Bessolo v. Rosario
966 N.E.2d 725
Ind. Ct. App.2012Background
- Mother and Father divorced; mediated settlement required Mother to dismiss protective order by 11/12/2010; decree approved 11/30/2010 and entered 12/1/2010.
- On 12/5/2010, during a parenting-time exchange, Vita took S.R. in a car with Mother present but not visible to Father; Father followed and called police after learning of the protective order.
- Mother later told police there was a valid protective order; Father was arrested and held 20 hours; no charges were filed; Mother moved to dismiss the order two days later and it was granted.
- In July 2011, trial court held Mother in contempt for failing to dismiss the order and for statements to authorities; court awarded $10,000 in compensatory damages, imposed a 10-day suspended jail sentence for future violations, and awarded Father $10,000 in attorney’s fees.
- Mother appeals, challenging contempt, the future-violation sentence as punitive, the compensatory damages, and the attorney’s-fees award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contempt based on failure to dismiss order by final decree | Besso lo contends no contempt for November 12 deadline since decree wasn’t entered until December 1. | Rosario argues she was required to dismiss after dissolution and knew of ongoing obligation. | Contempt upheld for failure to dismiss after decree entered; not contempt for November 12 deadline. |
| Compensatory damages for contempt | Damages were unsupported and the arrest was caused by Father’s own actions. | Damages for loss of freedom and humiliation are recoverable; evidence supports $7500 for humiliation and $2500 expungement cost. | Award of $7500 for humiliation and $2500 expungement affirmed as proper compensatory damages. |
| Ten-day suspended jail sentence for future violations | Sentence is punitive because Mother complied with dismissal and no ongoing risk of future contempt. | Suspended sentence contemplated ongoing compliance with future orders. | Ten-day suspended sentence reversed as it did not coerce compliance with a specific order. |
| Attorney's fees award to Father | Court did not consider parties’ incomes or earning abilities; amount potentially excessive. | Trial court has discretion; fees properly awarded for misconduct and post-dissolution proceedings. | Attorney’s-fees award affirmed; court adequately considered economic circumstances and misconduct. |
Key Cases Cited
- Evans v. Evans, 766 N.E.2d 1240 (Ind.Ct.App. 2002) (contempt and discretion standard for contempt findings)
- Phillips v. Delks, 880 N.E.2d 713 (Ind.Ct.App. 2008) (damages in contempt proceedings; evidence required for quantification)
- City of Gary v. Major, 822 N.E.2d 165 (Ind. 2005) (economic loss context for damages in civil proceedings)
- Conwell v. Beatty, 667 N.E.2d 768 (Ind.Ct.App. 1996) (loss of freedom may support damages for humiliation/inconvenience)
- Lazarus Dep't Store v. Sutherlin, 544 N.E.2d 513 (Ind.Ct.App. 1989) (recovery for humiliation in false imprisonment action)
- Bartlemay v. Witt, 892 N.E.2d 219 (Ind.Ct.App. 2008) (contempt sentence improperly conditioned on future noncompliance)
- Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind.Ct.App. 2010) (broad discretion to award attorney’s fees on post-dissolution motions)
- Thompson v. Thompson, 811 N.E.2d 888 (Ind.Ct.App. 2004) (civil-contempt purpose is coercive, not punitive; imprisonment may be remedial)
- Moore v. Ferguson, 680 N.E.2d 862 (Ind.Ct.App. 1997) (contempt power to coerce compliance with underlying order)