                                                                               FILED
                                                                         May 28 2019, 8:43 am

                                                                               CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jeffrey D. Stanton                                        Curtis T. Hill, Jr.
      Logansport, Indiana                                       Attorney General of Indiana

                                                                Frances Barrow
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Cheryl Alcorn,                                            May 28, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-2849
              v.                                                Appeal from the Cass Superior
                                                                Court
      State of Indiana,                                         The Honorable Richard A.
      Appellee-Plaintiff.                                       Maughmer, Judge
                                                                Trial Court Cause No.
                                                                09D02-1811-MC-807



      Najam, Judge.


                                        Statement of the Case
[1]   Cheryl Alcorn appeals the trial court’s finding of contempt against her. Alcorn

      raises one issue for our review, namely, whether the trial court abused its

      discretion when it found her in contempt for having failed to pay the court’s

      Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019                            Page 1 of 7
      payroll voucher. We conclude that Alcorn has not met her burden on appeal to

      demonstrate that she was not in direct contempt and, thus, we affirm.


                                   Facts and Procedural History
[2]   In early 2018, the Cass County Council appropriated $25,000 for the Cass

      Superior Court to hire a fourth court employee. The county council did not

      place any restrictions on those funds. The county council had also appropriated

      money for part-time employees, who are to be paid at a rate of not more than

      $12.50 per hour. 1 On October 15, the Cass Superior Court hired a retired

      school teacher to fill the full-time position of court reporter. However, “due to

      prior teaching commitments,” the court phased in the new court reporter as her

      schedule would allow until she could work full time. Appellant’s App. Vol. II

      at 4.


[3]   On October 29, the trial court submitted a payroll voucher to Alcorn, who is the

      Cass County Auditor. In that voucher, the court approved payment for the new

      court reporter at a rate of $14.01 per hour 2 for the hours the court reporter had

      worked, which the trial court “intended to be taken from the $25,000.00

      unrestricted funds.” Id. However, Alcorn refused to pay the voucher as

      submitted. Instead, Alcorn paid the court reporter at the rate of $12.50 per hour

      because the court reporter had only worked part time.


      1
        There appears to be some dispute as to whether part-time employees earn $12.50 per hour or $12.15 per
      hour, but that difference is not material to this appeal.
      2
        Twenty-five thousand dollars per year equates to $14.01 per hour for a person who works thirty-five hours
      per week.

      Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019                                 Page 2 of 7
[4]   On November 2, the trial court issued a citation finding Alcorn in contempt for

      failing to pay the payroll voucher as submitted. Specifically, the trial court

      found that Alcorn had “refused to pay said voucher as per the order” of the trial

      court. Id. at 6. The trial court further found that Alcorn’s refusal to pay the

      court reporter at the correct rate “substantially disrupt[ed] the operation of the

      court” and “constitute[d] direct contempt of the court[.]” Id.


[5]   The trial court held a hearing on November 5. At the hearing, Alcorn stated

      that she did not pay the payroll voucher as submitted because part-time

      employees were only able earn $12.50 per hour. Alcorn also asserted that the

      payroll voucher was not an order of the court. At the conclusion of the hearing,

      Alcorn agreed to pay the payroll claim “under protest.” Tr. Vol. II at 15. The

      trial court did not impose any sanctions on Alcorn due to her compliance with

      the payroll voucher. This appeal ensued.


                                      Discussion and Decision
[6]   Alcorn contends that the trial court abused its discretion when it found her in

      contempt. As the Indiana Supreme Court has stated:


              “It is soundly within the discretion of the trial court to determine
              whether a party is in contempt, and we review the judgment
              under an abuse of discretion standard of review.” Steele-Giri v.
              Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting Witt v. Jay
              Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012)). “We will
              reverse a trial court’s finding of contempt only if there is no
              evidence or inference therefrom to support the finding.” Id. The
              trial court has the inherent power to “maintain [] its dignity,
              secur[e] obedience to its process and rules, rebuk[e] interference

      Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019               Page 3 of 7
              with the conduct of business, and punish[] unseemly behavior.”
              Id.


      Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016) (alterations in original).


[7]   “There are two kinds of contempt: direct contempt and indirect contempt.” Id.

      A trial court may cite a person for direct contempt when “the court has

      firsthand and immediate knowledge of acts demonstrating a clear disregard for

      its authority which threaten to undermine the integrity of the judicial process

      and impede the performance of court work.” Fearman v. State, 89 N.E.3d 435,

      436 (Ind. Ct. App. 2017). And indirect contempt is the “willful disobedience of

      any lawfully entered order of which the offender had notice[.]” Akiwumi v.

      Akiwumi, 23 N.E.3d 734, 737 (Ind. Ct. App. 2014).


[8]   Here, the trial court found that Alcorn’s refusal to pay the payroll voucher as

      submitted “substantially disprupt[ed] the operation of the court” and found her

      in direct contempt. Appellant’s App. Vol II at 6. However, the trial court also

      found that Alcorn had refused to pay the payroll voucher “as per the order” of

      the court. Id. Thus, the court also found Alcorn in indirect contempt for failing

      to comply with a court order.


[9]   On appeal, Alcorn acknowledges that she did not pay the payroll voucher as

      submitted. However, she contends that the trial court abused its discretion

      when it found her in contempt because the “payroll claim voucher is not an

      Order.” Appellant’s Br. at 8 (emphasis removed). She asserts that, because the

      payroll voucher is not an order, she cannot be held in contempt for failing to

      Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019          Page 4 of 7
       comply with it. In essence, Alcorn only asserts that the trial court abused its

       discretion when it found her in indirect contempt for failing to comply with a

       court order.


[10]   We need not determine whether the payroll voucher was, in effect, a court

       order. Again, the trial court found not only that Alcorn was in indirect

       contempt for violating a court order but that she was also in direct contempt

       because her refusal to pay the court reporter at the higher rate substantially

       disrupted the operation of the court. As discussed above, a trial court can find a

       person in direct contempt when “the court has firsthand and immediate

       knowledge of acts demonstrating a clear disregard for its authority which

       threaten to undermine the integrity of the judicial process and impede the

       performance of court work.” Fearman, 89 N.E.3d at 436. In other words, direct

       contempt “involve[s] actions in the presence of the court, such that the court

       her personal knowledge of them.” Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct.

       App. 2006). Alcorn makes no argument to explain why her actions did not

       constitute direct contempt. 3


[11]   Here, as the trial court specifically found Alcorn in direct contempt, it appears

       from the record that the trial court had personal knowledge of Alcorn’s refusal

       to pay the voucher. And it appears, as the trial court found, that Alcorn’s

       refusal to pay the court reporter at the higher wage from appropriated funds


       3
         For the first time in her reply brief, Alcorn asserts that her “conduct is not that conduct which constitutes
       ‘direct criminal contempt.’” Reply Br. at 8. Because she raises this argument for the first time in her reply
       brief, it is waived. See Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).

       Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019                                      Page 5 of 7
       substantially interfered with the operation of the court. Alcorn has not directed

       us to any evidence in the record, or made any argument, to the contrary from

       which we might conclude that her actions did not constitute direct contempt.

       Accordingly, she has not met her burden on appeal to demonstrate that the trial

       court abused its discretion when it found her in direct contempt.


[12]   Alcorn asserts in the alternative that, even if the payroll voucher were a court

       order, the trial court could not hold her in contempt for failing to comply with it

       because the trial court did not have the authority to set the court reporter’s

       salary as the “county council pays the wage of the court reporter[.]”

       Appellant’s Br. at 10. But as discussed above, we need not decide whether the

       payroll voucher is a court order because Alcorn has not met her burden on

       appeal to demonstrate that her actions did not constitute direct contempt. We

       note, however, that, if the payroll voucher were a court order, Alcorn was

       required to comply with it. It is well settled that “[a] party must follow an

       erroneous order. The only remedy from an erroneous order is appeal[,] and

       disobedience thereto is contempt.” Wilson v. State, 988 N.E.2d 1211, 1216-17

       (Ind. Ct. App. 2013). Accordingly, to avoid a finding of contempt for failing to

       comply with the order, the proper procedure would have been for Alcorn to pay

       the voucher and then appeal.

[13]   In sum, the trial court found Alcorn in both direct and indirect contempt for

       failing to pay the payroll voucher. But Alcorn has not met her burden on

       appeal to demonstrate that her actions did not constitute direct contempt.

       Accordingly, we must affirm.

       Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019           Page 6 of 7
[14]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2849 | May 28, 2019   Page 7 of 7
