MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Oct 17 2019, 10:19 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jonathan M. Young                                        Kelly A. Lonnberg
Law Office of Jonathan M. Young, P.C.                    Stoll Keenon Ogden, PLLC
Newburgh, Indiana                                        Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Nelson,                                          October 17, 2019
Appellant,                                               Court of Appeals Case No.
                                                         19A-DR-942
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
Julie A. Nelson,                                         The Honorable J. Zach Winsett,
Appellee.                                                Special Judge
                                                         Trial Court Cause No.
                                                         82D01-1601-DR-32



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                Page 1 of 22
[1]   Jeffrey Nelson (“Husband”) appeals the trial court’s April 18, 2019 order

      finding him in contempt and ordering the sale of real estate with certain

      amounts to be paid from the proceeds. We note that this is the fifth appeal in

      this dissolution action, and we affirm the trial court.


                                      Facts and Procedural History

[2]   On April 28, 2012, Husband and Julie Nelson (“Wife”) were married. The day

      before, they signed a prenuptial agreement (the “Agreement”). With respect to

      attorney fees, the agreement states: “Should either party retain counsel in order

      to enforce or prevent the breach of any provision of this Agreement, that party

      shall be entitled to reasonable attorney fees and costs for services rendered if

      such party prevails.” Appellant’s Appendix Volume II at 191. It also provided:

      “In the event of a dissolution of marriage between the parties, both Husband

      and Wife waive the right to receive maintenance from the other and specifically

      waive any right to claim maintenance from any non-marital source of income

      of the other.” Id. at 188.


[3]   On January 8, 2016, Wife filed a verified petition for dissolution of marriage

      and a motion for provisional order requesting that she be granted temporary

      possession and use of certain marital property and asserting that she was a non-

      earning spouse and should be granted spousal support and a preliminary award

      of attorney fees.


[4]   On April 4 and 12, 2016, the court held a provisional hearing. On May 2, 2016,

      it entered a provisional order providing that Husband pay Wife’s monthly rent


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 2 of 22
      payment for her apartment during the pendency of the proceedings, $2,500 per

      month in maintenance, and $20,000 to Wife’s counsel to be applied to present

      and prospective attorney fees. The court also ordered that Husband have

      temporary possession of the marital residence and pay all debts and expenses

      associated with it.


[5]   On June 2, 2016, Wife filed a petition for declaratory judgment and a verified

      information for contempt. On June 27, 2016, the trial court entered an order

      which declared, in part, that the Agreement’s definition of separate property

      “does not include the income produced from separate property or proceeds

      received from the sale of separate property” and determined that the Agreement

      did not preclude spousal gifts during the marriage and that the Agreement

      “defines property acquired by gift, whether during or before the marriage, as

      separate property.” Nelson v. Nelson, No. 82A01-1607-DR-1706, slip op. at 6

      (Ind. Ct. App. February 28, 2017). Husband appealed, and this Court noted

      that the parties agreed that Illinois law controlled the substantive issues and we

      affirmed the trial court. See id. at 2.


[6]   On August 12, 2016, Wife filed a Verified Information for Indirect Contempt

      Against Husband alleging that he posted messages to her on her Facebook

      business page in violation of an order that he refrain from contacting her. On

      September 20, 2016, Wife filed a Verified Information for Indirect Contempt

      Against Husband alleging that he transferred marital property to an account in

      his and his daughter’s names. On October 3, 2017, Wife filed an Information

      for Contempt and Petition for Expert and Attorney Fees, which alleged in part

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 3 of 22
      that Husband abandoned the home and left it in disrepair and that it continues

      to deteriorate. On May 8, 2018, Wife filed an Information for Contempt and

      Petition for Attorney’s Fees alleging in part that Husband failed to list both of

      the real estate properties for sale as ordered and failed to maintain the home.

      On May 29, 2018, Wife filed a Verified Petition for Contempt alleging that

      Husband refused to provide her with keys to the marital residence and removed

      nearly all of the furniture including the kitchen appliances and housewares.


[7]   On June 4, 2018, the court held a hearing on Wife’s contempt filings. On June

      7, 2018, it entered an order finding Husband in contempt for failing to pay

      Wife’s rent and provisional maintenance and failing to maintain the marital

      property and utilities services. The court found that Wife was entitled to

      additional attorney fees in the amount of $21,414.48 plus additional fees of

      $960 for preparation and attendance at the June 4, 2018 hearing. The court

      ordered a writ of attachment issued for Husband to serve forty-five days at the

      Vanderburgh County Jail and stated that he may purge himself by paying

      $27,374.48 by June 8, 2018.


[8]   Wife also filed various motions and petitions requesting the trial court to

      interpret the Agreement and seeking other provisional relief, including

      additional attorney fees. The trial court has held multiple hearings and entered

      multiple provisional orders. Husband appealed those orders, and different

      panels of this Court issued memorandum decisions on the narrow issues




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 4 of 22
      presented. See Nelson v. Nelson, No. 18A-DR-794 (Ind. Ct. App. August 9,

      2018); Nelson v. Nelson, No. 18A-DR-248 (Ind. Ct. App. September 12, 2018). 1


[9]   Husband also appealed the trial court’s June 7, 2018 order. See In re Marriage of

      Nelson, No. 18A-DR-1577, slip op. at 7 (Ind. Ct. App. January 31, 2019). This

      Court held that the trial court did not err in finding him in indirect contempt.

      Id. In addressing the sanctions imposed, we observed that at the time the trial

      court entered its order, Husband’s appeal of the trial court’s provisional order

      directing him to pay $36,000 in Wife’s attorney fees and certain expert fees was

      still pending. Id. at 10-11. We observed that another panel of this Court had

      since issued its decision reversing the trial court’s fee award based upon the

      language of the Agreement. Id. at 11 (citing Nelson, No. 18A-DR-248). We

      noted that, under the law of the case doctrine, an appellate court’s




      1
        In Nelson v. Nelson, No. 18A-DR-794, we addressed “[w]hether the trial court erred by ordering the sale of
      the parties’ matrimonial home through a provisional order.” Slip op. at 2. We observed that Husband’s
      arguments on appeal were centered on the interpretation and scope of Ind. Code § 31-15-4-8 governing
      provisional orders during dissolution proceedings. Id. at 9. We held that Ind. Code § 31-15-4-8 was a
      procedural statute and the controversy must be governed by the law of the forum state, i.e., Indiana. Id. We
      agreed with Husband that there was no motion for provisional relief pending before the trial court. Id. at 10.
      We held that the motion before the trial court was a request to stay enforcement of the Supplemental
      Provisional Order pending Husband’s appeal. Id. We observed that there was no provision under Ind. Code
      § 31-15-4-8 authorizing the sale of marital assets while divorce proceedings were ongoing and concluded that
      the trial court’s order instructing the parties to list their matrimonial home for sale during divorce proceedings
      was erroneous and reversed that order. Id. at 11.
      In Nelson v. Nelson, No. 18A-DR-248, we addressed whether the trial court’s provisional awards of expert and
      attorney fees were contrary to the terms of the Agreement. Slip op. at 2. We held that “the attorney fees
      provision of the Agreement, which entitles a party who has retained counsel to enforce or prevent the breach
      of the Agreement to payment of attorney fees by the other party if the first party prevails, governs Wife’s
      request for attorney fees.” Id. at 6. We held that “[a]s Wife has not prevailed in this ongoing action, she is
      not yet—if ever—entitled to the payment of her attorney fees. The trial court’s award of attorney fees is
      therefore contrary to the terms of the Agreement.” Id. We noted that Husband did not timely challenge
      previous orders and could not challenge the propriety of those previous awards of fees. Id. at 7 n.7. We held
      that Husband had not established error in the trial court’s award of certain expert fees. Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                      Page 5 of 22
determination of a legal issue binds both the trial court and the court on appeal

in any subsequent appeal involving the same case and relevantly similar facts.

Id. We concluded:


          Thus, to the extent that the purge amount set by the trial court
          here specifically includes attorney’s fees that have since been
          determined to be unrecoverable due to the parties’ prenuptial
          agreement, we remand to the trial court to amend its order to
          omit those specific fees.[ 2] That said, we leave it entirely to the
          trial court’s discretion on remand to reconsider and reset the
          purge amount to any amount it believes necessary to coerce
          Husband’s behavior and to compensate Wife. Understandably,
          the reset purge amount may be higher or lower than that
          previously ordered by the trial court. In sum, our review of the
          record reveals that Husband has repeatedly interrupted,
          obstructed, embarrassed, and prevented the due administration of
          justice in these dissolution proceedings, and the trial court has
          the power to do what it deems necessary to prevent further
          disobedience of its orders.


Id. at 11-12.




2
    We noted:

          Contrary to Husband’s claims, this Court did not determine that Wife cannot recover any
          attorney’s fees during this ongoing action. Rather, the panel reversed the trial court’s
          $36,000 provisional award of fees and remanded for the trial court to determine what
          portion of that award was attributable to Wife’s then current request for fees and amend the
          order to omit those fees only. Nelson, [No. 18A-DR-248, slip op. at 6-7]. Indeed, the Nelson
          panel noted that a portion of the $36,000 award was attributable to several previous awards
          of attorney’s fees that Husband did not timely challenge, and therefore those amounts were
          unaffected by this Court’s decision. Id. at [7 n.7]. Therefore, Husband would still owe any
          of those amounts that remain outstanding.
Nelson, No. 18A-DR-1577, slip op. at 11 n.6.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                   Page 6 of 22
[10]   Meanwhile, on October 3, 2018, Wife filed an Information for Contempt and

       Petition for Attorney’s Fees alleging Husband refused to appear at a deposition

       requested by her and failed to supplement his responses to requested

       documentation. On November 14, 2018, Wife filed an Information for

       Contempt and Petition for Attorney Fees alleging he had left the marital

       residence in disrepair and continued to allow it to deteriorate, had taken steps

       to interfere with the Homeowners Association’s required maintenance of the

       home, and had failed to submit payment on expert witness fees. On November

       21, 2018, Wife filed an Information for Contempt and Petition for Attorney’s

       Fees alleging Husband had failed to pay the property taxes for 2016 and 2017,

       the taxes were now delinquent, and his actions were an intentional, willful, and

       repeated violation of the court’s orders.


[11]   On November 30, 2018, the court held a hearing. After discussion and

       argument, Wife testified that she had about $67,000 in outstanding attorney

       fees. She testified that she was asking the court to enter an order to sell the Oak

       Trace property. At the end of the hearing, the court stated:


               What’s still kind of hanging out there is whether the court can
               issue a partial final order or not; not a – not a bifurcated or
               maybe a – you know, a partial final order without having heard
               all of the evidence or not. I don’t have to make that
               determination today because we didn’t finish. But that’s kind of
               a novel issue. This case is novel. We have someone who doesn’t
               appear for court. So novel situations sometimes warrant novel
               outcomes.


       Transcript Volume II at 110.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 7 of 22
[12]   On December 27, 2018, Wife filed a Verified Information for Contempt

       alleging that Husband failed to pay expert fees as previously ordered and she

       requested attorney fees in pursuit of the contempt.


[13]   On January 16, 2019, the court held another hearing at which Wife appeared in

       person and by counsel and Husband appeared by counsel. Husband’s counsel

       objected to proceeding with respect to the contempt issue in Husband’s absence,

       and the court overruled the objection. Wife provided testimony. At the end of

       the hearing, the court stated that “all items having to do with the dissolution

       and all other pleadings that are pending will be heard on that next date,

       including the – the Information for Contempt and Petition for Attorney’s Fees

       on – file marked November 21; the Verified Information for Contempt file

       marked December 27 – both of 2018 – Motion for Award of Expert Fees filed

       January 14, 2019.” Transcript Volume II at 167-168. The court also stated that

       “with the Motion to Bifurcate withdrawn, then that’s all the remaining issues,

       and the court certainly expects you’ll elicit testimony – or put on evidence

       regarding everything that you didn’t get to on that date . . . .” Id. at 168.


[14]   On March 13, 2019, the court held another hearing at which Wife appeared in

       person and by counsel and Husband appeared by counsel. At the beginning of

       the hearing, the court stated: “This is the date and time set for a continuation of

       the final hearing in this matter and other various matters.” Id. at 169.

       Husband’s counsel continued to cross-examine Wife. During redirect

       examination, the court admitted a document titled “Summary of Purge

       Amount” which listed “Contempt Related Attorney’s fees” as of January 31,

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 8 of 22
       2019, as $25,092. Wife’s Exhibit 15. Wife testified that the exhibit reflected a

       summary of what she was requesting as the purge amount and answered

       affirmatively when asked whether supporting documents were attached to the

       summary to demonstrate how the numbers were calculated. After redirect

       examination, Husband’s counsel stated “[w]e’re down to nine minutes” and

       indicated that there were a number of line items that he did not believe related

       to the contempt, that he wanted to go through those, and that he had other

       questions about issues “that I don’t know that we need to get to today.”

       Transcript Volume II at 230. The court stated: “Well, I want to rule on the

       remand, so whatever questions regarding that. And then any other information

       as for contempt – the Verified Information for Contempt of December and the

       Information for Contempt and Petition for Attorneys’ Fees of November 21.

       You can keep your cross to those.” Id. Husband’s counsel stated: “We dealt

       with the November 21 one I think in total last time” and the court agreed. Id.

       Husband’s counsel questioned Wife about the attorney fees, indicated that he

       had “other questions but given the time, and I know opposing counsel has

       somewhere to be at noon.” Id. at 236. Wife’s counsel stated: “I – I don’t want

       to stop the – .” Id. Husband’s counsel stated, “I would pause for today.” Id.


[15]   The court asked Husband’s counsel if he had any other questions based on the

       “Verified Information for Contempt on December 27 or the remand issue.” Id.

       at 236-237. Husband’s counsel answered: “No. Obviously we don’t agree with

       Exhibit 15 or the reading of the appellate issue but I would – I won’t beat that

       drum too hard. I know that Your Honor knows how to read.” Id. at 237. The


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 9 of 22
       court asked: “Any other – any other additional evidence on your – on your

       contempts – the contempt of 12/27 of ’18, which is the alleged failure to pay the

       expert fees? Any additional evidence?” Id. at 238. Counsel for each party

       answered: “No, Your Honor.” Id. The court stated: “Okay. We’ll show that

       matter is closed. I’m just trying to tie up what I can rule on. And, [Husband’s

       counsel], you already stated the Information for Contempt and Petition for

       Attorney’s Fees on 11/21 of ’18, that’s all been done; ready to rule on?” Id.

       Husband’s counsel answered: “Yeah. We spent a considerable amount of time

       on that the last time we were here.” Id. The court stated: “Right. Okay. Then

       the remand issue, that’s open for the court to rule on, as well. Everyone agree

       on that?” Id. at 239. Husband’s counsel answered affirmatively.


[16]   Husband’s counsel argued that the purge amount should be decreased because

       the appellate decision “talks about attorney’s fees that were previously awarded

       that weren’t subsequently appealed” and “[i]t doesn’t talk about it being okay to

       just keep tacking on attorney’s fees.” Id. at 239. Wife’s counsel argued that

       attorney fees related to Husband’s contempt were appropriate. The court

       indicated it would take those matters under advisement, and “[s]how

       continuing testimony will be heard April 9 at 9:00 a.m. all day on final hearing

       and June 11 at 9:30 all day.” Id. at 240.


[17]   A chronological case summary entry dated April 5, 2019, indicates that the

       court held a telephonic hearing, granted Husband’s motion to continue over

       Wife’s objection, advised that Husband would not be granted any future



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 10 of 22
       continuances except in extreme circumstances, and counsel selected additional

       hearing days of June 25, 2019, and July 12, 2019.


[18]   On April 18, 2019, the trial court entered an order which states:


               Comes now the Court, after a hearing on the following motions
               and issues:

               On Remand from the Court of Appeals of Indiana, from its
               January 31, 2019 Memorandum Decision;

               Information for Contempt and Petition for Attorney’s Fees filed by
               Wife on November 21, 2018;

               Verified Information for Contempt filed by Wife on December 27,
               2018;

               With the Wife, Julie A. Ne[ls]on present and with counsel . . .
               and the Husband, Jeffrey E. Nelson is not physically present, but
               appears by counsel only . . . and after the presentation of
               evidence, after taking the issues under advisement, the Court
               now finds and orders the following:

               On Remand from the Court of Appeals January 31, 2019
               Memorandum Decision

               1. The trial court previously found [Husband] in contempt of
                  court for failure to pay spousal maintenance and attorney’s
                  fees on June 4, 2018.

               2. The Court of Appeals of Indiana in Nelson v. Nelson, No. 18A-
                  DR-1577 (Ind. Ct. App. Jan. 31, 2019) affirmed the finding of
                  contempt against Jeffrey Nelson for failure to pay spousal
                  maintenance to the Wife, but remanded to the trial court to
                  amend its order for omit [sic] attorney’s fees from the purge
                  amount of the contempt order.



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 11 of 22
        3. The court herein now restates the contempt sentencing and
           amends the purge amount as follows: [Husband] shall be
           sentenced to forty-five (45) days in the Vanderburgh Count[y]
           Jail, the court issues a writ of body attachment for the
           immediate arrest, detention, and transport of [Husband] to
           begin his sentence. [Husband] can purge himself of the forty-
           five (45) day jail sentence by the payment of $30,000 in
           unpaid spousal maintenance to the Wife.

        Information for Contempt and Petition for Attorney’s Fees filed by
        Wife on November 21, 2018;

        4. The Wife met her burden of proof that the Husband is in
           contempt of court for failing to pay property taxes on the
           marital residence as ordered on May 2, 2016.

        5. The court finds that the failure to pay was willful.

        6. The Husband shall be sentenced to 60 days at the
           Vanderburgh County Jail. The Husband can purge himself of
           the jail sentence by paying all property taxes due and owing,
           including any late fees on the 1000 Oak Trace vacant lot
           property and the 1220 E Hillsdale Rd residence property. The
           amount, according to the exhibits submitted in this matter,
           comes to a total of approximately $18,473.85. The taxes
           owed shall be paid directly to the Vanderburgh County
           Treasurer.

        7. Additional sentencing is contained below under the heading
           “Additional Sentencing”.

        Verified Information for Contempt filed by Wife on December 27,
        2018.

        8. The Wife met her burden of proof that the Husband is in
           contempt of court for failing to pay for the Wife’s expert fees.

        9. The court finds that the failure to pay was willful[].


Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 12 of 22
        10. The Husband is sentenced to 60 days in the Vanderburgh
            County Jail. The Husband has the opportunity to purge
            himself of the jail sentence by paying to the Wife’s attorney
            $20,000.00. This $20,000.00 is for the purpose of the Wife’s
            request to hire experts in connection with preparation for
            litigation in this matter. The Wife shall itemize all expert
            expenditures and produce a report upon request. Any unused
            portion of the $20,000.00 shall be subject to return to the
            Husband.

        11. Additional sentencing is contained below under the paragraph
            heading “Additional Sentencing”.

        Attorney Fees Request

        12. The Husband shall pay contempt related attorney’s fees to the
            [Wife] in the amount of $25,092.00. This amount is reduced
            to a civil judgment and can be collected upon the same way as
            any civil judgment.

        13. In regard to the request for attorney fees from the parties, the
            court herein considered the resources of the parties, their
            economic condition, the ability of the parties to engage in
            gainful employment and to earn adequate income, and other
            factors such as the behaviors of a particular party which
            directly led to the litigation. Some of these behaviors are
            outlined in the endnote below.

        Additional Sentencing

        14. As part of the contempt sentencing herein for both
           informations for contempt that are addressed in this order, the
           Marital Home and vacant lot property shall be sold. Court
           appoints Charlie Berger as Commissioner to sell the marital
           residence as well as the undeveloped real estate in northern
           Vanderburgh County. The Commissioner shall fashion an
           order to allow him to list property, execute the purchase
           agreement and Deed, subject to approval by the court.


Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 13 of 22
        15. The proceeds of the sale of the home and property shall go
            towards the following listed in order of payment priority:

                 a. Charlie Berger’s outstanding fees as appointed
                    Commissioner in this matter;
                 b. Any property taxes owed on the marital residence and
                    vacant lot property;
                 c. Expert Fees of $20,000 paid directly to the Wife’s
                    present attorney;
                 d. Maintenance owed to the Wife of $30,000, payable
                    directly to Wife;
                 e. Contempt related attorney’s fees of $25,092.00 paid
                    directly to the Wife’s present attorney;
                 f. Attorney’s fees of $6407.50 paid directly to Wife’s prior
                    attorney . . . .
                 g. Any remainder shall be held in trust pending further
                    order of the court.

        16. The Husband can purge himself of the sale of the home [sic]
            by paying all amounts listed in this Order within 14 days from
            the file marked date of this Order.


Appellant’s Appendix Volume II at 42-44. In an endnote, the court stated:


        The Court is not issuing findings of facts and conclusions of law,
        but for the benefit of the parties, the Court will explain some of
        the reasoning behind its decision below. The facts and law
        referenced below are not exhaustive of all facts and/or law that
        the Court relied upon in reaching its decision:

        a. All contempt sentencing in this order is meant to be coercive
           and remedial in nature, and is no way meant to punish the
           Husband.

        b. The Husband’s actions and inactions in this case have
           frustrated the aggrieved party, the Wife, to the point where



Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 14 of 22
            the case has not moved forward at the rate that it could have
            had the Husband not committed contemptuous acts.

        c. The Husband has refused to participate in the proceedings in
           that he does not appear for proceedings, he does not
           participate in some discovery, [and] he ignores court orders
           for the payment of money and for specific performance.

        d. The Husband has been found in contempt numerous times
           and has had writs of body attachment issued for his
           immediate arrest and detention.

        e. The Husband is believed to be hiding out of state, out of the
           reach of Indiana authorities.

        f. The Husband, by his sole contemptuous acts, has created a
           situation where this case simply cannot move forward without
           the forced sale of the only significant assets known to be in
           Indiana, the marital home and the vacant lot.

        g. The court figured the contempt purge amount for back
           spousal maintenance as follows: (May 1, 2018 to April 1,
           2019 is 12 months, 12 months x $2500 = $30,000).

        h. [Wife] needs to hire experts to adequately ascertain assets of
           the marriage.

        i. The court arrived at the total property tax amount owed
           thusly, from Wife’s Exhibits 12 and 13 from November 30,
           2019: 1220 Hillsdale Rd (2016 pay 2017 – Spring: $1465.52,
           Fall: $780.93, 2017 pay 2018 – Spring $608.99, Fall: $552.96);
           1000 Oak Trace (2016 pay 2017 – Spring: $5947.70, Fall:
           3142.95. 2017 pay 2018 – Spring $3102.14, Fall $2872.66).

        j. The court recognizes the forced sale of real estate may be
           regarded by some as an extreme measure of a contempt
           sentencing. This is especially true in light of the Indiana
           Court of Appeals Order which reversed the trial court’s prior
           order of a forced sale of these same properties.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 15 of 22
        k. The court distinguishes the present order as follows: The
           current order of the court which orders the sale of the real
           estate is part of a contempt sentencing, while the prior order
           which ordered the sale of the real estate was part of a
           provisional order. The trial court has narrowly defined
           powers, defined by statute, regarding what the court can order
           in a provisional order in a domestic case setting. Conversely,
           the trial court is vested with the inherent power to issue
           contempt sentences to maintain the court’s authority and to
           administer and execute judicial power. That power is not
           stringently defined by statute. Simply put, the trial court has
           broader powers to fashion a specific remedy in a contempt
           sentencing than in a provisional divorce setting. The court
           herein does not wield its power lightly, and that power was
           used in this matter with the utmost caution, reservation, and
           restraint.

        l. The court notes that the Husband does not currently reside in
           the home or on the property that is being ordered sold.

        m. The court finds that no other adequate remedies exist to
           coerce the Husband to follow the court’s orders. Jail
           sentences, which one could easily argue is [sic] a more
           extreme measure than the forced sale of property, clearly are
           inadequate as a remedy because the Husband repeatedly
           refuses to participate in the case or follow the orders of the
           court after having been sentenced to jail.

        n. The court finds that it has no other options in this case but to
           order the sale of the real estate. The Husband’s conduct in
           this case has been extreme. He consistently disobeys court
           orders and refuses to appear for any court proceedings. If the
           court does nothing but sentence the Husband to more of the
           same, i.e., jail, with an opportunity to purge if he doesn’t do
           something or pay something, then this dissolution matter
           could very well never end, unless the Wife just decides to
           forego discovery and fairness in exchange for finality. The
           court herein feels that any action less than what it has ordered
Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 16 of 22
                    here would be the court’s condonation of the Husband’s
                    contemptuous behavior, and even further still, the court feels,
                    by not issuing the present order, that it would effectively be
                    aiding the Husband in both his contemptuous behavior.

               o. This case shows why a trial court’s contempt powers should
                  be given a wide berth and not particularly defined. The order
                  herein is a particular order, fashioned to a particular set of
                  peculiar circumstances.


       Id. at 45.


                                                   Discussion

[19]   The issue is whether the trial court erred in entering the April 18, 2019 order.

       Husband challenges the order to the extent it: (A) ordered the sale of real estate;

       and (B) determined the amounts to be paid out of the proceeds.


       A. Sale of Real Estate


[20]   Husband does not challenge the court’s finding that he was in contempt.

       Rather, he argues that the trial court erred in ordering the sale of the real estate

       and that the question is governed by Indiana law. He asserts that, “[t]o the

       extent that the final hearing has started but not been completed, the orders of

       the Court are still during the provisional period.” Appellant’s Brief at 20. He

       contends that the court did not have authority to enter a bifurcated order and

       cites Ind. Code § 31-15-2-14. He asserts that: the trial court’s order could not

       have been a final order as the matter had not been completed; the court did not

       have authority under Indiana statutory provisions because the parties did not

       agree to bifurcate any issue; the appealed order was issued during the

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 17 of 22
       provisional period; and this Court has already held that the real estate cannot be

       sold during the provisional period. He asserts that, “[u]nder Indiana law, a civil

       contempt finding on a provisional order has limited remedies and those

       remedies do not include the right to order the sale of real estate.” Appellant’s

       Brief at 19 (citing Mosser v. Mosser, 729 N.E.2d 197 (Ind. Ct. App. 2000)).


[21]   Wife argues that the trial court properly ordered the sale of the marital property

       upon Husband’s failure to purge himself of contempt, and that she was forced

       to file ten separate informations for contempt. She contends that a contempt

       order issued during the pendency of a divorce is not a provisional order and that

       the court had the authority to fully enforce its order through its contempt

       power.


[22]   Generally, “the purpose of civil contempt is to coerce action by the contemnor

       for the benefit of the aggrieved party.” Reynolds v. Reynolds, 64 N.E.3d 829, 835

       (Ind. 2016). “The imposition of sanctions ‘to compensate the other party for

       injuries incurred as a result of the contempt’ is within the discretion of the trial

       court.” Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 204 (Ind. 2012) (quoting City

       of Gary v. Major, 822 N.E.2d 165, 172 (Ind. 2005)).


[23]   The trial court’s April 18, 2019 order, is not governed by Ind. Code § 31-15-2-

       14, which addresses bifurcation of issues and summary disposition orders. 3




       3
           Ind. Code § 31-15-2-14 provides:

                  (a) The court may bifurcate the issues in an action for dissolution of marriage filed under
                  section 2 of this chapter (or IC 31-1-11.5-3(a) before its repeal) to provide for a summary

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                     Page 18 of 22
Rather, we conclude that the order was issued pursuant to Ind. Code § 34-47-3-

1, which provides in part that “[a] person who is guilty of any willful

disobedience of any process, or any order lawfully issued: (1) by any court of

record . . . is guilty of an indirect contempt of the court that issued the process

or order.” To the extent Husband cites Mosser, we observe that the Court in

Mosser addressed whether contempt was an available sanction to enforce a

husband’s compliance with a provisional order to pay attorney fees. Mosser, 729

N.E.2d at 199. The Court held that, once a party has properly been found in

contempt, monetary damages may be awarded to compensate the other party

for injuries incurred as a result of the contempt. Id. at 201. The Court also

affirmed the dissolution court’s award to compensate the wife for her attorney

fees resulting from the husband’s contempt. Id. However, the Court did not




        disposition of uncontested issues and a final hearing of contested issues. The court may
        enter a summary disposition order under this section upon the filing with the court of
        verified pleadings, signed by both parties, containing:
                 (1) a written waiver of a final hearing in the matter of:
                          (A) uncontested issues specified in the waiver; or
                          (B) contested issues specified in the waiver upon which the parties have
                          reached an agreement;
                 (2) a written agreement made in accordance with section 17 of this chapter
                 pertaining to contested issues settled by the parties; and
                 (3) a statement:
                          (A) specifying contested issues remaining between the parties; and
                          (B) requesting the court to order a final hearing as to contested issues to
                          be held under this chapter.
        (b) The court shall include in a summary disposition order entered under this section a date
        for a final hearing of contested issues.



Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                   Page 19 of 22
mention any sale of real estate. Husband does not cite to other authority or

further develop his argument that the trial court lacked the authority to order

the sale of the residence. Further, we note that while the trial court ordered the

sale of real estate, which appear to be the only assets readily available to satisfy

the purge amounts and allow the dissolution action to proceed, it ordered that

the proceeds be used for certain fees and that any remainder would be held in

trust pending further order of the court. Husband has not demonstrated

reversal is warranted on this basis.


B. Proceeds of the Sale


Husband further argues that, even if the real estate may be sold during the

provisional proceedings, the amounts to be paid out of the proceeds set by the

trial court were not consistent with the law. He contends the court’s award of

attorney fees is contrary to the terms of the Agreement and the holding of this

Court which he asserts “was that because the Wife has not prevailed in this

ongoing action, she is not yet – if ever – entitled to the payment of her attorney

fees.” Appellant’s Brief at 25. He asserts that “[t]he law of the case and res

judicata provides, among other things, that attorney’s fees are not to be awarded

provisionally pursuant to the” Agreement. Id. Without citation to the record or

one of this Court’s prior decisions, Husband asserts: “While this Court has

previously noted that the Husband did not timely perfect an appeal on the

award of maintenance, the distribution of these funds out of the marital real

estate, in a way that prevents his argument of set off, should be impermissible.”

Id. at 24. Wife argues that the trial court properly considered the contempt-

Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019   Page 20 of 22
related attorney fees and provisional maintenance in the determination of the

purge amount and asserts that Husband failed to timely file an appeal of the

trial court’s 2016 order of provisional maintenance. We note that Husband

does not cite to any specific amount as being improperly calculated or develop

an argument that certain amounts were not those mentioned in our earlier

decision in which we noted that he had not timely challenged the propriety of

certain previous awards. 4 See Nelson, No. 18A-DR-248, slip op. at 7 n.7 (noting

that Husband did not timely challenge the propriety of certain previous

awards). With respect to the contempt-related fees, we observe that during the

March 13, 2019 hearing, the court admitted a document titled “Summary of

Purge Amount” which listed “Contempt Related Attorney’s fees” as of January

31, 2019, as $25,092. Wife’s Exhibit 15. Wife testified that the exhibit reflected

a summary of what she was requesting as the purge amount and answered

affirmatively when asked whether supporting documents were attached to the

summary to demonstrate how the numbers were calculated. She also indicated

that there was an attachment regarding the contempt-related attorney fees and

answered affirmatively when asked whether all of the charges which were

unrelated to the contempt had been redacted. The trial court ordered Husband

to pay contempt-related attorney fees to Wife in the amount of $25,092. Based




4
 We do not address at this stage the extent to which maintenance is proper under the terms of the
Agreement.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                Page 21 of 22
       upon the record, we cannot say that Husband has demonstrated that reversal is

       warranted. 5


[24]   For the foregoing reasons, we affirm the trial court’s order.


[25]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       5
        To the extent Husband cites Nelson v. Nelson, No. 18A-DR-248, we note that decision held that “[a]s Wife
       has not prevailed in this ongoing action, she is not yet—if ever—entitled to the payment of her attorney fees.
       The trial court’s award of attorney fees is therefore contrary to the terms of the Agreement.” Slip op. at 6.
       However, that case addressed the trial court’s January 2, 2018 order that Husband pay Wife $36,000 “as
       anticipated expert and attorney fees . . . .” January 2, 2018 Order. In the transcript of the January 2, 2018
       hearing related to that appeal, the court asked, “as far as the request for additional attorney fees um, and
       you’re asking for, my notes indicate you want 20,000 for, perspective [sic] attorney fees? Um, and a 10,000
       for expert witness fees?” January 2, 2018 Transcript at 35. Wife’s counsel answered: “Correct, and the
       almost 6000 that’s outstanding now to my firm. The 26 I guess in current and [prospective] attorney fees
       owed to me, that’s not in the lien.” Id. Unlike in the previous case, the attorney fees here have already been
       incurred and relate only to Husband’s contempt and not merely to “enforce or prevent the breach of any
       provision of this Agreement” as stated in the Agreement. Appellant’s Appendix Volume II at 190.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-942 | October 17, 2019                  Page 22 of 22
