Lemond, Matter of, No. 680

Docket NºNo. 680
Citation413 N.E.2d 228, 274 Ind. 505
Case DateDecember 02, 1980
CourtSupreme Court of Indiana

Page 228

413 N.E.2d 228
274 Ind. 505
In re the Matter of Michelle LEMOND, a Minor Child.
Jeanene McCORMACK, Petitioner-Appellant,
v.
Earl LEMOND, Respondent-Appellee.
Supreme Court of Indiana
No. 680 S 183.
Dec. 2, 1980.

[274 Ind. 506]

Page 230

David B. Hughes, Indianapolis, R. Stephen [274 Ind. 507] LaPlante, Evansville, Valentine J. Fleig, Petersburg, for petitioner-appellant.

William F. Harvey, Richard D. Wagner, Gary Price, David F. McNamar, Indianapolis, Mark K. Sullivan, Petersburg, Robert S. Colker, Asst. Atty. Gen., Richard L. Zweig, Sigmund J. Beck, Indianapolis, William J. Marshall, Oakland City, for respondent-appellee.

PER CURIAM.

NATURE OF THE CASE

This cause is before the Supreme Court of Indiana and the Court of Appeals of Indiana,

Page 231

First District, and Acting Chief Judge Staton of the Court of Appeals, on citations of indirect criminal contempt of these two Courts against the following respondents:

1. The Honorable James R. Arthur, Special Judge, Pike Circuit Court;

2. The Honorable William D. Richardson, Regular Judge, Pike Circuit Court;

3. Thomas C. Gray, attorney, Pike County, Indiana;

4. Jerry J. McGaughey, Prosecuting Attorney, Pike County, Indiana; and

5. Earl Lemond, Pike County, Indiana.

Each respondent is charged with willfully and intentionally violating an order of the Supreme Court and the mandate of the Court of Appeals entered in the appeal of a case decided under the Uniform Child Custody Jurisdiction Act (UCCJA), Ind. Code § 31-1-11.6-1 et seq. (Burns 1979 Supp.). See In re Lemond, (1979) Ind.App., 395 N.E.2d 1287, trans. denied and trial court stay dissolved, May 29, 1980.

A criminal contempt can be any act which manifests a disrespect for and defiance of a court. The willful and intentional disobedience of the orders of these Courts can constitute indirect criminal contempt. In re Perrello, (1973) 260 Ind. 26, 291 N.E.2d 698. See Denny v. State, (1932) 203 Ind. 682, 182 N.E. 313. One of respondents' contentions is that there was no intent to violate the orders of [274 Ind. 508] these Courts. Questions of intent and good faith in a case such as this are to be decided by these Courts after considering all the evidence. In re Perrello, supra, 260 Ind. at 30, 291 N.E.2d at 701. After hearings on these matters, respondents Arthur, Richardson, Gray and McGaughey were found to be in indirect criminal contempt of the Supreme Court of Indiana and the Court of Appeals of Indiana. Each was fined in the sum of five hundred dollars. Respondent Lemond was found not guilty. This opinion is in furtherance and support of the findings and orders of these Courts wherein the above named respondents were found to be in indirect criminal contempt.

FACTS

For the sake of continuity, the basic facts from the prior decision of the Court of Appeals will be restated, together with the events that transpired after the Court of Appeals rendered its decision on October 30, 1979. In 1968, Earl Lemond (the father) and Jeanene McCormack (the mother) were married and living in Hawaii. On May 1, 1968, a daughter, Michelle, was born of this union. The marital relationship became strained, leading to a divorce by consent decree entered by a Hawaiian trial court on December 10, 1973. The decree provided that both parties were to have the "care, custody and control" of Michelle, but that Earl Lemond was to have physical custody of the child. The decree also established that, if either party changed residence from Hawaii to some other state, physical custody was to be awarded to the mother, Mrs. McCormack. After the divorce, both parents continued to live in Hawaii. Michelle usually spent several months each summer with various relatives in the Pike County area of Indiana.

In June, 1977, Earl Lemond returned from Hawaii to Pike County, Indiana, and established residence. Instead of returning Michelle to Hawaii at the end of the summer, in accordance with the divorce decree, the father enrolled Michelle in school in Pike County. At this point, the mother came to Indiana and surreptitiously secured Michelle's return to Hawaii. The father countered by bringing Michelle back to Indiana in May, 1978, while the mother was in Europe. The mother's next attempt to return Michelle to Hawaii was blocked by the father.

Thus, on May 19, 1978, Mrs. McCormack filed a petition for the enforcement[274 Ind. 509] of the Hawaiian decree in Pike Circuit Court, pursuant to Ind. Code § 31-1-11.6-1 et seq. (Burns 1979 Supp.), the Uniform Child Custody Jurisdiction Act (UCCJA). The father, Earl Lemond, responded by filing a petition to modify the Hawaiian decree.

Page 232

The Honorable William D. Richardson, regular judge of the Pike Circuit Court, denied both petitions, but granted custody to the father.

On appeal, the Court of Appeals, First District, found that under the UCCJA, Hawaii was Michelle's home state. Specifically, the Court of Appeals stated:

"Without question, we believe Hawaii had jurisdiction under the Act when these proceedings commenced. As a general matter, it is clear to this court that while Michelle 'vacationed' during the summer months in Indiana her predominant place of abode was in Hawaii. More specifically, Michelle had lived with Mother for over six months in Hawaii immediately preceding this action; accordingly, Hawaii was her 'home state' (see Ind. Code § 31-1-11.6-2(5)) thereby conferring jurisdiction upon Hawaii tribunals under Ind. Code § 31-1-11.6-3(a)(1)(A). For these reasons, we hold the lower court erred in assuming jurisdiction. Ind. Code § 31-1-11.6-14."

In re Lemond, (1979) Ind.App., 395 N.E.2d 1287, 1291. The opinion of the Court of Appeals concluded with the following explicit mandate:

"For all the foregoing reasons, we reverse the decision of the trial court and remand the case with directions to recognize the Hawaiian decree pursuant to sections thirteen and fifteen of the Act, and for further proceedings not inconsistent with the views stated herein."

In re Lemond, supra, 395 N.E.2d at 1292. Sections thirteen and fifteen of the UCCJA provide for the recognition and enforcement of out-of-state decrees as though they were Indiana decrees.

Soon after this decision was handed down by the Court of Appeals, counsel for the father petitioned the Pike Circuit Court to stay enforcement of the Court of Appeals mandate, pending further appeal. The Pike Circuit Court, by respondent Richardson, entered such a stay order, pending further proceedings in the Court of Appeals of Indiana, the Supreme Court of Indiana, and the Supreme Court of the United States.

On November 14, 1979, counsel for the father, pursuant to Ind.R.App.P.[274 Ind. 510] 11(A), filed a Petition for Rehearing. The mother filed petitions with the trial court and the Court of Appeals asking that the stay entered by respondent Richardson be dissolved. Each petition to dissolve the stay was denied. Subsequently, on December 4, 1979, the Court of Appeals denied rehearing.

Thereafter, Earl Lemond filed a timely Petition to Transfer, pursuant to Ind.R.App.P. 11(B). After reviewing the petition, the brief in support, and the brief in opposition, the Supreme Court of Indiana set the matter for oral argument, which was heard on April 21, 1980. On May 29, 1980, the Supreme Court first denied the father's petition to transfer, then also dissolved the stay previously entered by respondent Richardson.

On the same date, May 29, 1980, the Clerk of the Supreme Court and Court of Appeals sent notices to all counsel of record, informing them that the petition to transfer had been denied and the stay dissolved. In addition, the Clerk of these Courts certified the opinion of the Court of Appeals and transmitted the opinion to the Clerk of the Pike Circuit Court. See Ind.R.App.P. 15(B). The effect of the denial of transfer and dissolution of the stay was to make the Court of Appeals opinion the law of the case. See Egbert v. Egbert, (1950) 235 Ind. 405, 132 N.E.2d 910. Thus, all the issues directly decided by the Court of Appeals opinion were binding in further proceedings in this case. Hawaii had been found to be the home state for purposes of determining any further custody disputes, and that decision was not subject to further attack in Indiana. Accordingly, these Courts presumed and expected that the mandate of the Court of Appeals and the order of the Supreme Court would be honored in all respects and the child would be returned to her mother.

Page 233

Information to the Supreme Court and Court of Appeals.

On Friday, June 13, 1980, these Courts were presented with an information, 1 filed by the mother, setting out the following facts which [274 Ind. 511] were later proven to be true. On or about June 4, 1980, the mother was advised that a writ of habeas corpus would be granted in the Pike Circuit Court and custody of Michelle finally delivered to her at approximately 9:00 a. m., on Friday, June 6, 1980. 2 Consequently, the mother flew from Hawaii to Indiana. Mrs. McCormack, with her two attorneys, Val Fleig and R. Stephen LaPlante, arrived in the Pike Circuit Court at the appointed hour to obtain custody pursuant to the orders of these Courts.

Respondent Judge William D. Richardson issued the writ of habeas corpus in Trial Cause 78 C 71 at approximately 9:00 a. m., but only on the condition that the mother would not execute on the writ until 1:00 p. m., that afternoon. The reason for this delay soon became clear; respondents had engaged in a great deal of maneuvering before 9:00 a. m., that morning. Judge Richardson informed Mrs. McCormack that a new proceeding had been initiated at 8:50 a. m., in the juvenile division of the Pike Circuit Court. According to the order book entry of the Pike Circuit Court, the newly filed petition, under cause number 80 J 20, alleged that Michelle Lemond was a child in need of services. While respondent Richardson indicated that he believed the new action to be an "end run,"...

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39 practice notes
  • Adult Group Properties, Ltd. v. Imler, No. 48A02-8604-CV-124
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1987
    ...Inc. v. NIPSCO (1985), Ind., 485 N.E.2d 610, 617. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212, 1219; Matter of Lemond (1980), 274 Ind. 505, 413 N.E.2d 228, 245, n. 15; U.S. Steel v. NIPSCO (1985), Ind.App., 486 N.E.2d 1082, 1085; Johnson v. LaPorte Bank & Trust Co. (1984), Ind.App., 4......
  • Interest of Floyd B., In re, No. S-97-059
    • United States
    • Supreme Court of Nebraska
    • April 10, 1998
    ...465 S.E.2d 210 (1995); In Interest of S.L., 872 S.W.2d 573 (Mo.App.1994); Matter of E.H., 612 N.E.2d 174 (Ind.App.1993); In re Lemond, 274 Ind. 505, 413 N.E.2d 228 (1980), the evidence adduced at the December 16, 1996, hearing supports a finding that the emergency situation was, in fact, on......
  • U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc., No. 2-385
    • United States
    • Indiana Court of Appeals of Indiana
    • December 23, 1985
    ...to produce a harmonious Page 1085 system, if possible. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212, 1219; Matter of Lemond (1980), 274 Ind. 505, 413 N.E.2d 228, 245, n. 15; Johnson v. LaPorte Bank & Trust Co. (1984), Ind.App., 470 N.E.2d 350, 354-355; Ind. State Hw'y. Com'n. v. Bates ......
  • Chapman v. Chapman, No. 85A02-8604-CV-147
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1987
    ...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 sherif......
  • Request a trial to view additional results
39 cases
  • Adult Group Properties, Ltd. v. Imler, No. 48A02-8604-CV-124
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1987
    ...Inc. v. NIPSCO (1985), Ind., 485 N.E.2d 610, 617. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212, 1219; Matter of Lemond (1980), 274 Ind. 505, 413 N.E.2d 228, 245, n. 15; U.S. Steel v. NIPSCO (1985), Ind.App., 486 N.E.2d 1082, 1085; Johnson v. LaPorte Bank & Trust Co. (1984), Ind.App., 4......
  • Interest of Floyd B., In re, No. S-97-059
    • United States
    • Supreme Court of Nebraska
    • April 10, 1998
    ...465 S.E.2d 210 (1995); In Interest of S.L., 872 S.W.2d 573 (Mo.App.1994); Matter of E.H., 612 N.E.2d 174 (Ind.App.1993); In re Lemond, 274 Ind. 505, 413 N.E.2d 228 (1980), the evidence adduced at the December 16, 1996, hearing supports a finding that the emergency situation was, in fact, on......
  • U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc., No. 2-385
    • United States
    • Indiana Court of Appeals of Indiana
    • December 23, 1985
    ...to produce a harmonious Page 1085 system, if possible. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212, 1219; Matter of Lemond (1980), 274 Ind. 505, 413 N.E.2d 228, 245, n. 15; Johnson v. LaPorte Bank & Trust Co. (1984), Ind.App., 470 N.E.2d 350, 354-355; Ind. State Hw'y. Com'n. v. Bates ......
  • Chapman v. Chapman, No. 85A02-8604-CV-147
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1987
    ...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 sherif......
  • Request a trial to view additional results

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