FOR PUBLICATION


                                                          Jun 13 2014, 6:37 am
APPELLANT PRO SE:

BRIAN S. MOORE
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BRIAN S. MOORE,                                   )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )     No. 49A04-1310-DR-499
                                                  )
KRISTY L. MOORE,                                  )
                                                  )
       Appellee.                                  )


                        APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Robert R. Altice, Jr., Judge
                               Cause No. 49D05-0810-DR-44790



                                        June 13, 2014

                               OPINION - FOR PUBLICATION

BARNES, Judge
                                           Case Summary

        Brian Moore appeals the trial court’s contempt finding and thirty-day suspended

jail sentence. We reverse and remand.

                                                 Issue

        Brian raises two issues.1 We address the dispositive issue, which we restate as

whether the trial court improperly denied his request for the appointment of counsel.

                                                 Facts

        Brian and Kristy Moore were married and have two children. Their marriage was

dissolved in 2009. On June 6, 2013, Brian was ordered to pay Kristy $139 per week in

child support. On August 12, 2013, Kristy filed a motion for rule to show cause why

Brian should not be found in contempt for failing to pay less than $50 in child support

since the June 2013 order. Kristy requested that the trial court order Brian to serve thirty

days in jail and that the sentence be suspended pending his compliance.

        At the hearing on Kristy’s motion, Brian appeared pro se and requested that an

attorney be appointed to represent him because he faced jail time. The trial court denied

the request because any jail sentence would be suspended. An evidentiary hearing was

conducted, and the trial court found Brian in contempt. The trial court sentenced him to

thirty days and suspended the sentence until a compliance hearing was held in January

2014. The trial court also acknowledged that it would reconsider Brian’s request for the

appointment of counsel prior to that hearing. Brian now appeals.


1
  Because of our resolution of the counsel issue, we need not address Brian’s challenge to the sufficiency
of the evidence.
                                                    2
                                         Analysis

       As an initial matter, Kristy has not filed an appellee’s brief.          Under that

circumstance, we do not undertake to develop arguments for her.           See Branham v.

Varble, 952 N.E.2d 744, 746 (Ind. 2011). Rather, we will reverse if Brian makes a prima

facie showing of reversible error. See id.

       Brian argues that the trial court improperly denied his request for counsel prior to

sentencing him to thirty days in jail, all of which were suspended, for his failure to pay

child support pursuant to the June 2013 order. We have held “that where the possibility

exists that an indigent defendant may be incarcerated for contempt for failure to pay child

support he or she has a right to appointed counsel and to be informed of that right prior to

commencement of the contempt hearing.” In re Marriage of Stariha, 509 N.E.2d 1117,

1121 (Ind. Ct. App. 1987). This is so regardless of whether a private person or the State

initiates the contempt proceedings. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct.

App. 2005).

       Here, there is a clear possibility that Brian is indigent. Furthermore, even though

the trial court suspended the sentence and indicated it would reconsider the issue of

appointing counsel prior to the compliance hearing, Brian clearly risked the possibility of

losing his physical liberty as a result of the trial court’s contempt finding. Thus, if

indigent, Brian was entitled to have counsel represent him at that hearing, not just at the

subsequent compliance hearing.




                                             3
                                       Conclusion

      Brian has made a prima facie showing that the trial court erred by denying his

request for counsel. We reverse and remand for the trial court to determine if Brian is

indigent and, if so, to appoint counsel to represent him at a new contempt hearing.

      Reversed and remanded.

BAKER, J., and CRONE, J., concur.




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