Pursuant to Ind.Appellate Rule 65(D),

                                                                 FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                             Nov 27 2012, 8:52 am
judicata, collateral estoppel, or the law
of the case.                                                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:

R. PATRICK MAGRATH
Alcorn Goering & Sage, LLP
Madison, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA


MONICA OEVERMEYER,                               )
                                                 )
        Appellant,                               )
                                                 )
               vs.                               )    No. 78A01-1204-DR-187
                                                 )
DENNIS STEINBIS,                                 )
                                                 )
        Appellee.                                )


                     APPEAL FROM THE SWITZERLAND CIRCUIT COURT
                          The Honorable Ted R. Todd, Special Judge
                               Cause No. 78C01-0606-DR-35


                                      November 27, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Monica Oevermeyer appeals the trial court’s order finding her in contempt as

requested by her ex-husband, Dennis Steinbis. We reverse.

                                           Issue

       Oevermeyer raises three issues but we address only one dispositive issue, which is

whether the trial court properly allowed Steinbis to effectively amend his contempt

petition against Oevermeyer without prior notice to her.

                                           Facts

       The marriage between Oevermeyer and Steinbis ended via an agreed dissolution

decree entered in January 2008. Oevermeyer was granted primary physical custody of

the parties’ two children, and Steinbis was ordered to pay $238 per week in child support.

The decree provided in part that with respect to the parties’ child T.S., Steinbis would be

able to claim T.S. “for income tax purposes so long as he is current in his child support

obligation as of January 15th immediately following the tax year . . . .” App. p. 11.

       Steinbis fell behind in his child support payments in early 2010. On June 9, 2010,

the trial court approved an agreed order modifying Steinbis’s support obligation to

$154.43 per week, effective October 23, 2009. The order also found that Steinbis had

accumulated an arrearage of $821.98 through April 16, 2010 and ordered Steinbis to pay

that amount by July 1, 2010.

       On November 16, 2011, Steinbis filed a petition for a rule to show cause why

Oevermeyer should not be held in contempt.          The petition specifically alleged that

                                             2
Oevermeyer had claimed T.S. on her 2010 federal income tax return, in violation of the

January 2008 dissolution decree. The petition did not mention any other years when

Oevermeyer had allegedly claimed the deduction improperly.

      The trial court held a hearing on the petition on February 24, 2012, at which

Steinbis was represented by counsel and Oevermeyer appeared pro se. At the outset of

the hearing, counsel for Steinbis stated the issue before the court was “the dependency

exemption, specifically for the 2010 tax year.     Uh…there also will be evidence of

uh…problems in other tax…in 2009 and hopefully no problem in 2011.” Tr. p. 3.

During Steinbis’s testimony, he presented documentation from the Internal Revenue

Service (“IRS”) regarding its rejection of his 2010 and 2009 income tax returns for the

reason that he had claimed T.S. as a dependent after someone else had already claimed

him. Steinbis presented further IRS documentation regarding rejection of the 2009 tax

return, including that he was subjected to penalties plus interest in the amount of

$1647.07 for his improper (or duplicative) inclusion of T.S. as a dependent child on his

tax return. Steinbis presented no evidence that he incurred any monetary penalties with

respect to the 2010 tax return. Steinbis also testified that although he became delinquent

on child support by April 2010, he was in fact current on January 15, 2010.

      During her testimony Oevermeyer stated more than once that she had not received

any notice that Steinbis was going to address the 2009 tax return during the hearing and

she was not prepared to address that issue. Regardless, she was questioned by the trial

court regarding her 2009 tax return.     Oevermeyer also attempted to introduce into

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evidence a certified printed worksheet from the county clerk’s office purporting to show

that Steinbis was behind on his child support payments on January 15, 2011, thus

precluding Steinbis from claiming T.S. as a dependent for the 2010 tax year. The trial

court sustained Steinbis’s objection to this document for the reason that it had

handwritten corrections on it.1 Oevermeyer did not present any documentary evidence as

to whether Steinbis was behind on his child support payments as of January 15, 2010,

although she testified that he had been.

        On March 28, 2012, the trial court entered an order finding Oevermeyer in

contempt. The order stated in part:

                Mr. Steinbis was in arrears in early 2010, but paid on both
                support and arrearage by a wage assignment plus a $1300
                payment and was current on January 15, 2011 according to
                his calculation. . . .

                The Court finds that Ms. Oevermeyer is in contempt of this
                Court for her wrongfully claiming [T.S.] as a tax exemption
                or in allowing someone other than Mr. Steinbis to claim him
                as a tax exemption on federal income taxes for the year 2010.
                As a result of this action, Mr. Steinbis has a tax obligation of
                $1,647.07 and attorney’s fees in the amount of $500.00 for a
                total of $2,147.07.

App. pp. 24-25. The trial court ordered Oevermeyer to purge herself of contempt by

paying $2,147.07 to Steinbis. Oevermeyer now appeals.


1
 Oevermeyer contends that these handwritten corrections were made by the court clerk who prepared the
printout and that, in any event, the document indicated that Steinbis was behind on child support on
January 15, 2011, even if the handwritten marks are ignored. After the hearing, Oevermeyer obtained and
submitted to the trial court a letter from the court clerk who prepared the printout, which stated that she
believed Steinbis was $148.43 in child support arrears on January 15, 2011. The trial court refused to
consider this letter.
                                                    4
                                         Analysis

       We first note that Steinbis has not filed a brief with this court. When an appellee

has not filed a brief, we need not undertake the burden of developing arguments on the

appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006).

Rather, we may reverse a trial court judgment if the appellant has presented a case of

prima facie error. Id. Prima facie error means at first sight, on first appearance, or on the

face of it. Id. We will affirm if an appellant does not meet this burden. Id.

       Oevermeyer was found to have committed indirect civil contempt, which is willful

violation of a court order intended to benefit an aggrieved party that takes place outside

the trial court’s presence. See In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct.

App. 2011). A proceeding to hold a person in indirect contempt requires a variety of due

process protections, including notice and an opportunity to be heard. In re Paternity of

J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App. 2007). Indiana Code Section 34-47-3-5

codifies those protections and states:

              (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:



                                             5
                     (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.

              (c) The court shall, on proper showing, extend the time
              provided under subsection (b)(3) to give the defendant a
              reasonable and just opportunity to be purged of the contempt.

              (d) A rule provided for under subsection (b) may not issue
              until the facts alleged to constitute the contempt have been:

                     (1) brought to the knowledge of the court by an
                     information; and

                     (2) duly verified by the oath of affirmation of some
                     officers of the court or other responsible person.

(Emphasis added). If the rule to show cause statute is not complied with, a court may

lack the authority to hold a person in contempt. J.T.I., 875 N.E.2d at 451. Strict

compliance with the statute may be excused under certain circumstances, including

situations where the alleged contemnor appears at the contempt hearing and admits to the

factual basis for a contempt finding. Id.

       Additionally, in contempt cases the alleged contemnor must be given notice of the

alleged contemptuous acts such that he or she has adequate time to prepare a defense.

Showalter v. Brubaker, 650 N.E.2d 693, 701 (Ind. Ct. App. 1995). “Failure to give such

                                            6
notice results in prejudice to the defendant.” Id. Although Indiana Trial Rule 15(B)2 may

be utilized in some cases to permit amendment of a contempt petition, such ability to

amend is not without limitation. Id. In particular, a party generally should not be

permitted to amend a contempt petition during a contempt hearing to include allegations

of other contemptuous acts of which the alleged contemnor had no prior notice. See id.

          As far as “implied consent” to trial of an unpled issue is concerned, both parties

must litigate the new issue. Columbia Club, Inc. v. American Fletcher Realty Corp., 720

N.E.2d 411, 423 (Ind. Ct. App. 1999), trans. denied. “Furthermore, the opposing party

may not insert a new issue into a trial under the cloak of evidence relevant to an already

pleaded issue.” Id.

          Here, Steinbis’s contempt petition explicitly, and only, alleged that Oevermeyer

had improperly prevented him from claiming T.S. as a dependent on his 2010 tax return.

Oevermeyer came to court prepared to defend against that assertion, i.e. that Steinbis was


2
    This rule provides:

                   (B) Amendments to conform to the evidence. When issues not raised
                   by the pleadings are tried by express or implied consent of the parties,
                   they shall be treated in all respects as if they had been raised in the
                   pleadings. Such amendment of the pleadings as may be necessary to
                   cause them to conform to the evidence and to raise these issues may be
                   made upon motion of any party at any time, even after judgment, but
                   failure so to amend does not affect the result of the trial of these issues.
                   If evidence is objected to at the trial on the ground that it is not within the
                   issues made by the pleadings, the court may allow the pleadings to be
                   amended and shall do so freely when the presentation of the merits of the
                   action will be subserved thereby and the objecting party fails to satisfy
                   the court that the admission of such evidence would prejudice him in
                   maintaining his action or defense upon the merits. The court may grant a
                   continuance to enable the objecting party to meet such evidence.

                                                         7
not current on his child support obligation as of January 15, 2011, albeit with

documentary evidence that the trial court ruled was inadmissible. Nonetheless, Steinbis

injected the issue of the 2009 tax return into the contempt proceedings. Oevermeyer

insisted at the hearing that she had no prior notice that Steinbis intended to challenge the

2009 tax return, and nothing in the record contradicts her assertion. Oevermeyer made no

attempt to litigate the issue of the 2009 tax return, except to the extent that the trial court

questioned her about it. She also did not admit that she improperly and contemptuously

claimed T.S. as a dependent on her 2009 tax return, stating her belief that Steinbis was

delinquent on his child support obligation on January 15, 2010, which would have

permitted her to claim T.S. as a dependent for the 2009 tax year.

        We find nothing in the record indicating that Oevermeyer impliedly consented to

litigate the issue of the 2009 tax return. It also is clear that permitting Steinbis to raise

and litigate that issue without prior notice to Oevermeyer prejudiced her. Not only was

she unprepared to address that issue at the hearing, but the trial court’s monetary remedy

for Oevermeyer’s alleged contempt was based exclusively on evidence related to the

2009 tax return, namely the amount of penalties and interest the IRS imposed against

Steinbis for improperly claiming T.S. as a dependent for that tax year. Steinbis presented

no evidence of any IRS penalties related to the 2010 tax year. 3 In other words, Steinbis

failed to prove that even if Oevermeyer improperly prevented him from claiming T.S. as

3
  We also note that, although the trial court found Steinbis was current on his support obligation as of
January 15, 2011, it made no similar express finding with respect to January 15, 2010, Oevermeyer’s
claiming of T.S. as a dependent for the 2009 tax year, and the IRS penalties Steinbis incurred for that tax
year.
                                                    8
a dependent for 2010, that such action caused any harm to him. It thus appears that the

trial court inextricably intertwined the evidence related to the 2009 tax return with the

evidence related to the 2010 tax return. In sum, particularly given our prima facie error

review, we conclude that basing the contempt judgment against Oevermeyer in

significant part on evidence related to the unpled issue of the 2009 tax return violated

Oevermeyer’s due process rights under the rule to show cause statute and was not

permissible under Indiana Trial Rule 15(B).

                                      Conclusion

       The trial court improperly based its contempt order against Oevermeyer on an

alleged contemptuous act that Steinbis failed to mention his contempt petition. We

reverse that order.

       Reversed.

VAIDIK, J., and MATHIAS, J., concur.




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