Lasater v. Lasater

Decision Date27 May 2004
Docket NumberNo. 02A05-0303-CV-102.,02A05-0303-CV-102.
Citation809 N.E.2d 380
PartiesMonica Kay LASATER, Appellant-Respondent, v. William Scott LASATER, Appellee-Petitioner.
CourtIndiana Appellate Court

Judith L. Fox, Notre Dame Legal Aid Clinic, Notre Dame, IN, Attorney for Appellant.

Charles F. Leonard, Tremper Bechert Leonard & Terrill, Fort Wayne, IN, Attorney for Appellee.

OPINION

BARNES, Judge.

Case Summary

Monica Lasater challenges the trial court's order granting to her ex-husband, William, custody of their daughter, C.L., and limiting her visitation with the child. We affirm.

Issues

Monica raises four issues for our review, which we restate as:

I. whether the trial court abused its discretion when it found her in contempt of court;

II. whether she was deprived of due process;

III. whether the trial court's findings are clearly erroneous; and

IV. whether the trial court erroneously restricted her visitation.

We also address inflammatory and inappropriate comments contained in Monica's brief.

Facts

This case has a complicated procedural history, which is necessary to recount in part as a context for the issues before us. William and Monica married in March 1993. Shortly thereafter, Monica had C.L. After residing in Tennessee and Ohio, the parties settled in Fort Wayne in 1997.

During the time the parties resided in Ohio, C.L. allegedly reported to Monica that William had touched her inappropriately. Monica and William later sought marital counseling, which was ultimately unsuccessful. On April 13, 1998, William filed a petition for dissolution of marriage in the Allen County Superior Court before Judge Felts.

Monica filed a motion for change of venue from judge. A three-judge panel was presented, and each party struck one judge. On June 3, 1998, Judge Charles Pratt was appointed as Special Judge of the Allen County Circuit Court and assumed jurisdiction. In January 1999, Karen Richards became Monica's second attorney, but she withdrew in July and was replaced by Monica's third attorney. During the fall of 1999, the trial court issued various provisional orders.

In January 2000, Monica's fourth attorney appeared on her behalf. The trial court set the matter for trial to commence on September 29, 2000. On September 7, 2000, a letter was directed to counsel regarding "ethical disclosures by special judge." Appellant's App. Vol. I, p. 4. Shortly thereafter, Monica filed a motion seeking the recusal of Judge Pratt, and Judge Pratt later recused.

On October 31, 2000, this matter was transferred to Judge Stephen Sims in the Allen County Superior Court. Monica filed a motion to disqualify Judge Sims on the grounds that he was improperly appointed and that William's counsel had worked on his judicial campaign. The motion was denied on March 1, 2001. Thereafter, Monica's counsel filed a motion to withdraw, which was granted on July 12, 2001.

On August 1, 2001, the trial court received an order from our supreme court dismissing the Petition for Writ of Prohibition, Emergency Petition for Writ of Prohibition, and Writ of Mandamus filed by Monica with the supreme court. On August 8, 2001, Judge Sims recused himself, appointed a guardian ad litem, appointed an attorney for Monica, and referred the matter to the supreme court for purposes of appointing a special judge. Our supreme court appointed Judge Frederick Schurger as special judge in October 2001. On November 2, 2001, the attorney appointed by the trial court for Monica filed a notice of inability to serve, and another attorney appeared as counsel for her shortly after. In March 2002, the trial court appointed yet another attorney as pauper counsel for Monica.

During the course of that year, the trial court conducted pre-trial conferences and issued several pre-trial orders involving discovery issues. The trial court conducted a ten-day bench trial from January 27, 2003, to February 7, 2003. At the commencement of trial, Monica filed a letter attempting to discharge her court appointed attorney, and she proceeded with the trial pro se.1 On March 7, 2003, the trial court issued an order granting the dissolution, awarding full custody of C.L. to William, prohibiting visitation between Monica and C.L. for a period of ninety days, and providing for supervised visitation thereafter. The trial court also found Monica to be in contempt of court and ordered her to pay $2,100. Monica now appeals.2

Analysis
I. Contempt

There are essentially two components to Monica's challenge to the trial court's finding of contempt. First, she argues that there were procedural irregularities because the trial court did not conduct a rule to show cause hearing pursuant to Indiana Code Section 34-47-3-5. Second, she challenges the substance of the contempt citation on the basis that she did comply with the trial court's orders and that she cannot be held in contempt for violating the "spirit" of the orders. We address each challenge.

First, Monica claims that the trial court failed to conduct a rule to show cause hearing and, as a result, her due process rights were violated. Indiana Code Section 34-47-3-5 provides in relevant part:

(a) In all cases of indirect contempt, 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:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(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.

On January 6, 2003, William filed a petition for finding of contempt in two counts. The petition was several pages long and detailed the allegations of contempt. Monica was served with the petition. A few days later, the trial court issued an order setting the petition for hearing before the trial previously scheduled for January 27, 2003. During the hearing, the parties presented evidence on the allegations contained in the contempt petition.

It is true that the trial court did not conduct a separate rule to show cause hearing regarding the contempt petition. However, we are satisfied that Monica's due process rights were protected. She was advised in detail of the allegations of contempt William alleged in the petition and had ample opportunity both to present her own evidence regarding the allegations and to question William's evidence. Furthermore, Monica does not claim that she was prejudiced in any way by the trial court's decision to hold the evidentiary hearing on the contempt petition without first having the rule to show cause hearing. Based on the complexity of this case and the amount of evidence presented by the parties on the contempt allegations and the other issues for trial, it was both reasonable and efficient for the trial court to combine the hearings during a time that was already scheduled for them.

Second, Monica challenges the substantive merits of the contempt citation. "Whether a person is in contempt of a court order is a matter left to the trial court's discretion." Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind.Ct.App.2003). We will reverse the trial court's finding of contempt only where an abuse of discretion has been shown, which occurs only when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id. When we review a contempt order, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

"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. It includes any act that tends to deter the court from the performance of its duties. Id. "Willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt." Mitchell, 785 N.E.2d at 1198.

On May 24, 2002, the court issued an order for the parties to contact Dr. Thomas Hustak to schedule appointments to perform psychological and emotional testing of the parties and C.L. within ten days. At that hearing, the trial court instructed the parties:

Now I expect both parties to comply with this ... when I say I want to get it done. I want to get it done. That doesn't mean scheduling the stuff or not being available for interviews for the next five years. I want it done promptly. And so I anticipate getting those interviews done during the month of June so that we can be back here in either mid-July and talk about them and see where we're at. I don't want this drug on.

Tr. p. 738.

On September 9, 2002, the trial court and the parties' counsel received a fax from Dr. Hustak indicating that there had been difficulties in completing the evaluations. At their first appointment with Dr. Hustak, Monica expressed her sentiment that she was there under protest, that he was not an independent witness for the court, and that she was currently undergoing another evaluation. Dr. Hustak indicated that he could not ethically continue unless all parties understood their legal obligations as deemed by the trial court in carrying out the orders assigned. The trial court conducted a status conference during which the concerns of Dr. Hustak were addressed. The following day, the trial court issued an order setting forth that Dr. Hustak had been chosen by the trial court as an independent expert, that no other concurrent evaluations were to be performed by any other psychologist, and that the parties were to appear in Dr. Hustak's office on September 18, 2002, to complete the evaluations.

On September 18, 2002,...

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