MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
court except for the purpose of establishing                      Jul 19 2017, 5:44 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT
Isabella H. Bravo
Monroe County Public Defender’s
Office
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

T.L.E.,                                                  July 19, 2017
Appellant,                                               Court of Appeals Case No.
                                                         53A04-1612-PO-2901
        v.                                               Appeal from the Monroe Circuit
                                                         Court
A.D.H.,                                                  The Honorable Elizabeth A. Cure,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         53C04-1610-PO-2012



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017        Page 1 of 16
                                          Case Summary
[1]   A protective order against T.L.E. was entered for the protection of A.D.H. and

      several other persons. A.D.H. filed a petition for rule to show cause, alleging

      T.L.E. to be in contempt of court for violation of the protective order. After a

      hearing, the trial court found T.L.E. to be in contempt of court, and ordered

      T.L.E. to submit to a psychological examination and, subsequently, to engage

      in a mentoring program. T.L.E. appealed.


[2]   We affirm.



                                                    Issues
[3]   T.L.E. raises four issues for our review, which we consolidate and restate these

      as the following three issues:


                I.     Whether the trial court relied on evidence outside the
                       record, thereby violating T.L.E.’s due process rights;


               II.     Whether the trial court abused its discretion when it found
                       T.L.E. in contempt of court for violation of the protective
                       order; and


              III.     Whether the trial court’s contempt sanction can be purged.


                            Facts and Procedural History
[4]   T.L.E. and A.D.H. both lived in Bloomington and had shared social circles. At

      some point, the relationship between T.L.E. and A.D.H. soured. This

      Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 2 of 16
      apparently led to fights between the two women, and to other apparent threats

      to A.D.H. and her family and friends. A.D.H. subsequently sought a protective

      order.


[5]   On October 19, 2016, the Marion Circuit Court entered an ex parte protective

      order as to A.D.H. and three other individuals. The order barred T.L.E. from

      “threatening to commit or committing acts of domestic or family violence or

      stalking” and from “harassing, annoying, telephoning, contacting, or directly or

      indirectly communicating” with A.D.H. (App’x Vol. II at 24.) The court’s

      order further enjoined T.L.E. “to stay away from the residence, school and

      place of employment” of A.D.H. (Id.)


[6]   On October 31, 2016, A.D.H. filed a petition for contempt, in which she alleged

      that T.L.E. had violated the protective order. Specifically, A.D.H. alleged that

      on October 27 and 28, 2016, T.L.E. was present with two of her friends at

      A.D.H.’s apartment complex. Upon seeing A.D.H. on the morning of October

      28, T.L.E. was alleged to have made an obscene gesture toward A.D.H. and

      her mother, after which T.L.E. got in a cab and started laughing. A.D.H. also

      alleged that T.L.E. made threatening posts on Facebook, and attached printouts

      in support of the allegation. A public defender was appointed for T.L.E. on

      November 1, 2016.


[7]   On November 14, 2016, the trial court conducted a hearing on A.D.H.’s

      petition for contempt; that hearing was recessed and continued to November

      21, 2016. During the hearing, T.L.E, A.D.H., A.D.H.’s mother, and several


      Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 3 of 16
      employees of a local cab company provided evidence and other testimony. On

      the first day of the hearing, the trial court identified certain facts that it was

      aware of from prior hearings in the matter, evidence for which facts were

      presented to the trial court prior to the appointment of a public defender. That

      day, the trial court stated that it had concluded that A.D.H. had established a

      prima facie claim for violation of the protective order, and ordered T.L.E. to

      submit to a psychological evaluation. On the second day of the hearing,

      additional evidence was submitted. At the hearing’s conclusion, the trial court

      found that T.L.E. had violated the protective order, and the court reiterated its

      instruction that T.L.E. undergo a psychological examination. A written order

      to this effect was entered on December 6, 2016.


[8]   T.L.E. underwent a psychological evaluation on December 12, 2016. The

      psychologist filed a report with the court on December 14, 2016, and filed a

      revised report on December 16, 2016. T.L.E. filed a notice of appeal on

      December 19, 2016. On December 22, 2016, the trial court entered a second

      order of contempt, which ordered T.L.E. to engage in a mentoring program.

      The court observed that the most likely source of mentoring personnel, Indiana

      University, was closed at that time, and therefore delayed further action on the

      matter until after classes resumed at the university.


[9]   This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 4 of 16
                                  Discussion and Decision
                                         Standard of Review
[10]   T.L.E. appeals the trial court’s order finding her to be in contempt of court, and

       identifies numerous issues for our review. Each of these issues—the trial

       court’s conformance to due process requirements in light of its use of evidence,

       the sufficiency of the evidence underlying the contempt order, and the propriety

       of the sanction imposed—is ordinarily subject to appellate review for an abuse

       of discretion. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012)

       (setting forth the standard of review for contempt findings); Barnhart v. State, 15

       N.E.3d 138, 143 (Ind. Ct. App. 2014) (setting for the standard of review from

       evidentiary rulings). An abuse of discretion occurs when the trial court’s

       decision is against the logic and effect of the facts and circumstances before it,

       or when the court errs on a matter of law. Agilera v. State, 862 N.E.2d 298, 302

       (Ind. Ct. App. 2007), trans. denied.


[11]   In this case, we note that A.D.H. did not file an appellee’s brief. Accordingly,

       our standard of review is modified so that we will reverse upon a showing of

       prima facie error. A.S. v. T.H., 920 N.E.2d 803, 805 (Ind. Ct. App. 2010).

       Prima facie error is defined as error “ ‘at first sight, on first appearance, on the

       face of it.’ ” Id. (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068

       (Ind. 2006)). When the appellant cannot meet this burden, we will affirm. Id.

       at 806. The purpose of this rule “is intended to relieve this court of the burden

       of controverting the arguments advanced for reversal where this burden rests


       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 5 of 16
       with the appellee.” AmRhein v. Eden, 779 N.E.2d 1197, 1206 (Ind. Ct. App.

       2002).


[12]   T.L.E.’s arguments throughout rely upon our indirect contempt statute. The

       Indiana Code provides:


                A person who is guilty of any willful disobedience of any process,
                or any order lawfully issued:


                (1) by any court of record, or by the proper officer of the court;


                (2) under the authority of law, or the direction of the court; and


                (3) after the process or order has been served upon the person;


                is guilty of an indirect contempt of the court that issued the
                process or order.


       Ind. Code § 34-47-3-1. A person charged with indirect contempt of court is

       entitled to service of process of a rule to show cause, which must set forth the

       facts alleged to constitute contempt, specify the time and place of the facts with

       reasonable certainty, and specify a time and place for where the person must

       show cause why contempt should not attach. I.C. §§ 34-47-3-5(a) & (b). Upon

       a proper showing at the time and place at which a person must show cause, the

       court shall give the person “a reasonable and just opportunity to be purged of

       the contempt.” I.C. § 34-47-3-5(c). If a person accused of contempt “does not

       sufficiently deny, explain, or avoid the facts set forth in the rule, so as to show

       that no contempt has been committed, the court may proceed to attach and

       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 6 of 16
       punish the defendant for contempt” by means of a fine, imprisonment, or both.

       I.C. § 34-47-3-6(c). A defendant who appears to respond to the rule to show

       cause may appeal in the same manner as in cases of direct contempt, set forth in

       Indiana Code section 34-47-2-5. I.C. § 34-47-3-6(d).


                                            Use of Evidence
[13]   T.L.E.’s first argument on appeal claims that the trial court abused its discretion

       when, during the hearings on the contempt petition, it relied upon facts known

       to it prior to the fact-finding hearings on the contempt petition. T.L.E. directs

       our attention to specific statements by the trial court to support this contention.


[14]   T.L.E. contends that the trial court erred when, at the beginning of the hearing,

       “the trial court ‘referred’ to records made in other cases, so the Petitioner did

       not have to repeat her testimony.” (Appellant’s Br. at 18.) The court stated,

       “Okay, and I’m going to let, just refer to the, to the record in the other case

       rather than have her say it all over again.” (Tr. at 4.) T.L.E. contends that this

       was an inappropriate use of judicial notice under Evidence Rule 201, which

       permits the court to take notice of “the existence of … records of a court of this

       state,” Ind. Evidence Rule 201(a)(2)(C), and of “a law, which includes …

       records of a court of this state.” Evid. R. 201(b)(5). However, T.L.E. argues

       that given the circumstances of the appointment of counsel—after the filing of a

       contempt petition, when the records referred to came from other cases—she

       was “left to guess what these facts were and whether these facts were stated in




       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 7 of 16
       witness testimony” such that cross-examination could be conducted.

       (Appellant’s Br. at 19.)


[15]   T.L.E. also catalogs statements by the trial court concerning prior instructions

       to the parties or prior events in the case. These include statements like, “I

       couldn’t have been clearer about what she [T.L.E.] needed to do to stay out of

       trouble” (Tr. at 5), “you’re asking me to let [go] the person that’s central at

       every one of these [incidents of threats of violence against A.D.H.]” (Tr. at 22),

       “She brought her whole gang here every other time” (Tr. at 55), and “They’ve

       [T.L.E.’s friends] all been standing there giving me the stink eye for two

       weeks.” (Id.) T.L.E. also brings the trial court’s attempts to reconcile dates and

       times of court proceedings under scrutiny. In sum, T.L.E. contends that all of

       this amounted to references to “facts not found otherwise in the record” that

       prevented T.L.E. from being placed on notice of the time and facts that could

       constitute contempt of court. (Appellant’s Br. at 21.)


[16]   We find no grounds for reversal here, even under the prima facie error standard

       provided for by our standard of review in the absence of an appellee’s brief.

       T.L.E. at no point objected to any of the trial court’s statements. It is well

       established that failure to make a contemporaneous objection results in waiver

       of a contention upon appeal. See, e.g., Dilts v. State, 49 N.E.3d 617, 628 (Ind.

       Ct. App. 2015) (reiterating the rule that failure to object to specific testimony,

       “let alone offer an objection that mirrors” an argument upon appeal, resulted in

       waiver of appellate review). Having failed to present the question of error to the

       trial court, T.L.E. cannot now be heard to complain about possible error.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 8 of 16
       Moreover, our review of the record indicates that the trial court’s decision

       regarding contempt relied on the testimony presented at the hearing, including

       testimony from A.D.H. and her mother, two cab drivers, the owner of the cab

       company, and T.L.E.’s mother and stepfather, and the trial court’s announced

       rationale related directly to the question put in issue by A.D.H.’s petition:

       T.L.E.’s contact with A.D.H. on October 27 and 28, 2016.


[17]   With respect to the facts that might constitute contempt, the trial court was

       clear throughout: the testimony adduced at the hearing was intended to

       determine the truth of A.D.H.’s claims concerning her interactions with T.L.E.

       during October 27 and 28, 2016. Indeed, early in the hearing, the trial court

       stated that A.D.H. had established a prima facie case that T.L.E. had been

       present during October 27 and 28, and that T.L.E. had personally made an

       obscene gesture at A.D.H. This included the court stating, “I think it’s more

       likely than not that [T.L.E.] was there. That [A.D.H.] saw her and she flipped

       her off … she was there and she looked at [A.D.H.] and she gave her the finger

       and she knew better.” (Tr. at 13.) The court even directly told T.L.E., “I

       believe you were over there giving people the finger.” (Tr. at 25.)


[18]   We accordingly find that T.L.E. has failed to carry the burden of proving that

       the trial court’s decisions amounted to prima facie error, let alone error

       implicating her due process rights.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 9 of 16
                                  Sufficiency of the Evidence
[19]   T.L.E. also argues that the evidence presented at the hearing was insufficient to

       prove that she violated the protective order as to A.D.H. T.L.E.’s argument

       takes on two forms: first, she contends that she simply did not violate the

       protective order’s terms; second, she contends that there was insufficient

       evidence of willful violation of the protective order.


[20]   With respect to the first of these arguments, T.L.E.’s contentions boil down to a

       reweighing of the evidence. T.L.E. attacks A.D.H.’s credibility as to specific

       dates, summarizing this argument as “[A.D.H.] did not know what date she

       allegedly saw the respondent” because of alleged confusion concerning the date

       of a petition vis-à-vis the date of the incident. (Appellant’s Br. at 23.)

       Nevertheless, A.D.H. consistently identified the incident itself as having

       occurred on October 27 and 28, 2016. S.H.’s testimony identified October 28,

       2016, as the day on which A.D.H. sought a protective order against another

       person, not the day on which A.D.H. sought a contempt finding against T.L.E.

       To the extent T.L.E. attempts to cast doubt on A.D.H.’s testimony, we note

       that in sufficiency challenges “we neither reweigh the evidence nor judge the

       credibility of witnesses,” even upon a claim of prima facie error. Tisdial v. Young,

       925 N.E.2d 783, 785 (Ind. Ct. App. 2010). We decline T.L.E.’s invitation to

       reweigh the evidence on this point.


[21]   We note as well that T.L.E.’s argument emphasizes her own testimony and that

       of her witnesses. Here, T.L.E. makes additional arguments concerning the


       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 10 of 16
       weight and credibility of the evidence, preferring her own witnesses’ statements

       and their implications. However, the trial court expressly found A.D.H.’s

       testimony to be credible and did not credit the theory of the case presented by

       T.L.E.


[22]   The same reweighing problems hold true for the contention that there was no

       willful disobedience of the protective order. T.L.E. makes such arguments as,

       “[t]here was no order that Respondent was not permitted to be in that

       [A.D.H.’s] parking lot,” and, “There were other people present. The

       Respondent gestured within the group.” (Appellant’s Br. at 25.) Yet testimony

       from A.D.H. and her mother are explicit that T.L.E. was with several other

       people, and that T.L.E. made an obscene gesture at A.D.H. A.D.H. testified,

       “We just looked over there. They flipped us off, laughed and got in the taxi and

       left. She didn’t say anything. She didn’t, all she did was flip off.” (Tr. at 12.)

       A.D.H.’s mother, S.H., testified, “So when they came out [of] the house, they

       kind of like came at the same time with [T.L.E.] going like this. And her

       mother just started laughing.” (Tr. at 68.)


[23]   The protective order by its very terms prohibited any manner of contact with

       A.D.H. and S.H.; the evidence presented by A.D.H. and S.H. was that T.L.E.

       directly and intentionally communicated with them. The trial court was free to

       credit this evidence over that to which T.L.E. directs our attention on appeal.

       We are not free to reassess this determination, see Tisdial, 925 N.E.2d at 785,

       and we accordingly find no insufficiency of the evidence.



       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 11 of 16
                           Whether Contempt Can be Purged
[24]   We turn to the last of T.L.E.’s contentions. T.L.E. argues that the trial court’s

       chosen sanction precludes her from purging the contempt associated with

       violation of the terms of the protective order. “Sanctions in a civil contempt

       proceeding may seek both to coerce behavior and to compensate an aggrieved

       party.” Norris v. Pethe, 833 N.E.2d 1024, 1031 (Ind. Ct. App. 2005). A court

       may impose a fine, imprisonment, or both. I.C. § 34-47-3-6(c). The purpose of

       imprisonment is to coerce compliance with the court’s order that the

       contumacious party has violated through prior noncompliance. Id. “Penalties

       designed to compel future compliance with a court order are considered to be

       coercive and avoidable through obedience.” Id.


[25]   Here, on November 14, 2016, after the first portion of the hearing on A.D.H.’s

       petition for contempt, the trial court stated that it believed A.D.H.’s claims

       concerning T.L.E.’s conduct. The court ordered that T.L.E. be “remand[ed]”

       to the Monroe County Jail pending the completion of a psychological profile,

       but the court then suspended its order so that T.L.E. could produce witnesses in

       the proceeding. (Tr. at 26.) After the second part of the hearing, which was

       conducted on November 21, 2016, the trial court found T.L.E. to be in

       contempt of court and reiterated its order that she submit to a psychological

       evaluation. The trial court stated that the reason for ordering the psychological

       evaluation was to determine whether T.L.E.’s conduct was the result of

       behavioral or psychological issues (Tr. at 26), and to “get [T.L.E.]

       psychological help.” (Tr. at 87.)

       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 12 of 16
[26]   The psychological evaluation was conducted on December 12, 2016. In the

       meantime, the trial court left the order for incarceration suspended, so that

       T.L.E. was not incarcerated at any point after November 14, 2016. After the

       psychological evaluation was completed and submitted to the trial court, the

       court ordered T.L.E. to participate in a mentoring program. The court noted,

       however, that the likeliest source for a mentor—Indiana University—was at

       that time not conducting classes, and thus starting the mentoring program

       would be delayed until January 2017.


[27]   It is this sequence of events—ending with the trial court’s order of December

       22, 2016—that T.L.E. argues has imposed upon her a contempt sanction that

       she cannot purge herself of. Specifically, T.L.E. identifies the suspended

       custody remand order as “indefinite” and the mentoring program as lacking

       parameters. (Appellant’s Br. at 26.) The “indefinite” characterization of the

       custody remand arose during a conversation between T.L.E.’s counsel and the

       trial court:

               [COURT]: Um, you’re trying to convince me that I made an
               error when I, um, sentenced her to jail the other day.


               [COUNSEL]: Um, and when you say sentenced her, you mean-


               [COURT]: -I mean remanded her, okay?


               [COUNSEL]: Well, no, no, no, I just mean, um, for, for the
               purposes of this I’d like to hold her for the purposes of the
               psychological evaluation. That’s what you meant, right?


       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 13 of 16
               [COURT]: Yes-


               [COUNSEL]: okay-


               [COURT]: -when I remanded her to jail for an indefinite period
               of time until we can get her in compliance, ready to be in
               compliance with this protective order because I found it more
               likely than not that she had willfully violated.


       (Tr. at 33-34.)


[28]   Thus, while the trial court identified the term as “indefinite” on November 21,

       2016, that term of imprisonment was imposed and suspended for the duration

       of the proceedings on November 14, 2016, and was expressly entered “until we

       can get a psychological profile of [T.L.E.].” (Tr. at 26.) The suspension was

       subject to revocation if subsequent allegations of T.L.E. violating the protective

       order were reported to the court pending the second portion of the hearing.

       (Id.) Contrary to T.L.E.’s argument, then, it is not the case that T.L.E. faced an

       open-ended term of imprisonment for contempt of court with no possibility of

       purging contempt. Rather, the (ultimately unexecuted) order for imprisonment

       would last until the psychological evaluation was completed, so that the court

       could determine what remedies to order so that T.L.E. could comply with the

       protective order—and that term of imprisonment was itself suspended.


[29]   With respect to the trial court’s order that T.L.E. participate in mentoring, we

       cannot say that the trial court has imposed an indefinite requirement upon

       T.L.E. for purging contempt, because it is clear from the order’s language that


       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 14 of 16
the sanction was not final—and, again, because T.L.E. was not imprisoned as a

consequence of the order. Following the completion of the psychological

evaluation, which the trial court made clear was itself an intermediate step

toward determining an appropriate contempt sanction, the trial court entered

the following order:


        The Court is now in receipt of Dr. Nolen’s careful and thoughtful
        evaluation. In view of his recommendations, the Court will
        attempt to secure a mentor for [T.L.E.]. [T.L.E.] will then need
        to cooperate with the mentor in helping her get the assistance she
        needs to stay in compliance with this Court’s Order of
        Protection. As IU is the most likely source of a mentor and
        because they are on Winter Break, this process will be on hold
        until after the first of the year.


(App’x Vol. II at 67.) The mentoring order as entered did not yet constitute a

sanction. Further, the suspended sentence is in any event intended to coerce

T.L.E. into complying with the protective order, so that it is not punitive. See

MacIntosh v. MacIntosh, 749 N.E.2d 626, 631-32 (Ind. Ct. App. 2001) (holding

that a suspended sentence imposed to coerce a parent’s compliance with a

parenting time order was not punitive), trans. denied. Accordingly, we cannot

say that the trial court’s sanction is one that is incapable of being purged or that

is otherwise purely punitive in nature. We find no abuse of discretion with

respect to the trial court’s sanction.




Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 15 of 16
                                               Conclusion
[30]   The trial court did not abuse its discretion in the use of evidence, in its finding

       that T.L.E. was in contempt of court, or in its decision on sanctions.


[31]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1612-PO-2901 |July 19, 2017   Page 16 of 16
