APPEAL FROM THE WABASH CIRCUIT COURT, THE HONORABLE MARK Y. BROWN, SPECIAL JUDGE, CAUSE NO. C80-267.
Shields, P.j., Sullivan, J., Concurs. Hoffman, J., Dissents, With Separate Opinion.
Jerry Chapman appeals the trial court's judgment finding him in contempt of court and ordering him to pay his former wife's past child visitation expenses, her expenses incurred in attending the contempt hearing, and her attorney fees.
Jerry and Claudia Chapman were divorced in Indiana on June 13, 1980. Pursuant to the dissolution decree, Jerry was awarded custody of the couple's two children, and was ordered not to move outside of Indiana with the children. Immediately after the divorce, Claudia moved to Connecticut. In December of 1982, Jerry petitioned the dissolution court for permission to move out of state with the children. On June 2, 1983, the dissolution court granted Jerry's petition and ordered:
"husband shall advance wife's and/or children's costs and expenses for travel in an amount not to exceed $2,500.00 a year."
Jerry moved to Tennessee with the children where Claudia regularly visited them. In February of 1985, Claudia initiated the present action for contempt, alleging Jerry had not paid the $2,500.00 per year visitation expenses as ordered by the court. On November 5, 1985, following a hearing at which Claudia was present but Jerry was not, the dissolution court found Jerry in contempt of court for not appearing at the hearing and for failing to pay the visitation expenses as previously ordered. The court ordered Jerry to pay $7500.00 plus interest, which represented the unpaid visitation expenses, and ordered him confined until the amount was paid. The court also ordered Jerry to pay expenses incurred by Claudia in attending the contempt hearing and her attorney fees.
On appeal, Jerry raises the following issues:
1) whether the court erred in finding it had personal jurisdiction over him;
2) whether the court erred in finding him in contempt for failing to attend the contempt hearing;
3) whether the court erred in finding him in contempt for failing to pay Claudia's visitation expenses; and,
4) whether the court erred in ordering him to pay Claudia's trial and appellate attorney fees.
We affirm in part and reverse in part.
I. Jurisdiction Over the Person
Jerry asserts the trial court did not have jurisdiction over his person because the requirements of Indiana Rule of Trial Procedure 4.4(A)(7) were not met. Claudia argues the court had personal jurisdiction over Jerry because an attorney entered an appearance on his behalf, and cites Kirkpatrick Construction Co. v. Central Electric Co. (1903), 159 Ind. 630, 65 N.E.2d 913 as support.
Contrary to Claudia's argument, with the adoption of the Indiana Rules of Trial Procedure, a general appearance does not act as a waiver of the defense of lack of personal jurisdiction. State v. Omega Painting, Inc. (1984), Ind. App., 463 N.E.2d 287. Jerry preserved his objection to jurisdiction by the timely filing of a T.R. 12(B)(2) motion. Therefore, we must address the merits of Jerry's argument.
The dissolution court did not acquire jurisdiction over Jerry's person for purposes of the contempt proceeding pursuant to T.R. 4.4(A)(7), which, in relevant part, reads:
"(A) Any person or organization that is a nonresident of this state . . . submits to the jurisdiction of the courts of this state as to any action arising from the ...