Bayless v. Bayless

• Decision Date: 12 November 1991
• Docket Number: No. 20A04-9010-CV-00471,20A04-9010-CV-00471
• Citation: 580 N.E.2d 962
• Parties: In re the Marriage of Corrina B. BAYLESS, Appellant (Petitioner Below), v. Jack A. BAYLESS, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 962

580 N.E.2d 962

In re the Marriage of Corrina B. BAYLESS, Appellant (Petitioner Below), v. Jack A. BAYLESS, Appellee (Respondent Below).

No. 20A04-9010-CV-00471.

Court of Appeals of Indiana Fourth District.

Nov. 12, 1991.

Rehearing Denied Dec. 27, 1991.

Transfer Denied March 13, 1992.

John J. Gaydos, Elkhart, for appellant.

MILLER, Judge.

Corrina Bayless appeals the denial of her motion to disqualify Max K. Walker, Jr., from representing, as private counsel, her husband Jack A. Bayless in their divorce. She also appeals the trial court's denial of fees for her attorney, John J. Gaydos, who represented her in response to her husband's petition for contempt. No appellee's brief has been filed.

We dismiss the appeal sua sponte because it is neither an appeal from a final judgment, nor an appeal from an appealable interlocutory order.

DECISION

On March 22, 1990, in a hearing on Jack's motion for contempt filed against Corrina, Corrina filed a motion to disqualify Walker. Walker is a part-time deputy prosecutor in Elkhart County and is also in private practice in partnership with Michael Cosentino, the Elkhart County Prosecutor. After a hearing, the court denied the motion. By mutual agreement--and without any evidence being heard on the contempt petition--the petition for contempt was withdrawn. The trial court then denied Corrina's request for attorney's fees for attorney John J. Gaydos's representation of her in the matter. Gaydos filed a motion to correct errors with the trial court on April 20, 1990, alleging the court erred in failing to disqualify Walker and in denying Corrina's request for attorney's fees. The court denied the motion on June 7, 1990. Gaydos filed a praecipe on July 5, 1990, but the record of the proceedings was not filed with this court until October 3, 1990.

This court may dismiss appeals upon its own motion when it discovers it does not have jurisdiction. Bell v. Wabash Valley Trust Company (1973), 156 Ind.App. 476, 297 N.E.2d 924. Bayless raises two issues--neither of which are appealable final judgments. A final appealable order or judgment is one which disposes of all of the issues as to all of the parties and puts an end to the particular case. Bell, supra.

Here, there was no judgment or final order, but a denial of two motions and the withdrawal--by mutual agreement--of a petition for contempt. There was no evidence presented on the merits of the contempt action, and all of the issues with respect to these parties had not been adjudicated because the divorce was pending. Neither the denial of the motion to disqualify Walker, nor the denial of an allowance for attorney's fees and legal expenses is a trial, since neither involves an examination of the issues of the case, nor a consideration of matters relating to the merits of the case. 10A ILE Divorce Sec. 118 (1983), citing Stewart v. Stewart (1902), 28 Ind.App. 378, 62 N.E. 1023 and Pry v. Pry (1947), 225 Ind. 458, 75 N.E.2d 909. Although this appeal does not directly challenge the dismissal of the contempt action, we also note that generally there is no appealable final judgment in contempt cases until the court has proceeded to attach and punish the defendant by fine or imprisonment. State ex rel. Neal v. Hamilton Circuit Court (1967), 248 Ind. 130, 224 N.E.2d 55.

An appeal from an interlocutory order is not allowed unless specific authority is granted by the Indiana Constitution, statutes or the rules of court. Bell, supra; Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243. Any motion for attorney's fees during the pendency of the divorce is interlocutory in nature. Castor v. Castor (1975), 165 Ind.App. 520, 333 N.E.2d 124. Ind.Appellate Rule 4(B)(1) authorizes an automatic right to appeal an interlocutory order requiring the payment of money, but does not authorize an appeal from an interlocutory order denying the payment of money. Id. Exclusion, at the interlocutory stage, of evidence of services performed and time spent by counsel relating to the divorce proceeding is not necessarily a denial of compensation for those services or a denial of reimbursement to a spouse for payments to his or her attorneys because such evidence may be submitted to the trial court before the final divorce decree is entered and the court determines the amount of attorney's fees. ¹ Castor, supra.

The denial of the motion to disqualify Walker ² could qualify as a discretionary interlocutory appeal under Ind.App.R. 4(B)(6), if the trial court had certified the matter for appeal, this court had accepted the petition for review, and the record of the proceedings had been timely filed. Ind.App.R. 3(B); ³ Ind.App.R. 4(B)(6). ⁴ Gaydos did not request certification from the trial court, nor did he petition this court to accept the appeal.

Instead of following the procedure for taking an appeal from an interlocutory order, Gaydos filed a motion to correct errors with the trial court and appealed from the denial of the motion as if there had been a final judgment. However, the denial of the motion to correct errors did not transform the matter into a final judgment. The rules provide that in an interlocutory appeal, no motion to correct errors may be filed with the trial court. 4A K. STROUD, INDIANA PRACTICE Sec. 15.15 at 213 (1990), citing Ind.Trial Rule 59(C). As Judge Shields, writing for the majority, noted in Hudson v. Tyson (1978), 178 Ind.App. 376, 383 N.E.2d 66, the filing of a motion to correct errors in an appeal from an interlocutory order is "fraught with danger due to the provision of Appellate Rule 3(B) which requires that the record be filed within 30 days of the interlocutory order or any such shorter time that may be fixed by statute. This time limitation, unlike the 90 day time frame for final judgments, is not altered by the filing of an optional motion to correct errors." Id. at 72, n. 9. Here, the record was not filed until 118 days after the trial court denied the motion to correct errors, and 195 days after the trial court's denial of the motions to disqualify Walker and award attorney's fees. An attempt to appeal an interlocutory order as if it were a final judgment results in waiver of the issue. In re Liquidation of United Savings and Loan Association (1989), Ind.App., 542 N.E.2d 211.

Appeal dismissed.

CONOVER and BARTEAU, JJ., concur.

1 An allowance for attorney's fees and expenses of suit should be made only if the facts and evidence justify it. In re Marriage of Gray (1981), Ind.App., 422 N.E.2d 696. In determining whether attorney's fees are justified in a contempt action, it is proper for the court to determine whether a party was actually in contempt or whether the party's actions precipitated the need for a contempt hearing. Haycraft v. Haycraft (1978), 176 Ind.App. 211, 375 N.E.2d 252. Furthermore, whenever contempt is alleged against the noncustodial parent for non-payment of support, the behavior of the custodial parent in withholding visitation rights can be considered by the trial court as a mitigating factor. State ex rel. Summa v. Starke Circuit Court (1958), 238 Ind. 204, 149 N.E.2d 541. Here, the request for fees was made after the petition had been withdrawn so there was no evidence before the trial court so that it could determine whether there was any basis for Jack's claim that Corrina willfully denied him visitation with the children or for the court to determine whether, as Corrina claimed, that Jack filed his petition to harass her for filing a contempt action against him.

2 The record does not indicate whether the divorce is pending or has been finalized. However, Corrina can seek review of the issue of Walker's disqualification after a final judgment has been entered in the matter, assuming Walker has continued to represent her husband in the divorce.

We note Ind.Professional Conduct Rule 1.8(k), as amended effective September 4, 1987, permits a part-time deputy prosecutor to represent...