hebrew
Congregation, Inc., 779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied.
“Willful disobedience of any lawfully entered court order of which the offender
had notice is indirect contempt.” Francies v. Francies, 759 N.E.2d 1106, 1118
(Ind. Ct. App. 2001), reh’g denied, trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 4 of 7 [9] The purpose of civil contempt proceedings is to “coerce action for the benefit of
the aggrieved party.” Marks v. Tolliver, 839 N.E.2d 703, 707 (Ind. Ct. App.
2005). “[A] contempt order which neither coerces compliance with a court
order or [sic] compensates the aggrieved party for loss, and does not offer an
opportunity for the recalcitrant party to purge himself, may not be imposed in a
civil contempt proceeding.” Flash v. Holtsclaw, 789 N.E.2d 955, 959 (Ind. Ct.
App. 2003), reh’g denied, trans. denied.
In order to be held in contempt for failing to comply with a court order, a party must have willfully disobeyed the order. The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated. A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.
Bandini v. Bandini, 935 N.E.2d 253, 264-65 (Ind. Ct. App. 2010) (citations and
quotation marks omitted).
[10] Here, the trial court abused its discretion when it ordered Brooks to report to
work release, because Brooks complied with the requirements of the June 8
Order. Special Judge Biddlecome stated “I – I’m not satisfied with [the
arrangements] . . . and as far as I’m concerned Judge Bowers’ Order stands.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 5 of 7 You go to jail on Friday. 2 . . . [I]f this doesn’t get this woman’s name of [sic]
that loan, he’s not satisfactory.” (Tr. at 9-10) (footnote added).
[11] Brooks has made a prima facie showing that finding was improper. The June 8
Order deferred Brooks’ commitment to work release if he “provides verification
the obligation has been paid in full or satisfactory arrangements have been made with
the lender for payment of the obligation[.]” (Id. at 43) (emphasis added). At the
December 7 hearing, Brooks submitted evidence of the Agreement, a letter from
TG indicating it accepted the Agreement, and proof he made the agreed-on
payments for the five intervening months. As Brooks complied with the June 8
Order, 3 we reverse the order that Brooks report to work release. Cf. Mitchell v.
Mitchell, 871 N.E.2d 390, 395-96 (Ind. Ct. App. 2007) (contempt proper to
enforce compliance with court order to hold wife harmless on debt).
Conclusion [12] The trial court abused its discretion when it ordered Brooks to report to work
release, as Brooks complied with the June 8 Order. Accordingly, we reverse.
2 We note the commitment was “to the Elkhart County Community Corrections Program on Work Release[],” and not to “jail” as stated by Special Judge Biddlecome. (App. at 43.) 3 Special Judge Biddlecome indicated he would not be satisfied until Brooks removed Gardner’s name from the loan. The June 8 Order required Brooks to “provide[] verification the obligation has been paid in full or satisfactory arrangements have been made with the lender for payment of the obligation.” (App. at 43) (emphasis added). It did not require him to remove Gardner’s name from the loan and, as such, the court could not rely on that reasoning as a justification for finding he failed to comply with the June 8 order. See, e.g., Bandini, 935 N.E.2d 253, 264-65 (party cannot be held in contempt for failing to obey “an ambiguous or indefinite order”).
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 6 of 7 [13] Reversed.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016 Page 7 of 7