*1 NORRIS, Appellant, Suzan
v. PETHE, Appellee. Allen
Ross
No. 54A01-0410-CV-454. Appeals
Court of of Indiana.
Aug.
1026
Monty Woolsey, Miroff, K. Cross & Wolf, Woolsey, Indianapolis, Sarah M. Greenfield, Appellant. Homann,
Kurt R. Colliee Homann & *3 Siamas, LLC, Crawfordsville, Appellee. OPINION RILEY, Judge.
STATEMENT THE OF CASE Appellant-Respondent, Suzan Norris (Mother), appeals the trial findings court's of fact and post- conclusions of law in proceedings divoree Appellee- favor of Petitioner, (Father). Ross Allen Pethe part, We affirm in in part, reverse remand with instructions.
ISSUES Mother raises two appeal, issues on which we restate as follows: (1) Whether the trial court abused its discretion finding con- tempt because her conduct following 27, the March 2002 contempt order and, constituted willful intentional dis- obedience; and (2) Whether the trial court erred finding that K.P. repudiated her rela- Father, tionship with thereby reliev- ing him obligation of his to contribute to her college expenses. AND
FACTS PROCEDURAL HISTORY Father and Mother were divorced after twenty-one years marriage pursuant Decree of Dissolution dated June 1999. During the marriage, two children were K.P., born: born on August D.P., born on December 1987. Mother legal custody children, received of both with Father to have reasonable and liberal by agreement visitation parties but no less than requirements of Mont- gomery County Local Rule 17. Father tation, per week in child alleging was ordered to Mother intentionally $300 always been current on support and disregarded the trial court's counseling or- obligation. this der and seeking sanction. The trial court hearing Affidavit, conducted a on the divorcee, After and Mother on March Lebanon, the trial court entered continued to live Indiana. Fa- throughout finding ther exercised his visitation its Order contempt and imposing fall trip after a break (March Order). sanctions. The trial relationship October of between found, in pertinent part, appeared Father and the children to dete- intentionally [Mother] has caused the riorate and visitation became more infre- counseling to prematurely terminate and quent. By fall of visitation was *4 has sabotaged professional she the Accordingly, almost non-existent. on June efforts of proceed the counselor to to 20, 2001, Father filed a Affidavit Verified address the issues the [clourt re- Application for Rule to Show Cause and quired to be addressed. The [clourt Injunction a for Permanent and Motion for directly indirectly finds she and in- 11, 2001, Counseling. after a On October creating fluenced the children in them found, hearing, pertinent the trial court an unwillingness participate to in the part, that counseling. directly She has also [Mother], although may subtly she have indirectly created issues which then she period influenced the children over a of claims ability interfere with the of her regard time with to their attitudes about proceed and the children to with coun- [Flather, visitation their did not with overtly intentionally willfully or interfere seling. The [cJourt also finds that she intentionally the visitation appoint- failed to make with with The [Father]. finds the [clourt children them- ments with the request, counselor when selves, complicity part with some on the ed to do so. they of determined that did not [Father] The finds that [clourt actions on the continue to visit with him. For those part of are without exeuse or [Mother]
reasons not [clourt does believe that justification and that in contempt she is actively interfered and discour- [Mother] of reason of her failure to [clourt aged the [clourt children. The finds comply language literal of the that she is not in and there is order [clourt with the failure to permanent injunction no basis for a to comply spirit with the and intention of issue. order.... should [Slhe the sum (Appellant's App. p. In the same Or- of for the use and benefit of $500.00 der, appointed Larry the trial court Len- attorney and she be [Father]'s should (Dr. Lennon) non family "to work with the Montgomery County committed to the to anger resolve hostilities and that is left (80) period thirty days. Jail for a of The from over the dissolution and also visita (80) thirty further finds that (Appellant's App. p. tion issues." [clourt days jail Thus, suspended of time should be on parties the trial court ordered the process family counseling commence a of the condition that and the chil- [Mother] goal and mediation with the ultimate proceed requested by dren to counsel as reconciliation chil- between Father and his they positively Dr. Lennon and that en- dren. gage counseling, actively cooper- constructively ate with Dr. Lennon and 24, 2002, January on Father filed a Contempt Verified Affidavit Ci- sessions Lennon; by Dr. until terminated to do so until terminated
and continue unilaterally changing conduct by Dr. Lennon. ber counseling appointments, chiding Dr. 75-76). App. pp. (Appellant's his methods and Lennon for filed an Emer- May On therapeutic techniques, persisting for Immediate Cessation geney Motion in the coun- allowing friends to interfere Opinion for a Eval- Counseling and Second process, refusing to attend seling Proceed, was de- uation of How to which despite numerous mediation sessions hearing. trial court without nied and efforts to accom- prior notifications 25, 2002, Furthermore, July on or about schedule, her all constitute will- modate including a petitions, filed several of this disregard ful and intentional Pay- Modify Regarding Petition to Order and a Re- orders. Counseling Expenses ment of [clourt's Modify Support and Visitation. quest a con- part 5. Mother's efforts are tinuing pattern of willful disobedience initial re- Despite positive Dr. Lennon's authority. and disdain for the [clourt's May on the situation deterio- port where, 6. That Mother's conduct from March point to the rated following 19, 200[2], fac- 2002, through August pre- Dr. Lennon sent the message attorney: Mother's simile conduct set forth in cisely mirrors her *5 language the above and demonstrates contin- your advised that client has [Ble our ued to thwart and undermine re- continuing pattern of disdain for this peated attempts to facilitate reconcilia- authority. [cJourt's tion the children and their between contempt, 7. For her should [MJother I will not allow this charade [FJather. for all required be to reimburse Father suspending I all to continue and am fees, in- counseling reports of the from pending further sessions direction testimony of Lennon and Associat- the [clourt. $9,250. amount o ed the 26). Thereafter, App. p. on (Appellee's 17, 2002, a Motion September Father filed THEREFORE, the orders the [clourt to and a Petition to for Order Show Cause following: 11, February Support. Terminate On Further, . imposes 4... the now [clourt 2003, request filed a renewed for a (7) thirty-day jail days seven of the sen- to Pro- Opinion Evaluation on How Second by previously imposed Judge tence Milli- trial on all ceed. The court heard evidence 27, gan in his March 2002 Order. Moth- 5, 14, 6, February on June motions June report Montgomery to er shall July October 2008. On County September Jail on court, 4, 2004, the trial based on this evi- a.m. to serve this sentence. The 10:00 dence, ninety-two findings entered and es- twenty- has converted the other [clourt following pertinent conclu- tablished (28) days jail to hun- three time one sions of law: (180) community eighty dred hours of willfully 4. Mother has and intentional- service for Mother's continued failure to ly violated this order dated [clJourt's In comply with this orders. [clourt's 27, 2002, March in that she has failed to addition, to [MJother orders [clourt positively engage counseling, in the has (80%) percent of the fees pay eighty actively with Dr. cooperate failed to by the Ad Litem. incurred Guardian constructively Lennon and failed to perform community Mother shall in the sessions of the supervision and failed to continue such efforts service under Montgomery County Depart- Probation reasonable inferences drawn therefrom community ment. This service shall be that support the trial judgment. court's (18) completed eighteen months within Id. Unless after a review of the entire from the date of this Order. record we have a firm and definite belief a
mistake by court, has been made the trial judgment the trial court's will be 42-8). affirmed. 37-9, {Appellant's App. pp. Furthermore, Id. this court will re- 3, 2004, September Mother filed a On verse the contempt trial court's judgment grant- Error which Motion Correct was if there is no evidence to support it. the trial court on part September ed 28, 2004, $8,350 ordering Mother to Finding A. Contempt fees, for the cost of testimony reports and for Lennon and As- As we previously, stated in order modifying support sociates and child punished to be of a trial per January week effective $340 order, court's there must be an order com All other issues denied. Sep- were On manding the accused to do or refrain from 10, 2004, granted tember the trial court doing something. Id. To hold a party in jail Stay Motionto sentence Mother's contempt for order, a violation of a court imposed the trial court's Order. On the trial court must find that party 8, 2004, October Father filed a Motionto acted with willful disobedience. Id. Moth Stay Lift of Proceedings. er bears showing the burden of that her October the trial court entered violation of the trial court's March 27 Or order, extending stay an of Mother's der was not willful. See id. In order to
jail sentence. citation, avoid a direct contempt the trial Mother now Additional facts appeals ' court, Order, in its specifically March provided necessary. willbe *6 ordered Mother "and the children pro [to] requested by ceed to counsel as Dr. Len DISCUSSIONAND DECISION they positively non and that engage in Contempt I. counseling, actively cooperate with Dr. Mother contends that first constructively Lennon and in by finding trial court its discretion abused counseling session and to continue do contempt Mother in because her conduct so until (Ap terminated Dr. Lennon.". following the March 27 Order constituted App. p. 76). pellant's willful and intentional disobedience. The case, In the instant Mother on focuses party determination of whether a in is arguments two lines of justify her con- court is a matter within the tempt First, as found the trial court. trial court's discretion and the trial court's alleges she that scheduling constant con- decision will be reversed for an abuse comply flicts made it difficult to with Dr. of that discretion. v. Williamson Cream appointments, Lennon's scheduled but that er, (Ind.Ct.App.2000). 722 N.E.2d intentionally she nevertheless never A court has abused its discretion when its any appointments. missed scheduled As a against logic decision is and effect of contention, related she asserts she has the facts and circumstances before the no control over the children and cannot contrary court or is to law. Id. When engage counseling them in or force them order, reviewing a contempt we will nei Second, actively cooperate. to: Mother reweigh judge ther nor evidence emergency draws our attention to her or- credibility of witnesses. Id. Our review is limited to considering appointment the evidence and ders for the of another coun- Mother, essence, through began Dr. Lennon to deteriorate arguing,
selor harming the children. counsel, object is began to to Dr. Lennon's clear methods. The evidence therapeutic review of the record shows Our children did not want ly indicates that the resumption of the upon and limit to attend the sessions Order, some after the March 27 process during sessions to engagement ed their made when the chil progress initial was re minimum. Their behavior an absolute their father in town elected to meet dren July in Dr. Lennon's notation his sulted office. Howev of in Dr. Lennon's instead "ab progress report that there is er, Dr. May dated report re solutely no rationale for the children's began imposing noted that Mother Lennon to have visitations with their Father fusal appoint future scheduling limitations on the hurtfulness of their words explain or to activities that cited numerous ments. She to him under the presented and actions [] to and which the children had committed guise cordiality honesty." (Appel- honored, in addition felt needed to be she 10).. App. p. lee's own commitments. As result to her commitments, juggling of numerous this The evidence shows that the situation ap unilaterally changed scheduled August. climax in The record reached a though the trial court pointments. Even attempted that Mother to uni- establishes findings acknowledged the difficulties in its a mediation scheduled for laterally change scheduling, the trial court also found presence at was August 2002 which her goal the ultimate of these sessions time she mandatory, while the same between Father were the reconciliation eliminated all future mediation sessions end, To that Dr. Len and his children. K.P. Dr. Lennon declined to reschedule non, progress reports issued several appointment and neither Mother nor Order, after the March 27 recommended appeared August the children for the "family accommodations visitation Thereafter, 2002 session. family guidelines can be made for serious insist, 2002, Mother, counsel, through her matters, such as with their mater health dictating ed on shortened mediation ses- assuming that grandfather, nal visitation practice sions for D.P. due his tennis given higher priority their is [FJather extremely important to him." which "is social, academic, than their and work (Appellee's App. p. By the same let- *7 (Appellee's App. p. schedules." ter, unilaterally Mother terminated all fur- Nonetheless, pro as the summer of 2002 counseling ther with K.P. because of her insisted on accommodat gressed, Mother upcoming college attendance. schedule, ing D.P.'s tennis KP's summer job, and Mother's own work schedule. Thereafter, sched- a mediation session all August parties uled for which 83,2002, report In of June progress his attend, expected were to was attend- appointment Dr. Lennon stated that The record estab- ed D.P. and Father. to the changes were be discussed between Dr. August lishes that on Lennon parents prior any rescheduling. to Mother of Mother's informed Mother's counsel encouraged to attend the counsel was also August 2002 and unexcused absence ing despite sessions her earlier claim that reported August to be on the next session not to come. The she had been informed pm... at 6 This letter was addition although meetings record reflects that be home to a voice mail left on Mother's tween Father and the children continued as oral notification to D.P. phone as well June, The into Mother did not attend. Mother's progress initially during which had been made the 19 session. replied that neither Mother nor that he is dealing counsel with his rejecting and D.P. could attend the session due to a dismissive behavior towards his [F lather (Petitioner's Dr. prior commitment and chided Lennon just without cause." Exh. unilaterally scheduling appoint- for Furthermore, for several sessions the chil- receipt At message, ment. Dr. dren accompanied were to Dr. Lennon's suspended all Lennon further sessions office Dr. Kunz and his wife instead of from pending direction the trial court. by their In progress Mother. his reports, Dr. Lennon expressed disap- persuaded by argu are not Mother's We proval and characterized the interaction ment that she has no control over K.P. and between the children and Dr. Kunz as actively par D.P. and cannot make them "transparent hyperbolic attempts to ticipate counseling. In MacIntosh v. thwart the intent of the mediation (Ind.Ct. ses- MacIntosh, 749 N.E.2d denied, rejected improving sions: App.2001), relationship trams. we between [Fljather." justify that a parent may notion custodial children and their (Appel- simply inaction because a child to refuses App. p. Despite lee's his numerous cooperate with a visitation order. In re requests to Mother to responsible be for plying arguments to MacIntosh's that the transport, children's Dr. Kunz and his improperly order visitation directs the chil wife continued to accompany the children conduct, dren's we par stated that "as the to Dr. Lennon's office and console them legal custody authority ent with over after the session. daughters, impli her minor [mother] was Based on the abundance of evidence be- edly ordered to make reasonable efforts us, fore it is clear that Mother was aware complied ensure the children with the of the trial court's March 27 Order and Here, parenting scheduled time." willfully Therefore, disobey chose to it. through from the March 27 Order the final we conclude that the trial court acted with- session, both K.P. and D.P. in its discretion when it concluded that Furthermore,
were minors.
the record
willfully
disobeyed the March 27
that during
shows
her initial meeting with
Accordingly,
Order.
we refuse to disturb
Lennon,
Dr.
Mother indicated that she
the trial court's Order.
refused to force the children to counsel
B. Sanction
and that she did not
any advantages
see
counseling. Clearly, our established case
Mother next asserts that
law
expects par
concludes otherwise and
imposed
sanctions
of court
ents to control their minor child's behavior were
punitive
excessive and
It
nature.
Accordingly,
attitude.
we find Moth
lies within
power
the inherent
of the trial
argument
er's
unavailing.
be
appropriate
to fashion an
punish
ment for the disobedience of its order.
Next, Mother
claims that the
Williamson,
vice, eighty pay and ordered Mother to guard- incurred percent of the fees Repudiation II. ian ad litem. that the tri Mother next contends Here, seven- imposition concluding that K.P. re al court erred eighty day sentence and one hundred Father, Father and that there pudiated co community service serves the hours of fore, duty college no K.H.'s has compliance purpose ercive Mother's Specifically, argues expenses. Although in with the trial court's Order. support the evidence does not undoubtedly punitive has a carceration findings of fact and the find trial court's could have avoided it component, Mother ings support judgment. do not We by abiding to trial court's March disagree. such, prison the effect of the Order. As case, to coerce Mother and the In the trial sentence was the instant into with Dr. Lennon. rejected children court found that her "[KP.] the relation Father's effort to reconcile Williamson, 722 N.E.2d at 867. See Therefore, the trial court agree we ship. repudiated parent- [KP.] has order that her willful disobedience of the relationship" and concluded that child previously resulted in the execution of the repudiation KP .'s eliminated Father's obli suspended sentence. gation college to her ex contribute 26-27). (Appellant's App. pp. penses. Furthermore, the trial court's Or review, Upon appellate a trial court's find Father's coun der that Mother reimburse ings of fact and conclusions will be set nature, con seling compensatory fees is erroneous, they if are aside stituting spent by monies is, or if the record contains no facts attempt with his children-an to reconcile supporting them. Clark v. inferences attempt purposely undermined was (Ind.Ct. Crowe, 778 N.E.2d 839-40 Accordingly, we conclude Mother. *9 clearly errone App.2002). judgment A is the trial court's award of those amounts us of the court's inher- ous when a review of the record leaves "proper was a exercise 1033 a firm conviction that a mistake has You're wasting your time money. been made. Id. 840. We neither re- The flowers school, are a trash can at weigh just nor the evidence assess the credibil- like our relationship. The fact that witnesses, ity only you of but consider the evi- had to manipulate around the real judgment. dence most favorable to the enough issues was to trash our relation- ship, and this asinine lawsuit accom- Indiana law recognizes that a plished nothing more than to seal that is, repudiation parent-that child's of a a fact. No orders, matter what the judge complete refusal to in a rela my he can't order heart. tionship parent-under with his or her cer 678, (Transcript p. p. Volume of Exh. tain cireumstances will obviate a parent's As Father attempted to ensure the deliv- obligation pay expenses, certain includ ery birthday cards, of special occasion Bales, ing college expenses. Bales v. 801 he addressed them without a return ad- (Ind.Ct.App.2004), N.E.2d 199 reh'g dress. KP. recognized the mail- denied, trans. McKay denied. In v. ing and returned all cards to sender with- McKay, (Ind.Ct.App. 644 N.E.2d opening out them. Besides the returned 1994) Milne, (citing Pa.Super. Milne v. cards, cards, Father did not any receive (1989)), 556 A.2d this letters, gifts or from his daughter during adopted Pennsylvania the rationale of a year child, which decision held where a In an effort to remain involved in his an eighteen years age, repu adult over life, daughter's Father continued to attend parent, parent diates a must be al Nevertheless, her school activities. KP. lowed to dictate what effect this will have clearly presence. rebuffed his Father tes- college on his or her contribution to ex tified that a during cheerleading event at a court, penses McKay for that child. The game football in the fall of 2001: Milne, in light twenty-year- held that a sat bleachers [I] [the] and when repudiated old son had his father such that saw me stomped up [KP.] she responsibility his father was relieved of the away bleachers and stood about ten feet college his son's expenses where the leave, from me and demanded that I she son consulted with his mother stepfa here, can't I'm you believe and what are decisions, college-related ther on all of his Ah, doing here. essentially she was tell- rejected all of his father's efforts to recon ing get me to lost. relationship, cile their and testified that he had no in reestablishing interest a relation {Appellee's App. p. Only after re- ship nothing with his father and questing graduation could be in a announcement session, to change McKay, done his mind. 644 counseling an in- received N.E.2d at 166. graduation vitation to ceremony KP.'s which against he attended her wishes.
The record shows even trial, though repudiation K.P.'s At Dr. Lennon confirmed that KP. of her relation- liar, somebody considered her dad to abe ship with Father commenced when trust, she could not who she did not want minor, she was a it continued uninterrupt- any to be involved with or attend of her majority ed after she reached depth school activities. The of K.P.'s re- 2002. Father testified that when K.P. jection during counseling became clear seventeen, turned he sent flowers and a sessions with Dr. Lennon: birthday check to her school. Not did flowers, accept K.P. decline to meetings she tore we had our with the When dad were, up uh, him: they very check and informed cold. There were *10 August of 2002. majority in she reached hurtful, uh, hurtful statements many as, K.P. af- only I'm here communication with made such Father's that were be, July I don't want to be of I have to because the last session ter that, your if pursue I would here. When for the grades of K.P.'s receipt is his or if he were hospital was in the father Indiana semester at Uni- first and second him? No. you want to see dying, would versity. accompanying The note I don't you to his funeral? go Would my grades are limited to "here grades was know. (Tr. 226). Furthermore, dur- p. from 1.U." 2008, K.P. 26-27). (Tr. ses- testimony July of At Dr. Lennon's last ing her p. 22, 2002, three July K.P. on sion with stated birthday, eighteenth to her prior
weeks my him sending problem I don't have a feelings K.P.'s again explored Dr. Lennon school, I did doing or I'm grades how session, During this towards her Father. said, semester, like I I'm that last but following colloquy occurred: with this going never to be connected She, the last announced to me she going to share the person. I'm never attorney told her not meeting that her person. And type same of love for this So, any appointments. more to schedule my because he is that sounds terrible Order, I, far as [clourt I said well understand dad and no one seems to continue, know, are to I is we why, say strong I can such or how attorney. just referred me to her she everything But he has done to things. Uh, very it clear that she and she made way and it sounds me makes me feel this to do with her nothing [Fla- wants more but, dad, my I crazy because mean he is It to even know ther. was difficult him I don't way I feel around the[] living at going she was to be IU where I ... think can ever hesitant, I very she was because said, I you afraid? She don't said are (Tr. p. know, she was. I implying perhaps know, tuition, your you McKay, about is As we stated in will
asked
"Lwle
repudiated his
dad,
provide
not
child who has
hypocritical
[a
that would be
she said
inflicting yet
tuition.
I
of
my
pay
parent]
me to ask
dad to
with the means
well,
said,
you
already
don't want
right,
parent
all
but
to a
another blow
who
more than
any contact. Your dad is
rejection
deeply painful
of his
suffered
tuition,
than
willing
he's more
McKay,
Although our case law es college to contribute towards his child's only repudiate a that a child can tablishes continue, and should parents or her as an education does not relationship with his an adult child has here, not be enforced where adult, age eighteen, over parent. repudiated relationship with his Father, com K.P.'s behavior towards her id. at 168. See minor, after menced as a continued well
1035 BAKER, since Judge, concurring part The record reflects that June and open dissenting part. Father has stood with arms father-daugh attempting to reestablish a I majority concur with the opinion ex- K.P., K.P. on the relationship ter with cept for its conclusion with respect to the hand, rejected all of other Father's trial imposition court's on Mother of 80 require invitations but now insists we community hours of payment service and open Father to stand with outstretched guardian of 80% of the ad litem's fees. The words, put To it in K.P.'s wallet. re majority accepts the trial imposi- court's Father to tuition now quire pay would be seven-day tion of the sentence and 180 (Tr. 50). Accordingly, "hypocritical." p. service, hours of community but finds fault supports we find that the evidence the trial imposition with the of an additional 80 repudiated finding court's K.P. has hours of community payment service and Father, relationship her with her which guardian of 80% of the ad litem's fees. I supports turn the trial court's conclusion do not believe that there is a basis for obligation college that Father's her drawing this sep- lTine-that the trial court Bales, is obviated. 801 expenses See punishment arated the into segments two N.E.2d 199.1 of no is moment inasmuch an initial imposition of community 260 hours of ser- CONCLUSION acceptable. vice would have been foregoing, Based we find majority The finds fault with the addi- trial court did not abuse its discretion punishment tional because it concludes finding Mother in her because that Mother could not have avoided this following conduct the March Order con- punishment through obedience. I respect- stituted willful and intentional disobedi- fully disagree with this conclusion. If imposition ence. we reverse the initially obeyed Mother had the trial eighty of the additional hours of communi- into, requiring court's order her to enter ty service and remand to the trial court for facilitate, cooperate and with purpose dividing guardian the sole parties. ad litem fees Fur- children, between with Father and the then her thermore, suspended thirty-day we find that the trial court sentence would did have finding repudiated suspended. not err in that K.P. remained Rather than her com- Father, order, however, relationship thereby plying with and we with the conclude is relieved of his continued to thwart and undermine re- obligation college contribute to her ex- peated attempts by repair Dr. Lennon to penses. relationship between Father and the children. It is Mother's lack of obedience part, part, Affirmed in reversed directly punishment that led to the at is- remanded with instructions. sue, why I see no reason we should imposition treat the trial court's of a sev- MATHIAS, J., concurs. en-day sentence and 180 hours of commu- BAKER, J., in part nity any differently impo- concurs and dissents service from its part separate community sition of hours of service opinion. concluding 1. Because we find that the evidence that the trial court erred in Agreement parties' supports finding Settlement is not bind- the trial court's that KP. Father, repudiated relationship with the ing parties. on the argument we do not need to address Mother's guardian ad litem's payment fees. *12 GASPER, Appellant-Defendant,
Joshua
v. Indiana, Appellee-Plaintiff.
STATE of
No. 02A04-0403-CR-129. Appeals of Indiana.
Court
Sept. 2005.
Transfer Denied Nov.