MEMORANDUM DECISION                                                    FILED
                                                                  Jun 03 2016, 5:41 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                       CLERK
this Memorandum Decision shall not be                              Indiana Supreme Court
                                                                      Court of Appeals
regarded as precedent or cited before any                               and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
April L. Sellers
Butler & Sellers, P.C.
Elkhart, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy D. Brooks,                                        June 3, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1512-DR-2192
        v.                                               Appeal from the Elkhart Superior
                                                         Court
Katherene Gardner,                                       The Honorable Stephen R.
Appellee-Plaintiff.                                      Bowers, Judge;
                                                         The Honorable George
                                                         Biddlecome, Special Judge
                                                         Trial Court Cause No.
                                                         20D02-0502-DR-88



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016        Page 1 of 7
[1]   Jeremy D. Brooks appeals the trial court’s determination he must report to

      work release for non-compliance with a contempt order. As Brooks complied

      with the order, we reverse.


                                 Facts and Procedural History
[2]   Pursuant to divorce proceedings, Brooks and Katherene Gardner (then known

      as Katherene Brooks) entered into a Property Settlement Agreement wherein

      they stipulated Brooks would “pay . . . all [Gardner’s] student loan obligation in

      excess of eighty-five hundred ($8,500) dollars[.]” (App. at 31.) Several years

      later, following mediation, the parties agreed Brooks was to make “reasonable

      payments on the student loan to keep loan out of default and or [sic] in a matter

      [sic] that is acceptable to the creditor.” (Id. at 39.)


[3]   On May 8, 2015, Gardner filed a Motion for Contempt alleging Brooks had not

      complied with that agreement. In an order dated June 8, 2015 (“June 8

      Order”), Judge Stephen R. Bowers found Brooks in contempt, stating:

              The Court finds the Husband in contempt of court for failure to
              pay the student loan as set out in the Decree; which was further
              confirmed in mediation. The Court finds the Husband
              completely failed to follow the Court’s order regarding the
              student loan. The Court commits the Husband to the Elkhart
              County Community Corrections Program on Work Release.
              The Court defers the imposition of said commitment and orders
              the Husband to report for the execution of the commitment on
              December 11, 2015 by close of business. The Court sets the
              matter for status conference December 7, 2015 at 1:30 PM. If
              Husband provides verification the obligation has been paid in full
              or satisfactory arrangements have been made with the lender for

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016   Page 2 of 7
              payment of the obligation, the Court will further defer the
              imposition of the commitment.


      (Id. at 43) (emphasis added).


[4]   On June 23, 2015, Brooks and Gardner entered into a Rehabilitation

      Agreement (“Agreement”) with the owner of the loan, Texas Guaranteed

      Student Loan Corporation (“TG”). As part of this Agreement, Brooks and

      Gardner agreed to “make at least nine (9) timely monthly payments (during a

      ten (10) consecutive month period) in the amount of $5.00[.]” (Id. at 47.) The

      Agreement did not permit lump sum payments against future installments.


[5]   At the December 7 status hearing, with Special Judge George Biddlecome

      presiding, Brooks supplied proof of the Agreement, TG’s acceptance of same,

      and proof of timely payments to date. Gardner objected to the terms of the

      repayment as the Agreement did not remove her name from the loan. Gardner

      then began testifying as to the amount of the loan and interest and to its effect

      on her life. Brooks, through counsel, objected to such testimony as being

      evidentiary and requiring a hearing beyond the scope of the status hearing.

      Special Judge Biddlecome agreed Gardner’s additional testimony was beyond

      the scope of the hearing, found Brooks was not in compliance with the June 8

      Order, and ordered him to report to work release the following Friday. 1




      1
        On December 11, 2015, Brooks filed an Emergency Motion to Reconsider. The trial court did not rule on
      the motion. We therefore review the decision made by Special Judge Biddlecome on December 7.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016           Page 3 of 7
                                     Discussion and Decision
[6]   Gardner did not submit an appellee’s brief. In such a situation, we do not

      undertake the burden of developing arguments for the appellee. Applying a less

      stringent standard of review with respect to showings of reversible error, we

      may reverse the lower court if the appellant can establish prima facie error.

      Fisher v. Bd. of Sch. Tr., 514 N.E.2d 626, 628 (Ind. Ct. App. 1986). Prima facie, in

      this context, is defined as “at first sight, on first appearance, or on the face of

      it.” Johnson Cnty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991

      (Ind. Ct. App. 1985). Where an appellant is unable to meet that burden, we

      will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind. Ct. App. 1986), reh’g

      denied, trans. denied.


[7]   We review a contempt sentence for an abuse of discretion. An abuse of

      discretion occurs when the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before it. Mitchell v. Mitchell, 785 N.E.2d

      1194, 1198 (Ind. Ct. App. 2003). When we review a ruling on a petition for

      contempt, we do not reweigh evidence or judge the credibility of witnesses. Id.


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

      court’s authority, justice, and dignity.” Srivastava v. Indianapolis Hebrew

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

      “Willful disobedience of any lawfully entered court order of which the offender

      had notice is indirect contempt.” Francies v. Francies, 759 N.E.2d 1106, 1118

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


      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016   Page 4 of 7
[9]    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). “[A] contempt order which neither coerces compliance with a court

       order or [sic] compensates the aggrieved party for loss, and does not offer an

       opportunity for the recalcitrant party to purge himself, may not be imposed in a

       civil contempt proceeding.” Flash v. Holtsclaw, 789 N.E.2d 955, 959 (Ind. Ct.

       App. 2003), reh’g denied, trans. denied.


               In order to be held in contempt for failing to comply with a court
               order, a party must have willfully disobeyed the order. The order
               must have been so clear and certain that there could be no
               question as to what the party must do, or not do, and so there
               could be no question regarding whether the order is violated. A
               party may not be held in contempt for failing to comply with an
               ambiguous or indefinite order.


       Bandini v. Bandini, 935 N.E.2d 253, 264-65 (Ind. Ct. App. 2010) (citations and

       quotation marks omitted).


[10]   Here, the trial court abused its discretion when it ordered Brooks to report to

       work release, because Brooks complied with the requirements of the June 8

       Order. Special Judge Biddlecome stated “I – I’m not satisfied with [the

       arrangements] . . . and as far as I’m concerned Judge Bowers’ Order stands.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016   Page 5 of 7
       You go to jail on Friday. 2 . . . [I]f this doesn’t get this woman’s name of [sic]

       that loan, he’s not satisfactory.” (Tr. at 9-10) (footnote added).


[11]   Brooks has made a prima facie showing that finding was improper. The June 8

       Order deferred Brooks’ commitment to work release if he “provides verification

       the obligation has been paid in full or satisfactory arrangements have been made with

       the lender for payment of the obligation[.]” (Id. at 43) (emphasis added). At the

       December 7 hearing, Brooks submitted evidence of the Agreement, a letter from

       TG indicating it accepted the Agreement, and proof he made the agreed-on

       payments for the five intervening months. As Brooks complied with the June 8

       Order, 3 we reverse the order that Brooks report to work release. Cf. Mitchell v.

       Mitchell, 871 N.E.2d 390, 395-96 (Ind. Ct. App. 2007) (contempt proper to

       enforce compliance with court order to hold wife harmless on debt).


                                                    Conclusion
[12]   The trial court abused its discretion when it ordered Brooks to report to work

       release, as Brooks complied with the June 8 Order. Accordingly, we reverse.




       2
        We note the commitment was “to the Elkhart County Community Corrections Program on Work Release[],”
       and not to “jail” as stated by Special Judge Biddlecome. (App. at 43.)
       3
         Special Judge Biddlecome indicated he would not be satisfied until Brooks removed Gardner’s name from
       the loan. The June 8 Order required Brooks to “provide[] verification the obligation has been paid in full or
       satisfactory arrangements have been made with the lender for payment of the obligation.” (App. at 43)
       (emphasis added). It did not require him to remove Gardner’s name from the loan and, as such, the court
       could not rely on that reasoning as a justification for finding he failed to comply with the June 8 order. See,
       e.g., Bandini, 935 N.E.2d 253, 264-65 (party cannot be held in contempt for failing to obey “an ambiguous or
       indefinite order”).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016                  Page 6 of 7
[13]   Reversed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-DR-2192 | June 3, 2016   Page 7 of 7
