from the Carroll Circuit Court The Honorable Benjamin A.
Diener, Judge Trial Court Cause No. 08C01-0509-GU-17
Attorney for Appellant Mark A. Delgado Monticello, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Abigail R. Recker Deputy Attorney General
of the Case
Brandis McCollum ("Mother") appeals the trial
court's finding that she was in civil contempt of court
for failing to pay her child support as ordered, as well as
the trial court's sanction of one hundred and fifty (150)
weeks incarceration. She argues that there was no evidence
that she willfully disobeyed the trial court's order, as
is required for a citation for civil contempt, and that the
sanction the trial court imposed was improperly punitive.
Because we conclude that there was sufficient evidence that
Mother willfully disobeyed the trial court's order, we
affirm in part. However, we also conclude that the trial
court's sanction was improperly punitive. Accordingly, we
reverse in part and remand with instructions for the trial
court to impose a contempt sanction consistent with this
We affirm, reverse in part, and remand.
1. Whether the trial court abused its discretion when it
found that Mother was in civil contempt of court.
2. Whether the trial court abused its discretion when it
imposed a sanction of one hundred and fifty (150) weeks of
incarceration for Mother's contempt of court citation.
The civil contempt citation at issue in this case resulted
from Mother's longstanding failure to pay her child
support obligations, as well as her failure to participate in
a drug treatment program as ordered by the trial court.
Mother has three children, two of whom are in the custody of
their grandmother ("Grandmother"), their legal
guardian. As a result of Grandmother's guardianship,
Mother is required to pay weekly child support to Grandmother
for the two children in her care. The amount and original date
of her child support orders are not clear from the record.
In the time between the trial court's original child
support order and June 2011, it is apparent that Mother
accrued a significant support arrearage, although the amount
is not stated in the record. As a result of this arrearage, on
June 30, 2011, the trial court ordered Mother to appear and
show cause for why she had not paid her child support. At a
hearing on the order to show cause, Mother presented evidence
that she had not been fulfilling her child support
obligations because she was unemployed. Based on this
evidence, the trial court set a review hearing for two weeks
later and ordered Mother to bring pay stubs and written proof
of job applications to the review hearing.
At the hearing two weeks later, Mother advised the court that
she had been offered employment the previous day and had made
a $200.00 child support payment. The trial court set a review
hearing for two months later and ordered Mother to
immediately let the IV-D Office know when she officially
began to work. (Appellant's App. Vol. 2 at 3).
Two more months passed, and Mother's child support
arrearage grew to $6, 009.00, in spite of her new
employment. As a result, at the next review hearing on
November 17, 2011, the trial court ordered income to be
withheld from Mother's paychecks. Thereafter, Mother
failed to appear at two subsequent review hearings. The trial
court issued a body attachment, and Mother was arrested on
February 28, 2013.
At the hearing after Mother's arrest, the trial court
found that her child support arrearage had grown to $8,
996.25. The State requested that the trial court find Mother
in contempt of court for failing to pay the child support as
ordered, and the trial court appointed an attorney to
represent her in the contempt cause of action. The court then
set a review hearing and ordered Mother's child support
obligation to remain at $100 per week-$50 for support and $50
to be applied towards her arrearage-until the hearing.
By June 27, 2013, two months later, Mother owed $9, 046.25.
The trial court found her in contempt of court for failing to
comply with its child support order and sentenced her to
ninety (90) days in jail with no good time credit. However,
the trial court stayed the sanction and told Mother that she
could purge herself of the contempt before the next review
hearing by complying with its order and reducing her
Thereafter, Mother failed to purge herself of the contempt
and also failed to appear at her next review hearing. Thus,
on October 31, 2013, the trial court ordered her to serve her
previously stayed contempt sanction of ninety (90) days
imprisonment. Nevertheless, the trial court again informed
Mother that she could purge her contempt and be released from
imprisonment, this time by paying $2, 000 towards her
arrearage. Mother did not pay $2, 000 towards her arrearage
and instead served her ninety (90) day sanction in jail.
Following Mother's ninety days of imprisonment, she
continued to miss her child support payments. On May 23,
2016, the State filed another motion for the trial court to
order Mother to show cause for why she should not be held in
contempt of court for her continued failure to pay child
support. The trial court set a hearing on the motion for July
7, 2016. However, the hearing did not occur in July as
planned because Mother failed to appear. The trial court
issued another body attachment, and Mother was arrested on
October 26, 2016.
After Mother's arrest, the trial court held a hearing on
the State's rule to show cause. At the hearing, Mother
revealed that she had recently finished serving a three-month
sentence for theft in the Tippecanoe County Jail and was
still on probation for that conviction. She had also been
charged with using "spice, " but the State had
dismissed that charge after she had completed a diversion
program. (Tr. 29). Since her release from jail, she had
enrolled in a substance abuse treatment program called the
"Through the Gate Program." (Tr. 20).
At the conclusion of the hearing, the trial court found
Mother in civil contempt of court "for willfully failing
to pay child support as ordered despite the ability to do
so." (Appellant's App. Vol. 2 at 36). However, the
court deferred imposing a sanction for the contempt citation
until a review hearing in February 2017. The court's
order provided that Mother could purge her contempt before
that review hearing by paying her court-ordered support. The
trial court also conditioned Mother's release on her
attending and completing the Through the Gate Program.
Subsequently, the trial court held a review hearing as
planned on February 16, 2017. By then, Mother's child
support arrearage had grown to $15, 296. At the hearing, she
admitted that she had not made a child support payment since
February 11, 2016, over a year earlier. However, she
testified that she had been working at a store called
Discount Tobacco for three weeks and had just gotten hired
the day before to work a second job at Burger King. Her job
at Discount Tobacco paid $7.50 per hour and she worked there
thirty-eight hours per week. Her job at Burger King paid
$9.00 per hour, and she had been guaranteed fifteen hours of
work per week there. She said that she had previously had
difficulty getting a job due to her convictions, lack of
transportation, and inability to obtain appropriate work
With respect to her substance abuse treatment, Mother
admitted that she had completed only five days of the Through
the Gate Program after the previous hearing. She testified
that she had quit the program after five days because she had
discovered that the program would take sixteen months to
complete unless she quit work for the first six months. She
said that, since leaving the Through the Gate Program, she
had been attending substance abuse classes at the SURF Center
three to four times per week.
Also at the hearing, the court questioned Mother about the
diversion program she had previously completed so that the
State would dismiss her charge for using spice. ...