Malicoat v. Wolf

792 N.E.2d 89, 2003 Ind. App. LEXIS 1354, 2003 WL 21742267
CourtIndiana Court of Appeals
DecidedJuly 29, 2003
DocketNo. 82A05-0301-CV-29
StatusPublished
Cited by2 cases

This text of 792 N.E.2d 89 (Malicoat v. Wolf) 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
Malicoat v. Wolf, 792 N.E.2d 89, 2003 Ind. App. LEXIS 1354, 2003 WL 21742267 (Ind. Ct. App. 2003).

Opinion

[91]*91OPINION

MAY, Judge.

Mary Jo Malicoat (“Mother”) appeals from a finding of contempt of court and a partial denial of her petition to modify visitation. She presents three issues for review, which we consolidate and restate as: 1) whether the trial court abused its discretion in determining she was in contempt of court; and 2) whether the trial court abused its discretion in denying, in part, her petition to modify visitation.

We affirm.

FACTS AND PROCEDURAL HISTORY

Mother and Donald Wolf (“Father”) were divorced on June 15, 1995. The terms of their divorce included joint custody of their two minor children, C.A. and M.J. As modified in May 1997, the custody arrangement provides in part that Mother is the primary physical custodian of the children; Mother shall provide Father with a schedule of the children’s extracurricular activities; Father has visitation and temporary custody of the children every other weekend from 4 p.m. Friday to 6 p.m. Sunday and at other times as Mother and Father agree; Father has additional visitation one night a week during the summer; and Father has additional visitation of one full week in June, July and August.

In early March 2002, Father arrived at Mother’s house between 5 p.m. and 6 p.m. on Friday to pick up C.A. and M.J. for his weekend. Although Father had called and told [Mother] that he was coming then, Mother, C.A., and M.J. were not there, because they had gone shopping for new shoes. (Tr. at 7.) Father returned later, but C.A. and M.J. were not there.

Father filed a Verified Information For Contempt on March 27, 2002, alleging Mother “failed to make the children available for visitation as ordered” and failed to inform Father of the children’s activities. (App. at 7.) Mother filed a Petition to Modify visitation on April 5, 2002, stating the present visitation schedule was unreasonable due to the children’s school and athletic activities and requesting “an open-ended visitation giving the boys in-put [sic] as to the visitation schedule.” (Id. at 9.) C.A. and M.J. began counseling with a therapist on April 16, 2002. Father was not notified about the counseling.

In late May 2002, C.A., M.J., Father, and Father’s wife met at a restaurant for a meal. Father’s wife “started in” on the children regarding visitation and how they were “mistreating their dad,” which caused the children to be upset, embarrassed and unable to eat. (Tr. at 33.) The children were also questioned about their counseling, which the children wanted to be private.

C.A. and M.J. did not participate in scheduled visitation with Father after this incident. Father called C.A. and M.J. several times; his calls were not always returned. On September 29, 2002,. Father told C.A. and M.J. he was not going to “call and bug [them] anymore” because Father believed the children did not “want to participate and call [him] back.” (Id. at 16.)

A hearing on the information for contempt and the petition to modify was held on November 19, 2002. The trial court found Mother “in contempt with no sentence at this time” and “granted in part” Mother’s petition to modify by requiring Father to “provide the necessary transportation for [C.A. and M.J.] to attend scheduled school activities during [Father’s] visitation.” (App. at 11.)

DISCUSSION AND DECISION

1. Contempt of court

Mother argues that because she was “justifiably concerned” about C.A.’s [92]*92and MJ.’s well being and “reluctance to be with [Father],” the trial court abused its discretion in finding her in contempt. (Br. of Appellant at 9.)

Whether a party is in contempt is a matter left to the sound discretion of the trial' court. Piercey v. Piercey, 727 N.E.2d 26, 31 (Ind.Ct.App.2000). We reverse the trial court’s finding of contempt only if it is against the logic and effect of the evidence before it or is contrary to law. Id. When reviewing a contempt order, we will neither reweigh the evidence nor judge the credibility of witnesses, and 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 31-32.

Father filed the information for contempt after Mother made C.A. and M.J. unavailable for visitation in early March.1 Mother testified C.A. and M.J. did not want to go to Father’s house that weekend due to their prior plans and to prior altercations with Father. Mother, Father, C.A., and M.J. had engaged in a “five hour hollering match on the phone” on Thursday about whether the children would spend the weekend with Father. (Tr. at 27.) Mother testified C.A.’s and M.J.’s understanding was “they were not going” to Father’s while “[F]ather’s understanding was he was going to force them no matter what.” (Id. at 31.) At the hearing in November, Father testified he had not seen C.A. and M.J. since May and had not spoken to them since the end of September.

To be punished for contempt of a court’s order, there must be an order commanding the accused to do or refrain from doing something. Piercey, 727 N.E.2d at 32. To hold a party in contempt for a violation of a court order, the trial court must find the party acted with willful disobedience. Id. Uncontradicted evidence that a party is aware of a court order and willfully disobeys it is sufficient to support a finding of contempt. Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind.Ct.App.1997).

The visitation order provided that Father would have custody of the children from 4 p.m. Friday until 6 p.m. Sunday every other weekend and for one full week during June, July and August. Mother was aware of the visitation order. Although it was Father’s weekend to have the children, Mother made the children unavailable because they did not want to go to Father’s for the weekend. Mother does not appear to deny making the children unavailable but seeks instead to justify her actions by citing her “concern about their well-being” (Br. of Appellant at 9) and her “[correct] consideration of the best interests of the children.” (Id. at 10.)

Indiana Parenting Time Guideline I.E.3 provides this admonition to parents when a child does not want to participate in scheduled visitation: “If a child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.” (Emphasis supplied.)

[93]*93If Mother believed C.A. and M.J. were being harmed by the scheduled visitation with Father, “her remedy was to seek a modification of the [visitation] order.” Hartzell v. Norman T.L., 629 N.E.2d 1292, 1295 (Ind.Ct.App.1994). “Instead, she defied the visitation order.” Id.; see also Piercey, 727 N.E.2d at 32 n. 2. Mother acted with willful disobedience in making the children unavailable for visitation with Father. The trial court’s finding of contempt is affirmed.2 See, e.g., Piercey, 727 N.E.2d at 32.

2. Petition to modify

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Bluebook (online)
792 N.E.2d 89, 2003 Ind. App. LEXIS 1354, 2003 WL 21742267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malicoat-v-wolf-indctapp-2003.