Henderson v. Henderson

• Decision Date: 21 January 2010
• Docket Number: No. 30A04-0907-CV-387.,30A04-0907-CV-387.
• Citation: 919 N.E.2d 1207
• Parties: In re the Marriage of Darrell Kenton HENDERSON, Appellant-Respondent, v. Brittany Lee HENDERSON, Appellee-Petitioner.
• Court: Indiana Appellate Court

919 N.E.2d 1207

In re the Marriage of Darrell Kenton HENDERSON, Appellant-Respondent, v. Brittany Lee HENDERSON, Appellee-Petitioner.

No. 30A04-0907-CV-387.

Court of Appeals of Indiana.

January 21, 2010.

Thomas E.Q. Williams, Greenfield, IN, Attorney for Appellant.

OPINION

CRONE, Judge.

Case Summary

Darrell Kenton Henderson ("Husband") appeals the marriage dissolution decree holding him in contempt of the trial court's provisional order regarding parenting time and awarding primary physical custody of his two minor children to petitioner Brittany Lee Henderson ("Wife"). We reverse the finding of contempt, vacate the dissolution decree, and remand for a new hearing.

Issues

Husband raises two issues, which we restate as follows:

I. Whether the trial court erred in finding Husband in contempt; and

II. Whether the trial court erred in refusing to hear Husband's evidence at the final hearing on the petition for dissolution of marriage.

Facts and Procedural History

On January 2, 2009, Wife filed a marriage dissolution petition. Husband and Wife have two children, L.H., born September 17, 2006, and S.H., born March 1, 2009. On April 9, 2009, a provisional hearing was held at which custody of the two children was contested. After hearing evidence, the trial court requested Wife's attorney to submit a provisional order. On April 27, 2009, the provisional order was entered. Appellant's App. at 2. The provisional order granted the parents joint legal custody, with Wife as primary physical custodian. Tr. at 43.¹ As to Husband's visitation, the trial court ordered three non-consecutive days per week, and, after the first month of visitation, one overnight visitation per month. Id. at 44.

On May 8, 2009, Husband filed verified petitions for contempt for alleged parenting time violations on April 12, 13, 17, 20, 22, 24, 27, and 29, and May 1 and 6, 2009.²

On May 29, 2009, the trial court held a hearing on Husband's petitions for contempt, immediately followed by the final hearing on the marriage dissolution petition. With regard to the petitions for contempt, Husband testified that Wife failed to bring the children to his residence as required by the provisional order and that he was waiting at his home to see the children on each occasion. Tr. at 60-62. Wife testified that she did not bring the children over on April 12 because she "called him the night before and he said he had nothing for them. He was expecting [her] to take all of [her] stuff over [] for him to use and it was agreed between both of [them] that he'd have his own stuff." Id. at 68. She also testified that Husband did not initially have a proper car seat for L.H. and that she had not brought the children to Husband recently because the children had been sick with colds. Id. at 76-77.

At the conclusion of the evidence, the trial court stated,

Um you know, it appears to me that both parties are in contempt of the court order. Um obviously um sir if you wish to exercise uh parenting time, it was specifically in the court order that you needed the proper equipment: the car seats and necessary diapers, food, clothing and other necessities for children, especially young children. Um if you did not have those she had every right to not let the children come to you if those uh- if those things were not available to you at that place..... And apparently the two of you would rather fight and argue and victimize your children than do what the Court has ordered you and required you to do. And that means both of you. So please be advised, the Court is going to enter an order finding you both in contempt and I'm going to sentence you to one hundred and eighty days in jail. I'm going to stay that because I want something hanging over your head to enforce you because apparently nothing else will.

Id. at 81-82.

Following a recess, the trial court turned to the matter of the dissolution decree. The trial court noted that there was a provisional order in effect, which resolved most of the parties' disagreements, and asked whether that order could be the framework for the final dissolution decree. Id. at 86. Wife supported the provisional order, whereas Husband contested physical custody of the children. The court heard a summary of each side's position presented by counsel. Husband's counsel then noted that allegations of physical abuse could be raised because the children's grandmother witnessed Wife throwing one of the children to the floor. Id. at 90. However, the trial court did not hear any evidence and ordered Wife's counsel to prepare a dissolution decree that tracked the provisional order. The dissolution decree granted Wife primary physical custody. Appellant's App. at 7. Husband appeals.

Discussion and Decision

We first note that Wife has not filed an appellee's brief. When an appellee has not filed an answer brief, we need not undertake the burden of developing an argument on the appellee's behalf. Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind.Ct.App.2008). Rather, we may reverse the trial court if the appellant presents a case of prima facie error. Id. Prima facie error means at first sight, on first appearance, or on the face of it. Id. If an appellant does not meet this burden, we will affirm. Id.

I. Contempt

Husband asserts that the trial court erred in finding him in contempt of the provisional order. Contempt of court "involves disobedience of a court which undermines the court's authority, justice, and dignity." Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52, 60 (Ind.Ct.App.2002), trans. denied (2003). There are two types of contempt—direct and indirect. Id. Husband is unsure of the kind of contempt in which he was found. Direct contempt involves actions occurring near the court that interfere with the business of the court and of which the judge has personal knowledge. Id. Contempt is indirect if it involves actions outside the trial court's personal knowledge. In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 61-62 (Ind.Ct.App.2005). "Willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt." Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind.Ct. App.2001), trans. denied.

Here, the dissolution decree clearly states that the parties were found to be in contempt of the provisional order regarding parenting time. Appellant's App. at 7. Generally, a person who willfully disobeys any order lawfully issued by any court of record or by the proper officer of the court is guilty of indirect contempt. Ind.Code § 34-47-3-1. As such, this is a case of indirect contempt. See In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind.Ct.App. 2007) (concluding that mother's interference with father's parenting time as provided by a court order is one of indirect civil contempt).

Husband argues that the trial court erred in finding him in indirect contempt because he was not afforded the procedural safeguards for such a finding. Indirect contempt proceedings require an array of due process protections, including notice and the opportunity to be heard. J.T.I., 875 N.E.2d at 450. These protections are set forth in Indiana Code Section 34-47-3-5, which provides:

(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:

(1) before answering the charge; or

(2) being punished for the contempt; to be served with a rule of the court against which the contempt was alleged to have been committed.

(b) The rule to show cause must:

(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and

(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.

(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.

(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:

(1) brought to the knowledge of the court by an information; and

(2) duly verified by the oath of affirmation of some officers of the court or other responsible person.

In the case at bar, no rule to show cause was issued. In fact, Wife did not request issuance of a rule to show cause order against Husband. If no rule to show cause is issued in compliance with Indiana Code Section 34-47-3-5, then a court generally cannot hold a person in indirect contempt. J.T.I., 875 N.E.2d at 451. However, strict compliance with Indiana Code Section 34-47-3-5 may be excused in certain circumstances.

In Mitchell v. Stevenson, 677 N.E.2d 551 (Ind.Ct.App.1997), trans. denied, on July 14, 1994, Barbara Mitchell Stevenson filed a petition which alleged that Lee Etta Mitchell had failed to comply with a prior court order that had granted Stevenson responsibility for the grave of George Mitchell ("the deceased"), including the right to purchase and maintain a monument upon his grave site. Stevenson's petition requested that the court hold Mitchell in contempt for removing Stevenson's headstone from the deceased's grave. Mitchell filed a response to Stevenson's petition in which she admitted to having removed the headstone from the deceased's grave but denied that her conduct violated a previous court order. Prior to the trial on October 24, 1994, the court did not issue a rule to show cause. Following a bench trial, the trial court found Mitchell in contempt, and she appealed, arguing that the trial court did not follow the proper procedure. Although the trial court had not issued a rule to show cause, we noted that Mitchell had notice of the impending contempt proceeding and also admitted to the actions that formed the basis of the contempt charge. Accordingly, we held that Mitchell could not claim that her rights...