MacIntosh v. MacIntosh

• Decision Date: 11 June 2001
• Docket Number: No. 10A01-0012-CV-413.,10A01-0012-CV-413.
• Citation: 749 N.E.2d 626
• Parties: Sandra R. MacINTOSH (Truitt), Appellant-Petitioner, v. Mark S. MacINTOSH, Appellee-Respondent.
• Court: Indiana Appellate Court

749 N.E.2d 626

Sandra R. MacINTOSH (Truitt), Appellant-Petitioner, v. Mark S. MacINTOSH, Appellee-Respondent.

No. 10A01-0012-CV-413.

Court of Appeals of Indiana.

June 11, 2001.

Vicki L. Carmichael, Jeffersonville, IN, Attorney for Appellant.

J. Charles Guilfoyle, Guilfoyle & Thomas, Jeffersonville, IN, Attorney for Appellee.

OPINION

BAKER, Judge.

Appellant-petitioner Sandra R. MacIntosh (now Truitt) appeals the trial court's order finding her in contempt, imposing sanctions, and awarding appellate attorney fees to her former husband, appellee-respondent Mark S. MacIntosh. Sandra contends that she did not willfully disobey a previous order regarding visitation, and she insists that, even if she were in contempt, the court fashioned an excessive and punitive remedy. In addition, Sandra asserts that the appellate attorney fee award was unwarranted.

FACTS

Sandra and Mark were divorced in 1992. The couple had two children: Jennifer, born on August 25, 1983, and Allyson, born on July 16, 1984. Sandra received custody of the two children, and Mark was awarded visitation.

The present controversy began in 1999 when Sandra filed a petition to modify child support, and Mark filed a cross-petition. At that time, Mark was exercising regular visitation with Allyson, who had traveled to Switzerland with him on two occasions. Jennifer had not participated in visitation with her father for approximately three years. At a May 16, 2000 hearing on the motions, Mark advised the court that he hoped to take Allyson to Switzerland again that summer. The court noted the "tug of war" over the children and urged Mark to invite Jennifer to Switzerland. Record at 114.¹ On May 17, 2000, the court modified Mark's support obligation but deviated from the Child Support Guidelines, in part, due to expenses related to his extended visitation with Allyson in Switzerland.

Thereafter, Mark contacted Jennifer, who told him she wanted to go to Switzerland. Mark purchased airplane tickets for both Jennifer and Allyson for the period June 15, 2000 through June 30, 2000. When he later learned that the children did not plan to accompany him, Mark filed an "Emergency Petition to Establish Summer Visitation Dates for Travel to Switzerland" because Sandra allegedly "refused to communicate" with Mark "in a reasonable fashion." R. at 24-25. On May 31, 2000, the court heard evidence on the contested petition and conducted an in camera interview with both children. Because Sandra had scheduled Allyson's tonsillectomy and adenoidectomy for June 14, Mark offered to move the vacation date to June 20.

On June 5, 2000, the trial court granted Mark's emergency petition in an order that reads in part:

2. Petitioner/Mother, Sandra Truitt, and parties' daughter, Jennifer MacIntosh, are ordered to obtain Jennifer's passport as soon as possible and prior to June 20, 2000;

3. The parties' children, Jennifer MacIntosh and Allyson MacIntosh, are ordered to accompany their Father, Mark MacIntosh, on the trip to Switzerland.

Supp. R. at 1. Angry about the courtordered visitation, the two children refused to communicate with Mark. On June 13, 2000, Sandra filed a praecipe in the trial court with the apparent purpose of appealing the May 17 and June 5 orders, but she did not perfect that appeal.²

On June 19, one day before the scheduled Switzerland vacation, Sandra took Jennifer to Park View Psychiatric Services. The psychiatrist who examined Jennifer concluded that, "considering a history of mental abuse from father to her, her sister, and her mother," Jennifer should not be required to go to Switzerland. R. at 197. On that same day, Sandra obtained medical documentation stating that Allyson should not travel by air for two weeks. Sandra notified Mark's attorney of the medical information but did not seek court intervention. Neither child went to Switzerland.

Thereafter, Mark filed a petition for contempt. Separately, Mark sought $2,500.00 in attorney fees to defend the first appeal initiated by Sandra. On October 26, 2000, the court found Sandra was in contempt of the June 5, 2000 order "for her failure to have either of the parties' children attend the trip to Switzerland." Supp. R. at 8. "[A]s punishment for her contempt," the court imposed a $1,000.00 fine and committed Sandra to the Clark County jail for two years, "suspended upon the condition that [Sandra] and the children of the parties comply with the [general] visitation order[.]" Supp. R. at 8. The court also ordered Sandra to pay: 1) $306.70 to Mark for expenses incurred in changing travel dates; 2) $1,022.50 for attorney fees related to the emergency petition for visitation; and 3) $1,246.25 for attorney fees related to the contempt proceedings. In addition, the court awarded Mark $2500.00 in attorney fees "being incurred" in defending the earlier appeal. Supp. R. at 9. Sandra then perfected this appeal.

DISCUSSION AND DECISION

I. Finding of Contempt

Sandra first challenges the trial court's finding of contempt. In essence, she argues that the evidence is insufficient to support such a determination.

Indirect contempt involves the willful disobedience of any lawfully entered court order of which the offender had notice. Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind.Ct.App.1999), trans. denied. The determination of whether a party is in contempt of court is a matter entrusted to the trial court's sound discretion, and we reverse that determination only for an abuse of discretion. Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind.Ct.App. 2000). A court abuses its discretion when its decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Id. When reviewing a contempt order, we neither reweigh evidence nor judge witness credibility. Id. Instead, we consider only the evidence and reasonable inferences drawn therefrom that support the trial court's judgment, and we reverse the trial court's contempt judgment only if there is no evidence to support it. Id.

Here, Sandra points out that the June 5, 2000 order expressly commanded her only to obtain a passport for Jennifer. Sandra claims that the order is void because it improperly directs the children's conduct and that it is ambiguous because it did not put her on notice that she was to do anything or refrain from doing anything. The visitation order necessarily directed the conduct of the children affected by the marital dissolution. See Hartzell v. Norman T.L., 629 N.E.2d 1292, 1295 (Ind. Ct.App.1994),trans. denied. Yet it was not enforceable against the children. See In re Marriage of Brown, 597 N.E.2d 1297, 1299 (Ind.Ct.App.1992). Rather, Sandra was the party before the court. As the parent with legal custody and authority over her minor daughters, Sandra was impliedly ordered to make reasonable efforts to ensure that the children complied with the scheduled parenting time. See Hartzell, 629 N.E.2d at 1294-95. We conclude that the order was neither void nor ambiguous.

In a separate argument, Sandra insists that she could not force her fifteen and sixteen-year-old children to participate in visitation. Another panel of this court has stated that, "where a young adult is unwilling to visit the noncustodial parent, the trial court may not hold the custodial parent in contempt for not forcing the young adult to visit." Brown, 597 N.E.2d at 1300. As authority for that statement, the panel relied solely upon Moody v. Moody 565 N.E.2d 388, 390 (Ind.Ct.App. 1991), where we found no abuse of discretion in the trial court's failure to order the mother to allow the father to visit his eighteen and twenty-one-year-old children who did not want to see him. Moody is distinguishable in that the children involved in that case were no longer minors. In addition, in Moody, we were asked to decide whether the trial court abused its discretion in the matter, and we decided it had not. Moody does not foreclose a contempt finding in every instance where an adolescent or teenager does not want to participate in visitation.

Indeed, we have rejected the notion that a custodial parent may justify inaction simply because a child refuses to cooperate with a visitation order. See Hartzell, 629 N.E.2d at 1294; see also Clark v. Atkins, 489 N.E.2d 90, 97 (Ind.Ct.App.1986) (holding that desires of minor children over whom mother had custody did not justify noncompliance with visitation order), trans. denied. The supreme court's newly promulgated Parenting Time Guidelines, effective March 31, 2001, embody the principle that both parents are responsible to ensure that the child complies with the scheduled parenting time. Parenting Time Guideline § I(E). "In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place." Id. Sandra has not shown that the trial court abused its discretion when it declined to find that the children's wants justified her noncompliance with the visitation order.

Sandra also argues that the children's health required that she disregard the order. It is not unreasonable for a child to be unable to fly six days after surgery, and subsequent events showed that Jennifer was pregnant, which may have contributed to her reluctance to travel. Nevertheless, Sandra's argument fails for two reasons. First, the record indicates that the trial court had conducted multiple hearings where both parents testified about the Switzerland trip, Allyson's surgery, and Jennifer's relationship with Mark. The court also interviewed both children. It is not unreasonable from this Record to conclude that Sandra opposed the Switzerland trip from its inception. Placed in context, the court found the medical documents "highly suspect" and expressly rejected the reasons advanced by Sandra as a valid basis for her refusal to comply with the order. Supp. R. at 7. This court cannot now reweigh the evidence and assign the medical opinions greater weight than did the trial court. See ...