MEMORANDUM DECISION
                                                                Jun 17 2015, 8:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew C. Mallor                                          Andrew Z. Soshnick
Kendra G. Gjerdingen                                      Teresa A. Griffin
Mallor Grodner LLP                                        Faegre Baker Daniels LLP
Bloomington, Indiana                                      Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Mariea L. Best,                                          June 17, 2015

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         06A01-1501-DR-21
        v.                                               Appeal from the Boone Circuit
                                                         Court.
                                                         The Honorable Rebecca S. McClure,
Russell C. Best,                                         Special Judge.
Appellee-Petitioner                                      The Honorable J. Jeffrey Edens,
                                                         Judge.
                                                         Cause No. 06C01-0209-DR-381




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015     Page 1 of 12
[1]   “The seemingly never-ending, post-dissolution litigation in this case has

      resulted in this third appeal in which Mariea Best (“Mariea”) is challenging the

      jurisdiction of the Boone Circuit Court and its contempt order against her.” 1

      Here we are again, with a fourth appeal. We affirm in part, reverse in part, and

      remand with instructions to recalculate the attorney fee award.


                                                          Facts
[2]   The underlying facts, as previously described by this Court in Best III, are as

      follows:

               Mariea and Russell Best’s (“Russell”) marriage was dissolved in 2004.
               They initially agreed to share joint legal and physical custody of their
               two children, A.B., born in 1992 and M.B., who has Down Syndrome
               and was born in 1995. Since 2006, the parties’ disagreements
               concerning custody and other issues relating to their children have
               been intensely litigated in Boone Circuit Court. A.B. is now
               emancipated and Russell has custody of M.B.
               The parties’ current dispute revolves around the establishment of a
               guardian for M.B., who is now twenty years old. In October 2011, the
               parties entered in a Mediated Agreed Entry, which was approved by
               the Boone Circuit Court. The Agreed Entry provides in pertinent part:
                        Neither party (either personally or in a representative
                        capacity) will seek guardianship of [M.B.] prior to her
                        attaining twenty-one years of age unless necessary for
                        medical or public benefits purposes. If it becomes
                        necessary before age twenty-one (21), it is agreed that
                        Russell will serve as the guardian. Barring establishment




      1
        Best v. Best, No. 06A04-1403-DR-124, at *1 (Ind. Ct. App. Sept. 3, 2014) (“Best III”). See also Best v. Best, 941
      N.E.2d 499 (Ind. 2011) (“Best I”); In re Marriage of Best, No. 06A04-1401-DR-46 (Ind. Ct. App. June 25, 2014)
      (“Best II”). Additionally, there is a contemporaneous appeal pending from a guardianship action. In re
      Guardianship of Best, No. 06A01-1408-GU-355 (“Guardianship Appeal”).

      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015                    Page 2 of 12
                       of a guardianship, the custody order and jurisdiction of
                       this Court remain in full force and effect.
              After M.B.’s nineteenth birthday, the parties ultimately agreed that a
              guardianship over M.B. should be established even though she is not
              yet twenty-one years old.
      Best III, at *1 (internal citations omitted).


[3]   Since the 2011 Agreed Entry, Mariea has repeatedly attempted to eviscerate its

      term providing that Russell would be appointed as M.B.’s guardian. She filed

      several motions in an attempt to be named as M.B.’s guardian, including a

      guardianship petition. Russell filed a petition to enforce the Agreed Entry in

      the dissolution court, which the court granted and this Court affirmed in Best II.


[4]   While Best II was pending, Russell filed a petition to establish a guardianship

      over M.B. and requested that Mariea consent. She refused, and he filed a

      motion with the dissolution court requesting that she be held in contempt for

      her failure to comply with the Agreed Entry. The dissolution court found

      Mariea in contempt, she appealed, and this Court affirmed in Best III.


[5]   The guardianship proceedings were being held contemporaneously with the

      dissolution proceedings. On February 20, 2014, Mariea dismissed her

      guardianship action and agreed to consent to and not oppose, directly or

      indirectly, Russell’s guardianship petition. She reserved “the right to request a

      replacement guardian” for M.B. in the guardianship proceedings. Tr. Ex. A.




      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 3 of 12
[6]   Notwithstanding Mariea’s agreement to refrain from opposing Russell’s

      guardianship petition, the Agreed Entry, and Best II, she proceeded to take the

      following actions in the guardianship proceeding:


           On April 2, 2014, Mariea filed a petition to stay proceedings pending
            appeal.
           On May 13, 2014, she filed an objection to the guardianship court’s
            conclusion that she was not eligible for appointment as M.B.’s guardian.
           On June 16, 2014, she filed a petition for appointment of replacement
            guardian of M.B.
           On July 9, 2014, she filed a continuing objection as to her eligibility for
            appointment as M.B.’s guardian.
           On July 12, 2014, she filed a renewed application for permission to
            participate in the guardianship proceedings.
           On July 15, 2014, Mariea attempted to file a trial brief in the
            guardianship court asserting her right to be appointed M.B.’s guardian.
            The guardianship court struck that brief from the record.
           At the guardianship hearing, which took place on July 15, 30, and 31,
            2014, Mariea testified on behalf of her brother, Alex, who had intervened
            and was seeking to be named as M.B.’s guardian.
           On August 1, 2014, Mariea filed a motion to reconsider.

      On August 8, 2014, the guardianship court entered an order appointing Russell

      as M.B.’s guardian (the Guardianship Order). Mariea is appealing that order in

      the currently pending Guardianship Appeal.


[7]   On April 4, 2014, Russell filed a petition with the dissolution court to find

      Mariea in contempt for failing to comply with the Agreed Entry. The contempt

      petition was originally based on her petition to stay the guardianship

      proceedings, and was later updated to include some of her later actions in the

      guardianship case. On August 25, 2014, the dissolution court granted Russell’s

      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 4 of 12
      petition and found Mariea in contempt, ordering her to pay attorney fees in the

      amount of $5,000. She did not appeal that order.


[8]   On September 12, 2014, Russell filed a petition in the dissolution court to find

      Mariea in contempt for her decision to appeal the Guardianship Order.

      Following a hearing, the dissolution court issued an order on November 18,

      2014, finding Mariea in contempt for the third time in less than a year. The

      court ordered Mariea to pay Russell’s attorney fees in the amount of $118,000,

              to compensate [Russell] for fees paid by him in the guardianship
              proceeding . . . and the guardianship matter initiated by [Mariea] . . . .
              These fees were incurred as a result of actions taken by [Russell] in
              reaction to pleadings filed by [Mariea] in those cases and in direct
              contravention of this Court’s earlier Orders. The Court also intends by
              this sum to compensate fees incurred by Russell Best in pursuing the
              action presently before the Court.
      Appellant’s App. p. 66. The dissolution court also ordered that Mariea serve

      thirty days in jail, “but stay[ed] execution of that sentence contingent upon

      [Mariea’s] taking no further action in disobedience of the parties’ 2011

      Mediated Agreed Entry or Orders of this Court.” Id. Mariea now appeals.


                                   Discussion and Decision
[9]   Mariea appeals the dissolution court’s order finding her in contempt. Whether

      a party is in contempt of court is within the sound discretion of the trial court,

      and we will reverse only upon an abuse of that discretion. In re Paternity of

      M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011). An abuse of discretion

      occurs if the trial court’s decision is against the logic and effect of the facts and

      circumstances before the court or is contrary to law. Id. When reviewing a
      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 5 of 12
       contempt order, we neither reweigh evidence nor assess witness credibility,

       considering only the evidence and reasonable inferences that may be drawn

       therefrom that support the trial court’s order. Id.


                                       I. Contempt Finding
[10]   Mariea argues that the contempt finding was erroneous because (1) she was not

       on notice that the act of filing a notice of appeal from the Guardianship Order

       would violate the dissolution court’s orders, and (2) the act of appealing the

       Guardianship Order did not violate the dissolution court’s orders.


                    A. Specificity of Dissolution Court Orders
[11]   Mariea contends that the dissolution court orders were vague and indefinite.

       Willful disobedience of any lawfully entered court order of which a litigant had

       notice is indirect contempt. M.F., 956 N.E.2d at 1163. To be held in contempt

       for failure to comply with a court order, “‘[t]he order must have been so clear

       and certain that there could be no question as to what the party must do, or not

       do, and so there could be no question regarding whether the order is violated.

       A party may not be held in contempt for failing to comply with an ambiguous

       or indefinite order.’” Id. at 1163-64 (quoting Bandini v. Bandini, 935 N.E.2d

       253, 264-65 (Ind. Ct. App. 2010)).


[12]   In the Agreed Entry, Mariea agreed that Russell would be M.B.’s guardian if

       one was needed before M.B. turned twenty-one years of age. This Court has

       twice found the Agreed Entry to be a binding contract. Best II, slip op at 2; Best

       III, at *3. In Best III, we noted that “Mariea conveniently ignores her decision
       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 6 of 12
       to enter into the October 2011 Mediated Agreed Entry . . . .” Best III, at *3.

       She continues to engage in this same willful ignorance.


[13]   The dissolution court has issued a number of orders on the issue of Mariea’s

       consent to Russell’s guardianship of M.B.:


            In October 2011, Mariea entered into an agreement that if M.B. needed a
             guardian before the age of twenty-one, Russell would be appointed as her
             guardian. The agreement was approved by the dissolution court and
             became an order of that court. Appellant’s App. p. 62.
            On January 3, 2014, the dissolution court ordered that “if deemed
             necessary for medical or public benefits purposes, Russell Best shall with
             the consent of Mariea Best, file a petition to establish guardianship over the
             person of [M.B.] in a court of proper jurisdiction.” Id. at 85 (emphasis
             added).
            On February 19, 2014, the dissolution court “ordered Mariea to sign a
             blanket consent to the guardianship of M.B. by Russell . . . .” Best III, at
             *2. At that time, Mariea was also ordered “in open court to consent to
             Russell Best’s guardianship” of M.B. Appellant’s App. p. 61.
            On August 25, 2014, the dissolution court noted that Mariea had the
             right to appeal its orders. It further noted that her “continued course of
             conduct involving actions other than her appeal is viewed by the Court to
             demonstrate her knowing and intentional intent to disobey the earlier
             Order of this Court that she abide by the parties’ Mediated Agreement
             and that she consent to Russell’s appointment as guardian of [M.B.].”
             Id. at 133.

       It simply could not be clearer that Mariea has been ordered, on multiple

       occasions, by both this Court and the dissolution court, to consent to the

       appointment of Russell as M.B.’s guardian. She has also made multiple

       binding agreements to that effect. It would vitiate her court-ordered consent to

       permit her to appeal the order naming Russell as guardian without

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 7 of 12
       consequence.2 We find, therefore, that the dissolution court’s orders are not

       vague and indefinite, and that Mariea had notice that the action of appealing

       the Guardianship Order would be a violation of these orders.


                                            B. Right to Appeal
[14]   Next, Mariea argues that even if the orders were not vague and indefinite, the

       act of filing the notice of appeal of the Guardianship Order should not support a

       finding of contempt. The right to appeal in civil matters is guaranteed by

       Article VII, Section 6 of the Indiana Constitution.


[15]   In the contempt order at issue in this appeal, the dissolution court explicitly

       acknowledged Mariea’s right to appeal the Guardianship Order:

                31.      The issue is not Mariea Best’s right to appeal the [Guardianship
                         Order].
                32.      Her right to pursue that appeal will be decided by [the
                         guardianship court] or by the Indiana Court of Appeals.
                33.      The sole issue before the [dissolution court] at [the] hearing on
                         October 31, 2014, was whether Mariea Best’s filing a notice of
                         appeal of the [Guardianship] Order in an attempt to divest
                         Russell Best of guardianship, constituted a willful violation of




       2
         Mariea claims she “is not seeking to ‘divest’ Russell of his guardianship over [M.B.], she is appealing the
       Guardianship Court’s denial of her request to be appointed [M.B.]’s replacement guardian . . . .” Appellant’s
       App. p. 19. This is a distinction without a difference. While she is entitled, pursuant to the dissolution
       court’s order, to file a petition for a new, or “replacement,” guardian, Russell must first be named guardian.
       Not until the Guardianship Order is final will Mariea be entitled to file a petition seeking the appointment of
       a different guardian. See Appellant’s App. p. 61 (dissolution court noting that the guardianship consent
       signed by Mariea “was signed without prejudice to Mariea’s right to seek a replacement guardian after Russ
       was appointed [M.B.]’s guardian”) (emphasis added). As noted by Russell, “[if] Mariea’s intent was not to
       divest Russ of guardianship of [M.B.], why [did Mariea] not forego an appeal and file a petition for
       replacement guardian?” Appellee’s Br. p. 30 (emphasis original).

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015                 Page 8 of 12
                        the Mediated Agreed Entry of the parties and/or earlier Orders
                        of this Court.
               34.      This Court would not presume to say that Mariea Best is
                        precluded from appealing a decision of this Court or any other
                        court. That is not the issue before the Court presently.
       Appellant’s App. p. 64-65.


[16]   Mariea was not precluded from appealing the Guardianship Order. Indeed, she

       did appeal it. But in making that choice, she opened herself up to the

       consequences imposed upon her by the dissolution court. It is well established

       that constitutional rights may be waived. See, e.g., McBride v. Monroe Cnty. Office

       of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). More

       specifically, the right to appeal may be waived by agreement of the parties. See,

       e.g., Bowling v. State, 960 N.E.2d 837, 841-42 (Ind. Ct. App. 2012) (holding that

       a defendant may waive the right to appeal pursuant to the terms of a guilty plea

       agreement); Ind. Dep’t of Ins. v. Vernon Gen. Ins. Co., 784 N.E.2d 556, 563 (Ind.

       Ct. App. 2003) (holding that in a civil context, “an appeal may be validly

       waived by agreement of the parties”); Raper v. Union Fed. Sav. & Loan Ass’n of

       Evansville, 166 Ind. App. 482, 489, 336 N.E.2d 840, 488-89 (Ind. Ct. App. 1975)

       (holding that where a party stipulated to certain facts, that party waived the

       right to appeal based on those facts).


[17]   In this case, Mariea waived—or bargained away—her right to a consequence-

       free appeal of the appointment of Russell as M.B.’s guardian by entering into

       the Agreed Entry. The agreement to “consent” to that guardianship necessarily

       implies an agreement to refrain from appealing said guardianship. We do not


       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 9 of 12
       go so far as to say she is not entitled to that appeal at all—that will be for the

       other panel of this Court considering the Guardianship Appeal to decide.

       Instead, we merely say that at the least, she may be sanctioned for her decision

       to appeal.


[18]   The dissolution court is entitled to enforce its own orders, which is precisely

       what it did here. It neither overstepped nor erred by finding that Mariea’s

       decision to appeal violated multiple orders. Therefore, we decline to reverse on

       this basis.


                                     II. Contempt Sanctions
                                          A. Attorney Fees
[19]   Next, Mariea argues that the dissolution court abused its discretion in ordering

       her to pay Russell’s attorney fees in the amount of $118,000. If a party is found

       in contempt, the trial court has the inherent authority to compensate the

       aggrieved party by awarding attorney fees that were expended by that party to

       enforce a court order. Scoleri v. Scoleri, 766 N.E.2d 1211, 1221 (Ind. Ct. App.

       2002). The trial court “possesses personal expertise that he or she may use

       when determining reasonable attorney’s fees.” Id. An award of attorney fees

       “‘is appropriately limited to those fees incurred because of the basis underlying

       the award.’” Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 838 (Ind. Ct.

       App. 2005) (quoting Brant v. Hester, 569 N.E.2d 748, 755 (Ind. Ct. App. 1991)).


[20]   In this case, the attorney fee award was based on fees “incurred as a result of

       actions taken by [Mariea] in reaction to pleadings filed by [Russell] in [the
       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 10 of 12
       guardianship cases instituted by Mariea and by Russell] and in direct

       contravention of this Court’s earlier Orders.” Appellant’s App. p. 66. The fee

       award should have been based on the fees incurred by Russell as a result of

       Mariea’s contemptuous actions as alleged in that specific contempt petition. In other

       words, the dissolution court found Mariea in contempt of court (on this

       occasion) for filing the notice of appeal of the Guardianship Order. Therefore,

       Russell is only entitled to attorney fees that directly relate to her Guardianship

       Appeal and to his litigation of that specific contempt petition.3 We reverse the

       attorney fee award and remand to the dissolution court for a recalculation of

       the attorney fees to be paid by Mariea.4


                                                        B. Jail
[21]   Finally, Mariea argues that the stayed jail sentence imposed by the dissolution

       court was an abuse of discretion. A trial court may order imprisonment as part

       of a finding of contempt, but imprisonment must be for the purpose of coercing

       compliance with the court order. Duemling v. Fort Wayne Cmty. Concerts, Inc.,

       243 Ind. 521, 526, 188 N.E.2d 274, 276 (Ind. 1963). In other words,

       imprisonment for contempt must be coercive rather than punitive. Id.




       3
        Russell maintains that he had requested attorney fees in his past contempt petitions and that the dissolution
       court merely neglected to rule on the issue. The proper course of action in that case would have been to file a
       motion to correct error or to reconsider the fee award for the fees related to those contemptuous acts. It is
       improper to re-raise the issue in a subsequent petition for new, unrelated contemptuous acts.
       4
        We encourage Russell to present affidavits or other evidence aside from his own testimony providing a
       specific basis for the attorney fees he requests on remand.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015               Page 11 of 12
[22]   Mariea argues that the imprisonment order in this case was purely punitive

       because she cannot purge herself of the contempt given that she has already

       filed the Guardianship Appeal. We disagree. The dissolution court ordered

       that she serve thirty days in jail, but stayed execution “contingent upon

       [Mariea’s] taking no further action in disobedience of the 2011 Mediated

       Agreed Entry or Orders of this Court.” Appellant’s App. p. 66. Mariea carries

       the proverbial “keys to the jail” in her pocket—she need not serve a single day

       in jail so long as she abides by the Agreed Entry and the dissolution court’s

       orders. Given Mariea’s litigious and obstreperous history in the course of the

       dissolution case, it is readily apparent that the dissolution court was merely

       trying to coerce her into following its orders. We decline to reverse the

       imprisonment portion of the contempt order.


[23]   The judgment of the dissolution court is affirmed in part, reversed in part, and

       remanded with instructions to recalculate the attorney fee award consistent with

       this opinion.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-DR-21 | June 17, 2015   Page 12 of 12
