Crowl v. Berryhill, 17A03-9603-CV-81

• Decision Date: 10 April 1997
• Docket Number: No. 17A03-9603-CV-81,17A03-9603-CV-81
• Parties: Kimberly CROWL, now Bowen, Appellant-Respondent, v. Raymond and Kay BERRYHILL, Appellees-Intervenors.
• Court: Indiana Appellate Court

Page 828

678 N.E.2d 828

Kimberly CROWL, now Bowen, Appellant-Respondent, v. Raymond and Kay BERRYHILL, Appellees-Intervenors.

No. 17A03-9603-CV-81.

Court of Appeals of Indiana.

April 10, 1997.

Claramary Winebrenner, VanHorne, Turner & Stuckey, Auburn, for Appellant-Respondent.

Bruce M. Frey, Marion, for Appellees-Intervenors.

Pamela Carter, Attorney General, Jon Laramore, Chief Counsel, Appeals Division, Indianapolis, for Amicus Curiae.

OPINION

GARRARD, Judge.

STATEMENT OF THE CASE

Kimberly Crowl, now Bowen, ("Kimberly"), appeals from the trial court's order holding her in contempt of court for failing to comply with a provisional visitation order which provided her parents, Raymond and Kay Berryhill (the "Grandparents"), visitation with Kimberly's two minor daughters. In addition to its finding of contempt, the trial court ordered Kimberly to pay $5,000.00 for the Grandparents' attorney's fees. In her appeal, Kimberly attempts to bring a constitutional challenge to Indiana's Grandparent Visitation Statute ("GVS"), Indiana Code § 31-1-11.7-1 et seq., as amended July 1, 1993. Because of the procedural posture of this case, we need not reach the merits of Kimberly's constitutional claim.

We affirm.

ISSUES

1. Whether the trial court abused its discretion when it held Kimberly in contempt of court for violating the court's provisional visitation order.

2. Whether the trial court erred when it ordered Kimberly to pay $5,000.00 for the Grandparents' attorney's fees.

FACTS AND PROCEDURAL HISTORY

Kimberly and Michael Crowl were divorced and Kimberly was granted custody of the couple's two minor daughters, Kecia and Megan. On August 12, 1993, Kimberly's parents, the Grandparents, filed their amended petition to establish visitation with Kecia and Megan. Pending the court's final decision regarding the Grandparents' petition, on August 8, 1994, the parties filed a stipulation with the court providing for temporary visitation. The court approved the parties' stipulation and ordered that the Grandparents were to have visitation with Kecia and Megan on the first and third Saturdays of each month from 10:00 a.m. until 4:00 p.m. When Kimberly repeatedly failed to comply with the provisional visitation order, the Grandparents filed several petitions for rule to show cause against Kimberly. After hearing evidence on the Grandparents' third and fourth petitions for rule to show cause, the court took the matter of Kimberly's alleged contempt under advisement. Meanwhile, Kimberly moved for summary judgment arguing that the GVS is unconstitutional. On February 1, 1996, following a hearing, the trial court denied Kimberly's motion for summary judgment. Thereafter, on February 5, 1996, the court ruled on the contempt matter and found Kimberly in contempt of court. The court entered a money judgment against Kimberly for the Grandparents' attorney's fees. It is the order holding Kimberly in contempt from which Kimberly brings her appeal.

DISCUSSION AND DECISION

Issue One: Contempt Order

Kimberly contends that the court's visitation order is unconstitutional and, thus, her repeated violations of that order could not support a finding of contempt. We disagree.

Whether a party is in contempt of court is a matter left to the discretion of the trial court. State ex rel. Prosser v. Ind. Waste Sys., 603 N.E.2d 181, 185 (Ind.Ct.App.1992). We reverse a trial court's finding of contempt only if it is against the logic and effect of the facts and circumstances before the court and any reasonable inferences arising therefrom. Id.

Uncontradicted evidence that a party is aware of a court order and willfully disobeys it is sufficient to support a finding of contempt. Jackson v. Farmers State Bank, 481 N.E.2d 395, 402 (Ind.Ct.App.1985), trans. denied. Even if that order is erroneous, it must still be obeyed until reversed on appeal. Id. A party's remedy for an erroneous order is appeal and disobedience of the order is contempt. Id.

Kimberly concedes that she willfully disobeyed the trial court's visitation order yet asserts that the order is based upon an unconstitutional statute and, therefore, cannot support a finding of contempt. In raising the constitutionality of the GVS in this appeal, Kimberly seeks to collaterally attack the trial court's underlying visitation order. Although a collateral attack is permitted if the trial court lacked subject matter or personal jurisdiction to enter an order, Clark v. Atkins, 489 N.E.2d 90, 96 (Ind.Ct.App.1986), trans. denied, the trial court here clearly had jurisdiction of the subject matter as well as of the parties. Because its judgment was not void, it is not subject to collateral attack. Richardson v. Lake Cty. Dept. of Pub. Welfare, 439 N.E.2d 722, 724 (Ind.Ct.App.1982).

Nevertheless, Kimberly maintains that the court's provisional visitation order is void ab initio as nothing in the GVS permits the trial court to enter a provisional visitation order. However, we agree with the Grandparents that Kimberly stipulated to the provisional order and cannot now assert such error. A party may not take advantage of an error which she commits, invites, or which is the natural consequences of her own neglect or misconduct. Stolberg v. Stolberg, 538 N.E.2d 1, 5 (Ind.Ct.App.1989). Invited error is not subject to review by this court. Id.

Because Kimberly brings her appeal from the trial court's contempt order, we do not reach the merits of her constitutional claim. "Contempt proceedings are not actions designed to correct errors previously made by trial courts." Clark, 489 N.E.2d at 96. Instead, they are intended "to vindicate the courts' dignity and to enforce litigants' rights pursuant to court orders." Id. Therefore, in this appeal, we cannot inquire into the correctness of the trial court's visitation order or the trial court's denial of Kimberly's motion for summary judgment, as both would be impermissible collater-al attacks. ¹ See id. Such is the case even though the questions raised concerning the court's orders are constitutional in nature. Id. (citing Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967)). The trial court did not abuse its discretion when it found Kimberly in contempt of court.

Issue Two: Attorney's Fees

Notwithstanding our conclusion that the trial court properly found Kimberly in contempt, Kimberly maintains that the trial court erred when it ordered her to pay $5,000.00 for the Grandparents' attorney's fees. Again, we must disagree.

Several Indiana cases have recognized that attorney's fees may be awarded for civil contempt. Thomas v. Woollen, 255 Ind. 612, 615, 266 N.E.2d 20, 22 (1971); Chadwick v. Alleshouse, 250 Ind. 348, 355, 233 N.E.2d 162, 166 (1968); Trotcky v. Van Sickle, 227 Ind. 441, 445-46, 85 N.E.2d 638, 641 (1949); Bayless v. Bayless, 580 N.E.2d 962, 964 n. 1 (Ind.Ct.App.1991), trans. denied; Clark v. Atkins, 489 N.E.2d 90, 98 (Ind.Ct.App.1986); Haycraft v. Haycraft, 176 Ind.App. 211, 216, 375 N.E.2d 252, 255 (1978); Marburger v. Marburger, 175 Ind.App. 612, 616 n. 4, 372 N.E.2d 1250, 1253 n. 4 (Ind.Ct.App.1978). We note that each of the above-mentioned cases involved the violation of court orders regarding dissolution of marriage, noncustodial parent-child visitation, or injunctions and restraining orders, each type of contempt having independent statutory authority to support an award of attorney's fees even though the reviewing court often failed to cite or explicitly rely on such statutory authority. See IND. CODE § 31-1-11.5-16 (authorizing attorney's fees in all proceedings connected to dissolution of marriage); IND. CODE § 31-1-11.5-24(c) (permitting reasonable attorney's fees in any action filed to enforce or modify order granting or denying visitation rights to noncustodial parent); IND. CODE § 34-1-10-11 (providing attorney's fees in actions to enforce injunctions or restraining orders). Moreover, we recognize that Indiana follows the American rule which requires each party to litigation to pay his or her own attorney's fees absent statutory authority, agreement, or rule to the contrary, Johnson v. Sprague, 614 N.E.2d 585, 590 (Ind.Ct.App.19...