Cohoon v. Cohoon

• Decision Date: 27 June 2002
• Docket Number: No. 49A04-0109-CV-400.,49A04-0109-CV-400.
• Parties: In re the Marriage of Troy D. COHOON, Appellant-Respondent, v. Daphne D. COHOON, Appellee-Petitioner.
• Court: Indiana Appellate Court

770 N.E.2d 885

In re the Marriage of Troy D. COHOON, Appellant-Respondent, v. Daphne D. COHOON, Appellee-Petitioner.

No. 49A04-0109-CV-400.

Court of Appeals of Indiana.

June 27, 2002.

Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, Indiana, Attorney for Appellant.

OPINION

BROOK, Chief Judge.

Case Summary

Appellant-respondent Troy D. Cohoon ("Father") appeals the trial court's contempt order. We affirm.

Issues

Father raises two issues for our review, which we restate as follows:

I. whether a contempt petition was properly before the trial court where the parties' settlement agreement required all child support, custody, and visitation disputes to be resolved with binding arbitration; and

II. whether the trial court properly held Father in contempt for failing to pay child support.

Facts and Procedural History

On February 14, 1996, Father and appellee-petitioner Daphne D. Cohoon ("Mother") were married. On August 29, 1996, the parties had a child, M.C. On January 1, 1999, Father filed a petition for dissolution. Father and Mother then entered into a settlement agreement ("settlement agreement") in which the parties agreed that

[a]ny dispute between the parties as to child support, custody, or visitation shall be submitted to and resolved by binding arbitration in Indiana, so long as one party remains, resides or is a resident of Indiana, within five (5) days of an arbitrator being selected, same being the intention of the parties to rapidly resolve conflicts in this interstate case.

Appellant's App. at 17. The settlement agreement also provided, "[Father] to pay child support in the amount of $80.00 per week, all as set forth on the child support worksheet annexed hereto." Id. at 20. On June 21, 1999, the trial court approved the settlement agreement and incorporated it into the divorce decree.

On August 10, 2000, Mother filed a petition for modification of the settlement agreement and a petition for a contempt citation for Father's alleged nonpayment of child support. On August 25, 2000, Father filed a motion to dismiss Mother's petitions alleging that the petitions were not properly before the trial court because the parties had agreed to resolve all child support disputes with binding arbitration. On March 6, 2001, Mother withdrew her petition for modification. On March 7, 2001, the trial court held a hearing on the contempt petition. At the hearing, Father made a continuing objection to all of the evidence presented on the ground that the contempt petition was not properly before the trial court because the issue of support should have been submitted to binding arbitration pursuant to the settlement agreement. See Tr. at 7-9.

Following the hearing, Father requested that the trial court enter findings of fact and conclusions thereon. The trial court's order dated, July 23, 2001, provides in part,

[FINDINGS OF FACT]

7. That [the settlement agreement] states that "Any disputes between the parties as to child support, custody, or visitation shall be submitted to and resolved by binding arbitration in Indiana."

8. That the Court and the parties' counsel conducted a telephonic pre-trial conference on March 6, 2001 regarding the parties' dispute as to the requirement of "binding arbitration" over the issues set for hearing. The Court found that whether a party is in contempt of the prior order is not encompassed within the binding arbitration provision of the [settlement agreement] and that this Court has jurisdiction over enforcement of its orders.

....

14. That the parties attached to the [settlement agreement] a "Child Support Worksheet Supplement" wherein the parties agreed to give father a 10% visitation credit of $9.33 for "regular visitation" and another $3.98 reduction to defray Dad's portion of the travel expenses. That the total amount of the reductions equals of [sic] $13.31 per week.

15. That the Child Support Worksheet Supplement states that the father will spend up to 15 weeks a year with the child which should qualify as "regular visitation" and for the expenses father might have on 1½ trips per year for a companion to fly with the child.

....

19. There has [sic] been 90 weeks between the date of the final decree and the date of the hearing on March 7, 2001.

20. If father's worksheet "visitation credit" of $13.31 per week is multiplied by 90 weeks, then the total visitation credit to father equals is [sic] $1,197.90.

....

22. The parties stipulated at the hearing that Father had on his own, without agreement of the parties, abated child support by [] 100% during extended visitation for 25 weeks resulting in father taking another visitation credit of $2,000.

23. In effect, Father has taken 90 weeks of pro-rated visitation credit at $1,166.38 and 25 weeks of 100% abatement at $2,000.00 for a total visitation credit of $3,166.38 since the date of decree.

24. That the parties' [settlement agreement] is clear and unambiguous. The Child Support Worksheet Supplement clearly states that the Father's extended visitation of 15 weeks annually "certainly qualifies for regular visitation" and that the Father is entitled to a deduction.

25. The parties have also stipulated that Father is otherwise current in his child support obligation but for the $2,000.00 abatement taken by father.

26. That the Father's non-payment of child support was willful and wanton and that Father is in arrears in his child support obligation in the amount of Two Thousand Dollars ($2,000.00) as of March 2, 2001.

....

CONCLUSIONS OF LAW

1. That the Marion County Visitation Guidelines, which were in effect at the time of the parties' Agreement, allows for a 50% abatement for extended visitation of seven consecutive days or more.

2. The Indiana Child Support Guidelines allow for a 10% visitation credit where the Non-custodial parent regularly exercises alternate week-end visitation and the Court may consider abating support in amount not to exceed fifty percent for periods of visitation of seven (7) days or longer....

....

4. .... The parties clearly contemplated defraying the cost of long distance extended visitation by pro-rating the 50% abatement over a period of 52 weeks a year.

5. That Father is not entitled to a 50% abatement of support for extended visitation under the Marion County Visitation Guidelines and a weekly visitation credit if he is not exercising both types of visitation.

6. Under I.C. XX-XX-XX-X, if the Court finds that a party is delinquent as a result of an intentional violation of an order of support, then the Court may find the party in contempt.

7. That as a prevailing party in a contempt action, [Mother] is entitled to a presumption of fees under Marion County Family Law Rule 10(C).

8. Without regard to economic resources, once a party is found in contempt, the trial court has "the inherent authority to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions." 713 N.E.2d 348 at 355, Alder v. Alder, (Ind.App.1999).

9. That Indiana Supreme Court's Rules for Alternative Dispute Resolution and the Marion County Family Law Rules specifically provide for mediation of domestic relations cases, not binding arbitration.

10. Although mediation and arbitration both fall under the rubric of ADR, arbitration is not the same as mediation. Arbitration involves a neutral third party who is authorized by the disputing parties to render a binding decision on the issues submitted to the arbitrator. Mediation does not rely on a neutral third party to render a binding decision, the mediator assists the parties in reaching a mutually acceptable agreement, subject to the approval of the Court.

11. The right to receive child support vests with the child and the parties may not contract away the child's rights to support.

12. The Court serves to protect the best interests of the child. In a domestic relations context the Court retains jurisdiction to hear disputes or to approve agreements between the parties pertaining to custody, visitation and child support.

13. That the provision in the parties' Agreement which states that child support, custody, or visitation issues shall be resolved by "binding arbitration" is void as against public policy in that the agreement attempts to usurp the continuing jurisdiction of the Court over the issues concerning child support modifications, contempt actions, custody, and visitation.

Father now appeals.

Discussion and Decision

Initially, we note that Mother did not file an appellee's brief. "When an appellee fails to submit a brief, we need not undertake the burden of developing an argument for the appellee." Kladis v. Nick's Patio, Inc., 735 N.E.2d 1216, 1219 (Ind.Ct.App.2000). "[I]t is within our discretion to reverse the trial court's decision if the appellant makes a prima facie showing of reversible error." Olive v. Olive, 650 N.E.2d 766, 767 (Ind.Ct.App.1995). "Prima facie, in this context, is defined as `at first sight, on first appearance, or on the fact of it.'" Burrell v. Lewis, 743 N.E.2d 1207, 1209 (Ind.Ct.App.2001) (citation omitted).

"Because the trial court entered special findings of fact and conclusions of law, a showing of prima facie error requires a showing that the trial court's findings are clearly erroneous." Day v. Ryan, 560 N.E.2d 77, 84 (Ind.Ct.App.1990); see also Ind. Trial Rule 52(A). In determining whether the findings and/or judgment are clearly erroneous, we "neither weigh the evidence nor judge the credibility of the witnesses and will consider only the evidence, together with reasonable inferences therefrom, which supports the judgment." Hall v. Gainer Bank, 670 N.E.2d 891, 894 (Ind.Ct.App.1996), trans. denied.

I. Binding Arbitration

Father argues that trial court improperly ruled on the contempt issue because the parties' settlement agreement required that all child support, custody, and visitation disputes be submitted to binding arbitration.¹

At the outset, we note that this is a case of...