MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                       Jun 08 2016, 7:55 am
this Memorandum Decision shall not be
                                                                  CLERK
regarded as precedent or cited before any                     Indiana Supreme Court
                                                                 Court of Appeals
court except for the purpose of establishing                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Bryan L. Ciyou                                           Matthew A. Burkert
Darlene R. Seymour                                       Danville, Indiana
Ciyou & Dixon, P.C.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Middleton,                                        June 8, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         32A05-1509-DR-1461
        V.                                               Appeal from the Hendricks
                                                         Superior Court
Paula Pyatte,                                            The Honorable Christopher L.
Appellee-Petitioner.                                     Burnham, Special Judge
                                                         Trial Court Cause No.
                                                         32D02-1401-DR-58



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 1 of 10
                                       Statement of the Case
[1]   In this contentious child support and custody case, Robert Middleton

      (“Father”) appeals the trial court’s August 7, 2015 order (“2015 Fee Order”) in

      which the trial court ordered him to: (1) pay a portion of Paula Pyatte’s

      (“Mother”) appellate attorney fees; (2) pay a portion of the court-appointed

      Guardian Ad Litem’s (“GAL”) fees; and (3) either report to the county jail to

      serve time for contempt or purge himself of contempt by paying Mother

      overdue child support, uninsured medical expenses, and attorney fees by a set

      date. Father argues that the trial court lacked jurisdiction to enter this order

      because Father had a petition to transfer in a prior appeal pending with the

      Indiana Supreme Court. Because the first two issues considered by the trial

      court and addressed in the 2015 Fee Order were independent of, and did not

      interfere with, the subject matter of the pending petition to transfer, the trial

      court retained jurisdiction to determine them. The third issue before the trial

      court is now moot because Father complied with the trial court’s order and

      purged himself of contempt.


[2]   We affirm.


                                                     Issue
              Whether the trial court had jurisdiction to enter the 2015 Fee
              Order.


                                                     Facts
[3]   We set forth the relevant facts in Middleton’s prior appeal as follows:

      Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 2 of 10
        On January 14, 2010, the parties’ marriage was dissolved and the
        trial court issued orders on custody, parenting time, and child
        support. . . . On January 3, 2013, [Mother] filed a motion
        requesting that [Father] show cause for failure to pay child
        support. . . . A hearing on the motion was set for March 7, 2013.
        [Father] filed and received a continuance postponing the hearing
        until June 24, 2013. On June 4, 2013, [Mother] filed a motion
        requesting a modification of custody and to appoint a guardian
        ad litem (“GAL”). On July 1, 2013, the trial court conducted the
        hearing on the issue of non-payment of child support and, in a
        subsequent order, appointed a GAL, found that [Father] was in
        arrears on his child support payments in the amount of $2270.00,
        held him in contempt, and set a hearing on the modification of
        custody for October 17, 2013. After [Father] filed a motion for
        continuance, the hearing on modification was reset for January
        23, 2014. . . .

        On January 17, 2014, the trial court judge, Mark A. Smith,
        recused himself and vacated the January 23, 2014 modification
        hearing. In his final order, Judge Smith noted the reasons for his
        recusal including that [Father] had made impliedly threatening
        statements and repeated allegations that Judge Smith, the GAL,
        the parenting time coordinator, and the attorneys had engaged in
        unethical and unlawful conduct. On January 29, 2014, Special
        Judge David H. Coleman was randomly selected and assigned to
        this case. On February 18, 2014, the trial court reset the
        modification hearing for April 25, 2014. Between April 17, and
        September 26, 2014, [Father] filed nine motions for continuance
        resulting in the modification hearing ultimately being
        rescheduled for December 3, 2014.


        On June 11, 2014, [Mother] filed a motion requesting [Father] to
        show cause for nonpayment of child support and failure to
        reimburse unpaid medical bills. . . .




Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 3 of 10
      Middleton v. Pyatte, No. 32A01-1410-DR-431, *2-5 (Ind. Ct. App. Feb. 13,

      2015).


[4]   On September 18, 2014, the trial court held a hearing on the issues of child

      support and unpaid medical expenses and subsequently issued an order on

      September 22, 2014 holding Father in contempt (“2014 Contempt Order”).

      Specifically, the trial court ordered Father to serve 180 days in the county jail

      but stayed the sentence if Father purged himself of contempt by paying

      $6,431.00 in past due child support, $330.26 for uninsured medical expenses,

      and $1,000.00 in attorney fees to Mother’s attorney within 45 days. On

      October 9, 2014, Father appealed the trial court’s 2014 Contempt Order. Five

      days later, on October 14, 2014, the Notice of Completion of Clerk’s Record

      was filed in our Court.


[5]   In that appeal, this Court concluded that: (1) the trial court’s order finding

      Father in contempt was not unlawful; (2) there was sufficient evidence to

      support the finding of contempt; and (3) Mother was entitled to appellate

      attorney fees. Id. Regarding the attorney fees, we explained that, in light of

      Father’s “eleven motions for continuance in 2014 alone, several other

      seemingly frivolous motions, and repeated violations of court orders, we are

      inclined to agree with [Mother’s] claims” that [Father’s] appeal is frivolous,

      filed in bad faith and was pursued to further delay proceedings. Id. at 8. In

      addition, we found that that “[Father’s] appeal ha[d] fulfilled every prerequisite

      of procedural bad faith” and that his “noncompliance with our rules of


      Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 4 of 10
      appellate procedure [was] substantial, permeate[d] his entire brief, and ha[d]

      hindered our review of his contentions of error on appeal.” Id. at 9-10. We

      therefore remanded the case to the trial court with instructions to calculate the

      amount of reasonable appellate attorney fees Mother was entitled to recover.

      Id. at 10.


[6]   On April 16, 2015, Father filed a petition for rehearing. Six days later, on April

      22, 2015, the trial court ordered Mother and Father to appear in court on July

      24, 2015, for a hearing on pending motions and issues, including the “[a]ward

      of reasonable appellate attorney fees payable by [Father] to [Mother], as

      instructed by Court of Appeals in a memorandum decision handed down on 2-

      13-2015,” “Guardian Ad Litem Petition for Fees payable by [Mother] and

      [Father], and “[e]nforcement of [o]rders and/or [s]anctions against [Father] for

      noncompliance with court orders.” (App. 89). Six days later, on April 28,

      2015, this Court denied Father’s petition for rehearing. On May 28, 2015,

      Father was deemed to have filed a petition to transfer wherein he argued that

      (1) there was insufficient evidence to support the trial court’s finding that he

      was in contempt; and (2) the trial court improperly applied the law of contempt

      to the facts of his case.


[7]   While the petition for transfer was still pending, Mother and Father appeared

      for the July 24, 2015 hearing as ordered by the trial court. At the beginning of

      the hearing, the trial court explained that the first item to address was the

      determination of reasonable appellate attorney fees as ordered by this Court.


      Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 5 of 10
       Father “raised[d] a standing objection to moving forward because the case [had

       not] been certified back and [it was] still in the Supreme Court [pending]

       transfer. . . .” (Tr. 4). Mother pointed out that Father’s petition to transfer “did

       not mention anything about the appellate attorney fees.” (Tr. 6).


[8]    Mother’s counsel testified that his hourly rate was $150.00, which he claimed

       was significantly lower than the usual and customary hourly rate charged by

       attorneys in the Indianapolis area with similar experience. Counsel further

       testified that he spent 89.9 hours preparing the appeal as well as $93 in printing

       and binding costs, which totaled $13,578 in appellate attorney fees. An

       affidavit revealed that the GAL was owed an unpaid balance of $6,290.00.


[9]    Father testified that he is a self-employed handyman and that his average yearly

       gross income was between $25,000 and $28,000. He submitted tax records

       from 2012, 2013, and 2014, as well as business checking account records from

       March, April, May, and June 2015. Questioning whether Father had fully

       disclosed his financial records, the trial court ordered Father to produce

       information on two additional accounts. Father, however, specifically stated

       that his financial disclosure was complete.


[10]   The trial court then proceeded to the issue of enforcement of orders and

       sanctions against Father for failing to comply with the trial court’s 2014

       Contempt Order. Father confirmed that he had not paid the past due child

       support, uninsured medical expenses, or attorney fees.



       Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 6 of 10
[11]   On August 7, 2015, before Father had disclosed any additional financial

       records, the trial court issued a detailed eight-page, single-spaced 2015 Fee

       Order wherein it ordered Father to: (1) pay Mother’s attorney $7,468.00 in

       appellate attorney fees; (2) pay the court-appointed GAL $3,145.00; and (3)

       report to the county jail on September 8, 2015 or purge himself of contempt by

       paying (a) Mother $6,431.00 for unpaid child support and $333.26 for unpaid

       uninsured medical expenses; and (b) Mother’s attorney $500.00 for attorney

       fees, all no later than noon on September 3, 2015. Six days later, on August 13,

       2015, the Indiana Supreme Court denied transfer in Father’s pending appeal.

       The case was certified on August 28, 2015. According to the Chronological

       Case Summary, Father paid all sums necessary to purge himself of contempt on

       August 31, 2015. He now appeals the trial court’s 2015 Fee Order.


                                                         Decision
[12]   At the outset we note that Mother has failed to file an appellee’s brief.1 When

       an appellee fails to submit a brief, we need not undertake the burden of

       developing an argument for the appellee. Santana v. Santana, 708 N.E.2d 886,

       887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may

       reverse the trial court if the appellant can establish prima facie error. Id.

       However, we may in our discretion decide the case on the merits. Kladis v.




       1
           Although Mother’s counsel filed an appearance in this appeal, counsel did not tender an appellee’s brief.


       Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016                  Page 7 of 10
       Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We exercise our

       discretion here to consider the merits of the issues presented in this case.


       1. Jurisdiction

[13]   Father first argues that the trial court lacked jurisdiction to enter the 2015 Fee

       Order because there was a petition to transfer pending in the Indiana Supreme

       Court. We generally acquire jurisdiction over a matter on the date that the

       notice of completion of the clerk’s record is noted in the Chronological Case

       Summary (“CCS”). Ind. Appellate Rule 8. Once an appeal has been perfected

       to this Court or the Indiana Supreme Court, the trial court has no further

       jurisdiction to act upon the judgment appealed from until the appeal has been

       terminated. In re Guardianship of Hickman, 811 N.E.2d 843, 848 (Ind. Ct. App.

       2004), reh’g denied, trans. denied. This rule facilitates the orderly presentation

       and disposition of appeals and prevents the confusing and awkward situation of

       having the trial and appellate courts simultaneously reviewing the correctness of

       the judgment. Id. Here, the notice of completion of the clerk’s record was

       noted in the CCS on October 14, 2014, and the case was certified on August 28,

       2015, thereby terminating the appeal. Thus, Father is correct that as a general

       rule, the trial court did not have jurisdiction over the case when it entered its

       order on August 7, 2015.


[14]   However, there are situations in which a trial court may retain jurisdiction over

       certain matters notwithstanding a pending appeal. Id. For example, a trial

       court retains jurisdiction to perform such ministerial tasks as reassessing costs,

       correcting the record, and enforcing a judgment. Id. The trial court may also

       Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 8 of 10
       preside over matters that are independent of and do not interfere with the

       subject matter of the appeal. Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct.

       App. 2008).


[15]   For example, in Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995), the Indiana

       Supreme Court concluded that the trial court retained jurisdiction to proceed

       with a criminal trial pending the appeal of the denial of bail because the bail

       appeal was entirely independent of the trial and would not intermeddle with the

       subject matter of the appeal. Further, in Clark v. State, 727 N.E.2d 18, 21 (Ind.

       Ct. App. 2000), trans. denied, this Court concluded that the trial court retained

       jurisdiction to proceed with a probation revocation hearing during the pendency

       of a direct appeal from drug convictions because the appeal was entirely

       independent of the revocation proceedings. Here, as in Bradley and Clark, the

       trial court retained jurisdiction to proceed with determining appellate attorney

       and GAL fees during the pendency of the transfer petition because the transfer

       petition was entirely independent of these fees.


[16]   We further note that, because Father complied with the trial court’s order and

       purged himself of contempt, the issue of whether the trial court had jurisdiction

       to address the contempt issue is moot. See Rainbow Cmty., Inc. v. Town of Burns

       Harbor, 880 N.E.2d 1254, 1261 (Ind. Ct. App. 2008) (explaining that an issue is

       moot when: (1) it is no longer live or when the parties lack a legally cognizable

       interest in the outcome; (2) the principal questions in issue have ceased to be




       Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 9 of 10
       matters of real controversy between the parties; or (3) the court on appeal is

       unable to render effective relief upon an issue). 2


[17]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       2
[1]     Father further argues that even if the trial court had jurisdiction to enter the 2015 Fee Order,
       the trial court prematurely issued an order and deprived him of his due process rights without
       allowing him to present his entire case. However, our review of the transcript reveals that
       Father never told the trial court that he had additional evidence about his income. Rather,
       Father specifically told the trial court that his financial disclosure was complete. The issue is
       therefore waived. See GKC Ind. Theaters, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652
       (Ind. Ct. App. 2002) (noting that a party generally waives appellate review of an issue unless it
       raises that issue at trial).



       Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016   Page 10 of 10
