      MEMORANDUM DECISION
                                                                                FILED
      Pursuant to Ind. Appellate Rule 65(D),                               Mar 13 2017, 10:05 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.


      ATTORNEY FOR APPELLANT
      Austin T.B. Malayer
      Greencastle, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      John E. Roberts, Jr.,                                   March 13, 2017
      Appellant-Respondent,                                   Court of Appeals Case No.
                                                              67A04-1606-DR-1404
              v.                                              Appeal from the Putnam Circuit
                                                              Court
      Nicole Roberts,                                         The Honorable Charles D. Bridges,
      Appellee-Petitioner                                     Special Judge
                                                              Trial Court Cause No.
                                                              67C01-0207-DR-228



      Crone, Judge.


                                             Case Summary
[1]   John E. Roberts, Jr. (“Father”), appeals the trial court’s order dismissing his

      petition for contempt filed against Nicole Roberts (“Mother”). We affirm.



      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017         Page 1 of 8
                                      Facts and Procedural History
[2]   The marriage between Father and Mother was dissolved on October 31, 2002.

      Three daughters were born of the marriage. The oldest child is emancipated,

      and the two younger daughters currently attend college. On May 27, 2015, the

      trial court entered an order obligating Mother to pay forty percent of the

      parents’ portion of the two younger daughters’ college costs.1 On November

      18, 2015, Father filed a petition for contempt and request for a rule to show

      cause alleging that Mother failed to pay those costs as required. On November

      25, 2015, Mother filed her response to Father’s contempt petition stating that

      she had no intention of disregarding the court’s order and explaining that she

      had already paid some of the obligation and further explained her attempts to

      obtain a receipt for the expenses so that she could properly pay them.


[3]   Thereafter, on April 14, 2016, Mother filed a motion to dismiss the contempt

      petition with an attached affidavit and exhibits demonstrating that the expenses

      had been paid. One day later, the trial court granted Mother’s motion to

      dismiss. On April 21, 2016, Father responded to the motion to dismiss with a

      motion to correct error and for sanctions alleging that Mother’s motion to

      dismiss was converted to a summary judgment motion, that Mother failed to

      comply with Indiana Trial Rule 56, and that a factual dispute remained for trial

      such that dismissal was inappropriate. On April 25, 2016, the trial court

      entered an order vacating its previous order of dismissal and set the contempt



      1
          Father did not include a copy of the trial court’s order in his appendix.

      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017   Page 2 of 8
      matter for hearing. Mother filed her response to Father’s motion to correct

      error before learning that the court had already ruled on the motion, and then

      on May 16, 2016, she filed a motion to reconsider again requesting that the

      court dismiss the contempt petition and requesting that the court vacate its

      order granting Father’s motion to correct error and setting the matter for

      hearing. Father filed his response, and on May 23, 2016, the trial court granted

      Mother’s motion to reconsider and again dismissed Father’s contempt petition.2

      This appeal ensued.


                                       Discussion and Decision
[4]   Initially, we note that Mother did not file a brief.


               When an appellee fails to submit a brief, we do not undertake the
               burden of developing appellee’s arguments, and we apply a less
               stringent standard of review. We may reverse if the appellant
               establishes prima facie error, which is error at first sight, on first
               appearance, or on the face of it. The prima facie error rule
               relieves this Court of the burden of controverting arguments
               advanced in favor of reversal where that burden properly rests
               with the appellee.




      2
        We observe that much procedural confusion was caused in this case due to the trial court ruling on pending
      motions almost immediately after they were filed rather than waiting for a response from the nonmovant.
      See, e.g., Ind. Trial Rule 59(E)(party opposing a motion to correct error may file statement in opposition to
      motion to correct error not later than fifteen days after service of the motion). Although we are generally in
      favor of the expeditious resolution of disputes, some confusion may have been obviated by a less hasty
      procedure. Indeed, curiously, the very same day that the trial court dismissed the contempt petition it also
      granted a motion to compel discovery filed by Father. However, that ruling is not a subject of this appeal, so
      we decline to address it further.

      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017              Page 3 of 8
      Jenkins v. Jenkins, 17 N.E.3d 350, 351-52 (Ind. Ct. App. 2014) (citations

      omitted).


[5]   Father appeals the trial court’s order dismissing his contempt petition. Because

      Mother included, and the trial court clearly considered, her affidavit and

      exhibits filed in support of her motion to dismiss the contempt petition, the

      motion was converted to one for summary judgment under Trial Rule 56. See

      Azhar v. Town of Fishers, 744 N.E.2d 947, 950 (Ind. Ct. App. 2001); Ind. Trial

      Rule 12(B) (if matters outside pleading are presented to and not excluded by

      court, motion to dismiss for failure to state a claim shall be treated as one for

      summary judgment and disposed of as provided in Rule 56). To the extent

      Father suggests that he was prejudiced by the procedure employed by the trial

      court, we disagree.


[6]   Where a trial court treats a motion to dismiss as one for summary judgment,

      the court must grant the parties a reasonable opportunity to present Trial Rule

      56 materials. Azhar, 744 N.E.2d at 950. The court’s failure to give express

      notice of its intended conversion of a motion to dismiss to one for summary

      judgment “is reversible error only if a reasonable opportunity to respond is not

      afforded a party and the party is thereby prejudiced.” Id. There are several

      considerations pertinent to a determination of whether a trial court’s failure to

      give express notice deprives the nonmovant of a reasonable opportunity to

      respond. Doe v. Adams, 53 N.E.3d 483, 493 (Ind. Ct. App. 2016), trans. denied.


              First, we consider whether the movant’s reliance on evidence
              outside the pleadings should have been so readily apparent that
      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017   Page 4 of 8
               there is no question that the conversion is mandated by T.R.
               12(B). Second, we consider whether there was ample time after
               the filing of the motion for the non-movant to move to exclude
               the evidence relied upon by the movant in support of its motion
               or to submit T.R. 56 materials in response thereto. Third, we
               consider whether the non-movant presented “substantiated
               argument” setting forth how [he] “would have submitted specific
               controverted material factual issues to the trial court if [he] had
               been given the opportunity.


      Id. (quoting Azhar, 744 N.E.2d at 950-51).


[7]   Based upon the record, we conclude that Father was not prejudiced. Mother’s

      reliance on evidence outside the pleadings in her initial response to Father’s

      contempt petition as well as her motion to dismiss and her motion to reconsider

      was readily apparent such that there was no question that the trial court would

      be compelled to convert the motion to dismiss to a summary judgment motion.

      Moreover, despite Father’s implications to the contrary, he was given a

      reasonable opportunity to respond to Mother’s factual assertions, and in fact he

      did respond to her assertions on more than one occasion. Most significantly,

      although Father presents argument setting forth a specific controverted factual

      issue that he claims he would have submitted to the trial court if he had been

      given the opportunity, i.e., more time for discovery and/or a hearing, we

      conclude that such factual issue is not material to the contempt petition. 3 Thus,




      3
        In his motion to correct error, Father argued that he intended “to present evidence at a hearing that [one of
      the daughters] incurred debt with family to keep her enrolled in college.” Appellant’s App. at 38. However,
      even assuming that Father could present this evidence, the evidence does not concern a factual issue material
      to the contempt proceedings. As we discuss more fully below, the purpose of civil contempt is to coerce

      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017               Page 5 of 8
      Father has not demonstrated how he was prejudiced by the fact that the trial

      court treated Mother’s request for dismissal as one for summary judgment.


[8]   Upon appellate review of an entry of summary judgment, our standard of

      review is the same as that of the trial court.


               Considering only those facts that the parties designated to the
               trial court, we must determine whether there is a genuine issue as
               to any material fact and whether the moving party is entitled to
               judgment as a matter of law. In answering these questions, the
               reviewing court construes all factual inferences in the nonmoving
               party’s favor and resolves all doubts as to the existence of a
               material issue against the moving party. The moving party bears
               the burden of making a prima facie showing that there are no
               genuine issues of material fact and that the movant is entitled to
               judgment as a matter of law; and once the movant satisfies the
               burden, the burden then shifts to the non-moving party to
               designate and produce evidence of facts showing the existence of
               a genuine issue of material fact. The party appealing from a
               summary judgment decision has the burden of persuading this
               court that the grant or denial of summary judgment was
               erroneous.


      Id. at 494-95 (citation and quotation marks omitted). A trial court’s ruling on a

      motion for summary judgment comes to this Court clothed with a presumption




      action by the contemnor for the benefit of the aggrieved party. Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind.
      2016). While we conclude that Mother is not in willful disobedience of the May 2015 order and that coercive
      intervention by the court is unnecessary, even assuming that she was and that Father could present the
      evidence that he claims, Father would not be the aggrieved party under such circumstances. Accordingly,
      Father has failed to present substantial argument setting forth how he would have submitted specific
      controverted material factual issues to the trial court if he had been given the opportunity.



      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017              Page 6 of 8
      of correctness, and we may affirm on any theory supported by the properly

      designated evidence. Id. at 495.


[9]   Indirect contempt is the willful disobedience of any lawfully entered court order

      of which the offender had notice. Akiwumi v. Akiwumi, 23 N.E.3d 734, 737

      (Ind. Ct. App. 2014). The purpose of civil contempt proceedings is to “coerce

      action for the benefit of the aggrieved party.” Marks v. Tolliver, 839 N.E.2d 703,

      707 (Ind. Ct. App. 2005). Civil contempt is not meant to punish the

      contemnor. Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind. 2016). Father’s

      petition for contempt alleged that Mother had “failed and refused” to pay her

      portion of the daughters’ college expenses as provided by the May 2015 court

      order, and that she should be held in contempt for such failure. Appellant’s

      App. at 22. However, Mother’s affidavit filed in support of her motion to

      dismiss the contempt petition included Mother’s statements as well as

      documentary exhibits evidencing that Mother’s portion of the college expenses

      had indeed been paid such that no coercive action was necessary and that the

      petition was essentially moot. Father does not challenge Mother’s evidence

      and, in fact, he concedes that, at the time Mother requested dismissal of his

      contempt petition, Mother’s obligation to pay her portion of the college

      expenses had been satisfied. Nevertheless, he asserts that a factual dispute

      remains as to whether Mother “herself had actually paid the college expenses as

      ordered” because Mother did not specifically aver that “she” paid the expenses

      and admitted that her mother paid some of the expenses. Appellant’s Br. at 6,




      Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017   Page 7 of 8
       8. Father has not met his burden to persuade us that a genuine issue of material

       fact remains for trial.


[10]   Father has not provided this Court with a copy of the May 2015 order that he

       claims Mother is in willful disobedience of, and we will not speculate as to the

       exact wording of that order. See Shoemaker v. Ind. State Police Dep’t, 62 N.E.3d

       1242, 1245 (Ind. Ct. App. 2016) (observing that it is appellant’s burden to

       present complete record with respect to issues raised on appeal). What we are

       able to surmise is this: Mother is responsible for a portion of the college

       expenses, and she has aptly demonstrated that those expenses have been paid.

       Exactly how or with what funds she satisfied the obligation is of no moment to

       Father. Because the undisputed material facts demonstrate that Mother’s

       obligation has been satisfied, we conclude as a matter of law that she is not in

       willful disobedience of any lawfully entered court order and that no coercive

       action of the trial court is necessary. Under the circumstances, we see no

       reason for any further consideration of Father’s petition for contempt. As no

       genuine issue of material fact remains, summary judgment in favor of Mother is

       appropriate. The trial court’s order dismissing Father’s petition for contempt is

       affirmed.


[11]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1606-DR-1404 | March 13, 2017   Page 8 of 8
