Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                 Dec 11 2012, 9:06 am
court except for the purpose of
establishing the defense of res judicata,                        CLERK
                                                               of the supreme court,
collateral estoppel, or the law of the case.                   court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DALE W. ARNETT                                  GREGORY F. ZOELLER
Winchester, Indiana                             Attorney General of Indiana

                                                FRANCES BARROW
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHAD E. ASLINGER,                               )
                                                )
       Appellant-Respondent,                    )
                                                )
              vs.                               )       No. 68A04-1205-DR-259
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Petitioner.                     )


                    APPEAL FROM THE RANDOLPH CIRCUIT COURT
                           The Honorable Jay L. Toney, Judge
                            Cause No. 68C01-9907-DR-160



                                    December 11, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       After suffering several heart attacks and seizures, Chad E. Aslinger fell behind on

his child support obligation because he could no longer work. Even though Aslinger’s

arrearage reached at least $2,431, he managed to acquire cigarettes that were purchased

by his girlfriend and travel to Florida on a vacation financed by his mother. Based on

these facts, the trial court found Aslinger in contempt of court for failure to pay child

support.

       Aslinger appeals the trial court’s contempt order, contending that the State failed

to prove that Aslinger’s failure to pay child support was willful and that he had the ability

to pay, inasmuch as he was severely ill, which prevented him from seeking employment,

and the State presented no evidence to the contrary.

       The State does not dispute Aslinger’s arguments. Indeed, page one of the State’s

Brief states: “In this appeal the State acknowledges that the trial court’s order may be

subject to reversal.”   Agreeing with both parties that the State failed to show that

Aslinger’s failure to pay child support was willful and that he had the means to pay it, we

reverse.

                                          FACTS

       Dawn R. Aslinger filed a petition for dissolution of marriage on July 7, 1999, and

the dissolution decree was entered on November 21, 2002. On June 15, 2007, the trial

court awarded Dawn sole custody, and Aslinger was ordered to pay $60 per week in child

support.



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       At the time of the first show cause hearing on November 4, 2011, Aslinger had not

paid child support since August 4, 2011. As of August 10, 2011, Aslinger’s arrearage

was $2,431. Thirty-nine-year-old Aslinger explained that he had failed to make any

payments since that time because of his deteriorating health, namely, several heart attacks

and constant seizures. Aslinger further detailed that his doctor, Dr. Alison Symes, had

instructed him not to work. Although Aslinger had made several child support payments,

he stated that it was his girlfriend who had actually made the payments and who had been

supporting him since he became ill.

       Dr. Symes is Aslinger’s family practitioner and prescribed Aslinger Plavix,

Lithium, aspirin, and medication for blood pressure and for his muscles. A letter from

Dr. Symes written on St. Vincent Physician Network letterhead and dated August 18,

2011, stated:

       To Whom it May Concern,

              Chad has asked me to confirm that he is unable to preform [sic] his
       usual occupation at present. He had a history of coronary artery disease
       and two confirmed MIs. He has bipolar disease – improved in control.
       However, he is suffering from recurrent intermittent unexpected episodes
       which may be atypical partial complex seizures. These are currently being
       investigated. Until they are clarified, he is unable to drive related to work,
       or operate equipment.

Amended Appellant’s App. p. 33.

       Aslinger had worked for a contractor who required him to operate heavy

equipment. Because Aslinger could not operate heavy equipment, he could no longer

work for the contractor and was not receiving any disability or job-related benefits from

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that employment. Additionally, Aslinger had not looked for work for more than a year,

and although he was preparing to apply for social security, he had no money, means, or

property with which to pay child support. At the close of the November 4, 2011 hearing,

the trial court decided that it did not have enough information and directed Aslinger to

gather his medical information and provide it to the State through his lawyer.

       The second show cause hearing was held on April 17, 2012.              At that time,

Aslinger’s most recent child support payment had been made on February 15, 2012. His

girlfriend was still supporting him with her disability payments. Aslinger had suffered

another heart attack, for a total of three, and was still experiencing seizures. Aslinger was

not on medication for his seizures, explaining that Dr. Syme wanted him to see a

neurologist.   Aslinger was still on Plavix for his heart and Lithium for his bipolar

disorder.

       As of April 12, 2012, Aslinger’s arrearage was $3,376. He had applied for social

security benefits in January but had not received a ruling. Aslinger was going to see

another doctor for the social security application the next day. Aslinger explained that he

could not work because the extent to which the seizures affected his arm.

       Because Aslinger’s mother’s health was failing, she paid for a trip to Disney

World for Aslinger, his brother, and his brother’s children. Aslinger’s brother drove

them, and they were gone for about seven to ten days. While in Florida, Aslinger

consumed several alcoholic beverages and was asked to leave the establishment because



                                             4
he was intoxicated. Aslinger also smoked about a pack of cigarettes a day, which his

girlfriend bought for him.

       In light of these facts and Aslinger’s arrearage, when Aslinger was asked why he

should not be sent to jail, he stated that he wanted to work on becoming healthy again so

that he could get his child support paid up and begin to make regular payments. He said

that he still did not have the money, means, or property to pay his child support.

       At the conclusion of the hearing, the trial court stated:

       Well this is the story I often hear, yes I have cigarettes, I have alcohol, I
       have vacations, I do this, I do that, I never have to pay for any of it.
       Everybody in my life takes care of me, pays for me. Mr. Aslinger your
       [sic] well enough to go on vacation you are not worried about seizure [sic],
       you are not worried about being away from your physician, your doctor, not
       worrying about what medication you need at that point, and yet you can not
       [sic] do anything to pay your child support. You are not even looking for
       work and yet you are well enough to travel a thousand miles, drink to such
       excess that somebody thinks you have had too much and ejects you from
       this bar or wherever you were ejected from. You are not making efforts to
       pay your support. You may have had some health problems, but again
       when you make no efforts at all which I think was your testimony, you are
       not making efforts to find work at this time.

Vol. 3 Tr. p. 15. Aslinger now appeals.

                             DISCUSSION AND DECISION

       Our Supreme Court has established that “[o]nly upon a finding by the court that

the delinquency was the result of a willful failure by the parent to comply with the

support order and that the delinquent parent has the financial ability to comply is

contempt available.” Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993). Here, the State



                                              5
concedes that “[t]he trial court’s contempt order failed to make either of these

determinations that are required under the Pettit decision.” Appellee’s Br. p. 8.

       More particularly, at the November 4, 2011 hearing, Aslinger produced a letter

from his doctor relating that he was unable to work because of his heart problems, bipolar

disorder, and seizures. Amended Appellant’s App. p. 33. The State failed to produce any

evidence to contradict Aslinger’s evidence regarding his health problems.

       The trial court also expressed concern that Aslinger had money for alcohol,

cigarettes, and vacations, which required him to travel thousands of miles, but he could

not pay his child support. Vol. 3 Tr. p. 15. Despite the trial court’s obvious frustration,

there was no finding that Aslinger is able to work or has the ability to pay support.

Indeed, Aslinger testified in November 2011 and in April 2012 that he had no money or

means to pay support. The State produced no evidence to the contrary. Under these

circumstances, there is insufficient evidence to support the trial court’s contempt order.

       While we acknowledge that from the trial court’s statement, it may have believed

that Aslinger could get funds from his girlfriend, who paid for his cigarettes and

occasionally paid his child support or from his mother, who paid for the Florida vacation,

it made no such findings. In any event, the evidence failed to show that Aslinger could

actually acquire these funds from friends or family to help with his support obligation.

       The judgment of the trial court is reversed.

RILEY, J., and BARNES, J., concur.



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