MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                          Jan 31 2019, 6:51 am

court except for the purpose of establishing                                           CLERK
the defense of res judicata, collateral                                            Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jonathan M. Young                                        Kelly A. Lonnberg
Law Office of Jonathan M. Young, P.C.                    Stoll Keenon Ogden, PLLC
Newburgh, Indiana                                        Evansville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
In re Marriage of                                        January 31, 2019

Jeffrey E. Nelson,                                       Court of Appeals Case No.
                                                         18A-DR-1577
Appellant-Respondent,
                                                         Appeal from the Vanderburgh
        v.                                               Superior Court
                                                         The Honorable Leslie C. Shively,
Julie A. Nelson,                                         Judge

Appellee-Petitioner                                      The Honorable J. Zach Winsett,
                                                         Special Judge
                                                         Trial Court Cause No.
                                                         82D01-1601-DR-32



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019               Page 1 of 12
                                             Case Summary
[1]   This is the fourth appeal in the contentious dissolution of marriage proceedings

      between Jeffrey E. Nelson (“Husband”) and Julie A. Nelson (“Wife”). Here,

      Husband appeals the trial court’s order finding him in contempt of court

      accompanied by a writ of attachment providing for Husband to serve forty-five

      days in the Vanderburgh County Jail or to purge himself of the contempt by

      paying $27,374.48 for unpaid spousal maintenance and attorney’s fees.

      Husband asserts that the trial court erred in finding him in contempt and further

      erred in setting the purge amount. Finding no error, but concluding that

      remand is necessary for reconsideration of the purge amount, we affirm and

      remand.


                                 Facts and Procedural History
[2]   While the background of this case is extensive and procedurally convoluted, we

      need only provide a brief recitation of what is relevant to this appeal. Husband

      and Wife married in Illinois on April 28, 2012. The day before their marriage,

      the parties executed a prenuptial agreement. On January 8, 2016, Wife filed a




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 2 of 12
      verified petition for dissolution of marriage as well as a motion for provisional

      order. Following a hearing, the trial court entered a provisional order that

      provided in relevant part that, during the pendency of the dissolution

      proceedings, Husband was to pay Wife’s monthly rent payments plus $2500 per

      month in spousal maintenance. Husband was also ordered to pay $20,000 in

      both current and prospective attorney’s fees to Wife’s counsel. Husband was

      granted temporary possession of the marital residence and was responsible for

      all debts and expenses associated therewith.


[3]   Thereafter, Wife filed various motions and petitions requesting the trial court to

      interpret the parties’ prenuptial agreement and seeking other provisional relief,

      including additional attorney’s fees. Accordingly, the trial court has held

      multiple hearings and entered multiple provisional orders. Husband appealed

      each of those orders, and different panels of this Court have issued

      memorandum decisions on the narrow issues presented therein. See Nelson v.

      Nelson, No. 18A-DR-248, 2018 WL 4403437 (Ind. Ct. App. Sept. 12, 2018);

      Nelson v. Nelson, No. 18A-DR-794, 2018 WL 4003368 (Ind. Ct. App. Aug. 9,

      2018); Nelson v. Nelson, No. 82A01-1607-DR-1706, 2017 WL 765900 (Ind. Ct.

      App. Feb. 28, 2017).


[4]   Relevant to the current appeal, on May 8, 2018, Wife filed an information for

      contempt and petition for attorney’s fees. Wife alleged that Husband was in

      violation of several court orders, including the court’s order that he maintain

      the condition of the marital residence and list it for sale, that he pay Wife’s rent,

      and that he pay Wife’s maintenance. By agreement of counsel for both

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 3 of 12
      Husband and Wife, a hearing date was set for May 16, 2018. Husband failed to

      appear at the hearing. His counsel stated on the record, “[M]y client was

      advised of the hearing. He’s not here…. And I obviously advised him of the

      purpose of today’s hearing and the repercussions of not attending.” Tr. Vol. 2

      at 36. At the request of Husband’s counsel, and over Wife’s objection, the trial

      court continued the contempt proceedings. The parties agreed to a hearing date

      of May 29, 2018, to address numerous issues, including whether Husband

      “should be found in contempt and sanctioned accordingly….” Id. at 42.


[5]   Husband did not appear at the May 29 hearing. When the trial court inquired

      regarding Husband’s whereabouts, his counsel stated, “I don’t know, Your

      Honor. I don’t know where he is.” Id at 47. When then asked whether

      Husband had notice of the hearing, his counsel responded, “Yes.” Id. The

      court proceeded to take evidence on various issues. At the conclusion of the

      hearing, the trial court stated that, “Certainly the Court has enough general

      evidence to show there’s probable cause that [Husband] is in indirect contempt

      of this Court. However, in order to fashion an appropriate remedy, I need to

      have [Husband] here.” Id. at 75-76. Accordingly, the trial court gave Husband

      yet a third opportunity to be heard on the issue of his contempt. Counsel for

      both parties agreed to a hearing date of June 4, 2018. On May 31, 2018, Wife’s

      counsel filed a subpoena for Husband to appear.


[6]   A hearing commenced on June 4, 2018. Husband did not appear. Again, his

      counsel indicated, “I do not know where he is right now.” Id. at 79. The trial

      court then made the following statement:

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 4 of 12
               This is the second time I’ve continued the hearing on the
               information for contempt, request for attorney fees to give your
               client an opportunity to be present and be heard. I want the
               record to reflect that in anticipation of the next appeal in this
               case.


      Id. During the hearing, Wife’s counsel submitted an exhibit, without

      objection, detailing Wife’s expenses, including two months of maintenance

      ($5000), that Husband had not paid.1 Wife’s counsel also submitted an affidavit

      for her attorney’s fees incurred from January 1, 2018, to June 3, 2018.

      Regarding Husband’s ability to pay those expenses and fees, the trial court

      stated that it was specifically considering all evidence “going back to the

      beginning of these proceedings, oil reserves in the control of [Husband], [and]

      the documentation provided by [Husband] of funds that are available to [him]

      through third parties, which are in excess of six figures[.]” Id. at 89.2


[7]   At the conclusion of the hearing, the trial court found Husband in contempt

      and issued an order that provides in pertinent part:


               1. The Court finds [Husband] in contempt for failing to pay the
               Wife’s rent, failure to pay provisional maintenance, failure to
               maintain the marital property, and failure to keep utilities on the
               martial residence. The Court also finds that the Wife is entitled
               to additional attorney fees not stayed by this Court which would
               be those fees incurred from January 1, 2018, to June 3, 2018,


      1
       It appears that the exhibits offered and admitted at the May 16 and June 4 hearings were not provided to
      the trial court clerk by the court reporter, and thus they were not included in the record on appeal.
      2
       Despite Husband’s claims to the contrary, the record reflects that the trial court considered Husband’s
      ability to pay prior to entering its contempt order.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019                 Page 5 of 12
              now in the amount of Twenty-one Thousand Four Hundred
              Fourteen and 48/100 Dollars ($21,414.48) plus additional fees of
              Nine Hundred Sixty Dollars ($960.00) for preparation and
              attendance at the hearing of this date June 4, 2018.

              2. The Court now orders a writ of attachment issued for
              [Husband], for forty-five days at the Vanderburgh County Jail,
              straight time, with no goodtime credit. [Husband] may purge
              himself by paying Twenty-seven Thousand, Three Hundred
              Seventy-four and 48/100 Dollars ($27,374.48) for unpaid
              maintenance fees and attorney fees as reflected above.


      Appealed Order at 1-2. This appeal ensued.


                                     Discussion and Decision
[8]   Whether a party is in contempt is a determination left to the discretion of the

      trial court. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). The trial court

      has the inherent power to maintain its dignity, secure obedience to its process

      and rules, rebuke interference with the conduct of business, and punish

      unseemly behavior. Id. (citation and quotation marks omitted). On appeal, we

      will consider the evidence and all reasonable inferences drawn therefrom that

      support the trial court’s determination, and we will not reweigh evidence nor

      judge the credibility of the witnesses. Deel v. Deel, 909 N.E.2d 1028, 1032 (Ind.

      Ct. App. 2009). As such, we will reverse a trial court’s contempt determination

      only where an abuse of discretion has been shown, which occurs when the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances before it. Bessolo v. Rosario, 966 N.E.2d 725, 730 (Ind. Ct. App.

      2012), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 6 of 12
[9]    Contempt of court generally involves disobedience of a court or court order that

       “undermines the court’s authority, justice, and dignity.” Reynolds, 64 N.E.3d at

       832 (citation omitted). A person who is guilty of any willful disobedience of

       any process, or any order lawfully issued by any court of record, is guilty of

       indirect contempt of the court that issued the process or order. Ind. Code § 34-

       47-3-1. Indirect contempt involves those acts committed outside the presence of

       the court which nevertheless tend to interrupt, obstruct, embarrass or prevent

       the due administration of justice. Reynolds, 64 N.E.3d at 832 (citation and

       quotation marks omitted).


         Section 1 – The trial court did not err in finding Husband in
                               indirect contempt.
[10]   Husband asserts that the trial court erred in finding him in indirect contempt

       because he was not afforded the procedural safeguards for such a finding. Our

       legislature has codified the procedural prerequisites to a finding of indirect

       contempt in Indiana Code Section 34-47-3-5, which provides in pertinent part:


               (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:


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 7 of 12
               (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.


[11]   In Reynolds, our supreme court noted that this statute fulfills the due process

       requirement that a contemnor be provided with adequate notice and an

       opportunity to be heard. Reynolds, 64 N.E.3d at 833. The Reynolds court

       elaborated that while generally a trial court’s authority to find a person in

       contempt rests on whether the court has strictly complied with the statute, strict

       compliance may be excused if it is clear that the alleged contemnor

       nevertheless had clear notice of the accusations against him or her. Id.


[12]   We acknowledge that no rule to show cause was issued by the trial court as

       required by Indiana Code Section 34-47-3-5. Nevertheless, the record makes it

       abundantly clear that Husband had notice of the accusations against him as

       well as notice of the time and place he was required to appear and show cause

       why he should not be attached and punished for contempt. Wife filed a

       detailed information for contempt specifying the allegations against Husband,

       and Husband’s counsel repeatedly appeared at the scheduled hearings and

       represented to the trial court that, despite having notice of the proceedings,

       Husband was inexplicably absent. Moreover, the court twice continued the

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 8 of 12
       contempt proceedings to give Husband the opportunity to appear and be heard.

       Husband’s assertions on appeal that he was not afforded adequate notice and

       an opportunity to be heard are not well taken by this Court. The trial court’s

       noncompliance with Indiana Code Section 34-47-3-5 is excused under the

       circumstances, and we therefore decline Husband’s request to reverse the trial

       court’s finding of contempt on these grounds.


[13]   Husband very briefly asserts that the evidence presented at the numerous

       hearings is insufficient to support a contempt finding because there was no

       evidence that he “willfully and intentionally disobeyed the order[s] of the

       Court.” Appellant’s Br. at 24.3 Wife presented ample evidence of Husband’s

       violation of various court orders,4 and, as the party in contempt, it is Husband’s

       burden on appeal to show that his acts were not willful. Norris v. Pethe, 833

       N.E.2d 1024, 1029 (Ind. Ct. App. 2005). Husband has not met that burden.

       The trial court did not err in finding Husband in indirect contempt.




       3
        In his reply brief, Husband expands his sufficiency argument and blames the trial court for the alleged lack
       of evidence supporting a finding of contempt, and for the first time challenges the summary form of the
       contempt proceedings as well as several prior hearings. Any challenge to the use of summary proceedings by
       the trial court is waived by Husband’s failure to object to the format of the proceedings at the time. Bogner v.
       Bogner, 29 N.E.3d 733, 740 (Ind. 2015). Further, an argument cannot be advanced for the first time in a reply
       brief, and therefore the issue is waived. See Crossmann Communities, Inc. v. Dean, 767 N.E.2d 1035, 1044 (Ind.
       Ct. App. 2002) (issues raised for the first time in a reply brief are waived); Ind. Appellate Rule 46(C) (“No
       new issues shall be raised in the reply brief.”).
       4
        Even an erroneous order must still be obeyed. Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App. 1997).
       “A party’s remedy for an erroneous order is appeal and disobedience of the order is contempt.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019                   Page 9 of 12
          Section 2 – Remand is necessary for reconsideration of the
                          contempt purge amount.
[14]   Having concluded that the trial court did not err in finding Husband in indirect

       contempt, we turn to address the sanctions imposed. “[I]t is within the inherent

       power of the trial court to fashion an appropriate punishment for the

       disobedience of the court’s order.” Bechtel v. Bechtel, 536 N.E.2d 1053, 1056

       (Ind. Ct. App. 1989). Indeed, sanctions in a contempt proceeding “may seek

       both to coerce behavior and to compensate an aggrieved party.” MacIntosh v.

       MacIntosh, 749 N.E.2d 626, 631 (Ind. Ct. App. 2001), trans. denied. When a

       court exercises its inherent civil contempt power and fashions a coercive

       contempt sanction, we have typically required that there be an opportunity for

       the contemnor to purge himself of contempt. See generally Moore v. Ferguson,

       680 N.E.2d 862, 865-66 (Ind. Ct. App. 1997), trans. denied. For example,

       where the trial court imposes a sanction of incarceration, the incarceration

       order may be “conditioned on the payment of money or the accomplishment

       of a single task[.]” In re the Paternity of M.P.M.W., 908 N.E.2d 1205, 1210 (Ind.

       Ct. App. 2009).


[15]   Here, after finding Husband in indirect contempt, the trial court issued a writ of

       attachment for Husband to serve forty-five days at the Vanderburgh County

       Jail, but provided that Husband could purge himself of contempt by paying

       $27,374.48 in unpaid spousal maintenance and attorney’s fees. At the time the

       trial court entered its order, Husband’s appeal of the trial court’s provisional

       order directing him to pay $36,000 in Wife’s attorney’s fees and certain expert

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 10 of 12
fees was still pending. Another panel of this Court has since issued its decision

reversing the trial court’s fee award based upon the language of the parties’

prenuptial agreement. See Nelson, 2018 WL 440347, at *2.5 “Under the Law of

the Case Doctrine, an appellate court’s determination of a legal issue binds both

the trial court and the court on appeal in any subsequent appeal involving the

same case and relevantly similar facts.” Anderson v. Gaudin, 42 N.E.3d 82, 87

n.5 (Ind. 2015) (quotation marks omitted). Thus, to the extent that the purge

amount set by the trial court here specifically includes attorney’s fees that have

since been determined to be unrecoverable due to the parties’ prenuptial

agreement, we remand to the trial court to amend its order to omit those

specific fees.6 That said, we leave it entirely to the trial court’s discretion on

remand to reconsider and reset the purge amount to any amount it believes

necessary to coerce Husband’s behavior and to compensate Wife.

Understandably, the reset purge amount may be higher or lower than that

previously ordered by the trial court. In sum, our review of the record reveals

that Husband has repeatedly interrupted, obstructed, embarrassed, and



5
 Specifically, the panel found that “the attorney fees provision of the [prenuptial agreement], which entitles a
party who has retained counsel to enforce or prevent the breach of the [prenuptial agreement] to payment of
attorney fees by the other party if the first party prevails, governs Wife’s request of attorney fees.” Nelson,
2018 WL 440347, at *2. Accordingly, the panel concluded, “As Wife has not prevailed in this ongoing
action, she is not yet—if ever—entitled to the payment of her attorney fees.” Id. (footnote omitted).
6
 Contrary to Husband’s claims, this Court did not determine that Wife cannot recover any attorney’s fees
during this ongoing action. Rather, the panel reversed the trial court’s $36,000 provisional award of fees and
remanded for the trial court to determine what portion of that award was attributable to Wife’s then current
request for fees and amend the order to omit those fees only. Nelson, 2018 WL 440347, at *2. Indeed, the
Nelson panel noted that a portion of the $36,000 award was attributable to several previous awards of
attorney’s fees that Husband did not timely challenge, and therefore those amounts were unaffected by this
Court’s decision. Id. at *2 n.7. Therefore, Husband would still owe any of those amounts that remain
outstanding.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019                  Page 11 of 12
       prevented the due administration of justice in these dissolution proceedings,

       and the trial court has the power to do what it deems necessary to prevent

       further disobedience of its orders.7


[16]   Affirmed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       7
           See supra note 4.



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1577 | January 31, 2019   Page 12 of 12
