Sandra Akiwumi v. Eric Akiwumi
2014 Ind. App. LEXIS 614
| Ind. Ct. App. | 2014Background
- Sandra (Mother) and Eric (Father) divorced in 2010; Mother received physical custody and Father parenting time per the decree, which required Father to give 21 days written notice of intent to visit because the parties lived far apart (Mother in Tampa, FL; Father in Lisle, IL).
- An agreed order required each party to provide written notice within 30 days after a change of employment giving new employer name, address, and phone number. Mother began a new job in June 2013 and did not provide those details to Father.
- Father emailed on June 7 that he intended to visit in early July; on July 1 he supplied pick-up/drop-off times. Mother responded she would only make the child available July 5–7 and later declined several proposed exchange times/locations, ultimately telling Father to visit another time.
- Father went to the agreed exchange site and waited; after multiple communications and proposed alternative meeting times/locations, Mother refused to deliver the child during Father’s visit and later said he must give 21 days notice with dates/times.
- Father moved for rule to show cause asserting indirect contempt for (1) denial of parenting time in violation of the dissolution decree and (2) failure to provide new employer information in violation of the agreed order; the trial court found Mother in contempt on both counts and awarded Father $1,917.90 in attorney fees.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Mother was denied due process at the contempt hearing | Trial court curtailed cross-examination, refused preview of admitted email exhibit, and effectively decided contempt before Mother’s testimony | Trial court provided notice and opportunity to be heard; excluded questions were irrelevant and within trial court discretion | Court held no due process violation; exclusions were either waived or proper as irrelevant; Mother had opportunity to be heard |
| Whether evidence supported contempt for denying parenting time | Mother argued she offered to meet Father and scheduling/notice disputes excused noncompliance (or at least created no willful disobedience) | Father argued he provided adequate advance notice of dates and Mother willfully refused to comply with exchanges | Court held sufficient evidence of willful disobedience; trial court’s credibility findings stand |
| Whether evidence supported contempt for failing to provide new employer information | Mother claimed she forgot (not willful) | Father showed Mother did not provide required employer info after job change per agreed order | Court held Mother willfully violated the agreed order; trial court could discredit forgetfulness defense |
| Whether award of attorney fees was improper or unsupported | Mother contended fee affidavit did not clearly tie expenses to the contempt motion (argument not raised below) | Father presented affidavit of fees; trial court awarded fees | Court held fee challenge waived for failure to raise in trial court; judgment affirmed |
Key Cases Cited
- Francies v. Francies, 759 N.E.2d 1106 (Ind. Ct. App. 2001) (indirect contempt defined as willful disobedience of a court order of which the offender had notice)
- Henderson v. Henderson, 919 N.E.2d 1207 (Ind. Ct. App. 2010) (indirect contempt requires notice and opportunity to be heard)
- Carter v. Johnson, 745 N.E.2d 237 (Ind. Ct. App. 2001) (rule to show cause satisfies due process notice requirements in indirect contempt)
- Mitchell v. Mitchell, 785 N.E.2d 1194 (Ind. Ct. App. 2003) (appellate review of contempt orders gives deference to trial court and will not reweigh evidence)
- Williamson v. Creamer, 722 N.E.2d 863 (Ind. Ct. App. 2000) (burden on alleged contemnor to show violation was not willful)
- In re Des.B., 2 N.E.3d 828 (Ind. Ct. App. 2014) (failure to object to evidence admission waives appellate review)