Wilson v. Pittman

555 N.E.2d 499, 1990 Ind. App. LEXIS 720, 1990 WL 84269
CourtIndiana Court of Appeals
DecidedJune 18, 1990
DocketNo. 82A01-8908-CV-292
StatusPublished
Cited by3 cases

This text of 555 N.E.2d 499 (Wilson v. Pittman) 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
Wilson v. Pittman, 555 N.E.2d 499, 1990 Ind. App. LEXIS 720, 1990 WL 84269 (Ind. Ct. App. 1990).

Opinions

ROBERTSON, Judge.

Julie Ann Wilson appeals a judgment of the Vanderburgh Superior Court finding her in contempt of court and granting Mark Daryl Pittman's motions for modification of visitation and child support and for attorney fees.

We affirm.

Wilson and Pittman received a dissolution of marriage on October 5, 1988. At that time, their two children, Christina and David Nathaniel, were twenty months and three months old respectively. Pittman filed his first information for indirect contempt on November 18, 1988 along with a petition for modification of visitation. A hearing held on those matters in February, 1989, did not present sufficient opportunity for both parties to complete their evidence. While awaiting the second hearing, Pitt man filed his second information for contempt and asked for a reduction in child support. The trial court issued its ruling on April 6, 1989. Wilson argues first that the order of visitation is too vague to be enforceable by contempt.

IND. CODE 81-1-11.5-17(c)(1) gives the court the power to enforce its visitation orders by contempt. Whether to punish for contempt is generally a matter within the trial court's discretion. Clark v. Clark (1980), Ind.App., 404 N.E.2d 23, 37. Review of matters within the discretion of the trial court will result in reversal only where there is no rational basis for the trial court's action, i.e. where the court's action is clearly against the logic and effect of the facts and circumstances before the court, including the reasonable inferences that can be drawn therefrom. Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071, 1075; Clark, 404 N.E.2d at 37. This court will neither reweigh the evidence nor assess the credibility of witnesses. We will not substitute our judgment for that of the trial court, even though the evidence might support a different conclusion. Eyler, 492 N.E.2d at 1075.

In order for a person to be punished for being in contempt of a court's order, there must be an order or decree commanding the accused to do or refrain from doing something. Clark, 404 N.E.2d at 37. While the ordinary means of enfore-ing visitation privileges is by means of a contempt proceeding, if the provisions of the divorcee decree concerning visitation are indefinite, they may not be the basis of a contempt proceeding. Id. The portion of the decree relating to visitation rights must spell out the times, places, and cireum-stances of visitation. Id. This decree does. The provision at issue here reads:

The husband testified that his current days off are Fridays and Sundays. The Court will then order that the husband is to have visitation with both children on one (1) of his days off that is mutually agreeable to the parties. The husband may have overnight visitation with the minor daughter of the parties on the [502]*502evening before or the evening of his day off. He is to return her home at a reasonable hour. If the husband has overnight visitation on' Saturday evening, then he should have the daughter home by no later than 6:00 p.m. on Sunday, but the Court will permit the parties to work out that arrangement which they feel is in the best interest of the children. The husband should return the minor son to the wife's residence at an early enough hour on the day of visitation so as not to disrupt normal bedtime habits and patterns. The Court further orders that if the husband's schedule permits, the children should be available to him for one (1) evening meal per week, although this should be on a day agreed upon by the parties and maintained thereafter as long as reasonable. The husband shall have the children home no later than 7:00 p.m. The Court further orders that the husband may have visitation with the children at all other reasonable times as agreeable to the parties.

As Wilson indicated at the first hearing on Pittman's petitions (R. 0163), the provision is fairly clear: Pittman is to be permitted visitation with both of his children on one of his days off. In addition, he is to have overnight visitation with daughter Christina on either the evening before or the evening of his day off.

Wilson claims she interpreted the decree in a reasonable manner, consistent with the decree's language. However, Wilson does not tell us to which interpretation she is referring. The record shows Wilson adopted various interpretations depending on her will. (R. 0290, 0291, 0298) Prior to the first hearing in February, 1989, she required Pittman to pick up the son first, bring him back, and then take the daughter overnight and visit with her the next day. After the first hearing, she told Pittman to take both children, but informed him that he could not have Christina overnight. (R. 0227)

Wilson also argues that there is insufficient evidence her conduct was willful.1 Wilson misconceives her burden of proof on appeal. At the hearing on the contempt petition, Wilson had the burden of establishing that her failure to obey the order was not willful. Patrick v. Patrick (1988), Ind.App., 517 N.E.2d 1234, 1237. The court's finding against her is in effect a negative judgment which we will reverse only if Wilson now establishes that there is no evidence to support the court's conclusion. Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279, 1284.

The record shows Wilson engaged in a pattern of behavior designed to frustrate Pittman's attempts to exercise visitation as set out in the court's order. She exhibited an unwillingness to negotiate reasonable terms or adopt a single practice in good faith. The record reveals similar actions with respect to reimbursement of medical expenses. At one point Wilson told Pitt man not to repay her. The next minute she was asking the court to hold him in contempt for failing to reimburse her. Wilson also intentionally manipulated the requirement that Pittman reimburse medical expenses by February 15 to prevent him from taking the federal income tax exemption.

Wilson next argues that the trial court erred in modifying the visitation schedule without specific findings that a modification would be in the best interests of the children and without a showing that there had been a substantial and continuing change of circumstances since the original decree such as would render the previous order unreasonable. Wilson agreed with Pittman at trial that the court should set specific hours and periods of visitation.2 She specifically asked the court to provide that she receive adequate notice and also ask the court "to solve future problems" by setting summer visitation hours when the children are in school. As we see it, Wilson conceded that cireumstances had changed substantially and that the best [503]*503interests of the children necessitated a change. Having consented to a modification, she may not object now and adopt a position inconsistent with that taken below. Eyler, 492 N.E.2d at 1075; Winkler v. Winkler (1969), 252 Ind. 136, 246 N.E.2d 875, 376; In re the Marriage of Larkin (1984), Ind.App., 462 N.E.2d 1338, 1342, n. 2.

We note with respect to Wilson's contention that the court failed to specially find certain facts, no request for special findings was made.

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Bluebook (online)
555 N.E.2d 499, 1990 Ind. App. LEXIS 720, 1990 WL 84269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-pittman-indctapp-1990.