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Stanke v. Swickard

Court of Appeals of Indiana

August 31, 2015

Jason Stanke, Appellant,
v.
Nicole Swickard, Appellee

Appeal from the Hamilton Superior Court. The Honorable William J. Hughes, Judge. Trial Court Cause No. 29D03-1208-DR-8811.

ATTORNEY FOR APPELLANT: Jeffery Leeper, Indianapolis, Indiana.

Brown, Judge. Friedlander, J., and Riley, J., concur.

OPINION

Brown, Judge.

[¶1] Jason Stanke (" Stanke" ) appeals the trial court's order finding him in contempt of court. Stanke raises three issues, which we consolidate and restate as whether the court erred in finding him in contempt. We reverse and remand.

Facts and Procedural History

[¶2] Stanke and Nicole Swickard finalized their divorce on October 8, 2013. They have two children, B.S. and T.S. (the " Children" ). On February 18, 2014, Stanke filed a petition for modification of child support after he became unemployed. On March 5, 2014, Swickard filed a motion for contempt citation and for modification of parenting time. On April 8, 2014, Swickard filed a second motion for contempt citation. On May 7, 2014, Stanke filed a motion for contempt citation. On May 20, 2014, Swickard filed a Motion for Appointment of a Level II PC. On August 5, 2014, Swickard filed an Amended Verified Combined Motion for Contempt Citation and Modification of Parenting Time, a Motion for Proceedings Supplemental, and a Motion for Rule to Show Cause. On August 6, 2014, Swickard filed a motion to dismiss her April 8, 2014 motion for contempt citation.

[¶3] On August 7, 2014, the court issued an Order to Appear and Show Cause. In relevant part, the order provided that " [i]t is therefore ordered, adjudged, and decreed by this Court that Jason Stanke show cause why he should not be found in contempt of this Court's order regarding nonpayment of his child support obligation under this cause." Appellant's Appendix at 62. On August 11, 2014, Stanke filed a motion to dismiss motion for contempt and to modify parenting time, a motion to dismiss Swickard's motion for a Verified Rule to Show Cause, and a motion to withdraw his May 7, 2014 motion for contempt citation.

[¶4] The parties' arguments on the various motions were heard by the court on August 12, 2014, and October 28, 2014. On November 18, 2014, the court issued its Order on All Pending Motions. Concerning Swickard's August 5, 2014 motion for contempt citation, the court found that Stanke was in contempt for failing to return the Children to Swickard after his midweek parenting time as required by the dissolution decree, and ordered him to serve 180 days in the Hamilton County Jail, which was suspended on the condition that he return the Children to Swickard as required by the decree. The court further found Stanke in contempt for having taken the Children out of the State of Indiana without providing Swickard information required under the Indiana Parenting Time Guidelines, and ordered him to serve 180 days in the Hamilton County Jail, which was suspended on the condition that he not remove the Children from the state without advance notice and without providing the information required by the Parenting Time Guidelines. Finally, the court found Stanke in contempt for failure to pay child support and ordered him to serve 180 days in the Hamilton County Jail, which was stayed for a period of 365 days on the condition that he makes all child support payments in a timely manner in the amount ordered by the court.

Discussion

[¶5] The issue is whether the trial court erred in finding Stanke in contempt. Stanke argues in part that he was not afforded the due process required to find him in contempt of court because the court's rule to show cause order did not meet the statutory requirements for such an order and did not properly notify him of the allegations against him.

[¶6] We initially observe that Swickard has not filed an appellee's brief. When an appellee has not filed an answer brief, we need not undertake the burden of developing an argument on the appellee's behalf. Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind.Ct.App. 2010). Rather, we may reverse the trial court if the appellant presents a case of prima facie error. Id. Prima facie error means at first sight, on first appearance, or on the face of it. Id. If an appellant does not meet this burden, we will affirm. Id.

[¶7] Contempt of court " involves disobedience of a court which undermines the court's authority, justice, and dignity." Id. (citing Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52, 60 (Ind.Ct.App. 2002), trans. denied ). There are two types of contempt: direct and indirect. Id. Direct contempt involves actions occurring near the court that interfere with the business of the court and of which the judge has personal knowledge. Id. Contempt is indirect if it involves actions outside the trial court's personal knowledge. Id. " Willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt." Id. (citing Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind.Ct.App. 2001), reh'g denied, trans. denied ).

[¶8] The trial court here found Stanke in contempt for failing to abide by the terms of the Dissolution Decree concerning midweek parenting time, failing to follow the Indiana Parenting Time Guidelines concerning taking the Children out of the state, and failing to make child support payments. As such, this case involves indirect contempt. See id. (citing In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind.Ct.App. 2007) (concluding that the mother's interference with the father's parenting time as provided by a court order is one of indirect civil contempt)). Generally, a person who willfully disobeys any order ...


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