Akiwumi v. Akiwumi

• Decision Date: 16 December 2014
• Docket Number: No. 49A05–1403–DR–129.,49A05–1403–DR–129.
• Parties: Sandra AKIWUMI, Appellant–Petitioner, v. Eric AKIWUMI, Appellee–Respondent.
• Court: Indiana Appellate Court

23 N.E.3d 734

Sandra AKIWUMI, Appellant–Petitioner

v.Eric AKIWUMI, Appellee–Respondent.

No. 49A05–1403–DR–129.

Court of Appeals of Indiana.

Dec. 16, 2014.

Sandra Akiwumi, Tampa, FL, Appellant Pro Se.

Eric Akiwumi, Lisle, IL, Appellee Pro Se.

OPINION

CRONE

, Judge.

Case Summary

Sandra Akiwumi (“Mother”) appeals the trial court's order finding her in contempt for denying Eric Akiwumi (“Father”) parenting time with their son and failing to notify Father of her new employer's name, address, and phone number. Mother also appeals the trial court's award of attorney fees to Father. She argues that she was denied due process because she was not afforded a full opportunity to be heard. She also argues that the evidence is insufficient to support the trial court's contempt findings and that the trial court abused its discretion in ordering her to pay attorney fees. We conclude that Mother was not denied due process, that there is sufficient evidence to support the contempt findings, and that she waived her challenge regarding attorney fees. Accordingly, we affirm.

Facts and Procedural History

Mother and Father were married in 2004 and had one child (“Child”). In June 2010, the parties divorced. The dissolution decree incorporated the parties' settlement agreement, which granted Mother physical custody of Child and awarded Father parenting time consistent with the Indiana Parenting Time Guidelines. The settlement agreement also provided, “Due to the distance between the parties, [Father] shall provide [Mother] with 21 days written notice of his intent to visit the child at [Mother's] residence.” Appellant's App. at 16. At all times relevant to this appeal, Mother lived in Tampa, Florida, and Father lived in Lisle, Illinois.

In August 2011, the parties entered an agreed order which provides in relevant part, “the Parties agree that, in the event of a change of employment, within thirty days of changing employment, the Party shall provide in writing the new employer's name, business address and telephone number.” Appellee's App. at 2. In June 2013, Mother started a new job. She did not provide Father with her employer's name, address, or telephone number.

The following correspondence between Father and Mother was conducted by email unless otherwise specified. On June 7, 2013, Father wrote Mother of his intent to visit Child in Tampa from July 3, 2013 (Wednesday) to July 6, 2013 (Saturday). Id. at 14–15. At 8:14 p.m. on July 1, 2013, Father notified Mother that he would pick up Child on Wednesday at 8:00 a.m. and drop him off on Saturday at noon. Id. at 16. Mother replied that because she had not received confirmation of Father's visit with dates and times fourteen days ahead of time, she had made plans and Child would be available Friday evening through Sunday afternoon. Id. at 15. Father wrote that he gave Mother the dates of his visit in his June 7 email. Mother responded that Father's June 7 email failed to include the pick-up and drop-off times and restated that Child would be available July 5 to July 7. Father wrote that he notified Mother of the dates of his visit in compliance with the dissolution decree and that he would go to the “police station” to pick up Child at 8:00 a.m. on Wednesday and return him on Saturday at noon. Id. at 13. The “police station” refers to the District One Tampa Police Department (“District One”), where the parties had met for parenting time exchanges in the past. Mother replied that Father's short notice regarding pick-up and drop-off times was unreasonable and added, “If you translate this as me denying you time with your son, that's your choice. We won't be at the police station at 8am on Wednesday morning.” Id. at 12. At 7:33 p.m. on July 2, 2013, Father wrote Mother that he had followed the stipulations of the dissolution decree by notifying her of his intent to see Child more than twenty-one days in advance and that he would be at the police station at 8:00 a.m. to pick up Child and would drop him off on Saturday at noon. Id. at 12.

At 8:00 a.m. on Wednesday, July 3, 2013, Father went to District One and waited there nearly two hours, but Mother and Child never came. A police officer contacted Mother regarding the parenting time exchange. At 1:20 p.m., Mother wrote that she could meet Father at 3:30 p.m. at the Tampa Police Headquarters on Franklin Street. At 1:56 p.m., Father replied that he would be willing to pick up Child at 3:30 p.m. at District One. At 2:13 p.m., Mother responded that it was not possible for her to take Child to District One, but if Father could not pick up Child at the Tampa Police Headquarters, she could meet him at District One at 9:00 p.m. She also told Father that he would have to bring Child to the District Two Tampa Police Department at 8:00 a.m. on Saturday morning to drop him off or alternatively drop him off at District One at 9:00 a.m. on Sunday. At 3:04 p.m., Father wrote, “I need to [know] why you are changing the pickup and drop off location [W]hat's more I have already driven to and from the original meeting spot and you didn't show up. I'm going there now to wait for you and returning him there at 8 am on Sat. I told you I leave town on Sat.” Id. at 10. At 3:13 p.m., Mother wrote, “Its [sic] sad that you've chosen to reply at 3:04 for a meeting that is to happen at 3:30 p.m., to see your son.... Furthermore I offered to meet you, despite the fact that I am at work. If you are not showing up at the location I agreed to meet you at, don't bother.” Id. at 9.

At 7:35 p.m., Mother wrote that she was not going to drop off Child until Father specified whether he was dropping Child off at District Two at 8:00 a.m. on Saturday or at District One at 9:00 p.m. on Sunday. Id. At 7:48 p.m., Father received a text from Mother repeating the email message above and asking him to “[p]lease clarify immediately.” Id. at 20. At 8:11 p.m., Father sent Mother an email that he would see her at 9:00 p.m. Father arrived at District One at 8:48 p.m. At 9:18 p.m., Father received a text message from Mother that stated that she had just read his email and that “[y]ou will have to visit [Child] another time. Next time, please give 21–days notice with dates and times of your visit so we can address scheduling conflicts in advance.” Id. at 21–22.

Father filed a motion for rule to show cause why Mother should not be held in contempt for violating the agreed order by failing to inform him of her new employer's name, address, and telephone number and for violating the dissolution decree by failing to allow him to exercise parenting time. Following a hearing at which both parties were represented by counsel, the trial court issued an order finding Mother in contempt and ordering her to pay Father's legal expenses of $1917.90. Mother appeals.

Discussion and Decision

Section 1—Due Process

Mother contends that the trial court conducted the contempt hearing in a manner that violated her due process rights. There are two types of contempt, direct and indirect. “Willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt.”¹ Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind.Ct.App.2001)

, trans. denied (2002). Thus, Mother was found in indirect contempt of court. “Indirect contempt proceedings require an array of due process protections, including notice and the opportunity to be heard.” Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind.Ct.App.2010)

.

Indiana Code Section 34–47–3–1

provides,

A person who is guilty of any willful disobedience of any process, or any order lawfully issued:

(1) by any court of record, or by the proper officer of the court;

(2) under the authority of law, or the direction of the court; and

(3) after the process or order has been served upon the person;

is guilty of an indirect contempt of the court that issued the process or order.

Due Process protections for indirect contempt proceedings are codified in Indiana Code Section 34–47–3–5

, which provides,

(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:

(1) before answering the charge; or

(2) being punished for the contempt;

to be served with a rule of the court against which the contempt was alleged to have been committed.

(b) The rule to show cause must:

(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;

(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and

(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.

“It is the ‘rule to show cause’ provision of the statute that ‘fulfills the due process requirement that a contemptor be provided with adequate notice and an opportunity to be heard.’ ” Carter v. Johnson, 745 N.E.2d 237, 241 (Ind.Ct.App.2001)

(quoting Mitchell v. Stevenson, 677 N.E.2d 551, 560 (Ind.Ct.App.1997), trans. denied ).

Significantly, Mother does not assert any violations of Section 34–47–3–5

. Rather, she argues that she was denied the opportunity to be heard, that is, to show cause why she should not be held in contempt. She contends that the trial court denied her counsel's request to examine Respondent's Exhibit 6 before it was admitted and barred her from conducting a thorough cross-examination of Father and presenting her own relevant background evidence. It is unclear whether Mother is arguing that the alleged errors individually resulted in due process violations, whether the cumulative effect of the alleged errors resulted in due process violations, or whether the alleged errors as a whole show that the trial court decided that she was in contempt before she was even allowed to testify, thereby denying her the opportunity to be heard.

We begin by addressing Mother's argument regarding Respondent's Exhibit 6, which consisted of emails between the parties ...