      MEMORANDUM DECISION
                                                                        Feb 13 2015, 9:17 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
      Robert Middleton                                         Matthew A. Burkert
      Lizton, Indiana                                          Danville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Robert Middleton,                                        February 13, 2015

      Appellant-Respondent,                                    Court of Appeals Cause No.
                                                               32A01-1410-DR-431
              v.                                               Appeal from the Hendricks Superior
                                                               Court
                                                               The Honorable David H. Coleman,
      Paula Pyatte,                                            Special Judge
      Appellee-Petitioner.                                     Cause No. 32D02-1401-DR-58




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Respondent Robert Middleton and Appellee-Petitioner Paula Pyatte

      (collectively “the parties”) are divorced. A protracted litigation has ensued over

      the past four years to determine custody and parenting time arrangements

      regarding the parties’ minor child (“the child”). On September 22, 2014,

      Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015    Page 1 of 10
      Middleton was found in contempt for a second time for failure to pay child

      support. Middleton appeals the trial court’s order holding him in contempt.

      Pyatte alleges that Middleton’s appeal is frivolous, was pursued in bad faith,

      and violates the Indiana Rules of Appellate Procedure. We affirm the trial

      court’s order and remand with instructions to determine Pyatte’s appellate

      attorney’s fees.



                            Facts and Procedural History
[2]   On January 14, 2010, the parties’ marriage was dissolved and the trial court

      issued orders on custody, parenting time, and child support. On April 22, 2011,

      Middleton requested a level II parenting time coordinator, which was granted

      by the trial court. Pyatte and Middleton filed competing motions to modify

      custody on September 22, 2011 and October 4, 2011, respectively. The trial

      court issued a custody order dated October 1, 2012 and appointed a level III

      parenting coordinator.


[3]   On January 3, 2013, Pyatte filed a motion requesting that Middleton show

      cause for failure to pay child support and not cooperating with the court

      ordered parenting time coordinator. A hearing on the motion was set for

      March 7, 2013. Middleton filed and received a continuance postponing the

      hearing until June 24, 2013. On June 4, 2013, Pyatte filed a motion requesting

      a modification of custody and to appoint a guardian ad litem (“GAL”). On July

      1, 2013, the trial court conducted the hearing on the issue of non-payment of

      child support and, in a subsequent order, appointed a GAL, found that

      Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 2 of 10
      Middleton was in arrears on his child support payments in the amount of

      $2270.00, held him in contempt, and set a hearing on the modification of

      custody for October 17, 2013. After Middleton filed a motion for continuance,

      the hearing on modification was reset for January 23, 2014.


[4]   On December 3, 2013, Pyatte filed a motion to compel Middleton to comply

      with discovery. On December 16, 2013, the GAL requested that Middleton

      undergo a psychological evaluation in advance of the January 23, 2014 hearing.

      After a hearing addressing the motion to compel discovery and the request for

      evaluation, the trial court ordered Middleton to comply with discovery but

      denied the psychological evaluation request so as not to delay the modification

      hearing.


[5]   On December 24, 2013, Middleton took the child in violation of the parenting

      time schedule and filed an emergency motion for sole protective child custody,

      which the trial court denied. On December 27, 2013, Pyatte filed a motion

      requesting that Middleton show cause for violating the parenting time schedule

      and requesting law enforcement assistance to enforce the parenting time

      schedule. On January 3, 2014, the trial court conducted an emergency hearing

      and ordered Middleton to return the child to Pyatte. Following the January 3,

      2014 hearing, Middleton filed a request for change of judge. On January 10,

      2014, the parenting time coordinator filed a notification of withdrawal due to

      “the absence of Mr. Middleton’s good faith and involvement in the process.”

      Appellee’s App. p. 74.



      Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 3 of 10
[6]   On January 17, 2014, the trial court judge, Mark A. Smith, recused himself and

      vacated the January 23, 2014 modification hearing. In his final order, Judge

      Smith noted the reasons for his recusal including that Middleton had made

      impliedly threatening statements and repeated allegations that Judge Smith, the

      GAL, the parenting time coordinator, and the attorneys had engaged in

      unethical and unlawful conduct. On January 29, 2014, Special Judge David H.

      Coleman was randomly selected and assigned to this case. On February 18,

      2014, the trial court reset the modification hearing for April 25, 2014. Between

      April 17, and September 26, 2014, Middleton filed nine motions for

      continuance resulting in the modification hearing ultimately being rescheduled

      for December 3, 2014.


[7]   On June 11, 2014, Pyatte filed a motion requesting Middleton to show cause for

      nonpayment of child support and failure to reimburse unpaid medical bills. On

      August 8, 2014, the GAL filed, and the trial court granted, a renewed request

      for Middleton to undergo a psychological evaluation citing the fact that

      “[Middleton’s] allegations have turned from calm and matter-of-fact to hostile

      and irrational.” Appellant’s App. p. 131. On September 18, 2014, the trial

      court held a hearing on the issues of child support and unpaid medical expenses

      and subsequently issued an order holding Middleton in contempt. The trial

      court found that Middleton had failed to pay $330.26 of the child’s medical

      expenses and had not made any child support payments since October 16, 2013

      and was in arrears in the amount of $6431.00.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 4 of 10
[8]   On September 29, 2013, the GAL withdrew from the case due to allegedly

      defamatory statements made by Middleton who claimed that there is an

      “ongoing criminal conspiracy by Judge David H. Coleman [], Judge Mark A.

      Smith [], [Appellee’s counsel], and attorney/GAL Kathryn M. Kuehn[],” who

      “are in collusion against [Middleton].” Appellee’s App. pp. 150, 152. On

      October 6, 2014, Special Judge Coleman recused himself and vacated the

      October 20, 2014 modification hearing. On October 9, 2014, Middleton

      appealed the trial court’s order of contempt.



                                Discussion and Decision
                           I. Order on Petition for Contempt
[9]   Middleton argues that the trial court’s order finding him in contempt was

      unlawful in that it provided for a punishment–imprisonment–which is not

      permitted under Indiana law. To support this argument, Middleton cites to

      Indiana Code section 31-16-12-6 which provides that a trial court may order a

      party found in contempt for failure to pay child support to “(1) perform

      community restitution or service without compensation in a manner specified

      by the court; or (2) seek employment.” However, Middleton misinterprets the

      statute as providing the only permissible remedial measures available to a trial

      court. In Indiana, imprisonment is a proper punishment for contempt in failing

      to make child support payments so long as the contempt order provides the

      recalcitrant party with an opportunity to purge himself of contempt by



      Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 5 of 10
       complying with the order. Marks v. Tolliver, 839 N.E.2d 703, 707 (Ind. Ct. App.

       2005).


[10]   The trial court’s order for contempt provided Middleton with an opportunity to

       purge himself by complying with the order. “The court stays the execution of

       the sentence upon the condition that the respondent pay the petitioner for past

       due child support in the amount of $6,431.00 and $330.26 for uninsured

       medical expenses within 45 days….” Appellant’s App. p. 153. As such, the

       trial court was within its discretion to impose imprisonment as a penalty for

       non-payment.


[11]   Middleton also argues that the contempt order was not supported by sufficient

       evidence. “We defer to the trial court’s findings of fact unless they are clearly

       erroneous, and we will not reweigh the evidence.” Robinson v. State, 5 N.E.3d

       362, 365 (Ind. 2014) (citing Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008)).

       Middleton contends that he is financially unable to make the payments required

       by the order. “Contempt is not appropriate unless the parent has the ability to

       pay the support due and his failure to do so was willful.” Pettit v. Pettit, 626

       N.E.2d 444, 448 (Ind. 1993). However, the court did address this contention in

       its order as follows:

                The respondent stated that he cannot afford to pay child support
                because he has to run ads for his business, pay for day-care expenses
                for [the child] and pay for karate lessons for [the child]. However, he
                admitted that he has run no ads during 2014, that he is not paying for
                day-care for [the child], and his mother ([the child’s] grandmother) has
                paid for karate lessons. The respondent stated that he needs child
                support modified. The respondent did not submit any profit and loss

       Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 6 of 10
               statements, bank account statements or any other evidence concerning
               his business income. The court could find no pleading filed by the
               respondent requesting a modification of child support since [summer
               of 2013].


       Appellant’s App. p. 152. In light of this, Middleton is essentially asking this

       court to reweigh the evidence, which we will not do. Robinson, 5 N.E.3d at 365.


                                         II. Attorney’s Fees
[12]   Pyatte claims that she is entitled to attorney’s fees pursuant to Indiana

       Appellate Rule 66(E). “A strong showing is required to justify an award of

       appellate damages and the sanction is not imposed to punish mere lack of merit

       but something more egregious.” Ballaban v. Bloomington Jewish Cmty., Inc., 982

       N.E.2d 329, 340 (Ind. Ct. App. 2013).

               Our discretion to award attorney fees under Indiana Appellate Rule
               66(E) is limited, however, to instances when an appeal is permeated
               with meritlessness, bad faith, frivolity, harassment, vexatiousness, or
               purpose of delay. Additionally, while Indiana Appellate Rule 66(E)
               provides this Court with discretionary authority to award damages on
               appeal, we must use extreme restraint when exercising this power
               because of the potential chilling effect upon the exercise of the right to
               appeal.
                       Indiana appellate courts have formally categorized claims for
               appellate attorney fees into “substantive” and “procedural” bad faith
               claims. To prevail on a substantive bad faith claim, the party must
               show that the appellant’s contentions and arguments are utterly devoid
               of all plausibility. Procedural bad faith, on the other hand, occurs
               when a party flagrantly disregards the form and content requirements
               of the rules of appellate procedure, omits and misstates relevant facts
               appearing in the record, and files briefs written in a manner calculated
               to require the maximum expenditure of time both by the opposing
               party and the reviewing court. Even if the appellant’s conduct falls
               short of that which is “deliberate or by design,” procedural bad faith

       Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 7 of 10
               can still be found. Finally, we note that even pro se litigants are liable
               for attorney’s fees when they disregard the rules of procedure in bad
               faith.


       Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003) (citations

       omitted). “[W]hen reviewing the question of whether attorney fees should be

       imposed as a sanction for failure to follow the rules of appellate procedure, we

       can cut the [pro se litigants] no slack simply because they have no formal legal

       training.” Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct. App. 1990).


[13]   Pyatte argues that Middleton’s appeal is frivolous, filed in bad faith, and was

       pursued to further delay the trial court’s modification hearing, which has now

       been delayed nearly sixteen months. In light of Middleton’s eleven motions for

       continuance in 2014 alone, several other seemingly frivolous motions, and

       repeated violations of court orders, we are inclined to agree with Pyatte’s

       claims. Pyatte’s argument is also supported by statements from former Special

       Judge Smith, the GAL, and the parenting time coordinator, which indicate that

       Middleton’s agenda with this litigation has become increasingly hostile and

       seemingly defamatory.


[14]   Furthermore, Middleton’s appeal has fulfilled every prerequisite of procedural

       bad faith. As we address in a separate order, Middleton raised several

       additional issues in his appeal which were dismissed due to a failure to follow




       Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 8 of 10
       the Indiana Rules of Appellate Procedure.1 Middleton’s statement of the facts

       and statement of the case contain substantive arguments and are replete with

       statements that are unsupported by the record and/or have no bearing on the

       issues raised. Three of the seven Argument subsections in Middleton’s brief are

       wholly unrelated to the appealed orders and repeatedly request this court to

       award Middleton full custody of the child, despite the fact that he appeals no

       trial court orders dealing with custody. Throughout his brief, Middleton

       repeatedly alleges, without any basis, that the trial court, GAL, and other court

       officers are “overwhelmingly biased and prejudiced” in favor of Pyatte and that

       the trial court has actively protected Pyatte and enabled other court officers to

       engage in fraudulent “character assassinations of [Middleton].” Appellant’s

       App. 2.


[15]   Finally, Middleton’s appendix was severely deficient and included a large

       amount of unsubstantiated and inappropriate information not offered at the

       trial court. Middleton also failed to include several important trial court

       documents in his appendix. As such, Pyatte was compelled to file her own 193-




               1
                  Middleton filed this appeal pursuant to Appellate Rule 14(A) governing interlocutory appeals as a
       matter of right. The trial court’s order of contempt is appealable as of right under Rule 14(A)(1). However,
       Middleton attempted to appeal three other trial court orders which were not appealable as a matter of right
       (order for psychological assessment, order setting emergency hearing, and order for selection of special
       judge).

       Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015            Page 9 of 10
       page appendix to fill in the gaps and provide this court with an adequate record

       to review. Middleton’s violations substantially impeded this court’s ability to

       expeditiously consider his allegations of error by requiring us to parse through a

       disordered appendix and piece together his defective and clearly hostile

       arguments.


[16]   Middleton’s noncompliance with our rules of appellate procedure is substantial,

       permeates his entire brief, and has hindered our review of his contentions of

       error on appeal. Keeping in mind our duty to use great restraint when

       determining whether an award of appellate attorney fees is warranted, we

       nonetheless find that such an award is appropriate under the facts of this case.

       Thacker, 797 N.E.2d at 347-48 (finding procedural bad faith where appellant’s

       brief contained many appellate rules violations including argument in the

       statement of case and statement of facts); see also Srivastava v. Indpls. Hebrew

       Congregation, Inc., 779 N.E.2d 52, 61 (Ind. Ct. App. 2002) (finding award of

       appellate attorney fees appropriate where pro se appellant failed to present

       cogent arguments and brief was permeated with unsubstantiated accusations).

       Accordingly, we remand this cause to the trial court with instructions to

       calculate the amount of reasonable appellate attorney fees Pyatte is entitled to

       recover.


[17]   Affirmed and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 32A01-1410-DR-431|February 13, 2015   Page 10 of 10
