Chapman v. Chapman, No. 85A02-8604-CV-147

• Docket Nº: No. 85A02-8604-CV-147
• Citation: 512 N.E.2d 414
• Case Date: August 31, 1987
• Court: Court of Appeals of Indiana

Page 414

512 N.E.2d 414 Jerry M. CHAPMAN, Appellant (Respondent Below),
v.
Claudia CHAPMAN, Appellee (Plaintiff Below). No. 85A02-8604-CV-147. Court of Appeals of Indiana,
Second District. Aug. 31, 1987.
Rehearing Denied Nov. 24, 1987.

Page 415

Alfred H. Plummer III, Wabash, for appellant.

Edgar A. Grimm, Grimm & Grimm, P.C., Auburn, for appellee.

SHIELDS, Presiding Judge.

Jerry Chapman appeals the trial court's judgment finding him in contempt of court and ordering him to pay his former wife's past child visitation expenses, her expenses incurred in attending the contempt hearing, and her attorney fees.

FACTS

Jerry and Claudia Chapman were divorced in Indiana on June 13, 1980. Pursuant to the dissolution decree, Jerry was awarded custody of the couple's two children, and was ordered not to move outside of Indiana with the children. Immediately after the divorce, Claudia moved to Connecticut. In December of 1982, Jerry petitioned the dissolution court for permission to move out of state with the children. On June 2, 1983, the dissolution court granted Jerry's petition and ordered:

"husband shall advance wife's and/or children's costs and expenses for travel in an amount not to exceed $2,500.00 a year."

Record at 37.

Jerry moved to Tennessee with the children where Claudia regularly visited them. In February of 1985, Claudia initiated the present action for contempt, alleging Jerry had not paid the $2,500.00 per year visitation expenses as ordered by the court. On November 5, 1985, following a hearing at which Claudia was present but Jerry was not, the dissolution court found Jerry in contempt of court for not appearing at the hearing and for failing to pay the visitation expenses as previously ordered. The court ordered Jerry to pay $7500.00 plus interest, which represented the unpaid visitation expenses, and ordered him confined until the amount was paid. The court also ordered Jerry to pay expenses incurred by Claudia in attending the contempt hearing and her attorney fees.

Page 416

ISSUES

On appeal, Jerry raises the following issues:

1) whether the court erred in finding it had personal jurisdiction over him;

2) whether the court erred in finding him in contempt for failing to attend the contempt hearing;

3) whether the court erred in finding him in contempt for failing to pay Claudia's visitation expenses; and,

4) whether the court erred in ordering him to pay Claudia's trial and appellate attorney fees.

We affirm in part and reverse in part.

DISCUSSION AND DECISION

I. Jurisdiction Over the Person

Jerry asserts the trial court did not have jurisdiction over his person because the requirements of Indiana Rule of Trial Procedure 4.4(A)(7) were not met. Claudia argues the court had personal jurisdiction over Jerry because an attorney entered an appearance on his behalf, and cites Kirkpatrick Construction Co. v. Central Electric Co. (1903), 159 Ind. 639, 65 N.E. 913 as support.

Contrary to Claudia's argument, with the adoption of the Indiana Rules of Trial Procedure, a general appearance does not act as a waiver of the defense of lack of personal jurisdiction. State v. Omega Painting, Inc. (1984), Ind.App., 463 N.E.2d 287. Jerry preserved his objection to jurisdiction by the timely filing of a T.R. 12(B)(2) motion. Therefore, we must address the merits of Jerry's argument.

The dissolution court did not acquire jurisdiction over Jerry's person for purposes of the contempt proceeding pursuant to T.R. 4.4(A)(7), which, in relevant part, reads:

"(A) Any person or organization that is a nonresident of this state ... submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:

* * *

(7) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in the state."

Because neither Jerry, Claudia, nor their two children reside in Indiana, this rule does not afford the means by which personal jurisdiction can attach. In re the Marriage of Hudson (1982), Ind.App., 434 N.E.2d 107.

However, the dissolution court never lost the personal jurisdiction it acquired over Jerry in the original dissolution proceeding. In Mueller v. Mueller (1972), 259 Ind. 366, 287 N.E.2d 886, the wife had custody of the parties' children pursuant to the dissolution decree entered in 1964. She and the children then moved out of state. In 1970 the husband filed a petition in Indiana to gain custody of the children. The wife argued the Indiana court did not have jurisdiction over her person, and specifically disputed the applicability of T.R. 4.4(A)(7) because the parties' marriage had been dissolved before the effective date of the rule. The supreme court, without reaching the wife's argument, held the trial court retained the jurisdiction which had been established in the original divorce proceeding. Quoting from Reineke v. Northerner (1949), 119 Ind.App. 539, 84 N.E.2d 900, the Mueller court stated:

" 'It is apparent that the Daviess Circuit Court acquired jurisdiction over the person of the appellant when the appellee brought suit for divorce and she came into court seeking and obtaining custody of her infant child. The petition to modify the custody order being but an incident to the original proceeding, the court never lost its jurisdiction over the person of the appellant for such purpose. (our emphasis) 119 Ind.App. at 546, 84 N.E.2d at 902.'

* * *

Thus it is clear that even without considering T.R. 4.4(A)(7), jurisdiction over the person of appellant [wife] was retained

Page 417

for the purpose of modifying the custody decree."

Mueller v. Mueller, 259 Ind. at 374-75, 287 N.E.2d at 891.

Likewise, the proceeding seeking to have the court hold Jerry in contempt for failing to abide by the terms of the dissolution decree, is "but an incident" of that proceeding and, therefore, the court never lost the personal jurisdiction over Jerry it previously acquired. ¹ Accord Rapaport v. Rapaport (1987), 158 Mich.App. 741, 405 N.W.2d 165; Carlin v. Carlin (1983), 62 Or.App. 350, 660 P.2d 204; State ex. rel. Ravitz v. Circuit Court of Monongalia County (1980), 166 W.Va. 194, 273 S.E.2d 370; Glading v. Furman (1978), 282 Md. 200, 383 A.2d 398; Brown v. Brown (1973), 31 Colo.App. 557, 506 P.2d 386; McClellan v. McClellan (1970), 125 Ill.App.2d 477, 261 N.E.2d 216. See also 62 ALR 2d 544 Secs. 1, 3, and Restatement (Second) of Conflict of Laws Sec. 26 (1971).

II. Contempt for Failure to Appear

The court found Jerry in contempt for failing to appear at the hearing. Jerry argues his failure to appear was not contemptuous because he was ill that day, and consequently did not have the culpable intent to violate the court's order to appear. ² Questions of intent and good faith are questions of fact. In re Lemond (1980), 274 Ind. 505, 413 N.E.2d 228. Jerry was served with process ordering him to appear, and did in fact personally receive the process delivered by the sheriff of the county in Tennessee where he resides. Thus, the evidence clearly shows a violation of the order to appear, which supports an inference the violation was intentional. Furthermore, this evidence was uncontradicted. Although Jerry's attorney represented to the court that Jerry was ill, his representation is not evidence. As stated in State ex rel Goldsmith v. Marion County Superior Court, Criminal Division No. 1 (1981), 275 Ind. 545, 419 N.E.2d 109, "[W]here a violation of a court order is clear on the record, 'it is not sufficient to merely deny any intention to defy the order.' " 419 N.E.2d at 113 quoting In re Perrello (1973), 260 Ind. 26, 30, 291 N.E.2d 698, 700-701.

III. Contempt for Failure to pay Visitation Expenses

Jerry alleges the court erred in finding him in contempt for failing to pay Claudia's visitation expenses, and ordering him jailed until he complies. Jerry asserts his failure to pay the money was not contemptuous because Claudia never asked him to pay the money in advance; he also asserts the unpaid expenses were reduced to a judgment which cannot be...