Phillips v. Phillips
| Citation | 524 N.E.2d 1320 |
| Decision Date | 30 June 1988 |
| Docket Number | No. 48A02-8704-CV-151,48A02-8704-CV-151 |
| Court | Court of Appeals of Indiana |
| Parties | Terri PHILLIPS, Appellant (Petitioner Below), v. Scott PHILLIPS, Appellee (Respondent Below). |
Ronald L. McNabney, Anderson, for appellant.
John M. Blevins, Anderson, for appellee.
Terri Phillips (Mother) appeals the trial court's assessment of attorney fees against her in favor of Scott Phillips (Father) for defense of his visitation rights with respect to their child, Z.S.P.
We affirm.
Mother petitioned for divorce from Father on April 18, 1986, and, because she was unemployed, sought temporary support for Z.S.P. and attorney fees. On May 5, the parties agreed and the court approved, among other things, that Mother would have the care and custody of Z.S.P. with "[v]isitation reserved to [Father] in reasonable amount/time/and place, but not less than 10:00 A.M. to 5:00 P.M. every Saturday and 5:00 P.M. to 7:00 P.M. on Wednesday, at his parents' home." Record at 15. In addition, Father agreed to not harass Mother and to pay $50 per week for support and $250 to Mother's attorney (with the balance of Father's attorney fee obligation to be determined at final hearing). Four days later, on May 9, Mother filed an Emergency Petition to Terminate Visitation, setting forth as grounds for relief that Father had allegedly molested Mother's two minor daughters by a previous marriage.
After hearing held on May 14, the Commissioner purported to modify the parties' May 5 agreement as follows:
Although it is not clear whether the court ever adopted the Commissioner's suggested modification and issued the proper order in the dissolution proceedings, there is evidence that it was adopted in an unrelated CHINS proceeding.
On Saturday, June 7, Mother refused Father visitation with Z.S.P. whereupon Father filed an Affidavit for Citation and a Request for Emergency Hearing, seeking to hold Mother in contempt. Mother followed up the next day with a Second Emergency Petition to Terminate or Modify Current Order of Visitation. Affixed to this Petition was a June 6 letter from the social worker counseling Mother and her daughters, wherein she expressed her concern about the adequacy of the supervision over Z.S.P. After an evidentiary hearing, the Commissioner issued findings of fact, conclusions of law and recommendations, the latter of which the trial court approved and ordered:
"1) The Commissioner recommends that [Mother] be found in contempt of this Court on account of her denial of [Father's] visitation rights June 7, 1986, and that in punishment thereof she be incarcerated in the Madison County Jail for a period of 5 days, [sic] He further recommends that such sentence be suspended on condition of strict compliance with all orders of this Court.
2) The Commissioner recommends that the Court reaffirm its visitation order of May 16, [sic] 1 1986; provided, however, one of the grandparents (or other responsible adult acceptable to [Mother] shall accompany [Father] during his transport of the child. The grandparents shall supervise visitation and one or both of them shall be present at all times. They shall be responsible for the safety of the child during visitation.
3) The grandparents shall within 10 days arrange for counseling sessions with Elaine Kardatzke at the Exchange Club child abuse center. Mrs. Kardatzke is requested to familiarize the grandparents with child molestation, the profile of the typical child molester (if any), and any danger signs of which they should be aware." Record at 38.
On March 12, 1987, Mother filed a third Verified Petition for Emergency Order Terminating Respondent-Father's Visitation, this time setting forth that Father had just been convicted of molesting his two minor stepdaughters and was threatening to leave the jurisdiction with Z.S.P. In addition, Mother filed a petition to hold Father in contempt for threatening and harassing her, contrary to the terms of the original agreement. Hearing was had the next day before the court. Evidence at the hearing included testimony that Father was harassing Mother when he picked up Z.S.P. and that "unacceptable" adults would often accompany Father to Mother's home to pick up Z.S.P. rather than his parents. The court concluded:
On March 20, Father's counsel filed an unverified petition for attorney fees, setting forth a chronology of the events on the issue of visitation: the May 5, 1986 Agreed Entry; Mother's May 9, 1986 petition; Father's June 9, 1986 petition for contempt; Mother's June 10, 1986 petition; Mother's March 12, 1987 petition. However, counsel's petition sets forth only the following sums for fees:
"5. That on June 13, 1986, the commissioner found [Mother] to be in contempt of the court, and as a result of the contempt of [Mother] [Father] incurred attorney fees in the sum of Three Hundred Thirty Dollars ($330.00).
* * *
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8. That as a result of the frivolous and harassing nature of [Mother's] Petition for Emergency Order Terminating Respondent-Father's Visitation, [Father] incurred additional attorney fees in the sum of One Hundred Seventy-Five Dollars ($175.00) constituting interviews, preparation, and court appearance in defense of his rights of visitation with his son.
WHEREFORE, [Father] prays for an order of attorney fees in the sum of Five Hundred Five Dollars ($505.00) and for all other relief proper in the premises." Record at 82-83.
Shortly thereafter, Father also filed a verified petition to abate support payments because he was unemployed and awaiting sentencing. (Father had formerly worked for Consumer Electronics, Inc. at $7.00 per hour.) Mother filed an objection to Father's petition for attorney fees, pointing out that she too was unemployed. Shortly thereafter, the trial court entered the following:
Because the court's entry is not illuminating, we also reproduce the pertinent parts of the memo accompanying the entry:
"I have reviewed the various pleadings filed by the petitioner subsequent to the agreed entry of May 5, 1986, along with the record of hearings and docket orders made in response to those pleadings.
Within days after the agreed entry of May 5, 1986, the petitioner sought to terminate and circumvent the respondent's right of visitation. In her defense, I believe the wife was genuinely fearful. In that sense, her efforts were not in bad faith. Nevertheless, without exception, the petitioner's various actions were found by the Court to be without merit:
(1) On May 14, 1986, the Commissioner denied her petition to terminate and made no substantial change in the visitation order.
(2) Likewise, her second request to modify the provisional order was found by the Commissioner to be unconvincing, and on June 13, 1986, she was found to be in contempt of the Court's visitation order.
(3) On March 12, 1987, the petitioner filed a verified petition to terminate visitation. On March 13, 1987, the presiding Judge conducted a hearing and found no evidence of an emergency.
Because the petitioner's fears and allegations were taken seriously, the respondent was repeatedly called into Court, and compelled to employ counsel, to defend his natural, statutory, and agreed right to visitation. The respondent should not bear the full cost of his defense when, on three occasions, the petitioner's efforts were rebuffed by the Court and, on one occasion, she was found to be in contempt for failing to permit Court-ordered visitation." Record at 92.
Because there had not been a final determination in the dissolution, Mother properly took this interlocutory appeal contesting the order.
The issue before us is whether the trial court erred when it ordered Mother to pay a portion of Father's attorney fees incurred with respect to Father's visitation rights. After examining the statutory authority and analogous case law, we conclude that it did not.
The statute governing this case is I.C. 31-1-11.5-24(c) (Burns Code Ed. Repl. 1987):
Because this particular portion of I.C. 31-1-11.5-24 was only recently enacted, there is no case law interpreting it. However, I.C. 31-1-11.5-16(a) (Burns Code Ed. Repl. 1987) which generally regulates attorney fee awards for dissolution actions is similar:
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