MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Sep 29 2017, 9:09 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Benjamin D. Ice                                          Christopher Bandemer
William A. Ramsey                                        Fort Wayne, Indiana
Barrett McNagny LLP
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Paternity of S.R.W.,                          September 29, 2017

M.R.B.,                                                  Court of Appeals Case No.
                                                         02A05-1701-JP-144
Appellant-Petitioner,
                                                         Appeal from the Allen Superior
        v.                                               Court
                                                         The Honorable Daniel G. Pappas,
B.T.T.,                                                  Special Judge
                                                         Trial Court Cause No.
Appellee-Respondent.
                                                         02D07-0102-JP-87



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017      Page 1 of 17
                                          Case Summary
[1]   M.R.B. (“Mother”) appeals from the trial court’s order imposing contempt

      sanctions of a thirty-day executed sentence and two suspended sentences.


[2]   We affirm in part, vacate in part, and remand with instructions.



                                                    Issues
[3]   Mother raises the following consolidated and restated issues:


              I.       Whether a pending appeal precluded the trial court from
                       imposing contempt sanctions; and


              II.      Whether the imposed sanctions were improper.


                            Facts and Procedural History
[4]   Mother and B.T.T. (“Father”) have never been married, and are the parents of

      S.R.W. (“Child”), who was born on January 16, 2001. Child is a competitive

      gymnast and spends considerable time training, with ambitions to compete at

      the collegiate level. Child primarily lives with Mother in Angola, and attends

      high school in Fort Wayne. Father lives in Minnesota. Mother and Father

      have joint legal and physical custody, with Father exercising parenting time

      according to the distance-based guidelines.


[5]   The docket reflects that, over the years, Mother and Father have had several

      disagreements concerning Child. This appeal involves a series of contempt


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 2 of 17
      findings, the first of which stemmed from contempt allegations that Mother and

      Father made against one another in 2013 and early 2014. The allegations

      concerned compliance with an August 13, 2013 order that addressed custody,

      parenting time, and support.1 Following a hearing on the contempt allegations,

      the trial court entered an order on March 14, 2014. The trial court found that

      Father was not in contempt but that Mother was in contempt. Specifically, the

      trial court determined that Mother had contemptuously “failed to cause [Child]

      to be transported to Father over Christmas break”2 and had “repeatedly

      threaten[ed] to interfere with and deny Father his parenting time.” Appellant’s

      App. Vol. II at 54. The trial court also found that Mother had contemptuously

      “threaten[ed] [Father’s] employment” and made certain improper

      communications to Father. Appellant’s App. Vol. II at 55. As a sanction, the

      trial court imposed a sixty-day sentence of imprisonment, suspended on the

      condition that Mother comply with the contempt order and all prior orders.


[6]   In June 2015, the summer before Child entered her sophomore year of high

      school, Father made additional contempt allegations against Mother in a

      petition for rule to show cause. After a hearing, the trial court issued an order




      1
          The order is not included in either party’s appendix.
      2
        The trial court noted that evidently Mother had an airline voucher to pay for a portion of Child’s travel
      expenses, but the voucher was expired and so she never paid to transport Child. It is unclear from the
      appellate record whether the parents considered alternative travel or payment arrangements, nonetheless it is
      clear that Father had no parenting time over the break.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017         Page 3 of 17
      finding Mother in contempt of both the August 2013 order and the March 2014

      contempt order for actions relating to visitation and Child’s educational plan.


[7]   As to visitation, the trial court determined that Mother had failed to ensure that

      Father could exercise his summer parenting-time rights “by interfering with the

      child-parent relationship between [Child] and Father” and by failing to seek the

      trial court’s approval to alter Father’s summer parenting time. Appellant’s

      App. Vol. II at 67. The events leading up to Father’s petition included Child’s

      refusal to board an airplane to Minnesota. Child later testified as to why she

      did not go to her summer parenting time: “I didn’t want to; it wouldn’t give me

      the hours I need for gymnastics.” Appellant’s App. Vol. II at 67. Mother

      claimed that Child was stubborn, and that she called the police to have Child

      told to go visit Father. The trial court determined that “Mother is instilling or

      has instilled in [Child] an attitude and belief that [Child’s] gymnastic and

      academic aspirations take precedence over Father’s parental rights.”

      Appellant’s App. Vol. II at 67.


[8]   As to educational matters, the trial court concluded that Mother had “altered

      [Child’s] educational plan without the approval of Father” and without first

      obtaining a court order approving the alteration. Appellant’s App. Vol. II at 68.

      Specifically, Mother had enrolled Child in a college math class, and Father

      objected to Child’s enrollment. The trial court noted that faculty at Child’s high




      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 4 of 17
       school did not fully endorse the enrollment decision because Child’s other math

       grades were not good enough to take the same course at the school.3


[9]    In making these new contempt findings, the trial court acknowledged that it

       had previously suspended a sixty-day sentence for contempt, and set the matter

       for further hearing on sanctions. In the interim, on July 20, 2016—prior to

       Child’s junior year of high school—Father sought to enjoin Mother from

       altering Child’s education plan, alleging that Mother enrolled Child in classes at

       a different college. The trial court granted the injunction on August 26, 2016,

       determining “that it is not in [Child’s] best interest to attend college[-]level

       classes at this time.” Appellant’s App. Vol. II at 85. Father did not seek a

       contempt finding, although the trial court noted that Mother’s actions exhibited

       a “disdain” for the court’s authority and that the record “clearly demonstrates

       that regardless” of the court’s orders, “Mother will . . . contemptuously”

       disregard them. Appellant’s App. Vol. II at 85.


[10]   Mother timely appealed the injunction, filing a Notice of Appeal in September

       2016, and the clerk filed the record on October 27, 2016. While the appeal was

       pending, Mother sought to postpone the hearing on sanctions. The trial court

       declined to postpone the hearing, which was held on December 19, 2016.




       3
        The record indicates that certain colleges have requirements concerning quantities of math credits, and that
       Child also needs to take two Dual Credit or Advanced Placement courses to obtain an Honors Diploma.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017         Page 5 of 17
[11]   At the hearing on sanctions, the trial court orally imposed a thirty-day sentence

       for the March 2014 contempt finding. For each of the newer contempt findings,

       the trial court imposed thirty-day sentences, suspended on the condition that

       Mother comply with its orders. The trial court also ordered Mother to pay

       $5,000.00 of Father’s attorney fees. Mother was immediately taken into

       custody, at which time Mother stated that she was currently breastfeeding her

       eight-month-old infant. Counsel for Mother made an oral motion to

       reconsider, which was denied.4


[12]   The following day, the trial court held a telephonic conference. Counsel for the

       parties represented that an agreement was reached that would “serve in lieu of

       the order for sanctions” that the trial court had issued. Appellee’s App. Vol. II

       at 5. The agreement was contingent upon Mother’s release from incarceration

       as soon as was administratively possible. Another term of the agreement was

       that Mother not be purged of contempt upon her release, and that a sixty-day

       sentence would remain in place, suspended on the condition that Mother

       comply with the trial court’s orders. The trial court asked the parties to reduce

       the agreement to writing. The trial court then ordered Mother’s release, and

       stated in its written order that Mother had not been purged of contempt.


[13]   On January 12, 2017, this Court dismissed Mother’s first appeal for her failure

       to timely file a brief. Mother filed her instant Notice of Appeal on January 17,




       4
        The hearing transcript includes no discussion concerning physical custody of Child during the immediately
       imposed period of incarceration. There was also no inquiry regarding arrangements for Mother’s infant.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017       Page 6 of 17
       2017. The next day, Father filed a motion to reinstate Mother’s sentence, and

       the trial court deferred ruling on the motion until the disposition of this appeal.



                                    Discussion and Decision
                                   Effect of the Pending Appeal
[14]   Mother first contends that the trial court erred by imposing sanctions during the

       pendency of her prior appeal.5 Pursuant to Indiana Appellate Rule 8, the

       “Court on Appeal acquires jurisdiction on the date the Notice of Completion of

       Clerk’s Record is noted in the Chronological Case Summary.” While an appeal

       is pending, the trial court “‘is not permitted to intermeddle with the [subject

       matter] of the appeal.’” Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995)

       (quoting State ex rel. Fairchild v. Criminal Court of Marion Cty., Div. 1, 230 Ind.

       307, 103 N.E.2d 352 (1952)). However, a trial court may “‘preside over matters

       which are independent of and do not interfere with the subject matter of the

       appeal.’” Crider v. Crider, 15 N.E.3d 1042, 1064-65 (Ind. Ct. App. 2014)




       5
         Mother frames the issue as one of jurisdiction, however Mother makes no allegation that the trial court
       lacked personal or subject-matter jurisdiction. See K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006) (“Real
       jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or
       a judgment rendered without any service of process. Thus, characterizing other sorts of procedural defects as
       ‘jurisdictional’ misapprehends the concepts.”). Mother’s claim is therefore best framed as one of procedural
       error. See id.; State v. Larkin, 77 N.E.3d 237, 260 (Ind. Ct. App. 2017) (Barnes, J., dissenting) (observing that
       “a trial court’s actions while an appeal is pending may not raise a ‘jurisdictional’ problem and such actions
       may not be ‘void’” but instead “at least ‘voidable’ based on clear procedural error.”) Mother preserved her
       claim of error by moving to postpone the hearing. See K.S., 849 N.E.2d at 542 (observing that a claim of
       procedural error was untimely where the appellant “did not object during the[] proceedings” and the
       appellant’s later collateral attack, though “characterized as jurisdictional,” was ultimately not jurisdictional
       in nature).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017            Page 7 of 17
       (quoting Clark v. State, 727 N.E.2d 18, 21 (Ind. Ct. App. 2000), trans. denied),

       trans. denied.


[15]   Mother argues that the trial court was precluded from imposing sanctions

       because the events leading to sanctions and the matter on appeal “related to the

       same general subjects.” Appellant’s Br. at 31. However, even if we were to

       conclude that, under these facts, the subject matter was sufficiently related to

       warrant postponing the hearing on sanctions, any error would be harmless

       because Mother did not pursue the initial appeal, which led to its dismissal. See

       Ind. Trial Rule 61 (providing that courts are to “disregard any error or defect in

       the proceeding which does not affect the substantial rights of the parties”).

       Thus, Mother has not directed us to reversible error in this respect.6


                                           Contempt Sanctions
[16]   As an initial matter, Father argues for dismissal of the portion of Mother’s

       appeal pertaining to the two suspended sentences, contending that there is no

       final appealable order with respect to these sanctions.




       6
         The parties also dispute whether Mother is precluded from pursuing the instant appeal because of the
       agreement that was telephonically communicated to the trial court. Father contends that the trial court
       entered a non-appealable agreed judgment when it released Mother from incarceration, which was a
       condition of the agreement. We note, however, that the trial court indicated that its order stood and would
       not be modified until it received a written agreement from the parties. Appellee’s App. Vol. II at 11 (“You’re
       going to get the order from me from yesterday and then of course we’ll do what we need to do to change that
       as soon as we get your craftsmanship put in writing and submitted to the Court.”). We conclude that the
       effect of the order releasing Mother from incarceration was to facilitate negotiations, not to lock the parties
       into the orally expressed terms and preclude the appeal of Mother’s sentences. Appellee’s App. Vol. II. at 8
       (“I understand you may submit something to me that is a little bit different from what you’ve stated here.
       And what I mean by that is maybe you’ll fine[-]tune some of those things.”).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017           Page 8 of 17
[17]   An appeal of indirect contempt may be pursued “in the same manner as in

       cases of direct contempt,” Ind. Code § 34-47-3-6(d), and there are several routes

       to pursue an appeal in such cases. See I.C. § 34-47-2-5. One route is to appeal

       after making a motion to reconsider, where the motion was made “either before

       or after . . . undergoing the imprisonment.” I.C. §§ 34-47-2-5(b), -5(f). Here,

       Mother moved to reconsider immediately after the trial court ordered

       imprisonment and imposed two other suspended sanctions. Moreover, nothing

       in the statute prohibits an appeal from a suspended sanction, and the Indiana

       Supreme Court long ago held that “a judgment that is suspended is still a final

       judgment . . . and is not a mere interlocutory order.” Sutton v. State, 194 Ind.

       479, 143 N.E. 353 (1924). Indeed, in resolving Sutton, our supreme court

       expressly overruled contrary aspects of Montgomery v. State, 182 Ind. 276, 106

       N.E. 370 (1914), which was an indirect contempt case involving the imposition

       of a suspended sentence that was deemed not to constitute a final judgment.


[18]   In contending that Mother does not appeal from a final judgment, Father

       directs us to Azhar v. State, 712 N.E.2d 1018 (Ind. Ct. App. 1999), in which this

       Court stated that “where [the] $25.00 fine for contempt was suspended . . . there

       was no final judgment, and therefore no basis for an appeal.” Id. at 1020.

       However, the brief discussion of suspended sanctions in Azhar amounts to dicta.

       Rather, in light of the contempt statute and Sutton, we see no reason why

       Mother cannot challenge the imposed sanctions.


[19]   We review the imposition of contempt sanctions for an abuse of discretion.

       Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 204 (Ind. 2012). An abuse of

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 9 of 17
       discretion occurs “when the trial court’s decision is against the logic and effect

       of the facts and circumstances before it.” Mitchell v. Mitchell, 785 N.E.2d 1194,

       1198 (Ind. Ct. App. 2003). Moreover, in reviewing a contempt order, we

       neither reweigh the evidence nor judge the credibility of witnesses. Id.


[20]   The power of contempt is an inherent judicial power that is “not the creature of

       legislation and is inalienable and indestructible.” State ex rel. Trotcky v.

       Hutchinson, 224 Ind. 443, 68 N.E.2d 649, 650 (1946). “Indeed, ‘[t]o deny a

       court the power to enforce obedience to its lawful orders against parties who

       have been subjected properly to its jurisdiction in the first instance, is to nullify

       its effectiveness as an independent branch of government.’” Crowl v. Berryhill,

       678 N.E.2d 828, 831 (Ind. Ct. App. 1997) (quoting State ex rel. Brubaker v.

       Pritchard, 236 Ind. 222, 138 N.E.2d 233, 235 (1956)).


[21]   It follows that the legislature cannot extinguish this inherent judicial power.

       Yet, the power has limits. For example, the power of contempt is limited by a

       contemnor’s constitutional rights. See, e.g., Matter of Craig, 571 N.E.2d 1326,

       1328-29 (Ind. Ct. App. 1991) (determining that a revised contempt sanction

       offended principles of due process). Further, Indiana courts have identified the

       bounds of our inherent power. Indeed, with respect to the inherent civil

       contempt power—at issue in this case—we have determined that the power is

       “coercive and remedial in nature.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031

       (Ind. Ct. App. 1999), trans. denied. In other words, when a court exercises its

       civil contempt power—as opposed to its criminal contempt power—the power

       is not to be used in a primarily punitive fashion, but instead to “coerce action

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 10 of 17
       for the benefit of the aggrieved party.”7 In re Paternity of M.P.M.W., 908 N.E.2d

       1205, 1209 (Ind. Ct. App. 2009); see also Moore v. Ferguson, 680 N.E.2d 862, 866

       (Ind. Ct. App. 1997) (recognizing that a civil contempt sanction may have

       “incidental punitive aspects” but will be upheld as a proper sanction if “it is

       designed to coerce . . . compliance” with an order), trans. denied.


[22]   When a court exercises its inherent civil contempt power and fashions a

       coercive contempt sanction, we have typically required that there be an

       opportunity for the contemnor to purge herself of contempt. See generally Moore,

       680 N.E.2d at 865-66. For example, where the trial court imposes a sanction of

       incarceration, the incarceration order may be “conditioned on the payment of

       money or the accomplishment of a single task.” M.P.M.W., 908 N.E.2d at

       1210. In this sense, it can be said that, because of the purge condition, the

       contemnor always carries the “keys to the jail” in her pocket. See generally

       Duemling v. Fort Wayne Cmty. Concerts, Inc., 243 Ind. 521, 188 N.E.2d 274, 277

       (1963); Moore, 680 N.E.2d at 865. See also D.W. v. State, 673 N.E.2d 509, 512

       (Ind. Ct. App. 1996) (“‘If the judgment seeks to coerce the [contemnor] into

       doing an affirmative act by confinement in jail, it must provide that the

       imprisonment cease as soon as the act is done.’”) (quoting State ex rel. McMinn v.

       Gentry, 229 Ind. 615, 100 N.E.2d 676, 678 (1951)), trans. denied.




       7
        In contrast, a criminal contempt sanction is “punitive in nature because its purpose is to vindicate the
       authority of the court . . . benefit[ting] the State rather than the aggrieved party.” Jones v. State, 847 N.E.2d
       190, 199 (Ind. Ct. App. 2006), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017             Page 11 of 17
[23]   Mother challenges the order requiring her to serve the sentence that was

       previously suspended, contending that the incarceration order was improper

       because it lacked a “purge condition.” Thus, Mother essentially asserts that a

       “purge condition” is a necessary element of every incarceration order.


[24]   We do not think that the ability to avoid incarceration is necessary for a

       contempt sentence to be permissible. Rather, the ability to avoid incarceration

       is what typically renders a sentence coercive. In the prototypical contempt case,

       the court seeks to coerce the contemnor into completing a single, definitive act,

       e.g., the payment of money. In such cases, the “purge condition” safeguards

       against arbitrary, punitive periods of incarceration imposed well after the

       contemnor would have complied. Thus, the ability to avoid the incarceration is

       what renders the incarceration order coercive, tying the length of the

       incarceration to the length actually necessary to coerce action.


[25]   Yet, this is not the prototypical contempt case. Rather, here, Mother was

       obligated to continually conform her behavior to comply with court orders

       concerning Child, and the traditional “purge condition” does not map well onto

       such matters of ongoing compliance. Indeed, it is difficult to imagine an

       incarceration order that would allow for immediate release while also retaining

       the intended coercive effect.


[26]   We must be mindful that the court has the inherent power to coerce compliance

       with its orders. See Trotcky, 68 N.E.2d at 650. We accordingly decline to limit

       the civil contempt power with a bright-line requirement, and instead conclude


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 12 of 17
       that an incarceration order need not contain a “purge condition,” so long as the

       order is primarily coercive. See Williamson v. Creamer, 722 N.E.2d 863, 867

       (Ind. Ct. App. 2000) (upholding a thirty-two-day sentence imposed against a

       parent, concluding that the sentence “serv[ed] the coercive purpose of

       maintaining . . . compliance with the court’s visitation order in the future for

       the benefit” of the other parent); see also Flash v. Holtsclaw, 789 N.E.2d 955, 959

       (Ind. Ct. App. 2003) (approving of a sixty-day sentence for indirect civil

       contempt where the contemnor had repeatedly violated a protective order). But

       see M.P.M.W., 908 N.E.2d at 1210 (distinguishing between a proper “contempt

       sanction conditioned on the payment of money or the accomplishment of a

       single task” and an improper sanction that “cannot be purged”); K.L.N. v. State,

       881 N.E.2d 39, 42 (Ind. Ct. App. 2008) (“A contempt order that does not offer

       an opportunity for the recalcitrant party to purge himself of the contempt may

       not be imposed in a civil contempt proceeding.”); Thompson v. Thompson, 811

       N.E.2d 888, 906 (Ind. Ct. App. 2004) (concluding that a jail sentence was

       improperly imposed for indirect civil contempt where “the trial court did not

       condition [the contemnor’s] jail sentence upon . . . compliance with its orders”),

       trans. denied.


[27]   Of course, in the prototypical contempt case—which this is not—the “purge

       condition” is what renders the incarceration order coercive. Here, however, the

       incarceration order does not automatically fail because there is no purge

       condition. Nonetheless, the order may fail for imposing a punitive sanction:

       more jail time than reasonably necessary to garner Mother’s compliance.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 13 of 17
[28]   Here, the trial court first issued a “wake-up call” by way of suspended jail time

       in March 2014, after which Mother apparently complied for more than a year.

       Subsequently, Mother was found to have willfully disobeyed a parenting-time

       order by de-valuing parenting time with Father and failing to ensure that Child

       boarded an airplane to Minnesota when Child—a teenager—refused; it is

       undisputed that Mother called the police for assistance in forcing Child to visit

       Father. The trial court also determined that Mother violated a court order by

       unilaterally enrolling Child in a college-level math class.8 Moreover, at the time

       the trial court ordered the incarceration, it was aware that Mother had again

       enrolled Child in college coursework and that there was a parenting-time

       dispute concerning visitation with Father over winter break.


[29]   The facts and circumstances of this case do not support the reasonable

       conclusion that a full thirty days of incarceration would have a primarily

       coercive effect on Mother—especially not when imposed one week before

       Christmas, while Mother was nursing an infant. Cf. Flash, 789 N.E.2d at 959

       (upholding the imposition of sixty days of incarceration following repeated

       violations of a protective order, where the contemnor had harassed the

       aggrieved party by calling her, monitoring her activities, and disseminating

       information about her via the Internet, mail, and telephone), trans. denied.

       Thus, we conclude that the sanction imposed was punitive. Although a trial



       8
        Mother does not challenge whether these actions were contemptuous and appears to concede as much. We
       accordingly treat all of the contempt findings as substantiated, although we reserve doubt about whether
       Mother willfully disobeyed any order of the trial court when Child refused to board the airplane.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 14 of 17
       court may impose a punitive contempt sanction, it may do so only in criminal

       contempt proceedings, which involve a variety of additional procedural

       safeguards that were not present here. See, e.g., Hancz v. City of South Bend, 691

       N.E.2d 1322, 1325 n.3 (Ind. Ct. App. 1998) (“A charge of criminal contempt

       should be prosecuted by the State against the defendant, in an independent

       action, and should charge that the acts have been done or omitted to be done

       with the intent to defy the authority of the court.”). We must therefore vacate

       the punitive incarceration order.9 See K.L.N., 881 N.E.2d at 44 (“Given that

       K.L.N. was found to be in civil contempt of court, a criminal, punitive sanction

       is unlawful.”).


[30]   With respect to the two suspended sentences, Mother argues that the sentences

       are impermissible because they are “conditioned upon broad and undefined

       future conduct,” that is, “Mother’s ongoing compliance with all court orders.”

       Appellant’s Br. at 25. However, “[p]enalties designed to compel future

       compliance with a court order are considered to be coercive and avoidable

       through obedience.” Norris v. Pethe, 833 N.E.2d 1024, 1031-32 (Ind. Ct. App.

       2005); see also Duemling, 188 N.E.2d at 277 (upholding a suspended sentence,

       observing that the sentence was avoidable through future compliance). A

       suspended contempt sanction—while suspended—amounts to a wholly

       coercive “comply or else” warning that subjects the contemnor to no palpable




       9
        The trial court’s imposition of a punitive sentence—that Mother was to immediately begin serving—strikes
       us as bordering on intemperate. It was, at the very least, ill-considered.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017     Page 15 of 17
       loss of liberty or property. Thus, the authority to fashion a suspended sentence

       falls squarely within the trial court’s inherent coercive and remedial civil

       contempt power. We therefore affirm the imposition of the suspended

       sanctions, while passing no judgment on the length of those sentences. Rather,

       we remind the trial court that any future order of incarceration must be

       reasonably necessary to garner compliance, as determined at the time the

       incarceration is imposed.10


[31]   Finally, Mother points out that the order imposing suspended sentences

       improperly “presume[s] that any failure to comply with a future order will not

       only be willful but also will warrant time in jail.” Appellant’s Br. at 27. The

       order states that Mother’s confinement is “suspended on the condition that she

       strictly comply with the parenting[-]time orders of the Court,” and that she may

       be purged of her confinement orders “by her strict compliance with the

       parenting[-]time orders.” Appellant’s App. Vol. II at 133. We agree that the

       language requiring strict compliance was over-inclusive, in that prohibiting

       unwillful actions has no logical coercive effect. Therefore, on remand, we




       10
          We also remind the trial court that before imposing any sanction for civil contempt—but particularly when
       the sanction is jail time, Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind. 2016)—it “shall, on proper showing,”
       postpone a show-cause hearing “to give the defendant a reasonable and just opportunity to be purged of the
       contempt.” I.C. § 34-47-3-5(c) (emphasis added). A determination of what is “reasonable and just”
       necessitates consideration of not only what must be done to comply with the letter of the order but also of the
       contemnor’s willingness and ability to conform with the order. Here, Mother was found in contempt in part
       for failing to ensure that Father received parenting time. Yet, it was Child who refused to board a plane.
       Mother cannot be expected to physically pick up her nearly grown child—who is a “child” at this point only
       because the law declares her so—and force her onto a plane. Instead, Mother called the police to try to
       facilitate the visit. In this case, it may not be “reasonable and just” to require Mother to make Child actually
       visit Father to avoid a contempt finding.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017          Page 16 of 17
       instruct the trial court to revise its order, striking the modifiers “strict” and

       “strictly” and conditioning execution of Mother’s suspended sentences only

       upon willful non-compliance with its orders.



                                               Conclusion
[32]   The trial court abused its discretion in imposing a punitive contempt sanction,

       and we therefore vacate the order of incarceration. Moreover, although the

       imposition of suspended sentences was a proper coercive sanction, the trial

       court abused its discretion in conditioning execution of the sentences on strict

       compliance with its parenting-time orders. We instruct the trial court to revise

       its order, instead conditioning the sentence upon willful non-compliance.


[33]   Affirmed in part, vacated in part, and remanded with instructions.


       Robb, J., concurs.
       Vaidik, C.J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JP-144 | September 29, 2017   Page 17 of 17
