                                                                    Aug 31 2015, 8:35 am




ATTORNEY FOR APPELLANT
Jeffery Leeper
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jason Stanke,                                             August 31, 2015
Appellant,                                                Court of Appeals Case No.
                                                          29A02-1412-DR-862
        v.                                                Appeal from the Hamilton
                                                          Superior Court
Nicole Swickard,                                          The Honorable William J. Hughes,
Appellee.                                                 Judge
                                                          Trial Court Cause No.
                                                          29D03-1208-DR-8811



Brown, Judge.




Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015                   Page 1 of 10
[1]   Jason Stanke (“Stanke”) appeals the trial court’s order finding him in contempt

      of court. Stanke raises three issues, which we consolidate and restate as

      whether the court erred in finding him in contempt. We reverse and remand.


                                       Facts and Procedural History

[2]   Stanke and Nicole Swickard finalized their divorce on October 8, 2013. They

      have two children, B.S. and T.S. (the “Children”). On February 18, 2014,

      Stanke filed a petition for modification of child support after he became

      unemployed. On March 5, 2014, Swickard filed a motion for contempt citation

      and for modification of parenting time. On April 8, 2014, Swickard filed a

      second motion for contempt citation. On May 7, 2014, Stanke filed a motion

      for contempt citation. On May 20, 2014, Swickard filed a Motion for

      Appointment of a Level II PC. On August 5, 2014, Swickard filed an Amended

      Verified Combined Motion for Contempt Citation and Modification of

      Parenting Time, a Motion for Proceedings Supplemental, and a Motion for

      Rule to Show Cause. On August 6, 2014, Swickard filed a motion to dismiss

      her April 8, 2014 motion for contempt citation.


[3]   On August 7, 2014, the court issued an Order to Appear and Show Cause. In

      relevant part, the order provided that “[i]t is therefore ordered, adjudged, and

      decreed by this Court that Jason Stanke show cause why he should not be

      found in contempt of this Court’s order regarding nonpayment of his child

      support obligation under this cause.” Appellant’s Appendix at 62. On August

      11, 2014, Stanke filed a motion to dismiss motion for contempt and to modify

      parenting time, a motion to dismiss Swickard’s motion for a Verified Rule to
      Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015   Page 2 of 10
      Show Cause, and a motion to withdraw his May 7, 2014 motion for contempt

      citation.


[4]   The parties’ arguments on the various motions were heard by the court on

      August 12, 2014, and October 28, 2014. On November 18, 2014, the court

      issued its Order on All Pending Motions. Concerning Swickard’s August 5,

      2014 motion for contempt citation, the court found that Stanke was in contempt

      for failing to return the Children to Swickard after his midweek parenting time

      as required by the dissolution decree, and ordered him to serve 180 days in the

      Hamilton County Jail, which was suspended on the condition that he return the

      Children to Swickard as required by the decree. The court further found Stanke

      in contempt for having taken the Children out of the State of Indiana without

      providing Swickard information required under the Indiana Parenting Time

      Guidelines, and ordered him to serve 180 days in the Hamilton County Jail,

      which was suspended on the condition that he not remove the Children from

      the state without advance notice and without providing the information

      required by the Parenting Time Guidelines. Finally, the court found Stanke in

      contempt for failure to pay child support and ordered him to serve 180 days in

      the Hamilton County Jail, which was stayed for a period of 365 days on the

      condition that he makes all child support payments in a timely manner in the

      amount ordered by the court.


                                                   Discussion

[5]   The issue is whether the trial court erred in finding Stanke in contempt. Stanke

      argues in part that he was not afforded the due process required to find him in
      Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015   Page 3 of 10
      contempt of court because the court’s rule to show cause order did not meet the

      statutory requirements for such an order and did not properly notify him of the

      allegations against him.


[6]   We initially observe that Swickard has not filed an appellee’s brief. When an

      appellee has not filed an answer brief, we need not undertake the burden of

      developing an argument on the appellee’s behalf. Henderson v. Henderson, 919

      N.E.2d 1207, 1210 (Ind. Ct. App. 2010). Rather, we may reverse the trial court

      if the appellant presents a case of prima facie error. Id. Prima facie error means at

      first sight, on first appearance, or on the face of it. Id. If an appellant does not

      meet this burden, we will affirm. Id.


[7]   Contempt of court “involves disobedience of a court which undermines the

      court’s authority, justice, and dignity.” Id. (citing Srivastava v. Indianapolis

      Hebrew Congregation, Inc., 779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied).

      There are two types of contempt: direct and indirect. Id. Direct contempt

      involves actions occurring near the court that interfere with the business of the

      court and of which the judge has personal knowledge. Id. Contempt is indirect

      if it involves actions outside the trial court’s personal knowledge. Id. “Willful

      disobedience of any lawfully entered court order of which the offender had

      notice is indirect contempt.” Id. (citing Francies v. Francies, 759 N.E.2d 1106,

      1118 (Ind. Ct. App. 2001), reh’g denied, trans. denied).


[8]   The trial court here found Stanke in contempt for failing to abide by the terms

      of the Dissolution Decree concerning midweek parenting time, failing to follow


      Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015    Page 4 of 10
      the Indiana Parenting Time Guidelines concerning taking the Children out of

      the state, and failing to make child support payments. As such, this case

      involves indirect contempt. See id. (citing In re Paternity of J.T.I., 875 N.E.2d

      447, 450 (Ind. Ct. App. 2007) (concluding that the mother’s interference with

      the father’s parenting time as provided by a court order is one of indirect civil

      contempt)). Generally, a person who willfully disobeys any order lawfully

      issued by any court of record or by the proper officer of the court is guilty of

      indirect contempt. Id. (citing Ind. Code § 34-47-3-1).


[9]   An indirect contempt proceeding requires an array of due process protections,

      including notice and the opportunity to be heard. In re Contempt of Wabash

      Valley Hosp., Inc., 827 N.E.2d 50, 62 (Ind. Ct. App. 2005). These protections

      are provided by the court’s compliance with Ind. Code § 34-47-3-5. Id. That

      statute provides:

              (a) In all cases of indirect contempts, the person charged with indirect
              contempt is entitled:

                       (1) before answering the charge; or

                       (2) being punished for the contempt;

              to be served with a rule of the court against which the contempt was
              alleged to have been committed.

              (b) The rule to show cause must:

                       (1) clearly and distinctly set forth the facts that are alleged to
                       constitute the contempt;

                       (2) specify the time and place of the facts with reasonable
                       certainty, as to inform the defendant of the nature and
                       circumstances of the charge against the defendant; and

      Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015              Page 5 of 10
                 (3) specify a time and place at which the defendant is required
                 to show cause, in the court, why the defendant should not be
                 attached and punished for such contempt.

        (c) The court shall, on proper showing, extend the time provided under
        subsection (b)(3) to give the defendant a reasonable and just
        opportunity to be purged of the contempt.

        (d) A rule provided for under subsection (b) may not issue until the
        facts alleged to constitute the contempt have been:

                 (1) brought to the knowledge of the court by an information;
                 and

                 (2) duly verified by the oath of affirmation of some officers of
                 the court or other responsible person.


Ind. Code § 34-47-3-5. Additionally, with respect to contempt for failure to pay

child support, Ind. Code § 31-16-12-61 provides in part:

        (c) The court may order a party who is alleged to be in contempt of
        court under this section to show cause as to why the party should not
        be held in contempt for violating an order for support. The order to
        show cause must set forth:

                 (1) the contempt allegations;

                 (2) the failure to pay child support allegations;

                 (3) when the court issued the order for support;

                 (4) the party’s history of child support payments;

                 (5) the specific:




1
 Added by Pub. L. No 1-1997, § 8. Amended by Pub. L. No. 32-2000, § 18; Pub. L. No 123-2001, § 3; Pub
L. No. 86-2002, § 11; and Pub. L. No. 131-2009, § 11.

Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015                   Page 6 of 10
                                 (A) date and time when; and

                                 (B) place where;

                        the party is required to show cause in the court; and

                        (6) the party’s arrearage.



[10]   If no rule to show cause is issued in compliance with these statutes, a court may

       lack the authority to hold a person in contempt. In re Paternity of J.T.I., 875

       N.E.2d at 451 (citing Carter v. Johnson, 745 N.E.2d 237, 241 (Ind. Ct. App.

       2001)). Strict compliance with the rule to show cause statute may be excused if

       it is clear the alleged contemnor had clear notice of the accusations against him,

       for example because he received a copy of an original contempt information

       that contained detailed factual allegations, or if he appears at the contempt

       hearing and admits to the factual basis for a contempt finding. Id. at 450-451

       (citing Lasater v. Lasater, 809 N.E.2d 380, 385-386 (Ind. Ct. App. 2004); Mitchell

       v. Stevenson, 677 N.E.2d 551, 560-561 (Ind. Ct. App. 1997), trans. denied).


[11]   The trial court’s Order to Appear and Show Cause states:

               Comes now the Petitioner, in the above-entitled cause of action,
               having filed her Verified Motion for Rule to Show Cause and the
               Court being duly advised in the premises finds that a hearing should be
               set to determine the matters in said Petition.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
               by this court that Jason Stanke show cause why he should not be
               found in contempt of this Court’s order regarding nonpayment of his
               child support obligations under this cause.




       Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015      Page 7 of 10
        THE COURT NOW ORDERS the Respondent, Jason Stanke to
        appear personally in this Court at the Hamilton County Superior
        Court 3, One Hamilton County Square, Noblesville, IN 46060, on the
        12th day of August, 2014 at 11:00 a.m.

        Failure to comply with this Order to Appear may result in punishment
        for contempt of Court.


Appellant’s Appendix at 62. Because it fails to clearly and distinctly set forth

the facts underlying Stanke’s contempt citations for failing to return the

Children to Swickard after his midweek parenting time and taking the Children

out of the State of Indiana without notice to Swickard, and fails to even include

these allegations as ones on which Stanke was being ordered to show cause, the

court’s order does not comply with Ind. Code § 34-47-3-5(b). As it relates to the

nonpayment of child support, the court’s order does not comply with Ind. Code

§ 31-16-12-6(c) as it fails to include when the court issued its order for support,

Stanke’s history of child support payments, or the amount of his arrearage.

Further, our review of the record reveals that, while Stanke did acknowledge

that he had not made certain child support payments, he argued he was

unemployed and did not admit he had the ability to pay support and thus did

not admit to the factual basis of the contempt allegations regarding nonpayment

of child support. See In re Paternity of C.N.S, 901 N.E.2d 1102, 1105-1106 (Ind.

Ct. App. 2009) (“Sizemore did admit at the hearing that he failed to pay child

support . . . Sizemore did not admit he had the ability to pay support. Thus, the

trial court could not hold him in contempt without first complying with the rule

to show cause statute.”). Furthermore, we note that Swickard’s motion for

contempt citation did not contain detailed factual allegations, and it neither
Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015   Page 8 of 10
       clearly and distinctly set forth the facts she alleged to constitute contempt nor

       did it specify with reasonable certainty the time and place of the facts

       supporting the allegations of contempt. For these reasons, we conclude that

       Stanke’s due process rights were violated and that the court erred in finding

       Stanke in contempt of court. See In re Paternity of J.T.I., 875 N.E.2d at 451

       (holding that there was “an almost complete failure to comply with the [rule to

       show cause] statute” and reversing the trial court’s finding of contempt); Carter,

       745 N.E.2d at 241 (holding that, having failed to comply with the due process

       requirements of the indirect contempt statute, the trial court was without

       authority to order Carter incarcerated).


[12]   Additionally, we observe that a jail sentence for civil contempt must be coercive

       or remedial rather than punitive in nature. In re Paternity of C.N.S., 901 N.E.2d

       at 1106. To avoid being purely punitive, a contempt order must offer an

       opportunity for the recalcitrant party to purge himself or herself of the

       contempt. Id. Here, the portion of the court’s order that Stanke serve time in

       jail for his failure to return the Children to Swickard in a timely manner after

       his midweek parenting time and for taking the Children out of the State of

       Indiana without providing Swickard with required information contained no

       opportunity for him to purge himself of the contempt, which renders those

       orders purely punitive and impermissible.2 See id.




       2
        The trial court found Stanke in contempt for failure to pay child support and ordered him to serve 180 days
       in the Hamilton County Jail, which was stayed for a period of 365 days on the condition that he makes all
       child support payments in a timely manner in the amount ordered by the court. We have previously held a

       Court of Appeals of Indiana | Opinion 29A02-1412-DR-862| August 31, 2015                         Page 9 of 10
[13]   Finally, we observe that the trial court awarded attorney fees to Swickard in the

       amount of $4,750 for fees she incurred in this litigation. The award of attorney

       fees was, at least in part, based on the trial court’s finding that Stanke was

       “blatantly in contempt of court for failure to pay child support when he clearly

       had the income to do so” and the court’s belief that “[s]uch behavior should be

       discouraged and a significant way in which to do that is to require [Stanke] to

       pay [Swickard’s] legal fees in pursuing her contempt.” Appellant’s Appendix at

       88. As we reverse the trial court’s findings of contempt entered against Stanke,

       we remand to the trial court with instruction to make a determination of

       appropriate attorney fees without considering any finding of contempt.


                                                       Conclusion

[14]   We conclude that Stanke has presented a case of prima facie error. For the

       foregoing reasons, we reverse with instruction to vacate the findings of

       contempt entered against Stanke, and we remand for a determination of

       appropriate attorney fees.


[15]   Reversed and remanded.


       Friedlander, J., and Riley, J., concur.




       trial court’s order to be coercive or remedial in nature, rather than punitive, where that court stayed the
       sentence of a contemnor pending compliance with the conditions attached to the stay. D.W. v. State, 673
       N.E.2d 509, 512 (Ind. Ct. App 1996), trans. denied.



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