Burrell v. Lewis

• Decision Date: 28 February 2001
• Docket Number: No. 49A04-0005-CV-209.,49A04-0005-CV-209.
• Parties: Derek S. BURRELL, Appellant-Petitioner, v. Debbie I.R. LEWIS, Appellee-Respondent.
• Court: Indiana Appellate Court

743 N.E.2d 1207

Derek S. BURRELL, Appellant-Petitioner,
v.
Debbie I.R. LEWIS, Appellee-Respondent

No. 49A04-0005-CV-209.

Court of Appeals of Indiana.

February 28, 2001.

743 N.E.2d 1208

Linda T. Jelks, Kopka, Landau & Pinkus, Indianapolis, Attorney for Appellant

Scott Richardson, Indianapolis, Attorney for Appellee.

OPINION

MATTINGLY, Judge.

Derek S. Burrell (hereinafter "Father") appeals an order of the trial court finding him in contempt and ordering him to pay fees for violating the terms of a custody and visitation order regarding his minor child. He makes six allegations of error, which we consolidate and restate as two: 1) whether the trial court had subject matter jurisdiction to hear the contempt petition, and 2) whether the trial court erred when it found Father in contempt and ordered him to pay appellee Debbie I.R. Lewis' (hereinafter "Mother") attorney fees and costs. We find that the trial court did have subject matter jurisdiction; however, we reverse on the issue of contempt.

FACTS AND PROCEDURAL HISTORY

The trial court signed the parties' child custody order on May 5, 1999, and issued a subsequent order on July 26, 1999, amending a stenographer's error in the original custody order. The amended order gave Mother sole custody of the parties' minor child. It awarded Father visitation with the child for a varying number of days each month, as at the time of the order, Father lived in Indianapolis and Mother in Atlanta, Georgia. Both parties were to be responsible for a portion of the minor child's transportation back and forth between visits.

On August 16, 1999, Mother filed a Verified Motion for Contempt, alleging that Father had not abided by the terms of the visitation order regarding exchange dates

743 N.E.2d 1209

in August of 1999; nor had he maintained communication with Mother or allowed Mother telephonic access to the child during Father's visits. Father filed a bankruptcy petition on approximately September 23, 1999. (R. at 200.) The trial court held a hearing on Mother's contempt motion on October 12, 1999, and on December 15, 1999, the court issued an order finding Father in contempt and ordering him to pay within ninety days Mother's attorney fees and her costs expended on missed visitation exchanges. Father then brought this appeal. Additional facts will be supplied as needed

STANDARD OF REVIEW

At the outset, we note that Mother did not timely submit an appellee's brief. In such a situation, we do not undertake the burden of developing arguments for the appellee. Applying a less stringent standard of review with respect to showings of reversible error, we may reverse the lower court if the appellant can establish prima facie error. Fisher v. Board of Sch. Trustees, 514 N.E.2d 626, 628 (Ind.Ct.App.1986). Prima facie, in this context, is defined as "at first sight, on first appearance, or on the face of it." Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct.App.1985). Where an appellant is unable to meet that burden, we will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind.Ct.App.1986).

DISCUSSION AND DECISION

Before addressing Father's allegations of error on appeal, we note our concerns about the tone and content of the brief submitted by Father's counsel. Counsel's Statement of Facts is rife with argument, which is inappropriate in that part of an appellate brief. A Statement of Facts should be a concise narrative of the facts stated in a light most favorable to the judgment and should not be argumentative. The Statement of Facts Father's counsel offers us is, by contrast, an attempt to discredit the trial court's judgment; it is clearly not intended to be a vehicle for informing this court. County Line Towing v. Cincinnati Ins. Co., 714 N.E.2d 285, 289 (Ind.Ct.App.1999). We also note that Father's Statement of the Case does not include a verbatim statement of the judgment, as is required by Ind. Appellate Rule 8.3(A)(4).

1. Subject Matter Jurisdiction

Father makes essentially a two-part argument with respect to subject matter jurisdiction. First, he alleges the trial court did not have subject matter jurisdiction over Mother's claim for expenses and attorney fees due to the automatic stay provision of the bankruptcy code, 11 U.S.C. § 362. (Br. of Appellant at 10.) As Father filed a petition for bankruptcy on September 23, 1999, he contends the bankruptcy court had exclusive jurisdiction regarding all claims against him when the trial court heard Mother's claim on October 12, 1999. As a result, her claim should have been stayed. Id. at 11. Second, Father directs our attention to 11 U.S.C. § 523, the code section that lists certain debts which are not dischargeable in bankruptcy. He notes that although alimony, maintenance, and support are never dischargeable under § 523(a)(5), other marital debts are only nondischargeable after a claim is made for those debts in bankruptcy court. Id. at 13. He argues that as Mother's contempt petition is not a claim for alimony, maintenance, or support, and as Mother did not make a claim in bankruptcy court, the trial court's judgment therefore is void for lack of subject matter jurisdiction. Id. at 14.

We first note that Father concedes "the trial court, exercising continuing jurisdiction over post-divorce proceedings, has jurisdiction to hear matters related to visitation and Motions for Contempt for violations of a Child Custody and Visitation Order." Id. at 12. It is unclear from Father's argument how, given that the trial court did have jurisdiction to hear a

743 N.E.2d 1210

contempt issue related to visitation, the trial court would then lack subject matter jurisdiction to grant Mother's requests for a contempt finding, fees, and costs. Nevertheless, to avoid questions on this issue on remand, we address the issue of subject matter jurisdiction

11 U.S.C. § 362, the automatic stay provision of the bankruptcy code, bars "the commencement or continuation ... of a[n] action ... to recover a claim against the debtor that arose before the commencement of the [bankruptcy] case." This provision contains an exception for alimony, maintenance, or support in § 362(b)(2)(B): "The filing of a [bankruptcy] petition ... does not operate as a stay ... of the collection of alimony, maintenance, or support from property that is not property of the estate." Father states that this exception to the stay does not apply (Br. of Appellant at 10), but he provides us with no authority or argument in support of that statement.¹ We find that Mother's contempt petition based on a visitation issue, and the trial court's subsequent award of attorney fees and costs to her, did fall within that exception.

This court previously reviewed a similar issue in Reich v. Reich, 605 N.E.2d 1178 (Ind.Ct.App.1993). In that case, this court upheld an award of attorney fees against the mother in a contempt action after the mother failed to allow the father his scheduled visitation access to the minor children. We noted in that case the trial court "clearly had jurisdiction over the visitation issue" despite the father's pending bankruptcy. Reich, 605 N.E.2d at 1183.

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