                                                                                FILED
                                                                           Apr 18 2018, 10:37 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Benjamin D. Ice                                             Christopher Bandemer
William A. Ramsey                                           Fort Wayne, Indiana
Barrett McNagny, LLP
Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the                                    April 18, 2018
Paternity of S.R.W., By Next                                Court of Appeals Case No.
Friend,                                                     02A05-1711-JP-2778
Michele Renee Bessette, a/k/a                               Appeal from the Allen Superior
Michele Renee Wright Bessette,                              Court
a/k/a Michele Renee Wright,                                 The Honorable Daniel G. Pappas,
Appellant-Petitioner,                                       Special Judge
                                                            Trial Court Cause No.
        v.                                                  02D07-0102-JP-87

Bradley Turflinger,
Appellee-Respondent.



Barnes, Judge.




Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018                            Page 1 of 11
                                               Case Summary
[1]   Michele Renee Bessette (“Mother”) appeals the trial court’s denial of her

      motion for change of judge in this parenting time dispute with Bradley

      Turflinger (“Father”). We affirm.


                                                       Issue
[2]   Mother raises one issue, which we restate as whether the trial court properly

      denied her motion for change of judge pursuant to Indiana Trial Rule 76(C)(3).

      Father cross-appeals, arguing that Mother’s appeal should be dismissed as an

      improper interlocutory appeal.


                                                       Facts
[3]   Mother and Father are the parents of S.R.W., who was born in January 2001.

      S.R.W. lives with Mother in Indiana, and Father lives in Minnesota. Mother

      and Father have joint legal and physical custody, with Father exercising

      parenting time according to the distance-based guidelines. The parties have had

      numerous significant disagreements and contempt proceedings over custody,

      parenting time, and support. In March 2014, the trial court found Mother in

      contempt and sentenced her to “sixty (60) days in the Allen County

      Confinement Facility, suspended on the condition that she abide by the Orders

      of the Court as set forth herein, and all other prior Orders of the Court that do

      not conflict with this Order.” Appellant’s App. Vol. II p. 49.


[4]   In 2015, Father filed additional contempt proceedings against Mother. The

      trial court found Mother in contempt twice. In December 2016, the trial court
      Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018   Page 2 of 11
      held a hearing on sanctions for the contempts. The trial court ordered Mother

      to serve thirty days of her previously suspended sentence, ordered her to serve

      two thirty-day sentences for her new contempt findings, and suspended the new

      thirty-day sentences upon the condition that she strictly comply with the trial

      court’s parenting time order and upon the condition that she pay $5,000 in

      attorney fees to Father’s counsel within ninety days. Mother was then taken

      into custody to serve the first thirty-day previously-suspended sentence.


[5]   Mother appealed, and we affirmed in part, vacated in part, and remanded to the

      trial court. On appeal, Mother challenged the trial court’s imposition of thirty

      days of incarceration and the two new suspended sentences. Mother did not

      challenge the condition that she pay $5,000 in attorney fees to Father’s

      attorney. We held that the thirty-day incarceration was “punitive” and vacated

      that portion of the order. In re Paternity of S.R.W., No. 02A05-1701-JP-144, slip

      op. at 14 (Ind. Ct. App. Sept. 29, 2017). We affirmed the imposition of the two

      thirty-day suspended sentences, but instructed the trial court to “revise its order,

      striking the modifiers ‘strict’ and ‘strictly’ and conditioning execution of

      Mother’s suspended sentences only upon willful non-compliance with its

      orders.” Id. at 16-17.


[6]   After remand to the trial court, Father filed a motion for an injunction to

      prevent Mother from changing S.R.W.’s schooling for the 2017/2018 school

      year, a verified petition for rule to show cause, a motion to modify support, and

      a motion for proceedings supplemental. A January 2017 motion to reinstate

      Mother’s jail sentence also remained pending. Mother filed a motion to change

      Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018   Page 3 of 11
judge pursuant to Indiana Trial Rule 76(C)(3). The trial court issued the

following order addressing Father’s January 2017 motion to reinstate Mother’s

jail sentence and Mother’s motion for a change of judge:


        1. “In a paternity action, Ind. Trial R. 76(B) allows a party to
        make one change-of-judge request before entry of a final decree
        and one change-of-judge request in connection with a petition to
        modify that decree.” In Re V.A., 10 N.E.3d 61, 64 (Ind. Ct. App.
        2014). Neither [Mother] nor [Father] timely requested a change
        of judge prior to the entry of the final decree in this paternity case
        entered on April 20, 2001. Accordingly, both parties waived
        their first opportunity for a change of judge.


        2. Subsequently, [Mother] timely requested a change of judge on
        October 28, 2013, and Special Judge Daniel G. Pappas was
        appointed by the Clerk as a special judge in this cause on
        December 5, 2013. Accordingly, [Mother] exercised her second
        opportunity for a change of judge and is not entitled to . . .
        another change of judge for prospective pleadings filed in this
        cause pursuant to Ind. Trial Rule 76(B). (See also Ind. Trial R.
        79(1).)


        3. However, referring to Ind. Trial R. 76(C)(3), [a] third
        opportunity to request a change of judge arises in cases where the
        trial court or a reviewing court orders a new trial, or where a
        reviewing court remands a case such that a further hearing and
        new evidence must be heard. In Re V.A. at p. 64. In its extant
        memorandum decision, the Court of Appeals found that the trial
        court abused its discretion in executing the initial thirty (30) day
        sentence because the appellate court determined it to be punitive
        not coercive as required. Accordingly, the Court of Appeals
        vacated [Mother’s] initial thirty (30) day executed sentence
        imposed by the trial court. No further proceedings are required
        concerning the Court’s 30-day executed sentence order. The trial


Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018     Page 4 of 11
        court’s executed sentence of thirty (30) days is now void and
        conclusive between the parties.


        4. The Court of Appeals passed no judgment regarding the length
        of the two (2) pending thirty (30) day suspended sentences. No
        evidence has been received to determine whether or not [Mother]
        has met the conditions to purge herself of these two (2) contempt
        findings or, in the alternative, whether further coercive orders are
        required. Further, the Court of Appeals remanded with
        instructions and directed the trial court to revise its contempt
        purge conditions for these two (2) contempt findings by striking
        strict and strictly from its order and conditioning [Mother’s]
        suspended sentences only upon willful non-compliance with its
        orders. No new trial is required and no reconsideration of
        previously received evidence is required on remand. Rather, the
        appellate court has rendered its decision and provided specific
        instructions to the trial court to amend its contempt-purge
        conditions.


        5. [Mother’s] Motion for Change of Judge filed October 11, 2017
        should be denied.


        C. Based upon the above findings, the Court orders as follows:


        1. [Mother’s] Motion for Change of Judge filed on October 11,
        2017, is overruled and denied.


        3. [FATHER’S] MOTION T0 REINSTATE MOTHER’S JAIL
        SENTENCE FILED JANUARY 18,2017:


        A. The Court finds that [Father’s] Motion to Reinstate Mother’s
        Jail Sentence filed January 18, 2017 is moot, as the Indiana
        Court of Appeals vacated the trial court’s decision which had
        ordered [Mother] to serve thirty (30) days executed in the Allen

Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018   Page 5 of 11
        County Confinement Facility for Mother’s failure to purge
        herself of her contempt found by the Court in its March 14, 2014
        Order of the Court.


        B. The Court therefore orders that [Father’s] Motion to Reinstate
        Mother’s Jail Sentence filed January l8, 2017 is dismissed.


        4. AMENDED CONTEMPT PURGE CONDITIONS:


        A. The Court hereby amends Paragraph 2.E. of its Order of the
        Court dated December 20, 2016, in accordance with instructions
        from the Indiana Court of Appeals, to now read as follows:


        For her contempt found in Paragraph 2.A. of the Order of the
        Court dated August 31, 2015, Mother is ordered to serve thirty
        (30) days in the Allen County Confinement Facility, which order
        of confinement is suspended upon the condition that she comply
        with the parenting time orders of the Court until she is no longer
        subject to a parenting time order, and upon the condition that she
        pay the attorney fee award set forth below.


        For her contempt found in Paragraph 3.A. of the Order of the
        Court dated August 31, 2015, Mother is ordered to serve thirty
        (30) days in the Allen County Confinement Facility, which order
        of confinement is suspended upon the condition that she comply
        with the parenting time orders of the Court until she is no longer
        subject to a parenting time order, and upon the condition that she
        pay the attorney fee award set forth below.


        [Mother] may be purged of the aforesaid 30-day suspended
        confinement orders by her compliance with the parenting time
        orders of the Court, and the payment of $5,000.00 in attorney
        fees to Father’s counsel, Christopher Bandemer, within ninety



Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018   Page 6 of 11
              (90) days of this Order. An attorney fee judgment is entered in
              favor of said Christopher Bandemer and against Mother.


                                                     *****


      Appellant’s App. Vol. II pp. 31-33. Mother now appeals.


                                                    Analysis
[7]   Before addressing Mother’s argument, we note that Father argues Mother’s

      interlocutory appeal is improper. Our appellate authority is “generally limited

      to appeals from final judgments.” Ball State Univ. v. Irons, 27 N.E.3d 717, 720

      (Ind. 2015). “However, our Rules of Appellate Procedure also confer appellate

      jurisdiction over non-final interlocutory appeals pursuant to Appellate Rule

      14.” Id. “There are three ways a case may proceed as an interlocutory appeal:

      an interlocutory appeal of right (Rule 14(A)); a discretionary interlocutory

      appeal (Rule 14(B)); or an interlocutory appeal from an order granting or

      denying class-action certification (Rule 14(C)).” Id. Mother argues that her

      appeal is proper under Indiana Appellate Rule 14(A)(1), which allows an

      interlocutory appeal as of right where the order is “[f]or the payment of

      money.” According to Mother, the trial court’s order required her to pay

      $5,000 to Father’s attorney and is a basis for an interlocutory appeal as of right.


[8]   We make two observations regarding Mother’s argument. First, Mother raises

      no argument on appeal regarding the order requiring her to pay $5,000 to

      Father’s attorney. We acknowledge that “an interlocutory appeal raises every

      issue presented by the order that is the subject of the appeal.” Tom-Wat, Inc. v.

      Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018    Page 7 of 11
       Fink, 741 N.E.2d 343, 346 (Ind. 2001). However, the purpose of allowing

       appeals for the payment of money is to provide a remedy to parties compelled

       to part with money which is tied up awaiting litigation. Ferguson v. Estate of

       Ferguson, 40 N.E.3d 881, 885 (Ind. Ct. App. 2015). It seems to us to defeat the

       purpose of allowing such interlocutory appeals if the party does not actually

       raise an issue regarding the payment of money.


[9]    Second, Mother was first ordered to pay the $5,000 in Father’s attorney fees in

       December 2016. Mother appealed that order but did not raise any issue

       regarding the payment of the attorney fees. The order at issue here merely

       restated the trial court’s earlier order for Mother to pay $5,000 in attorney fees.

       “The law is well-established that an issue is waived if it was available on the

       first appeal but was not presented.” Citizens Action Coal. of Indiana, Inc. v. N.

       Indiana Pub. Serv. Co., 582 N.E.2d 387, 391 (Ind. Ct. App. 1991).

       Consequently, even if Mother had raised an issue regarding the $5,000

       payment, we question whether the issue was available in this appeal.


[10]   Although we question whether Mother’s interlocutory appeal is proper, even if

       it is allowable, her argument that she was entitled to a change of judge fails.

       Mother argues that she was entitled to a change of judge pursuant to Indiana

       Trial Rule 76(C)(3), which provides:


               In any action except criminal no change of judge or change of
               venue from the county shall be granted except within the time
               herein provided. Any such application for change of judge (or
               change of venue) shall be filed not later than ten [10] days after
               the issues are first closed on the merits. Except:

       Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018     Page 8 of 11
                                                     * * * * *


               (3) if the trial court or a court on appeal orders a new trial, or if a
               court on appeal otherwise remands a case such that a further
               hearing and receipt of evidence are required to reconsider all or
               some of the issues heard during the earlier trial, the parties
               thereto shall have ten [10] days from the date the order of the
               trial court is entered or the order of the court on appeal is
               certified[.]


[11]   Mother argues that this court remanded the case such that a further hearing and

       receipt of evidence was required to reconsider issues. In support of this

       argument, Mother contends that this court ordered the trial court to modify its

       orders of suspended sentences, reconsider Mother’s future incarceration, and

       reconsider the contempt finding. Mother also argues that the trial court was

       required to hear new evidence and reconsider issues when examining the

       pending motions and Father’s motion to reinstate the jail sentence. Father

       argues that the trial court properly denied Mother’s motion for a change of

       judge under Indiana Trial Rule 76(C)(3) because this court did not order a new

       trial or order the trial court to conduct further hearings or consider additional

       evidence.


[12]   We agree with Father. In the original appeal, we concluded as follows:


               Thus, we conclude that the sanction imposed was punitive.
               Although a trial court may impose a punitive contempt sanction,
               it may do so only in criminal contempt proceedings, which
               involve a variety of additional procedural safeguards that were
               not present here. We must therefore vacate the punitive
               incarceration order.

       Court of Appeals of Indiana | Opinion 02A05-1711-JP-2778| April 18, 2018      Page 9 of 11
                                               *****


        Thus, the authority to fashion a suspended sentence falls squarely
        within the trial court’s inherent coercive and remedial civil
        contempt power. We therefore affirm the imposition of the
        suspended sanctions, while passing no judgment on the length of
        those sentences. Rather, we remind the trial court that any future
        order of incarceration must be reasonably necessary to garner
        compliance, as determined at the time the incarceration is
        imposed.


        Finally, Mother points out that the order imposing suspended
        sentences improperly “presume[s] that any failure to comply with
        a future order will not only be willful but also will warrant time
        in jail.” Appellant’s Br. at 27. The order states that Mother’s
        confinement is “suspended on the condition that she strictly
        comply with the parenting[-]time orders of the Court,” and that
        she may be purged of her confinement orders “by her strict
        compliance with the parenting[-]time orders.” Appellant’s App.
        Vol. II at 133. We agree that the language requiring strict
        compliance was over-inclusive, in that prohibiting unwillful
        actions has no logical coercive effect. Therefore, on remand, we
        instruct the trial court to revise its order, striking the modifiers
        “strict” and “strictly” and conditioning execution of Mother’s
        suspended sentences only upon willful non-compliance with its
        orders.


                                             Conclusion


        The trial court abused its discretion in imposing a punitive
        contempt sanction, and we therefore vacate the order of
        incarceration. Moreover, although the imposition of suspended
        sentences was a proper coercive sanction, the trial court abused
        its discretion in conditioning execution of the sentences on strict
        compliance with its parenting-time orders. We instruct the trial

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               court to revise its order, instead conditioning the sentence upon
               willful non-compliance.


       S.R.W., slip op. at 14-17. (internal quotations and footnotes omitted).


[13]   On remand, nothing in our opinion required the trial court to conduct a new

       trial. Moreover, it was unnecessary for the trial court to conduct further

       hearings or introduce additional evidence to reconsider all or some of the issues

       heard during the earlier trial. Rather, the trial court only needed to revise its

       order to comply with our decision. The fact that the trial court had to consider

       new motions that were filed during or after the appeal is irrelevant to the

       question of whether Mother was entitled to a change of judge under Trial Rule

       76(C)(3). Trial Rule 76(C)(3) allows a change of judge only where a new trial is

       ordered or the trial court is required to reconsider all or some of the issues heard

       during the earlier trial. Consideration of new motions will not mandate a

       change of judge under the rule. We conclude that the trial court properly

       denied Mother’s motion for change of judge.


                                                   Conclusion
[14]   The trial court properly denied Mother’s motion for a change of judge. We

       affirm.


[15]   Affirmed.


       Najam, J., and Mathias, J., concur.



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