MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 15 2019, 9:25 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Carl Paul Lamb                                           Ryan M. Spahr
Matthew L. Fox                                           Spahr Law Office, LLC
Lamb & Fox LLP                                           Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Caitilin Ashley,                                         August 15, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DR-354
        v.                                               Appeal from the Marion Superior
                                                         Court
Richard F. Ashley, Jr.,                                  The Honorable Patrick J. Dietrick,
Appellee-Respondent.                                     Judge
                                                         The Honorable Caryl F. Dill,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D12-1510-DR-35333



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019                 Page 1 of 13
                                            Case Summary
[1]   Caitilin Ashley (“Wife”) appeals an order finding her in contempt of court and

      ordering that she pay attorney’s fees on behalf of Richard Ashley (“Husband”).

      Additionally, she challenges the trial court’s denial of her motion for contempt

      against Husband. We affirm in part and reverse in part.



                                                      Issues
[2]   Wife presents the following consolidated and restated issues: 1


              I.       Whether the trial court abused its discretion by finding
                       her, as opposed to Husband, in contempt of court; and


              II.      Whether the sanction for contempt is an abuse of
                       discretion.


                             Facts and Procedural History
[3]   In 2016, after thirty years of marriage and the acquisition of several real

      properties, Wife and Husband divorced. Their mediated settlement, adopted by

      the dissolution court, provided that Husband would have possession of

      properties at 3650 Washington Boulevard and 3755 Washington Boulevard in

      Indianapolis (“the Properties”), pending their sale. Wife was to be afforded




      1
       Because we reverse, we do not reach the issue of whether Wife was entitled to a continuance of the trial
      proceedings to obtain successive counsel.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019                   Page 2 of 13
      access as reasonably necessary for the sale process. Each spouse was awarded

      other parcels of real estate as his or her individual property.


[4]   The settlement agreement contained provisions that the trial court would later

      describe as “conflicting.” Appealed Order at 3. The agreement provided that

      each of the properties should be listed for sale in its current condition and

      “neither party shall be obligated to make improvements or remediations except

      as mutually agreed in writing through the sale process.” Id. Another paragraph

      of the settlement agreement stated: “Each party shall cooperate fully with all

      reasonably necessary sales efforts including but not limited to allowing access

      for reasonable walk-throughs, open houses, showings appraisals, inspections,

      cleanings, etc., and reasonably maintaining the ‘show-ready’ condition.” Id.


[5]   On April 21, 2017, the trial court approved an Agreed Modification to the

      Mediated Marital Settlement Agreement. Pursuant to that agreement, Husband

      was to receive as his sole property an additional parcel of real estate located at

      3920 Washington Boulevard, and Wife was to be paid her equity in 3920

      Washington Boulevard from the proceeds of the sale of 3755 Washington

      Boulevard.


[6]   At the expiration of a one-year listing contract, neither of the Properties had

      been sold and thus Wife had not received her equity in 3920 Washington

      Boulevard. For a time, the former spouses amicably discussed re-listing the

      Properties. Wife, who had obtained a realtor’s license, considered listing the

      Properties but learned that she could not list 3755 Washington Boulevard


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 3 of 13
      because she was not licensed to sell commercial property. Cooperative efforts

      broke down when Husband and Wife could not agree on a successive realtor or

      listing price.


[7]   More fundamentally, and eventually giving rise to the instant litigation,

      Husband and Wife did not agree on the extent of Husband’s obligation to clean

      and present the Properties for showing. Wife requested, in writing, that

      Husband perform landscaping tasks, eliminate rust stains from sinks or re-glaze

      them, repair water damage, and remove construction debris, items stored in a

      garage, and numerous boxes of business records. She opined that these efforts

      would bring the Properties to a show-ready condition and, without the

      measures, the commercial property would be devalued by $100,000.00.

      Husband’s position was that, under the decree adopting the mediated

      settlement, the Properties were being offered for sale in an as-is condition.


[8]   On April 12, 2018, Wife filed her “Petition for Rule to Show Cause,

      Enforcement of Decree, and Request for Attorney’s Fees.” (App. Vol. II, pg.

      59.) She alleged that Husband was in contempt of court for failing to keep the

      Properties in a “show-ready” condition, denying her reasonable access, refusing

      to agree upon a realtor, refusing to refinance the mortgage for 3920 Washington

      Boulevard, and delaying the tender of her vehicle title and proceeds from an

      IRA. Id. She asked that Husband be ordered to better maintain the Properties

      and pay her for the claimed reduction in value. She also requested that final

      proceeds of the sale be used to pay 2015 income taxes and a $4,400.00 medical

      bill. On August 31, 2018, Husband filed a petition for rule to show cause,

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 4 of 13
       alleging Wife was in contempt of court because she had “continued to make

       unjustified and outlandish demands on Husband before she would agree to

       participate and cause the listing of the properties.” Id. at 84.


[9]    The trial court conducted a hearing on the respective contempt petitions on July

       9 and October 5, 2018.2 By the final hearing date, Husband had cleared out his

       personal and business property and vacated the Properties, moved into the

       residence at 3920 Washington Boulevard, and delivered to Wife the title to her

       vehicle and $2,000.00 from an IRA. He had paid $14,000.00 of the 2015

       income taxes but had not paid any part of the medical bill. A sale of the 3755

       Washington Boulevard property was pending. The property at 3650

       Washington Boulevard was listed for sale at an agreed listing price of

       $395,000.00.


[10]   Although the property distribution was substantially completed, each party

       desired that the other be held in contempt for wrongfully interpreting their

       settlement and causing delays. Wife had incurred approximately $25,000.00 for

       attorney’s fees, and Husband had incurred approximately $28,000.00. Each

       desired a sanction order against the other for payment of fees.


[11]   Realtors Larry Gregerson (“Gregerson”) and Ken George (“George”) testified

       regarding the condition of the Properties during the time they were listed




       2
        Wife had filed, and later moved to dismiss, a petition for modification of child support. She had also twice
       petitioned for appointment of a receiver; the trial court summarily denied those petitions.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019                   Page 5 of 13
       without selling. Gregerson described the Properties as having construction

       debris, water leaks, rusty sinks, and “pretty overgrown landscaping.” (Tr. Vol.

       II, pg. 11.) The biggest concerns, according to George, were stored boxes and

       the need for exterior upkeep. Wife testified that, in her opinion, Husband had

       not kept the Properties in show-ready condition. She described being “horrified

       by so much clutter, boxes, and junk.” Id. at 32. She also claimed that Husband

       had denied her access and she had not refused to agree upon a successive

       realtor. She acknowledged that Husband had provided her with a vehicle title

       and IRA funds but faulted his delay.


[12]   In turn, Husband testified that he had followed the court order and had not

       been obligated to improve the Properties beyond their condition at the time of

       the initial listing (which predated the divorce). He claimed that he had allowed

       Wife reasonable access to the Properties and the lack of sale was traceable to

       her “adamant” refusal to lower the price. Id. at 190. Husband testified that he

       was compliant with court-ordered payments and transfers (but he

       acknowledged that neither spouse had paid a portion of the medical bill despite

       each receiving $25,000.00 from a prior real estate transaction). He further

       testified that he had not immediately refinanced the mortgage for 3920

       Washington Boulevard because, upon investigation, he learned that only he

       was liable on the mortgage.3




       3
        Nonetheless, Husband stated that he had recently applied to refinance the mortgage for his own budgetary
       purposes.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019                Page 6 of 13
[13]   On January 4, 2019, the trial court issued an order finding Wife in contempt of

       court and ordering that she pay $15,000.00 of Husband’s attorney’s fees. The

       order specified that Wife was found in contempt of court “for her unreasonable

       refusal to agree on listing prices, act as listing agent, agree on a listing agent and

       reduce the listing prices of the properties as well as her refusal to acknowledge

       that the properties were to be listed and sold in ‘their current condition.’”

       Appealed Order at 8.


[14]   With respect to Husband, the order stated:


               The Court finds [Husband] was not in contempt of court for
               refusing to allow [Wife] access to the properties or for failing to
               maintain the properties in “show ready” condition. The Court
               finds he was required to put forth additional efforts and expend
               funds in an effort to clean and unclutter the properties to placate
               [Wife] because of her unreasonable refusal to act as listing agent,
               agree on a listing agent and agree on listing prices to sell the
               properties “IN THEIR CURRENT CONDITION.”


       Id. Additionally, the trial court found that Husband’s delay in providing the

       vehicle title and IRA funds was “inadvertent and not willful” and he was not

       required to refinance a mortgage solely in his name. Id. The order further

       provided that “outstanding debts, if any, as outlined in the Settlement, shall be

       paid from the proceeds of the sale of 3650 and 3755 Washington Boulevard.”

       Id. at 8-9. Wife now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 7 of 13
                                  Discussion and Decision
                      Finding of Lack of Contempt – Husband
[15]   When dissolving a marriage, parties are free to negotiate their own settlement

       agreements and may incorporate those into a dissolution decree. Ind. Code §

       31-15-2-17. Such agreements are contractual in nature, and once incorporated

       into a trial court’s final order, the agreements become binding on both parties.

       Whittaker v. Whittaker, 44 N.E.3d 716, 719 (Ind. Ct. App. 2015). All orders

       contained within a divorce decree may be enforced in contempt proceedings.

       I.C. § 31-15-7-10.


[16]   Whether a party is in contempt of court is a matter within the trial court’s

       discretion, and its finding will be reversed only for an abuse of that discretion.

       In re Adoption of A.A., 51 N.E.3d 380, 385 (Ind. Ct. App. 2016). “A court has

       abused its discretion when its decision is against the logic and effect of the facts

       and circumstances before the court or is contrary to law.” In re Paternity of M.F.,

       956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).


[17]   There are two types of contempt, that is, direct and indirect. In re A.A., 51

       N.E.3d at 385. Indirect contempt, at issue here, is defined as “willful

       disobedience of any lawfully-entered court order of which the offender had

       notice.” Id. The order must “command the accused to do or refrain from doing

       something.” Piercey v. Piercey, 727 N.E.2d 26, 32 (Ind. Ct. App. 2000). The

       contemptuous act must be done willfully and with the intent to show disrespect

       or defiance. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). Also,

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 8 of 13
       the order must have been so clear and certain that there could be no question

       concerning what the party must do, or refrain from doing, such that there could

       be no question as to whether the order is violated. City of Gary v. Major, 822

       N.E.2d 165, 170 (Ind. 2005). A party may not be held in contempt of court for

       failure to comply with an order that is either ambiguous or indefinite. Id.


[18]   Wife argues that the trial court abused its discretion by refusing to find Husband

       in contempt of court when, by his own admission, he delayed beyond the

       parameters of the dissolution decree in refinancing a mortgage and tendering to

       Wife the title to her vehicle and $2,000.00 from an IRA. However, he testified

       to the following circumstances: he discovered Wife was not obligated on the

       mortgage; he paid off her vehicle and put aside the title, remembering it only

       during mediation; and it was a mere oversight when he withheld the $2,000.00

       IRA proceeds while focusing on larger IRA accounts. “Crucial to the

       determination of contempt is the evaluation of a person’s state of mind, that is,

       whether the alleged contemptuous conduct was done willfully.” Witt, 964

       N.E.2d at 202. Here, the trial court found that Husband’s conduct was

       inadvertent and not willful. We will not reweigh the evidence to conclude

       otherwise. Piercey, 727 N.E.2d at 32.


                                 Finding of Contempt – Wife
[19]   Wife argues that Husband’s motion for a rule to show cause did not sufficiently

       allege facts constituting contempt, thus denying her due process. She further




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 9 of 13
       argues that the trial court then abused its discretion by finding her in contempt

       without identifying a court-ordered act that she willfully refused to perform.


[20]   Indiana Code Section 34-47-3-5(b) requires in relevant part that a rule to show

       cause must:


               (1) clearly and distinctly set forth the facts that are alleged to
                   constitute the contempt; [and]


               (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[.]


[21]   However, a party may waive a due process violation claim by failing to raise an

       argument at the trial level. McKibben v. Hughes, 23 N.E.3d 819, 828 (Ind. Ct.

       App. 2014). Wife failed to argue to the trial court that she was denied due

       process because she lacked knowledge of the allegations against her. She thus

       waived this argument for appeal. We turn to her contention that the trial court

       abused its discretion when deciding the merits of the contempt allegation

       against her.


[22]   The trial court determined that the settlement agreement, adopted by the

       dissolution court, contained conflicting provisions regarding how the parties

       were to present the Properties for sale. It did not define show-ready, nor did it

       specify the steps to be taken if the initial real estate listing expired without a

       sale. Yet Wife was found in contempt of court for “refusal to agree on listing

       prices, act as listing agent, agree on a listing agent and reduce the listing prices


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 10 of 13
       [and] acknowledge the properties were to be listed and sold in their current

       condition.” Appealed Order at 8. Critically, Wife was not ordered to do any of

       these things in either the dissolution decree or order adopting the modification

       settlement. The finding of contempt was an abuse of discretion.


                                            Attorney’s Fees
[23]   To support his testimony that he incurred attorney’s fees, Husband submitted

       his Respondent’s Exhibit C, which provides in full:


               Olson Law Office – Ashley – Attorney Fee Summation


               March            $ 1,750.00
               April            $ 600.00
               May              $ 4,075.00
               June             $ 895.00
               July             $ 4,625.00
               August           $ 4,750.00
               September        $ 4,200.00
               October          $ 3,390.00
               November         $ 3,955.00 (7.8 paralegal, 3.7 attorney prep on 10-4
                                $28,240.00      and 9 hours on 10-5)


[24]   The trial court ordered Wife to pay $15,000.00 of the fees, reasoning:


               [Husband] incurred attorney fees in excess of $28,000.00 in
               defending [Wife]’s Rule to Show Cause and in prosecuting his
               own. The Court finds that the fees were reasonable and that a
               substantial portion was incurred because of [Wife]’s lack of
               cooperation and unreasonable interpretation of the terms of the
               Settlement Agreement.



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 11 of 13
       Appealed Order at 9.


[25]   A trial court may impose sanctions to compensate a party for injuries incurred

       as a result of contempt and this may include attorney’s fees. Witt, 964 N.E.2d

       at 204. We review for an abuse of discretion and reverse only when there is no

       evidence to support the award. Id. Here, assuming that Wife unreasonably

       interpreted the settlement agreement, there is no evidence that she was in

       contempt of court. The attorney’s fees award may not be justified as a sanction

       for Wife’s contempt.


[26]   Husband testified that he “had filed for frivolous litigation fees.” (Tr. Vol. II,

       pg. 54.) But it is not apparent that the partial fees award included any

       compensation for frivolous litigation. The trial court did not reference a

       statutory basis and did not specifically address the parties’ respective financial

       positions. See In re Marriage of Lewis, 638 N.E.2d 859, 861 (Ind. Ct. App. 1994)

       (observing that misconduct directly resulting in added litigation expense may be

       considered in awarding attorney’s fees in a dissolution proceeding, but the court

       must consider the respective economic conditions of the parties). As the trial

       court observed in its order, Wife had filed two motions for appointment of a

       receiver and a motion to have the elected judge hear the case. But these

       motions were summarily denied and did not lead to protracted litigation. And

       Husband’s Exhibit C, which appears to include charges for one month before

       the instant litigation ensued, does not allocate any charge to a particular task

       performed. In short, the $15,000.00 award appears to be supported only by the

       trial court’s erroneous conclusion that Wife was in contempt and should be

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 12 of 13
       sanctioned therefor. The sanction order is an abuse of the trial court’s

       discretion.



                                               Conclusion
[27]   The motion for contempt against Husband was properly denied in that his

       actions were found to be inadvertent and not willful. Lacking evidentiary

       support, the contempt order against Wife must be reversed as an abuse of the

       trial court’s discretion. The award of attorney’s fees as a sanction for contempt

       is also an abuse of the trial court’s discretion.


[28]   Affirmed in part; reversed in part.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-354 | August 15, 2019   Page 13 of 13
