Robert Weybright v. Kathy Weybright n/k/a Kathy Scaggs

• Court: Indiana Court of Appeals
• Decided: January 12, 2012
• Docket: 43A03-1105-DR-191
• Status: Unpublished

Opinion

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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:

JAY L. LAVENDER BRYON J. BERRY Lavender & Bauer, P.C. Warsaw, Indiana Warsaw, Indiana FILED Jan 12 2012, 9:17 am

CLERK of the supreme court, court of appeals and

IN THE tax court

COURT OF APPEALS OF INDIANA

ROBERT WEYBRIGHT, ) ) Appellant-Respondent, ) ) vs. ) No. 43A03-1105-DR-191 ) KATHY WEYBRIGHT, ) n/k/a KATHY SCAGGS, ) ) Appellee-Petitioner. )

APPEAL FROM THE KOSCIUSKO SUPERIOR COURT The Honorable Jerry M. Barr, Special Judge Cause No. 43D01-0506-DR-454

January 12, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge Appellant-Respondent Robert Weybright (“Husband”) appeals from the trial court’s

determination that: (1) Appellee-Petitioner Kathy Webright, n/k/a Kathy Scaggs (“Mother”)

was not in contempt of a court order; (2) he maintain health insurance coverage for the

parties’ minor daughter, M.W.; (3) he reimburse Mother for certain health insurance and

medical expenses; and (4) Mother retain sole custody of M.W. We affirm in part and remand

to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

Mother and Father were married on April 22, 1995, and one child, M.W., was born

during the course of the parties’ marriage. Mother and Father separated in 2005. On August

18, 2005, the trial court entered a Provisional Order (“provisional dissolution order”), in

which it awarded Mother custody of M.W., granted Father visitation pursuant to the

Parenting Time Guidelines, and ordered Father to pay child support and to maintain health

insurance coverage for M.W. On September 13, 2007, the trial court entered a Decree for

Dissolution of Marriage (“dissolution decree”) in which the trial court again granted Mother

custody of M.W. and awarded Father 130 overnight visits with M.W. The dissolution decree

did not disturb the trial court’s prior order regarding Father’s obligation to pay child support

or maintain health insurance coverage for M.W.

Since 2007, the parties have filed numerous motions regarding custody, child support,

and visitation issues. On October 6, 11, and 12, 2010, the trial court conducted a hearing on

various pending motions. On January 31, 2011, the trial court issued an order regarding the

various pending motions in which the trial court determined that: (1) Mother was not in

2 contempt of the existing visitation order; (2) Mother shall retain custody of M.W. with Father

having certain visitation rights as outlined in the order; (3) Father shall maintain health

insurance for M.W.; (4) Father shall reimburse Mother for one half of the $19,395.92 in

health insurance premiums paid by Mother between January of 2007 and December of 2009,

during which time M.W.’s health insurance had lapsed; and (5) Father shall reimburse

Mother for one half of the $7,353.98 in medical expenses, including $5500 in orthodontia

expenses, incurred for M.W. by Mother. Father now appeals.

DISCUSSION AND DECISION

I. Contempt

On appeal, Father contends that the trial court abused its discretion in determining that

Mother was not in contempt of the visitation order.

Whether a party is in contempt is a matter left to the sound discretion of the trial court, and 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. Williams v. State ex rel. Harris, 690 N.E.2d 315, 316 (Ind. Ct. App. 1997). Indirect contempt arises from matters not occurring in the presence of the court but which obstruct or defeat the administration of justice, such as failure or refusal of a party to obey a court order. Crowley v. Crowley, 708 N.E.2d 42, 52 (Ind. Ct. App. 1999). The primary objective of a civil contempt proceeding is not to punish but to coerce action for the benefit of the aggrieved party. Id. Thus, any type of remedy in a civil contempt proceeding must be coercive or remedial in nature. Id.

Mosser v. Mosser, 729 N.E.2d 197, 199-200 (Ind. Ct. App. 2000). 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. Topolski v.

3 Topolski, 742 N.E.2d 991, 994 (Ind. Ct. App. 2001) (citing Piercey v. Piercey, 727 N.E.2d

26, 31-32 (Ind. Ct. App. 2000)).

Indiana Code section 34-47-3-1 provides that a person who is guilty of any willful

disobedience of any order lawfully issued by a court of record is guilty of indirect contempt

of the court’s order. In order to support a finding of indirect contempt, it must be shown that

a party willfully disobeyed a lawfully entered court order of which the offender had notice.

Rendon v. Rendon, 692 N.E.2d 889, 896 (Ind. Ct. App. 1998) (citing Mitchell v. Stevenson,

677 N.E.2d 551, 558 (Ind. Ct. App. 1997)); see also Topolski, 742 N.E.2d at 994. An action

is “willful” if it is done deliberately. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

2617 (14th ed. 1961). The presence of a “willful” intent is a factual determination for the trial

court and will be set aside only if there is no evidence supporting the trial court’s

determination. See Whitman v. Whitman, 405 N.E.2d 608, 614 (Ind. Ct. App. 1980).

In the instant matter, the trial court determined that while Mother did “thwart

visitation on several occasions,” Mother’s actions were not willful because she believed she

was acting in M.W.’s best interest.1 Appellant’s App. p. 32. Mother testified that she

believed she was acting in M.W.’s best interest because of concerns relating to prior

allegations of inappropriate touching of minors raised in the CASA report, Father’s addiction

to pornography, and M.W.’s display of inappropriate affection to both her stepfather and

adult male strangers after periods of extended visitation with Father. Mother testified that

1 The trial court cautioned, however, that a continued refusal by Mother to comply with the trial court’s order regarding visitation would amount to contempt and would be punished with a fine or incarceration.

4 following extended periods of visitation with Father, M.W. often attempts to climb into

stepfather’s lap in an inappropriate fashion. M.W. also shows inappropriate displays of

affection to strangers, which displays include hugs. In addition, Mother was unable to

transport M.W. to visitation on one occasion after suffering injuries in an automobile

accident that left her unable to drive. In light of the evidence supporting the trial court’s

determination that Mother’s actions were not willful because she felt she was acting in

M.W.’s best interest, we conclude that the trial court acted within its discretion in

determining that Mother was not in contempt of the visitation order.

II. Health Insurance

Father contends that the trial court abused its discretion in ordering him to both

continue to carry health insurance for M.W. and to pay additional child support based on

health insurance premiums paid after Father previously allowed M.W.’s health insurance

coverage to lapse. We review a trial court’s decision regarding child support for an abuse of

discretion. Thompson v. Thompson, 811 N.E.2d 888, 924 (Ind. Ct. App. 2004), trans. denied.

An abuse of discretion occurs if the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court or if the court has misinterpreted the

law. Id.

In arguing that the trial court abused its discretion in ordering him to reimburse

Mother for health insurance premiums paid by Mother, Father argues that he is effectively

being forced to pay for M.W.’s health insurance twice. Father’s argument seems to be based

on the false premise that the trial court has ordered him to pay for two current, ongoing

5 health insurance policies. Our review of the record, however, reveals that Father has actually

been ordered to continue to provide M.W. with current health insurance while reimbursing

Mother for a period from January 2007 until December of 2009, when he appears to have

failed to provide M.W. with health insurance as ordered by the dissolution order.

The record reveals that pursuant to the provisional dissolution order, which continued

to be in effect up through the issuance of the January 31, 2011 order, Father was ordered to

carry health insurance for M.W. The record also reveals that Mother was not provided with

any documentation verifying that Father had procured health insurance coverage as of 2005

or 2006. As a result, Mother believed that M.W.’s health insurance coverage had lapsed at

some point during either 2005 or 2006. In light of the apparent lapse of M.W.’s health

insurance coverage and her lack of knowledge as to whether Father had procured health

insurance for M.W., Mother felt compelled to procure health insurance coverage for M.W.

starting in January of 2007. Mother subsequently became aware that Father had procured

health insurance coverage for M.W. beginning in January of 2010.

The total cost for M.W.’s health insurance coverage for January of 2007 through

December of 2009 was $19,395.92. The trial court ordered Father to reimburse Mother for

one half of the total sum paid by Mother for M.W.’s health insurance coverage between

January of 2007 and December of 2009, at a rate of $75 per week in addition to Father’s

existing child support obligations. In light of the evidence demonstrating that M.W.’s health

insurance appears to have lapsed in 2005 or 2006 and the lack of evidence that Father

complied with the provisional dissolution order by procuring health insurance for M.W. prior

6 to January 2010, we conclude that the trial court acted within its discretion by ordering Father

to continue to provide current health insurance for M.W. while reimbursing Mother for one

half of the sum of health insurance premiums paid during the period between January of 2007

and December of 2009.

Furthermore, to the extent that Father argues that the trial court abused its discretion in

ordering him to pay one half of the sum of the health insurance premiums paid by Mother

between January of 2007 and December of 2009, because Mother failed to request Father’s

approval of the health insurance coverage obtained by Mother, we disagree. Father claims

that Mother should have sought his approval before obtaining the health insurance coverage

for M.W. or allowed him the opportunity to procure a health insurance policy of his choice.

The record reveals, however, that Father was required by the provisional dissolution order to

provide health insurance coverage during this period, but apparently failed to do so. We

cannot say that Mother acted unreasonably by procuring health insurance for M.W. through

her place of employment in light of Father’s failure to comply with the terms of the

provisional dissolution order by providing M.W. with health insurance. Thus, it is not an

abuse of discretion for the trial court to require Father to reimburse Mother for one half of the

total sum of health insurance premiums paid during this period.

III. Costs Related to Orthodontia

Father also contends that the trial court abused its discretion in ordering that he pay

one half of M.W.’s orthodontia expenses. Again, an abuse of discretion occurs if the trial

court’s decision is clearly against the logic and effect of the facts and circumstances before

7 the court or if the court has misinterpreted the law. Thompson, 811 N.E.2d at 924. In

support, Father relies on Tigner v. Tigner, 878 N.E.2d 324, 329 (Ind. Ct. App. 2007), for the

proposition that Mother, as the party seeking to recover the orthodontia expenses, was

required to prove that the expenses were both reasonable and necessary. Specifically, Father

claims that because orthodontia expenses were not explicitly mentioned in the provisional

dissolution order, he should not be required to pay for one half of the costs associated with

M.W.’s braces unless the orthodontia was currently medically necessary, as opposed to

cosmetic. Father claims that if the orthodontia was cosmetic in nature, it could have been

done without consequence in the future.

With regard for the need for M.W.’s orthodontia, Mother testified that the orthodontia

was medically necessary because M.W. had two permanent teeth growing in the “roof of her

mouth” and that her dentist had indicated that the orthodontia was needed at the current time

to make room for and move those teeth to their proper location so to avoid sinus problems

and prolonged treatment. Tr. pp. 151, 152. From this testimony, the trial court was within its

discretion to determine that M.W.’s orthodontia was medically necessary, and ordered Father

to pay for one-half of the total cost of it.

IV. Bills Discharged in Bankruptcy

Father contends that the trial court erred in ordering him to reimburse Mother for two

bills, specifically a $391.50 bill from Goshen General Hospital (“GGH”) and a $27.11 bill

from EBI. Mother stipulates that Father should not be required to reimburse Mother for

these bills. Accordingly, to the extent that these bills were included in the amount of medical

8 expenses for which the trial court ordered Father to reimburse Mother, we order the trial

court to modify its order such that Father is not required to reimburse Mother for the

aforementioned bills.

V. Custody Modification

Father also contends that the trial court abused its discretion in modifying the prior

custody determination by awarding sole custody to Mother because Mother failed to prove

that a change in circumstances warranted a change in custody and that a change in custody

was in M.W.’s best interest. However, upon review, we observe that while the January 31,

2011 order may indicate that it modified the previous custody order by granting Mother sole

custody of M.W., the parties’ dissolution decree granted Mother sole custody of M.W., with

Father receiving 130 overnight visits per year. Accordingly, the trial court did not actually

modify the prior custody determination, and as such, did not abuse its discretion in this

regard.

CONCLUSION

In sum, the trial court did not abuse its discretion in: (1) determining that Mother was

not in contempt; (2) ordering Father to provide health insurance for M.W.; (3) order Father to

reimburse for one half of health insurance premiums paid by Mother after Father allowed

M.W.’s health insurance to lapse between January of 2007 and December of 2009; (4)

ordering Father to pay one half of M.W.’s orthodontia expenses; and (5) in continuing sole

custody of M.W. with Mother, and the trial court’s order is affirmed in this regard. However,

9 we remand to the trial court to modify its order to the extent that Father was previously

ordered to reimburse Mother for the $391.50 and $27.11 GGH and EBI bills.

The judgment of the trial court is affirmed in part and remanded to the trial court with

instructions.

KIRSCH, J., and BARNES, J., concur.