      MEMORANDUM DECISION
                                                                        Jul 16 2015, 8:43 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.



      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Stacy L. Kelley                                            William O. Harrington
      Glaser & Ebbs                                              Harrington Law, P.C.
      Indianapolis, Indiana                                      Danville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Lee Thompson,                                 July 16, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                32A04-1412-JP-556
              v.
                                                                Appeal from the Hendricks Superior
      Natasha Nicole Smith,                                     Court
                                                                The Honorable David H. Coleman,
      Appellee-Respondent,                                      Judge
                                                                Cause No. 32D02-1303-JP-30




      Robb, Judge.



                                 Case Summary and Issue
[1]   In this paternity proceeding, Christopher Thompson (“Father”) was ordered on

      August 12, 2014, to pay child support through an Income Withholding Order

      which Father’s counsel was ordered to submit to the court within seven days.


      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015      Page 1 of 13
      When counsel failed to do so, Mother’s counsel filed a Motion for Rule to

      Show Cause and ultimately, the trial court ordered Father’s counsel to pay

      attorney’s fees to Mother’s counsel for securing compliance with the August 12

      order. Father’s counsel1 now appeals the trial court’s order, raising two issues

      which we consolidate as one: whether the trial court abused its discretion in

      holding her in contempt and imposing a sanction. Concluding the trial court

      did not abuse its discretion as the record supports a finding of willful

      disobedience of a court order and the payment of attorney’s fees incurred by the

      opposing side is appropriate compensation, we affirm.



                              Facts and Procedural History
[2]   Natasha Smith (“Mother”) gave birth to L.T. in 2009. Father’s paternity of

      L.T. was established by court order in October of 2013. As part of the paternity

      decree, Father’s child support obligation was set dating back to March 2013

      when he filed his petition for paternity. He was ordered to pay $200 per week,

      which included both his basic child support obligation of $153.10 and an

      additional $46.90 toward an arrearage of $4,899.20. Father’s basic obligation

      was to be reduced to $129.60 when he began exercising parenting time, which

      he did in April of 2014.




      1
       Although Father and Mother are the parties to this action, the trial court’s order is directed to Father’s
      counsel only, and as such, she is the person appealing the order.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015                 Page 2 of 13
[3]   In January of 2014, Mother filed a Motion for Proceedings Supplemental and a

      Verified Contempt Petition because of Father’s failure to pay child support.

      From the date of the paternity decree to August 8, 2014, Father paid a total of

      $1,665.00 in child support. The trial court held a hearing on August 11, 2014

      on these two motions. Mother was represented at this hearing by William

      Harrington and Father was represented by Stacy Kelley. The trial court issued

      an order on August 12, 2014 which found Father in contempt of the paternity

      decree for failure to pay child support as ordered, established Father’s arrearage

      as of August 8, 2014 as $9,311.20, and ordered:

              Within seven (7) days of the date of this Order, Father’s counsel shall
              submit an Income Withholding Order to the Court directed to Father’s
              employer directing the withholding of child support payments as
              follows:
                       a. Current weekly child support in the amount of $129.60 per
                       week; and
                       b. A weekly arrearage payment in the amount of $70.40 per
                       week, until the arrearage in the amount of $9,311.20 is paid in
                       full.
      Appellant’s Appendix at 22.


[4]   On September 4, 2014, Mother filed a Verified Motion for Rule to Show Cause,

      alleging that as of that date, no Income Withholding Order had been submitted

      to the trial court. The motion stated that Harrington had contacted Kelley by

      email on August 29 to inquire about the status of the Income Withholding

      Order but received no response. Harrington then contacted the court to inquire

      whether the Chronological Case Summary (“CCS”) reflected the submission of



      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 3 of 13
      an Income Withholding Order and was informed that it did not.2 The motion

      averred Father and/or Kelley were in contempt for failure to submit the Income

      Withholding Order and requested a hearing at which Father and Kelley be

      ordered to appear and show cause why they should not be found in contempt.

      The trial court scheduled a hearing for September 22, 2014 at 8:45 a.m. and

      ordered Father and Kelley to appear.


[5]   On September 8, 2014, Kelley sent an email to Harrington in which she advised

      that she “faxed the [Income Withholding Order and [August 12, 2014] Order

      directly to [Father’s] employer . . . on August 25, 2014. [Father] confirmed . . .

      that they had received the [Income Withholding Order] and would begin

      deducting child support amount and the arrears amount with the next pay

      period.” Id. at 57. On September 11, 2014, Father filed with the trial court a

      Notice of Submission of Income Withholding Order/Notice of Support to

      [Father’s] Employer. Attached to the Notice was a document titled “Income

      Withholding for Support” which was signed by Kelley in the spot for

      “Signature of Judge/Issuing Official” and dated August 25, 2014. Appellant’s

      App. at 33. The Notice also stated:

                 Subsequently, [Father] verified with his employer that child support
                 would be deducted pursuant to the IWO/Notice of Support and the
                 Courts [sic] underlying Court Order beginning the next pay period.
                 The undersigned counsel verified with the Hendricks County Child
                 Support Office that a child support payment for the benefit of the child




      2
          As this is a “JP” case, the CCS was not available to Harrington online.


      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 4 of 13
              in the amount of $200 by income withholding was made on September
              5, 2014.
      Id. at 29.    On September 16, 2014, Harrington sent an email to Kelley in which

      he stated, “If an Income Withholding Order is not submitted to [the trial court]

      for his signature this week, I intend to move forward with the Show Cause

      hearing next Monday.” Id. at 60. On September 19, 2014, a Friday, Father

      filed by fax an Income Withholding Order for the trial court’s signature. The

      trial court apparently signed the order on September 20, 2014.


[6]   Harrington appeared for the September 22, 2014 show cause hearing, but

      Father and Kelley did not. The following proceedings ensued:

              Harrington: Judge, I represent [Mother] . . . the payee on child
              support. And you issued an order back on August 12, part of which
              required Counsel for Father within seven days of the date of that order
              to submit an Income Withholding Order to the Court directed to
              Father’s employer. Uh, when that didn’t happen I started a series of
              email communications with Ms. Kelley who is counsel for Father. . . .
              Uh, all of my email correspondence with her which began on August
              29 saying hey, didn’t get the Income Withholding Order, uh, have you
              submitted one to the Court. And, uh I didn’t get a response. Two
              weeks later I sent another email and I finally got a response from
              Counsel saying that she had prepared an Income Withholding Order
              that she had signed as an officer of the Court and she had submitted to
              the employer. And I said well, I don’t think that’s proper. You know,
              I’ve reviewed the rules; I think the only people who can sign Income
              Withholding Orders are the Judge or under limited circumstances the
              Title IV-D Office. Uh, and then just asked her if you would please just
              submit an Income Withholding Order. And she responds and says
              well, the employer is withholding. And I said that’s great that they’re
              voluntarily withholding but I have no order. The reason you have an
              Income Withholding Order is so I have something to enforce, if you
              would please just submit an Income Withholding Order to the Court.
              . . . And then without hearing anything from opposing counsel, I find

      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 5 of 13
              out when I get to court this morning that she faxed an Income
              Withholding Order to the Court on Friday which I’m glad she finally
              did.
              The Court: It looks like I signed it . . . Saturday, I think.
              Harrington: Uh, but there is an order requiring her to appear and show
              cause and she’s not here. And I’m not trying to make trouble, Judge,
              but I’ve spent more than two hours of time just trying to get her to
              comply with the Court Order and she finally did it on a Friday without
              even telling me . . . .
              Bailiff: Judge, she has called in now this morning when I ran out to
              make a copy and she thought that would vacate the order – the hearing
              and that’s why she said she didn’t appear.
              Harrington: And, Judge, if she had called me on Friday and said, Bill,
              I’m submitting the Income Withholding Order, I probably would have
              asked you to vacate the hearing . . . .
      Transcript at 3-5. Harrington stated he had a total of $649.00 in fees associated

      with this matter. The trial court ordered Kelley to pay Harrington’s $649.00 in

      attorney’s fees “for his time and for her failure to comply with the Court’s

      Order.” Id. at 6. A written order of the same date states:

              The Court, having reviewed the Motion for Rule to Show Cause,
              having heard the testimony of counsel for [Mother], and being
              otherwise duly advised in the premises, now finds that Attorney Kelley
              should be ordered to pay [Mother’s] counsel, William O. Harrington,
              $649.00 for attorney’s fees incurred in attempting to secure Attorney
              Kelley’s compliance with the Order on August 11, 2014 Hearing
              relating to the preparation and timely submission of an Income
              Withholding Order.
      Appellant’s App. at 15.


[7]   Also on September 22, 2014, the trial court received an Emergency Motion to

      Participate by Phone from Kelley, in which she moved to participate in the

      September 22, 2014 hearing by phone “as the undersigned counsel believed the

      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 6 of 13
      hearing was vacated given the Income Withholding/Notice of Support has been

      in effect since August 25, 2014 and an additional Income Withholding/Notice

      of Support was submitted to the Court via facsimile on September 19, 2014.”

      Appellant’s App. at 45. The trial court denied the motion because “it was

      received at 9:41 a.m. when the hearing was at 8:45 a.m.” Id. at 13. Kelley later

      explained in an affidavit that she had called the court at 8:40 a.m. on September

      22, 2014, to verify the hearing had been vacated. Upon learning it was not, she

      prepared her emergency motion to fax to the court but discovered her office fax

      machine was broken. She then attempted to secure local counsel in Hendricks

      County but was unsuccessful. She was finally able to fax her emergency

      motion from a neighboring business. See Appellant’s App. at 54-55.


[8]   On October 22, 2014, Kelley filed a Motion to Correct Errors in which she

      alleged that the trial court’s order that she pay attorney’s fees was in error

      because the trial court did not make a finding of contempt against her or Father

      and there was no basis for such order. Mother filed a statement in opposition

      and requested additional attorney’s fees of $442.50 associated with responding

      to the motion to correct errors. The trial court denied the motion to correct

      errors and ordered Kelley to pay Harrington an additional $442.50 in attorney’s

      fees. Kelley now appeals.




      Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 7 of 13
                                  Discussion and Decision
                                       I. Standard of Review
[9]    The decision to find a party in contempt of court is within the trial court’s

       discretion. In re Paternity of M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).

       We will reverse the trial court’s decision only if we find it has abused that

       discretion. Id. A trial court has abused its discretion when the decision is

       against the logic and effect of the facts and circumstances before the court or is

       contrary to law. Id. When reviewing a contempt order, we neither reweigh the

       evidence nor judge the credibility of the witnesses, and we will affirm the trial

       court’s judgment “unless after a review of the entire record we have a firm and

       definite belief a mistake has been made by the trial court[.]” Topolski v. Topolski,

       742 N.E.2d 991, 994 (Ind. Ct. App. 2001).


[10]   In addition, the trial court has the inherent power to fashion an appropriate

       sanction for the disobedience of its orders. Kolbet v. Kolbet, 760 N.E.2d 1146,

       1154 (Ind. Ct. App. 2002). Attorney fees are available as a sanction in civil

       contempt proceedings. Cowart v. White, 711 N.E.2d 523, 533 (Ind. 1999).


                          II. Contempt Finding and Sanction
[11]   “Willful disobedience of any lawfully entered court order of which the offender

       had notice is indirect contempt.” In re M.F., 956 N.E.2d at 1163 (quotation

       omitted). The order must be clear and certain so that there is no question as to

       what the party must do or not do and no question as to whether the order has

       been violated. Bandini v. Bandini, 935 N.E.2d 253, 264 (Ind. Ct. App. 2010)
       Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 8 of 13
       (quotation omitted). Indirect contempt proceedings require due process

       protections, including notice and the opportunity to be heard. Henderson v.

       Henderson, 919 N.E.2d 1207, 1211-12 (Ind. Ct. App. 2010); see Ind. Code § 34-

       47-3-5 (setting forth the process for a rule to show cause).


[12]   Here, the order which Kelley is alleged to have violated was clear and certain: it

       stated that “[w]ithin seven (7) days of [August 12, 2014], Father’s counsel shall

       submit an Income Withholding Order to the Court directed to Father’s employer

       directing the withholding of child support payments . . . .” Appellant’s App. at

       22 (emphasis added). Instead of following that clear directive to prepare an

       income withholding order and submit it to the trial court, Kelley prepared an

       income withholding order, signed it herself as the “issuing official,” and

       submitted it to Father’s employer directly on August 25, 2014, without

       notifying Mother’s counsel or the trial court. When the deadline for submitting

       the income withholding order to the trial court came and went, Mother’s

       counsel inquired first of Kelley and then of the trial court whether one had been

       submitted. Not hearing from Kelley and being informed by the trial court that

       one had not been submitted, Mother filed a Motion for Rule to Show Cause

       alleging that Father and/or Kelley were in contempt of court because no

       income withholding order had been submitted to the trial court as ordered. A

       hearing was scheduled and an order was entered directing Father and Kelley to

       appear at that time and show cause why they should not be found in contempt.


[13]   Upon receiving the motion for rule to show cause and order to appear, Kelley

       informed Mother’s counsel by email that she had submitted the income

       Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 9 of 13
       withholding order directly to Father’s employer and had verified that the

       employer had received it and would begin withholding with Father’s next

       paycheck. She also filed a notice stating the same with the trial court. When

       Mother’s counsel expressed continued dissatisfaction with this procedure out of

       concern that the income withholding order—whether or not Father’s employer

       was currently complying with it—was not a valid enforceable order without the

       court’s signature, Kelley submitted an income withholding order to the trial

       court for its signature the last business day before the show cause hearing. She

       did not notify Mother’s counsel that she had done so and did not request that

       the show cause hearing be vacated. She did not appear at the show cause

       hearing.


[14]   Kelley argues that the trial court did not find that she willfully disobeyed the

       court’s order and therefore did not make a proper finding of contempt.3

       Although the trial court never said the words “contempt” or “willfully

       disobeyed” in either its statement from the bench at the show cause hearing or

       in its order, the trial court did find that Kelley “fail[ed] to comply with the




       3
         Somewhat confusingly, Mother’s brief alleges Kelley’s arguments with respect to contempt are inapposite
       because the trial court did not make a contempt finding. See Appellee’s Brief at 14. She instead relies on the
       trial court’s discretion pursuant to Indiana Code section 31-14-18-2 to order a party to a paternity action to
       pay a reasonable amount for the other party’s attorney’s fees after considering the resources and financial
       earning abilities of the parties, misconduct by either party that created additional expenses, and any other
       appropriate factors. See id. at 9; see also In re Paternity of P.B., 932 N.E.2d 712, 724 (Ind. Ct. App. 2007).
       However, Indiana Code section 31-14-18-2 concerns ordering a party to pay attorney’s fees and is not relevant
       to this situation. In addition, this argument directly contradicts Mother’s response to Kelley’s Motion to
       Correct Errors, in which she stated that “[g]ood cause existed for the Court to find that Father’s counsel
       willfully violated the [Income Withholding Order] Submission Order,” Appellee’s App. at 4, which is the
       definition of contempt.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015             Page 10 of 13
       Court’s Order,” tr. at 6, and noted that she was not in “compliance with the

       [August 12, 2014] Order . . . relating to the preparation and timely submission

       of an Income Withholding Order,” Appellant’s App. at 15. The facts and

       circumstances before the court on which it based those findings are that Kelley

       did not initially comply with the court’s order by submitting the Income

       Withholding Order to the court as ordered. Perhaps that could have been

       considered a mistake or an oversight, but after the failure to comply with the

       terms of the court’s order were pointed out through the motion for rule to show

       cause, she continued to disobey the court’s order. Rather than submit the

       Income Withholding Order to the trial court upon receiving the motion, she

       instead filed a notice that she had taken another route to get the Income

       Withholding Order in place. When Mother’s counsel finally prevailed upon

       Kelley to submit the Income Withholding Order as ordered, she did so on the

       last business day before the hearing without notifying Mother’s counsel.


[15]   Moreover, the order to appear for the show cause hearing did not state that

       Father and Kelley were either to comply with the court’s previous order or

       appear for the hearing; it simply ordered them to appear. When Kelley

       submitted the Income Withholding Order to the trial court, she did not request

       that the show cause hearing be vacated. She also did not notify Mother’s

       counsel so that he would know in advance of the hearing that she had

       complied. Kelley therefore had no legitimate reason to believe the hearing

       would not be held and further willfully disobeyed the court in failing to appear

       when ordered to do so. Finally, Kelley was given the opportunity to be heard


       Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 11 of 13
       regarding her conduct but did not avail herself of it by appearing at the show

       cause hearing.


[16]   It appears that much of this is due to counsel on both sides failing to engage in

       more collegial communication between themselves. It further appears that

       Father’s employer was honoring the Income Withholding Order submitted by

       Kelley, whether or not it was in proper form,4 and that child support was being

       paid to Mother. Nonetheless, on the facts of this case, we are not left with a

       firm and definite conviction that a mistake has been made and we cannot say

       that the trial court abused its discretion in finding Kelley in contempt.


[17]   As to the order that she pay Mother’s attorney fees as a sanction for her

       contempt, Kelley argues that the trial court did not make the findings required

       to order those fees pursuant to Indiana Code section 34-52-1-1. That section

       provides:

               (a) In all civil actions, the party recovering judgment shall recover
               costs, except in those cases in which a different provision is made by
               law.
               (b) In any civil action, the court may award attorney’s fees as part of
               the cost to the prevailing party, if the court finds that either party:
                      (1) brought the action or defense on a claim or defense that is
               frivolous, unreasonable, or groundless;




       4
        It is beyond the scope of this opinion to discuss whether it was proper for Kelley to sign the Income
       Withholding for Support as an “issuing official” and whether it was an enforceable Income Withholding
       Order in that form.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015          Page 12 of 13
                      (2) continued to litigate the action or defense after the party’s
               claim or defense clearly became frivolous, unreasonable, or
               groundless; or
                        (3) litigated the action in bad faith.
[18]   The trial court was not awarding fees pursuant to this section. Mother’s request

       for attorney’s fees was made when she sought the trial court’s intervention in

       gaining Father’s compliance with child support payments. As such, the trial

       court was using its inherent power to impose a sanction for contempt, which

       may include attorney’s fees associated with the contempt proceedings to

       compensate the aggrieved party. See Cowart, 711 N.E.2d at 533. We hold the

       trial court did not abuse its discretion in awarding fees in this case.



                                                Conclusion
[19]   The trial court did not abuse its discretion in finding Father’s counsel in

       contempt for willfully failing to comply with the court’s order regarding the

       submission of an income withholding order or in ordering her to pay Mother’s

       attorney’s fees incurred in securing compliance as a sanction. The judgment of

       the trial court is affirmed.


[20]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1412-JP-556 | July 16, 2015   Page 13 of 13
