MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                     Feb 16 2016, 7:12 am
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
Ryan H. Cassman                                          Eric J. Benner
Cathy M. Brownson                                        Laurie D. Johnson
Coots, Henke & Wheeler, P.C.                             Richards, Boje, Pickering, Benner &
Carmel, Indiana                                          Becker
                                                         Noblesville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re The Marriage Of:                                   February 16, 2016

Thomas Todd Reynolds,                                    Court of Appeals Case No.
                                                         29A04-1505-DR-265
Appellant-Petitioner,
                                                         Appeal from the Hamilton
        v.                                               Superior Court
                                                         The Honorable William J.
Tricia Reynolds,                                         Hughes, Judge
                                                         The Honorable David K. Najjar,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         29D03-0904-DR-515




Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016      Page 1 of 14
[1]   Thomas Todd Reynolds (“Father”) appeals from the trial court’s order finding

      him in contempt. We reverse.


                                           Facts and Procedural History

[2]   On January 8, 2010, the court entered a decree of dissolution which dissolved

      the marriage of Father and Tricia Reynolds (“Mother”) and ordered that Father

      pay child support of $351 per week. Section 3.1 of the decree provided in part:


                 For tax years 2010 and thereafter so long as he has a support
                 obligation, [Father], upon written request from [Mother], shall
                 make available for inspection, at the office of his counsel, or
                 another mutually agreed upon location, his 1040 and all
                 supporting schedules, W-2s, 1099s, and K-1s. Provided,
                 however, at the time [Mother’s] counsel reviews [Father’s] 1040,
                 [Father’s] counsel shall be provided a copy of [Mother’s] 1040
                 and all support schedules, W-2s, 1099s, and K-1s.

      Appellant’s Appendix at 30.


[3]   In an Agreed Order of Modification, signed by the court on March 12, 2013,

      and file-stamped on March 13, 2013, the court ordered that Father pay child

      support of fifty-one dollars per week through the Indiana State Central

      Collection Unit (“ISCCU”), and also that:

                 In addition to the weekly child support obligation set forth above,
                 Father shall also pay to Mother as child support 38% of 12% of
                 the gross amount of all income he receives over and above
                 $61,233.00 annually, and $15,305.00 quarterly.[1] This shall be



      1
          The trial court included a footnote here which provided:

      Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 2 of 14
              reconciled quarterly, and annually following the fourth quarter.
              Quarterly payments shall be paid directly to Mother rather than
              through the ISCCU. Father shall pay this income to Mother
              within thirty (30) days of the conclusion of the quarter. The first
              applicable quarter is the first quarter of 2013, January-March.
              Father shall also concurrently provide documentation of his
              income and calculation to Mother, including, the means by
              which the payment was calculated.

      Appellee’s Appendix at 1-2.


[4]   In March 2014, Mother served a request for production of documents on Father

      requesting copies of income tax returns for the years 2011, 2012, and 2013

      including W-2s, 1099s, and other documentation illustrative of Father’s income

      for those years from all sources, evidence of Father’s year-to-date income

      received from all sources, evidence of the cost of health insurance attributable to

      the parties and their children, if any, and certain other financial documents. In

      May 2014, Mother’s counsel sent a letter to Father’s counsel stating that it had

      been almost two months from the discovery request and he had not yet received

      a response.




              This is the ratio suggested by the guidelines, less the ratio of parenting time credit Father
              receives on the attached worksheet. Per the attached worksheet the line 4/line 3 ratio is
              12%. Per the attached worksheet, Father’s support obligation is reduced by his parenting
              time credit by 72%, or in other words, as a result of the parenting time credit on line 7 of
              the worksheet he pays 38% of child support obligation recommended on line 6. As an
              example, if Father earns $161,233.00, beyond his weekly support amount he would owe
              Mother $4,560.00 = [($l00,000 * .12) * .38].
      Appellee’s Appendix at 1 n.1.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016              Page 3 of 14
[5]   On June 5, 2014, Mother filed a motion to compel discovery stating that the

      documents requested had not been received and that Father should be held

      accountable for attorney fees incurred by Mother in making the motion. On

      June 13, 2014, the court granted Mother’s motion to compel, ordered Father to

      respond to the request for production of documents by June 16, 2014, and

      scheduled a compliance hearing for July 22, 2014, which was later rescheduled

      for August 5, 2014. On July 22, 2014, Father filed a motion for a protective

      order prohibiting Mother from independently contacting his employer.2 On

      August 5, 2014, the court held a hearing3 and issued an order stating that, “[a]s

      there is no petition before the court for modification or contempt, the court

      finds that both parties’ motions regarding discovery shall be denied as moot.”

      Appellant’s Appendix at 46.


[6]   On August 8, 2014, Mother filed a Verified Motion for Rule to Show Cause

      requesting the court to order Father to appear and show cause why he should

      not be punished for contempt of the court’s orders. Mother’s motion for rule to

      show cause alleged in part that pursuant to the dissolution decree, Father is

      obligated to provide his tax returns, W-2s, 1099s, K-1s, and other appropriate

      financial documentation upon the request of Mother; that Father willfully and

      knowingly failed and/or refused to comply with the dissolution decree and the

      agreed order of modification; that Mother had specifically requested Father’s




      2
          The record does not include a copy of this motion.
      3
          The record does not include the transcript of this hearing.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 4 of 14
      income documentation and had provided him with a detailed request for

      production of documents; that Father had refused to provide that

      documentation in spite of the fact there were two current court orders obligating

      him to do so; and Father should be ordered to pay her attorney fees.


[7]   On November 17, 2014, Mother filed a motion to compel discovery which

      stated that, on or about August 13, 2014, Father was served with her request for

      production of documents,4 which again requested copies of Father’s income tax

      returns for the years 2011, 2012, and 2013 including W-2s, 1099s, and other

      documentation illustrative of Father’s income for those years from all sources;

      that on or about October 27, 2014, the parties met at the office of Father’s

      counsel to inspect certain documents requested in the request for production of

      documents;5 and that, on or about October 28, 2014, counsel for Mother sent

      Father’s counsel a letter outlining the documents which still had not been

      produced. Mother also argued that Father should be held accountable for her

      attorney fees. The October 28, 2014 letter by Mother’s counsel attached to the




      4
       This request for production of documents appears to be identical to the Mother’s March 2014 request for
      production of documents.
      5
        Mother’s Exhibit A includes an email message sent on the morning of October 13, 2014, from Father’s
      counsel to Mother’s counsel stating that he was looking for a response to the question of what Father was in
      contempt for not providing and that the decree set forth that the parties would exchange their documents at
      counsel’s office for inspection. The exhibit includes a reply email message sent the afternoon of October 13,
      2014, from Mother’s counsel to Father’s counsel stating that as discussed several times before Mother was
      missing Father’s 1040 tax returns as well as all supporting schedules, K-1s, 1099s, and the other documents
      listed in the request for production of documents, and that hopefully those would be provided to Mother at
      the inspection which was tentatively scheduled for October 24, 2014 and later rescheduled for October 27,
      2014.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016            Page 5 of 14
      motion to compel stated in part “[t]hank you very much for meeting us to

      exchange documents on October 27, 2014” and:


              Tax returns were viewed in person at [Father’s counsel’s] office
              on 10/28/14 [sic]. Not provided were the W-2, K-1’s or and
              1099’s for the 2011 and 2012 returns. No tax return provided for
              2013, and only a partial K-1. Still need to receive the full and
              complete W-2’s, K-1’s, 1099’s, or other evidence of income for the tax
              years 2011, 2012, and 2013, along with the full state and federal 2013
              tax return.

      Id. at 56.


[8]   On December 16, 2014, the court held a hearing. Counsel for Mother argued in

      part that the motion for rule to show cause was filed based on Father’s refusal

      to comply with the dissolution decree and the agreed order of modification and

      that Mother had made numerous attempts to obtain information. Mother’s

      counsel stated that a time for inspection of documents was scheduled and

      ultimately took place on October 27, 2014, that he met at the office of Father’s

      counsel, that “what we were provided was two pages from the partnership K-1

      for [Father’s] law firm, no supporting schedules, we had nothing signed, we had

      numbers indicating income and expenses, nothing supporting what those

      expenses are,” and that “[m]y client believes that some personal expenses are

      included in that, things like a $900.00 a month car payment, other things that

      benefit [Father] personally, but as we stand here today with all of this activity

      we still haven’t be[en] given access to those schedules which we[’]re entitled

      to.” Transcript at 6-7. Mother’s counsel further argued that, while it was mid-

      December 2014, Father had not filed his 2013 taxes yet and that he had
      Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 6 of 14
      “nothing with any reliability, nothing that is official to provide us with

      information with regard to what his income is for 2013.” Id. at 7. Mother’s

      counsel asked the court to assist Mother in obtaining the information she had

      been seeking for months, and presented an exhibit showing Mother had

      incurred $5,565 in attorney fees in her effort to obtain the documents to which

      she was clearly entitled under the decree and the agreed order of modification.

      Her counsel requested the court to compel Father to provide his income

      information, to find Father in contempt, and to award Mother attorney fees,

      and argued that “[i]t shouldn’t be this hard to get what the parties worked so

      hard to negotiate for in their agreement and here we are going through all of

      this to get that information.” Id. at 9.


[9]   Counsel for Father argued that the motion for rule to show cause was filed on

      August 8, 2014, prior to the motion to compel discovery, that the inspection

      was not discussed until he suggested it in October 2014, that the first attempted

      inspection occurred on October 24, 2014, that Mother did not bring her

      documents, and that a second inspection was scheduled. Father’s counsel

      argued that he did not hear at the inspection that there was a problem with the

      documents he produced, and that the agreed modification order “requires very

      specifically in addition to weekly child support [F]ather[’]s going to pay bonus

      support, gross over gross” and that “[w]ell, [Father] unfortunately has not

      exceeded his quarterly amounts so he has not owed any bonus income.” Id. at

      14. His counsel stated that Father provided the quarterly documentation on

      which his bonus income would have been calculated and provided his firm’s


      Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 7 of 14
       profit receipts, his distributions, and his K-1 for 2013, and that, at the

       inspection, Father provided the 2013 K-1 and 2010 through 2012 tax returns.

       He requested the court to deny the rule to show cause, to dismiss the motion to

       compel, and to consider awarding attorney fees in favor of Father. In response,

       Mother’s counsel argued that he still had not heard when he would receive

       legitimate information for 2013, that Mother is entitled to specific documents

       and schedules, which she has not received, and that the quarterly information

       provided by Father was totally unreliable with much of it blacked out or

       redacted.


[10]   The court entered an order dated December 16, 2014, and file-stamped

       December 18, 2014, which noted in part that Section 3.1 of the dissolution

       decree provided that Father would make available for inspection, upon written

       request by Mother, his tax information, including any 1040, W-2, 1099, or K-1

       forms and supporting schedules, that Father was obligated to make such

       information available from tax year 2010 and each year thereafter as long as he

       had an obligation to provide financial support for the minor child, and that

       Mother’s position was that Father failed to comply with the court’s orders

       requiring him to provide such information to her. The court’s order further

       provided in part:


               5.      An inspection of documents relating to [Father’s] tax
                       information was made in October, but did not include
                       certain tax information from tax years 2013, 2012 and
                       2011.
                                                *****

       Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 8 of 14
        8.      The Court finds that [Father] has failed to abide by the
                orders of the Court. The [dissolution decree] does not
                provide that [Mother] is only entitled to request [Father’s]
                tax returns and supporting information from only the
                immediately past tax year. She is entitled to inspect such
                information from tax year 2010 and forward, upon written
                request, and upon supplying [Father] with copies of her
                corresponding tax information. While the Court does not
                find that this provision exposes [Father] to harassment of
                repeated requests for the same information, the Court does
                not find that [Mother] is limited in her request to only
                inspecting the past year’s information. [Father] did not
                make such information available to [Mother] for
                inspection, and is therefore in contempt.
                                         *****
        10.     As a sanction for his contempt, the Court will order
                [Father] to provide to [Mother’s] counsel within thirty (30)
                days, copies of his federal and state income tax returns and
                supporting documentation, including 1040 forms, all
                supporting schedules, W-2 forms, 1099 forms, K-1 forms,
                and Indiana income tax returns for tax years 2011 through
                2013. [Father] shall also provide copies of any forms
                submitted to the Internal Revenue Service or the Indiana
                Department of Revenue to request an extension to file
                income tax returns, if any have been filed, for tax years
                2011 through 2013. [Father] shall further be ordered to
                provide copies of any and all W-2, 1099 or K-1 forms for
                tax year 2014 to [Mother] not later than February 15,
                2015.
        11.     As a further sanction for his contempt, the Court will
                Order [Father] to fully respond to [Mother’s] request for
                production of documents within thirty (30) days of this
                Order.
        12.     As a final sanction for his contempt, the Court will Order
                [Father] to pay a portion of [Mother’s] attorney fees, in the

Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 9 of 14
                       amount of $3,000 within forty-five (45) days of this Order.
                       Any amount which remains unpaid shall be entered as a
                       judgment against [Father] and in favor of [Mother’s]
                       counsel.

       Appellant’s Appendix at 21-22. Father filed a Consolidated Motion to Correct

       Errors or, in the Alternative, Motion for Relief under Trial Rule 60(B) and

       Request for Hearing, and following a hearing the court denied his motion.


                                                   Discussion

[11]   The issue is whether the court abused its discretion in finding Father in

       contempt. Whether a party is in contempt of court is a matter within the trial

       court’s discretion. J.M. v. D.A., 935 N.E.2d 1235, 1243 (Ind. Ct. App. 2010),

       reh’g denied.


[12]   Father contends in part that the trial court did not issue a rule to show cause,

       that he did not willfully violate the terms of the dissolution decree, and that

       Mother’s motion for rule to show cause did not provide him with proper notice

       under the contempt statutes. Mother argues in part that, at the time of the

       inspection, Father did not provide all of the tax documents required by the

       dissolution decree, that Father waived any argument regarding notice of the

       contempt allegations as he failed to raise the issue below, and that he had notice

       of the accusations against him and an opportunity to be heard.


[13]   Contempt of court involves disobedience of a court order which undermines the

       court’s authority, justice, and dignity. Henderson v. Henderson, 919 N.E.2d 1207,

       1210 (Ind. Ct. App. 2010). There are two types of contempt: direct and

       Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 10 of 14
       indirect. Id. Direct contempt involves actions occurring near the court that

       interfere with the business of the court and of which the judge has personal

       knowledge. Id. Contempt is indirect if it involves actions outside the trial

       court’s personal knowledge. Id. “Willful disobedience of any lawfully entered

       court order of which the offender had notice is indirect contempt.” Id.


[14]   The trial court here found Father to be in contempt of the dissolution order.

       Generally, a person who willfully disobeys any order lawfully issued by any

       court of record or by the proper officer of the court is guilty of indirect

       contempt. Id. (citing Ind. Code § 34-47-3-1). As such, this case involves

       indirect contempt. See id.


[15]   Indirect contempt proceedings require an array of due process protections,

       including notice and the opportunity to be heard, and these protections are set

       forth at Ind. Code § 34-47-3-5.6 Id. at 1210-1211. If no rule to show cause is




       6
           Ind. Code § 34-47-3-5 provides:
                  (a)      In all cases of indirect contempts, the person charged with indirect contempt is
                           entitled:
                           (1)      before answering the charge; or
                           (2)      being punished for the contempt;
                           to be served with a rule of the court against which the contempt was alleged to
                           have been committed.
                  (b)      The rule to show cause must:
                           (1)      clearly and distinctly set forth the facts that are alleged to constitute the
                                    contempt;
                           (2)      specify the time and place of the facts with reasonable certainty, as to
                                    inform the defendant of the nature and circumstances of the charge
                                    against the defendant; and

       Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016                  Page 11 of 14
       issued in compliance with this statute, a court may lack the authority to hold a

       person in contempt. In re Paternity of J.T.I., 875 N.E.2d 447, 451 (Ind. Ct. App.

       2007). Strict compliance with the rule to show cause statute may be excused if

       it is clear the alleged contemnor nevertheless had clear notice of the accusations

       against him or her, for example because he or she received a copy of an original

       contempt information that contained detailed factual allegations, or if he or she

       appears at the contempt hearing and admits to the factual basis for a contempt

       finding. Id.


[16]   We have also held:

               It lies within the inherent power of the trial court to fashion an
               appropriate punishment for the disobedience of its order.
               Macintosh v. Macintosh, 749 N.E.2d 626, 631 (Ind. Ct. App. 2001),
               trans. denied. Unlike criminal indirect contempt, the primary
               objective of a civil contempt proceeding is not to punish the
               contemnor but to coerce action for the benefit of the aggrieved
               party. Thompson v. Thompson, 811 N.E.2d 888, 905 (Ind. Ct.
               App. 2004), trans. denied . . . . “Nevertheless, a contempt order
               which neither coerces compliance with a court order or
               compensates the aggrieved party for loss, and does not offer an



                       (3)      specify a time and place at which the defendant is required to show
                                cause, in the court, why the defendant should not be attached and
                                punished for such contempt.
               (c)     The court shall, on proper showing, extend the time provided under subsection
                       (b)(3) to give the defendant a reasonable and just opportunity to be purged of the
                       contempt.
               (d)     A rule provided for under subsection (b) may not issue until the facts alleged to
                       constitute the contempt have been:
                       (1)      brought to the knowledge of the court by an information; and
                       (2)      duly verified by the oath of affirmation of some officers of the court or
                                other responsible person.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016           Page 12 of 14
               opportunity for the recalcitrant party to purge himself, may not
               be imposed in a civil contempt proceeding.” Flash [v. Holtsclaw],
               789 N.E.2d [955, 959 (Ind. Ct. App. 2003), trans. denied].

       In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011) (citing In re

       Paternity of M.P.M.W., 908 N.E.2d 1205, 1209 (Ind. Ct. App. 2009)).


[17]   In this case, the court did not issue a rule to show cause in accordance with Ind.

       Code § 34-47-3-5. Following the filing of a Mother’s motion for a rule to show

       cause in August 2014 and motion to compel discovery in November 2014, a

       hearing was held on December 16, 2014. However, the record is devoid of any

       order issued by the court prior to the hearing ordering Father to show cause

       why he should not be attached and punished for contempt at a specific time and

       place in court, per Ind. Code § 34-47-3-5(b)(3), which is mandated by the

       statute. Moreover, “[t]o avoid being purely punitive, a contempt order must

       offer an opportunity for the recalcitrant party to purge himself or herself of the

       contempt.” In re Paternity of M.F., 956 N.E.2d at 1164 (citing Henderson, 919

       N.E.2d at 1212 n.3). The court’s December 16, 2014 order did not indicate the

       manner in which Father could purge himself of the contempt. See Henderson,

       919 N.E.2d at 1212 n.3 (noting one problem with the court’s contempt order

       was that it did not indicate the manner in which the husband could purge

       himself of the contempt).


[18]   Based upon the lack of a rule to show cause from the court in accordance with

       Ind. Code § 34-47-3-5 as well as the lack of an opportunity in the December

       2014 order for Father to purge himself of any finding of contempt, we reverse

       Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 13 of 14
       the trial court’s order finding Father in contempt. See In re Paternity of M.F., 956

       N.E.2d at 1164-1165 (holding that the court’s order did not indicate the manner

       in which the mother could purge herself of the contempt and that the court

       abused its discretion in finding her in contempt); Henderson, 919 N.E.2d at

       1210-1212 (reversing finding of contempt and noting that the court’s order did

       not indicate how the appellant could purge himself of the contempt); In re

       Paternity of M.P.M.W., 908 N.E.2d at 1210 (noting that, unlike a contempt

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

       single task, the contempt sentence could not be purged). Further, to the extent

       the court ordered Father to pay attorney fees as a sanction for contempt, we

       reverse that order as well. See In re Paternity of M.F., 956 N.E.2d at 1165.


                                                   Conclusion

[19]   For the foregoing reasons, we reverse the trial court’s order finding Father in

       contempt.


[20]   Reversed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1505-DR-265| February 16, 2016   Page 14 of 14
