                                                                                              FILED
                                                                                        08/31/2017, 9:39 am
                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                                                                             Court of Appeals
                                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark A. Delgado                                           Curtis T. Hill, Jr.
      Monticello, Indiana                                       Attorney General of Indiana
                                                                Abigail R. Recker
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brandis McCollum (formerly                                August 31, 2017
      Brandis Adams),                                           Court of Appeals Case No.
      Appellant,                                                08A04-1703-GU-614
                                                                Appeal from the Carroll Circuit
              v.                                                Court
                                                                The Honorable Benjamin A.
      Indiana Family and Social                                 Diener, Judge
      Services Administration,                                  Trial Court Cause No.
      Appellee.                                                 08C01-0509-GU-17




      Pyle, Judge.


                                        Statement of the Case
[1]   Brandis McCollum (“Mother”) appeals the trial court’s finding that she was in

      civil contempt of court for failing to pay her child support as ordered, as well as

      the trial court’s sanction of one hundred and fifty (150) weeks incarceration.

      Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017               Page 1 of 16
      She argues that there was no evidence that she willfully disobeyed the trial

      court’s order, as is required for a citation for civil contempt, and that the

      sanction the trial court imposed was improperly punitive. Because we conclude

      that there was sufficient evidence that Mother willfully disobeyed the trial

      court’s order, we affirm in part. However, we also conclude that the trial

      court’s sanction was improperly punitive. Accordingly, we reverse in part and

      remand with instructions for the trial court to impose a contempt sanction

      consistent with this opinion.

[2]   We affirm, reverse in part, and remand.


                                                      Issues
              1. Whether the trial court abused its discretion when it found that
                 Mother was in civil contempt of court.

              2. Whether the trial court abused its discretion when it imposed a
                 sanction of one hundred and fifty (150) weeks of incarceration
                 for Mother’s contempt of court citation.

                                                      Facts
[3]   The civil contempt citation at issue in this case resulted from Mother’s

      longstanding failure to pay her child support obligations, as well as her failure

      to participate in a drug treatment program as ordered by the trial court. Mother

      has three children, two of whom are in the custody of their grandmother

      (“Grandmother”), their legal guardian. As a result of Grandmother’s

      guardianship, Mother is required to pay weekly child support to Grandmother




      Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 2 of 16
      for the two children in her care.1 The amount and original date of her child

      support orders are not clear from the record.

[4]   In the time between the trial court’s original child support order and June 2011,

      it is apparent that Mother accrued a significant support arrearage, although the

      amount is not stated in the record.2 As a result of this arrearage, on June 30,

      2011, the trial court ordered Mother to appear and show cause for why she had

      not paid her child support. At a hearing on the order to show cause, Mother

      presented evidence that she had not been fulfilling her child support obligations

      because she was unemployed. Based on this evidence, the trial court set a

      review hearing for two weeks later and ordered Mother to bring pay stubs and

      written proof of job applications to the review hearing.

[5]   At the hearing two weeks later, Mother advised the court that she had been

      offered employment the previous day and had made a $200.00 child support

      payment. The trial court set a review hearing for two months later and ordered

      Mother to immediately let the IV-D Office know when she officially began to

      work. (Appellant’s App. Vol. 2 at 3).




      1
        Mother’s child support orders are not a part of the record; nor are any of the trial court’s orders other than
      its February 16, 2017 order that is the subject of this appeal. We have drawn the facts concerning Mother’s
      child support history from the Chronological Case Summary (“CCS”).
      2
       Mother’s child support obligation as of June 2011 was $50 per week, plus $50 to be paid towards her
      arrearage.

      Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017                            Page 3 of 16
[6]   Two more months passed, and Mother’s child support arrearage grew to

      $6,009.00, in spite of her new employment.3 As a result, at the next review

      hearing on November 17, 2011, the trial court ordered income to be withheld

      from Mother’s paychecks. Thereafter, Mother failed to appear at two

      subsequent review hearings. The trial court issued a body attachment, and

      Mother was arrested on February 28, 2013.

[7]   At the hearing after Mother’s arrest, the trial court found that her child support

      arrearage had grown to $8,996.25. The State requested that the trial court find

      Mother in contempt of court for failing to pay the child support as ordered, and

      the trial court appointed an attorney to represent her in the contempt cause of

      action. The court then set a review hearing and ordered Mother’s child support

      obligation to remain at $100 per week—$50 for support and $50 to be applied

      towards her arrearage—until the hearing.

[8]   By June 27, 2013, two months later, Mother owed $9,046.25. The trial court

      found her in contempt of court for failing to comply with its child support order

      and sentenced her to ninety (90) days in jail with no good time credit.

      However, the trial court stayed the sanction and told Mother that she could

      purge herself of the contempt before the next review hearing by complying with

      its order and reducing her arrearage.




      3
        It is not clear how long this employment lasted. It is apparent that Mother has gone through multiple
      periods of unemployment, but there is no evidence in the record as to when each period began and ended,
      except where we have specified in the facts.

      Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017                     Page 4 of 16
[9]    Thereafter, Mother failed to purge herself of the contempt and also failed to

       appear at her next review hearing. Thus, on October 31, 2013, the trial court

       ordered her to serve her previously stayed contempt sanction of ninety (90) days

       imprisonment. Nevertheless, the trial court again informed Mother that she

       could purge her contempt and be released from imprisonment, this time by

       paying $2,000 towards her arrearage. Mother did not pay $2,000 towards her

       arrearage and instead served her ninety (90) day sanction in jail.

[10]   Following Mother’s ninety days of imprisonment, she continued to miss her

       child support payments. On May 23, 2016, the State filed another motion for

       the trial court to order Mother to show cause for why she should not be held in

       contempt of court for her continued failure to pay child support. The trial court

       set a hearing on the motion for July 7, 2016. However, the hearing did not

       occur in July as planned because Mother failed to appear. The trial court issued

       another body attachment, and Mother was arrested on October 26, 2016.

[11]   After Mother’s arrest, the trial court held a hearing on the State’s rule to show

       cause. At the hearing, Mother revealed that she had recently finished serving a

       three-month sentence for theft in the Tippecanoe County Jail and was still on

       probation for that conviction. She had also been charged with using “spice,”

       but the State had dismissed that charge after she had completed a diversion

       program. (Tr. 29). Since her release from jail, she had enrolled in a substance

       abuse treatment program called the “Through the Gate Program.” (Tr. 20).




       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 5 of 16
[12]   At the conclusion of the hearing, the trial court found Mother in civil contempt

       of court “for willfully failing to pay child support as ordered despite the ability

       to do so.” (Appellant’s App. Vol. 2 at 36). However, the court deferred

       imposing a sanction for the contempt citation until a review hearing in

       February 2017. The court’s order provided that Mother could purge her

       contempt before that review hearing by paying her court-ordered support. The

       trial court also conditioned Mother’s release on her attending and completing

       the Through the Gate Program.

[13]   Subsequently, the trial court held a review hearing as planned on February 16,

       2017. By then, Mother’s child support arrearage had grown to $15,296. At the

       hearing, she admitted that she had not made a child support payment since

       February 11, 2016, over a year earlier. However, she testified that she had been

       working at a store called Discount Tobacco for three weeks and had just gotten

       hired the day before to work a second job at Burger King. Her job at Discount

       Tobacco paid $7.50 per hour and she worked there thirty-eight hours per week.

       Her job at Burger King paid $9.00 per hour, and she had been guaranteed

       fifteen hours of work per week there. She said that she had previously had

       difficulty getting a job due to her convictions, lack of transportation, and

       inability to obtain appropriate work clothes.

[14]   With respect to her substance abuse treatment, Mother admitted that she had

       completed only five days of the Through the Gate Program after the previous

       hearing. She testified that she had quit the program after five days because she

       had discovered that the program would take sixteen months to complete unless

       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 6 of 16
       she quit work for the first six months. She said that, since leaving the Through

       the Gate Program, she had been attending substance abuse classes at the SURF

       Center three to four times per week.


[15]   Also at the hearing, the court questioned Mother about the diversion program

       she had previously completed so that the State would dismiss her charge for

       using spice. Specifically, Mother and the court engaged in the following

       exchange:

               THE COURT: Ok and that was the one that was dismissed?

               [MOTHER:] Success, yes sir.

               THE COURT: Because you paid a fee up front?

               [MOTHER:] Because I paid the diversion fee…

               THE COURT: Because you paid a fee up[]front…

               [MOTHER:] And I also…

               THE COURT: That’s how diversions work[,] right?

               [MOTHER:] No[,] and you have to be good for three hundred
               and sixty…

               THE COURT: Ma’am.

               [MOTHER:] Yes[,] sir.

               THE COURT: You paid, we’re going step by step. You paid a
               fee up front correct?

               [MOTHER:] Yes[,] sir they took my bond, yes sir and then I had
               to pay the remainder, one hundred and twenty[-]seven dollars.



       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 7 of 16
        THE COURT: Ok. So how much total did you pay for that
        case?

        [MOTHER:] Three hundred and twenty[-]eight dollars.

        THE COURT: Three hundred and twenty[-eight] dollars. That
        did not go to child support did it?

        [MOTHER:] No[,] sir.

        THE COURT: You had the money to pay three hundred and
        twenty[-]eight dollars, correct?

        [MOTHER:] No[,] sir. I didn’t bond myself out. I was.[..]

        THE COURT: So was this, was this fake currency or was this
        U.S. dollars?

        [MOTHER:] No[,] sir. It was paid by someone else.

        THE COURT: Not the question. Was this real currency?

        [MOTHER:] Yes[,] sir.

        THE COURT: And for your benefit?

        [MOTHER:] Yes[,] sir.

        THE COURT: So it existed, the three hundred and twenty[-]
        eight dollars?

        [MOTHER:] Yes[,] sir.

        THE COURT: And that went to avoid conviction for a spice
        charge?

        [MOTHER:] Yes[,] sir.

        THE COURT: Because that’s important[,] right? That’s most
        important?

        [MOTHER:] It’s important[,] sir, yes.

Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 8 of 16
               THE COURT: More important tha[n] paying support for your
               children?

               [MOTHER:] No[,] sir[,] but.

               THE COURT: Well[,] [it] would have to be because that was
               the choice that you made, correct?

               [MOTHER:] Yes[,] sir.

               THE COURT: They were both available options. You could
               admit guilt to the offense, if you were guilty of it, I don’t know if
               you were. They filed charges[,] so the State alleged you were
               guilty. You could have admitted guilt, served a sentence,
               whatever[,] but instead you chose to raise funds from an
               alternative source, avoid the conviction[,] and then pay more
               funds to complete the diversion program, correct?

               [MOTHER:] Yes[,] sir.


       (Tr. 30-31).

[16]   At the conclusion of the hearing, the trial court determined that Mother was at

       least one hundred and fifty weeks behind on her child support payments and,

       based on that duration, imposed a sanction of one hundred and fifty (150)

       weeks imprisonment, to be served on work release, for her contempt citation.

       The court stayed her child support obligation and provided that Mother could

       be released from custody at any point during the one hundred and fifty (150)

       weeks if she were able to reduce her arrearage to below $7,500. Mother now

       appeals.




       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 9 of 16
                                                    Decision
[17]   On appeal, Mother argues that the trial court abused its discretion when it

       found that she was in civil contempt of court. She also argues that the trial

       court’s sanction of one hundred and fifty (150) weeks imprisonment was

       improper. We will address each of those issues in turn.


       1. Contempt Finding


[18]   First, Mother argues that the trial court abused its discretion when it found that

       she was in civil contempt of court. She contends that there was not sufficient

       evidence to prove that she “willfully” disobeyed the trial court’s child support

       order because the evidence demonstrated that she did not have the ability to pay

       the child support. She notes that she had only recently gained employment and

       claims that she had “started to make child support payments shortly after said

       employment, even going so far as to contact the Carroll County IV-D Office to

       provide them with the employment information so that an income withholding

       order could be implemented.” (Mother’s Br. 10).

[19]   To hold a party in contempt for violating a court order, the trial court must find

       that the party acted with “willful disobedience.” Himes v. Himes, 57 N.E.3d

       820, 829 (Ind. Ct. App. 2016), reh’g denied, trans. denied. With respect to child

       support, “[s]imply establishing the existence and knowledge of an arrearage

       may not amount to a ‘willful disregard of a court order.’” Id. (quoting Sutton v.

       Sutton, 773 N.E.2d 289, 297 (Ind. Ct. App. 2002)). The trial court must also

       find that the party had the ability to pay the child support. Woodward v. Norton,

       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 10 of 16
       939 N.E.2d 657, 662 (Ind. Ct. App. 2010). We will reverse the trial court’s

       finding of contempt where an abuse of discretion has been shown, which occurs

       only when the trial court’s decision is against the logic and effect of the facts

       and circumstances before it. Marks v. Tolliver, 839 N.E.2d 703, 707 (Ind. Ct.

       App. 2005). When we review a contempt order, we neither reweigh the

       evidence nor judge the credibility of the witnesses. Id. The party in contempt

       bears the burden of demonstrating that her acts were not “willful.” Emery v.

       Sautter, 788 N.E.2d 856, 859 (Ind. Ct. App. 2003).


[20]   Mother’s argument is essentially a request that we reweigh the evidence, which

       we will not do. See Marks, 839 N.E.2d at 707. She contends that there was no

       evidence that she had the ability to pay any child support, but the trial court

       engaged in a lengthy conversation with her about her decision to pay fees to a

       diversion program in order to avoid her spice charge. The trial court noted that,

       even though Mother had borrowed the money from someone else, she could

       have used that money to provide support for her children rather than to avoid a

       conviction. We will not re-weigh this evidence of Mother’s ability to pay.

       Moreover, we note that Mother did not “start[] to make child support payments

       shortly after [gaining] employment” as she argues in her brief. (Mother’s Br.

       10). She testified at the hearing that she had not made any payments since

       February 11, 2016. Because there was evidence that Mother had the ability to

       pay part of her child support arrearage and chose not to do so, we conclude that




       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 11 of 16
       her failure to pay that support was willful.4 Accordingly, the trial court did not

       abuse its discretion in finding her in contempt of court.


       2. Sanction


[21]   Next, Mother argues that the trial court’s sanction of one hundred and fifty

       (150) weeks of imprisonment, to be served on work release, was improper

       because it was punitive in nature, rather than coercive as civil contempt

       sanctions are required to be. We agree.

[22]   The primary distinction between criminal contempt sanctions and civil

       contempt sanctions is that criminal contempt sanctions may be punitive in

       nature, whereas civil contempt sanctions must be coercive or remedial rather

       than punitive. See Duemling v. Fort Wayne Cmty. Concerts, Inc., 188 N.E.2d 274,

       276 (Ind. 1963). This is because the “objective of a civil contempt proceeding is

       not to punish, but rather to coerce action for the benefit of the aggrieved party.”

       Id. Imprisonment is a permissible sanction for an act of civil contempt, but

       “‘[i]f the judgment seeks to coerce the defendant into doing an affirmative act

       by confinement in jail, it must provide that the imprisonment cease as soon as

       the act is done, so that it gives the defendant[] the key of his prison in his own




       4
         Notably, in Marks we held that there was no evidence that a father had the ability to pay child support even
       though he suggested that “it might be possible to get funds from his family.” Marks, 839 N.E.2d at 707.
       However, our conclusion there was based on our reasoning that “there [was] no evidence that a family
       member was willing or able to provide such funds to Father.” Id. That reasoning is not applicable here as
       Mother was able to borrow money and chose to allocate it to her diversion program rather than her child
       support obligation.

       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017                        Page 12 of 16
       pocket.’” Hunter v. State, 802 N.E.2d 480, 484 (Ind. Ct. App. 2004) (quoting

       D.W. v. State, 673 N.E.2d 509, 512 (Ind. Ct. App. 1996), trans. denied). In other

       words, the contemnor must be given the opportunity to “purge” the contempt

       and gain release from prison. Moore v. Ferguson, 680 N.E.2d 862, 866 (Ind. Ct.

       App. 1997), trans. denied. Significantly, we have held that “incarceration for

       contempt is legally allowable only where the support order upon which release

       is conditioned is attainable by the obligor.” Marks, 839 N.E.2d at 707 (emphasis

       added).

[23]   Here, the trial court provided that Mother could purge her contempt and end

       her imprisonment by paying approximately $7,797 of her child support

       arrearage. Mother argues that, even though the trial court provided for her

       release from imprisonment upon her compliance with its order, the sanction

       was nevertheless punitive in nature because it was realistically unattainable. In

       other words, she contends that the trial court essentially did not give her the

       “key” to her prison as required. See Hunter, 802 N.E.2d at 484.


[24]   We acknowledge that another panel of this Court has held that even an

       excessive imprisonment term or purge requirement can be an acceptable

       sanction as long as the defendant is given the opportunity to purge the contempt

       and obtain release from jail. See id. (finding that an indefinite imprisonment

       term and a purge requirement of $18,000 was permissible). However, we find

       that Mother’s civil contempt sanction here was punitive. A critical distinction

       between criminal contempt, through which a court may “punish” a defendant

       for past actions, and civil contempt, through which a court may not do so,

       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 13 of 16
       Duemling, 188 N.E.2d at 276, is that a party subject to criminal contempt “is

       afforded many of the same constitutional safeguards that a defendant in a

       criminal trial enjoys.” Liming v. Damos, 979 N.E.2d 297, 301 (Ohio 2012)

       (citing U.S. v. Dixon, 113 S.Ct. 2849 (1993)), cert. denied. Likewise, a parent who

       has failed to pay child support may be charged criminally with felony

       nonsupport of a dependent child and receive a prison sentence. I.C. § 35-46-1-

       5. A conviction for nonsupport of a dependent child as a Level 6 felony, which

       is what Mother would have received if she had been charged criminally, carries

       a maximum sentence of two and one half (2½ years) and an advisory sentence

       of one (1) year. I.C. § 35-50-2-7. As with a criminal contempt charge, a person

       charged with a nonsupport of a dependent child felony also receives important

       constitutional due process protections. See U.S. CONST. amend. XIV, § 1

       (declaring that no person shall be deprived “of life, liberty, or property, without

       due process of law”). We find it inconceivable that a court could properly

       sanction a defendant in a civil contempt proceeding, where the defendant has

       lesser constitutional protections, with a longer prison sentence than the

       maximum they could receive if charged criminally with all of a criminal

       proceeding’s constitutional protections. As Mother’s sanction here, assuming

       she is not able to purge her contempt, amounts to three years, it is greater than

       the maximum sentence the trial court could have imposed if she had been

       charged criminally. We cannot in good faith find such a sanction appropriate.

[25]   Moreover, we find that the amount of child support arrearage Mother must

       purge in order to be released from imprisonment is so excessive as to be


       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 14 of 16
       unobtainable and, thus, is punitive rather than coercive. In Moore v. Ferguson,

       680 N.E.2d 862, 864 (Ind. Ct. App. 1997), trans. denied, Moore was found in

       contempt of court for failing to pay child support in nine different causes. Id.

       The trial court ordered him imprisoned for one hundred and eighty (180) days

       in each cause, with the terms to run consecutively, unless Moore purged his

       contempt by paying ten percent of his arrearage in each cause. Id. Moore

       argued on appeal that the total amount he had to pay to purge his contempt—

       $7,859.70—was so excessive that it was unobtainable and, therefore, punitive

       rather than coercive. Id. A different panel of this Court held that it was not

       punitive because it was only ten percent of his total arrearage for each cause.

       Id. at 866.


[26]   In contrast, the amount Mother must purge in order to be released from prison

       is over fifty percent of her total arrearage. Further, Mother testified that, while

       she has obtained employment, her primary job pays only $7.50 per hour. At

       that rate, it will take Mother a considerable amount of time in work release to

       purge her contempt, if she is even able to do so. As we noted above,

       “incarceration for contempt is legally allowable only where the support order

       upon which release is conditioned is attainable by the obligor.” Marks, 839

       N.E.2d at 707 (emphasis added). Further, our Legislature emphasized in its

       “rule to show cause” statutory provisions that a person charged with indirect

       contempt should be given a “reasonable and just opportunity to be purged of the

       contempt.” I.C. § 34-47-3-5 (emphasis added). We conclude that in light of

       Mother’s demonstrated employment possibilities and the excessive amount the

       Court of Appeals of Indiana | Opinion 08A04-1703-GU-614 | August 31, 2017   Page 15 of 16
       trial court ordered her to pay to purge her contempt, it is not reasonably likely

       that Mother will be able to attain the conditions necessary for her release. It is

       axiomatic that no amount of imprisonment can coerce a defendant into

       completing an action that is not practically possible to complete. Accordingly,

       we conclude that the trial court’s conditions for Mother’s imprisonment were

       punitive in nature rather than coercive and, accordingly, not proper for a civil

       contempt sanction. As a result, we reverse the trial court’s sanction and

       remand with instructions for the trial court to impose a sanction that is coercive

       in nature.


[27]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Robb, J., concur.




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