                                                 Dec 16 2014, 1:20 pm




FOR PUBLICATION
APPELLANT PRO SE:                            APPELLEE PRO SE:

SANDRA AKIWUMI                               ERIC AKIWUMI
Tampa, Florida                               Lisle, Illinois




                            IN THE
                  COURT OF APPEALS OF INDIANA

SANDRA AKIWUMI,                              )
                                             )
     Appellant-Petitioner,                   )
                                             )
            vs.                              )         No. 49A05-1403-DR-129
                                             )
ERIC AKIWUMI,                                )
                                             )
     Appellee-Respondent.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable James B. Osborn, Judge
                   The Honorable Kimberly D. Mattingly, Magistrate
                          Cause No. 49D14-0911-DR-52342



                                  December 16, 2014


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Sandra Akiwumi (“Mother”) appeals the trial court’s order finding her in contempt for

denying Eric Akiwumi (“Father”) parenting time with their son and failing to notify Father of

her new employer’s name, address, and phone number. Mother also appeals the trial court’s

award of attorney fees to Father. She argues that she was denied due process because she

was not afforded a full opportunity to be heard. She also argues that the evidence is

insufficient to support the trial court’s contempt findings and that the trial court abused its

discretion in ordering her to pay attorney fees. We conclude that Mother was not denied due

process, that there is sufficient evidence to support the contempt findings, and that she

waived her challenge regarding attorney fees. Accordingly, we affirm.

                              Facts and Procedural History

       Mother and Father were married in 2004 and had one child (“Child”). In June 2010,

the parties divorced. The dissolution decree incorporated the parties’ settlement agreement,

which granted Mother physical custody of Child and awarded Father parenting time

consistent with the Indiana Parenting Time Guidelines. The settlement agreement also

provided, “Due to the distance between the parties, [Father] shall provide [Mother] with 21

days written notice of his intent to visit the child at [Mother’s] residence.” Appellant’s App.

at 16. At all times relevant to this appeal, Mother lived in Tampa, Florida, and Father lived

in Lisle, Illinois.




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       In August 2011, the parties entered an agreed order which provides in relevant part,

“the Parties agree that, in the event of a change of employment, within thirty days of

changing employment, the Party shall provide in writing the new employer’s name, business

address and telephone number.” Appellee’s App. at 2. In June 2013, Mother started a new

job. She did not provide Father with her employer’s name, address, or telephone number.

       The following correspondence between Father and Mother was conducted by email

unless otherwise specified. On June 7, 2013, Father wrote Mother of his intent to visit Child

in Tampa from July 3, 2013 (Wednesday) to July 6, 2013 (Saturday). Id. at 14-15. At 8:14

p.m. on July 1, 2013, Father notified Mother that he would pick up Child on Wednesday at

8:00 a.m. and drop him off on Saturday at noon. Id. at 16. Mother replied that because she

had not received confirmation of Father’s visit with dates and times fourteen days ahead of

time, she had made plans and Child would be available Friday evening through Sunday

afternoon. Id. at 15. Father wrote that he gave Mother the dates of his visit in his June 7

email. Mother responded that Father’s June 7 email failed to include the pick-up and drop-

off times and restated that Child would be available July 5 to July 7. Father wrote that he

notified Mother of the dates of his visit in compliance with the dissolution decree and that he

would go to the “police station” to pick up Child at 8:00 a.m. on Wednesday and return him

on Saturday at noon. Id. at 13. The “police station” refers to the District One Tampa Police

Department (“District One”), where the parties had met for parenting time exchanges in the

past. Mother replied that Father’s short notice regarding pick-up and drop-off times was

unreasonable and added, “If you translate this as me denying you time with your son, that’s


                                              3
your choice. We won’t be at the police station at 8am on Wednesday morning.” Id. at 12.

At 7:33 p.m. on July 2, 2013, Father wrote Mother that he had followed the stipulations of

the dissolution decree by notifying her of his intent to see Child more than twenty-one days in

advance and that he would be at the police station at 8:00 a.m. to pick up Child and would

drop him off on Saturday at noon. Id. at 12.

       At 8:00 a.m. on Wednesday, July 3, 2013, Father went to District One and waited

there nearly two hours, but Mother and Child never came. A police officer contacted Mother

regarding the parenting time exchange. At 1:20 p.m., Mother wrote that she could meet

Father at 3:30 p.m. at the Tampa Police Headquarters on Franklin Street. At 1:56 p.m.,

Father replied that he would be willing to pick up Child at 3:30 p.m. at District One. At 2:13

p.m., Mother responded that it was not possible for her to take Child to District One, but if

Father could not pick up Child at the Tampa Police Headquarters, she could meet him at

District One at 9:00 p.m. She also told Father that he would have to bring Child to the

District Two Tampa Police Department at 8:00 a.m. on Saturday morning to drop him off or

alternatively drop him off at District One at 9:00 a.m. on Sunday. At 3:04 p.m., Father wrote,

“I need to [know] why you are changing the pickup and drop off location. …. [W]hat’s more

I have already driven to and from the original meeting spot and you didn’t show up. I’m

going there now to wait for you and returning him there at 8 am on Sat. I told you I leave

town on Sat.” Id. at 10. At 3:13 p.m., Mother wrote, “Its [sic] sad that you’ve chosen to

reply at 3:04 for a meeting that is to happen at 3:30 p.m., to see your son …. Furthermore I




                                               4
offered to meet you, despite the fact that I am at work. If you are not showing up at the

location I agreed to meet you at, don’t bother.” Id. at 9.

       At 7:35 p.m., Mother wrote that she was not going to drop off Child until Father

specified whether he was dropping Child off at District Two at 8:00 a.m. on Saturday or at

District One at 9:00 p.m. on Sunday. Id. At 7:48 p.m., Father received a text from Mother

repeating the email message above and asking him to “[p]lease clarify immediately.” Id. at

20. At 8:11 p.m., Father sent Mother an email that he would see her at 9:00 p.m. Father

arrived at District One at 8:48 p.m. At 9:18 p.m., Father received a text message from

Mother that stated that she had just read his email and that “[y]ou will have to visit [Child]

another time. Next time, please give 21-days notice with dates and times of your visit so we

can address scheduling conflicts in advance.” Id. at 21-22.

       Father filed a motion for rule to show cause why Mother should not be held in

contempt for violating the agreed order by failing to inform him of her new employer’s name,

address, and telephone number and for violating the dissolution decree by failing to allow

him to exercise parenting time. Following a hearing at which both parties were represented

by counsel, the trial court issued an order finding Mother in contempt and ordering her to pay

Father’s legal expenses of $1917.90. Mother appeals.

                                 Discussion and Decision

                                 Section 1 – Due Process

       Mother contends that the trial court conducted the contempt hearing in a manner that

violated her due process rights. There are two types of contempt, direct and indirect.


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

indirect contempt.”1 Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind. Ct. App. 2001),

trans. denied (2002). Thus, Mother was found in indirect contempt of court. “Indirect

contempt proceedings require an array of due process protections, including notice and the

opportunity to be heard.” Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App.

2010).

         Indiana Code Section 34-47-3-1 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.

Due Process protections for indirect contempt proceedings are codified in Indiana Code

Section 34-47-3-5, which 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
          “The disobedience of a court order may [also] be categorized as either civil contempt or criminal
contempt. A civil contempt is a violation of a court order resulting in a proceeding for the benefit of the
aggrieved party.” In re Paternity of N.T., 961 N.E.2d 1020, 1022 n.2 (Ind. Ct. App. 2012).


                                                    6
           (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
           (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.

“It is the ‘rule to show cause’ provision of the statute that ‘fulfills the due process

requirement that a contemptor be provided with adequate notice and an opportunity to be

heard.’” Carter v. Johnson, 745 N.E.2d 237, 241 (Ind. Ct. App. 2001) (quoting Mitchell v.

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

       Significantly, Mother does not assert any violations of Section 34-47-3-5. Rather, she

argues that she was denied the opportunity to be heard, that is, to show cause why she should

not be held in contempt. She contends that the trial court denied her counsel’s request to

examine Respondent’s Exhibit 6 before it was admitted and barred her from conducting a

thorough cross-examination of Father and presenting her own relevant background evidence.

It is unclear whether Mother is arguing that the alleged errors individually resulted in due

process violations, whether the cumulative effect of the alleged errors resulted in due process

violations, or whether the alleged errors as a whole show that the trial court decided that she

was in contempt before she was even allowed to testify, thereby denying her the opportunity

to be heard.

       We begin by addressing Mother’s argument regarding Respondent’s Exhibit 6, which

consisted of emails between the parties from July 1 to 3, 2013. When Father’s counsel

moved to admit Respondent’s Exhibit 6, Mother’s counsel asked to review the emails. The

                                                7
trial court said, “No, we’re set for thirty minutes,” and “We gotta move along.” Tr. at 26.

Mother’s counsel told the trial court there was no objection. Mother contends that because

her counsel was not afforded the opportunity to review the exhibit, she was deprived of the

opportunity to object to it based on Indiana Evidence Rule 106.2 Mother’s counsel could

have objected to the trial court’s refusal to allow her to examine Respondent’s Exhibit 6 or to

its admission but did not, and therefore any error in its admission is waived. See In re

Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014) (“[T]he ‘[f]ailure to object to the admission

of evidence at trial normally results in waiver and precludes appellate review.’”) (quoting

Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011)). Waiver notwithstanding, Mother’s

argument that she was prevented from objecting based on Evidence Rule 106 is unavailing.

Evidence Rule 106 provides, “When a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require at that time the introduction of any other

part or any other writing or recorded statement which in fairness ought to be considered

contemporaneously with it.” Indiana Evidence Rule 106 incorporated the “doctrine of

completeness.” Norton v. State, 772 N.E.2d 1028, 1033 (Ind. Ct. App. 2002), trans. denied,

“The purpose of the doctrine of completeness is to allow the introduction of additional

material to place incomplete, misleading evidence in its full context.” In re Paternity of B.B.,




        2
           Mother makes a passing reference to Indiana Evidence Rule 1006. However, her argument with
regard to this rule is entirely undeveloped, and therefore it is waived. See Outboard Boating Club of
Evansville, Inc. v. Ind. State Dep’t of Health, 952 N.E.2d 340, 344 n.3 (Ind. Ct. App. 2011) (concluding that
appellant failed to make cogent argument and therefore waived issue for appellate review) (citing Ind.
Appellate Rule 46(A)(8)(a)), trans. denied (2012).

                                                     8
1 N.E.3d 151, 159 (Ind. Ct. App. 2013). Mother does not argue that Respondent’s Exhibit 6

actually omitted relevant emails and was therefore incomplete or misleading. Therefore, we

fail to see how her substantial rights were affected, and there can be no error. See Ind.

Evidence Rule 103(a) (“Error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected.”).

       We next address Mother’s argument that she was prevented from thoroughly cross-

examining Father. At the hearing, Mother’s counsel asked Father to explain why he waited

until July 1, 2013, to provide her with pick-up and drop-off times. The trial court said, “I

don’t care the reason. If her defense is that she needed the specific times, that will not fly.

She’ll be in contempt. So if she’s got another defense, that’s what I want to hear[.]” Tr. at

39. In family law matters, appellate review is conducted with “‘a preference for granting

latitude and deference to our trial judges.’” Kicken v. Kicken, 798 N.E.2d 529, 532 (Ind. Ct.

App. 2003) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “The

trial judge has wide latitude in ruling on the extent of cross-examination and only a clear

abuse of discretion warrants a reversal.” St. Anthony Med. Ctr., Inc. v. Smith, 592 N.E.2d

732, 738 (Ind. Ct. App. 1992), trans. denied. A trial court does not abuse its discretion by

excluding irrelevant evidence. Ledbetter v. Ball Mem’l Hosp., 724 N.E.2d 1113, 1117 (Ind.

Ct. App. 2000) (citing Ind. Evidence Rule 402), trans. denied. “Evidence is relevant if: (a) it

has any tendency to make a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action.” Ind. Evidence Rule 401.




                                               9
       Mother argues that the evidence would have shed light on whether the notice

requirement in the dissolution decree was satisfied. However, we think that the trial court’s

statements simply reveal that it did not believe that Father’s failure to provide exact times

would excuse Mother’s failure to provide him with any parenting time when she knew the

dates he was visiting. Thus, the trial court did not think the evidence was relevant. We

cannot say that the trial court abused its discretion or infringed upon Mother’s due process

rights by excluding evidence as to why Father waited to provide Mother with exact pick-up

and drop-off times.

       Mother also argues that she was prevented from revealing discrepancies in Father’s

testimony. She directs us to the trial court’s statement after her counsel asked Father when

he found out that Mother wanted to meet at 3:30. The trial court stated, “It doesn’t matter.

He didn’t see the kid the whole time he was in Florida; not once. If she’s got a defense, I

want to hear that. Picking him apart on the details is not going to help her defense.” Tr. at

40. The trial court’s statement shows that it limited this line of questioning because it found

it to be irrelevant. We find no abuse of discretion or violation of due process here.

       Mother also contends that she was not allowed to present relevant background

evidence even though Father was allowed to do so. The simple fact that Father testified to a

certain aspect of past parenting time exchanges and Mother was not permitted to testify about

a different aspect of past parenting time exchanges is not in itself unfair; it depends on

whether the evidence each wanted to offer was relevant. Mother fails to articulate how the

background evidence she sought to introduce was relevant. “It is well settled that pro se


                                              10
litigants are held to the same standard as are licensed lawyers.” In re Estate of Carnes, 866

N.E.2d 260, 265 (Ind. Ct. App. 2007). Accordingly, Mother’s argument is waived for failure

to present a cogent argument. See Outboard Boating Club of Evansville, Inc. v. Ind. State

Dep’t of Health, 952 N.E.2d 340, 344 n.3 (Ind. Ct. App. 2011) (concluding that appellant

failed to make cogent argument and therefore waived issue for appellate review) (citing Ind.

Appellate Rule 46(A)(8)(a)), trans. denied (2012).

       Finally, Mother asserts that the trial court had already decided that she was in

contempt prior to her testimony and that her testimony bore no weight or bearing on the final

decision. During Father’s cross-examination, Mother’s counsel told the trial court that

Mother’s defense was that she offered to meet Father and provided him with opportunity to

meet her. The trial court stated,

       She never met him. She never found her way to dad anytime he was in Tampa.
       For how many days? That’s her defense is oh, I offered to be here, or I offered
       to be here. No, I offer to be here. Well, I pick this time; I pick this police
       station; not gonna fly. She’s gonna be so in contempt unless you got more
       than this.

Tr. at 41. At the conclusion of the hearing, the trial court stated, “This was an unwinnable

case.” Id. at 59.

       Our review of the transcript shows that Mother sought to excuse her noncompliance

with court-ordered parenting time by showing that she gave Father an opportunity to meet

her. The trial court simply did not agree with the theory that offering to meet Father satisfied

Mother’s responsibility to comply with court-ordered parenting time. We are unpersuaded




                                              11
that the trial court’s rejection of Mother’s defense constituted a violation of her due process

rights.

                            Section 2 – Sufficiency of the Evidence

          Mother argues that the trial court abused its discretion when it found her in contempt

because there was insufficient evidence to support the court’s finding that she willfully

violated the terms of the divorce decree and the agreed order.

          Whether a person is in contempt of a court order is a matter left to the trial
          court’s discretion. We will reverse the trial court’s finding of contempt only
          where an abuse of discretion has been shown, which occurs only when the trial
          court’s decision is against the logic and effect of the facts and circumstances
          before it. When we review a contempt order, we neither reweigh the evidence
          nor judge the credibility of the witnesses.

Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind. Ct. App. 2003) (citation and quotation

marks omitted). Mother bore the burden of showing that her violation was not willful.

Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind. Ct. App. 2000).

          As for whether Mother failed to comply with the dissolution decree’s parenting time

conditions, Mother’s argument ignores the evidence that she emailed Father that she would

not meet him at 8:00 a.m. on Wednesday at District One. Appellee’s App. at 12. She also

ignores the evidence that when she agreed to meet Father at 9:00 p.m. at District One, she

decided not to meet him there after all. Id. at 9. Mother’s argument is an invitation to

reweigh the evidence, which we must decline. We conclude that the trial court did not abuse

its discretion in finding that Mother willfully disobeyed the dissolution decree.

          Mother also argues that the trial court abused its discretion in finding her in contempt

of the agreed order by failing to provide Father with her new employer’s name, address, and

                                                 12
telephone. Mother admits that she did not provide Father with the required information. She

argues that she forgot to give Father the information, which is not the same as willful

disobedience. It is the province of the trial court to judge witness credibility, and as such it

was free to disregard Mother’s testimony. We conclude that the trial court did not abuse its

discretion in finding that Mother willfully disobeyed the agreed order.

                                 Section 3 – Attorney Fees

       Mother does not challenge the trial court’s decision to require her to pay Father’s

attorney fees associated with his motion for rule to show cause. Rather, she argues that the

affidavit of legal expenses and fees submitted by Father’s counsel does not clearly indicate

that all the recorded expenses apply to Father’s motion. Respondent’s Exs. 10 and 11. We

note that a “party generally waives appellate review of an issue or argument unless the party

raised that issue or argument before the trial court.” GKC Ind. Theatres, Inc., v. Elk Retail

Investors, LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002). Mother did not present this

argument to the trial court, and therefore it is waived. See Bessolo v. Rosario, 966 N.E.2d

725, 734 (Ind. Ct. App. 2012), trans. denied (concluding that appellant’s argument that trial

court erred in awarding attorney fees to appellee where he was represented by two attorneys

was waived because she did not present argument to trial court).

       Affirmed.

RILEY, J., and MATHIAS, J., concur.




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