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McCollum v. Indiana Family and Social Services Administration

Court of Appeals of Indiana

August 31, 2017

Brandis McCollum (formerly Brandis Adams), Appellant,
v.
Indiana Family and Social Services Administration, Appellee.

         Appeal 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 Indianapolis, Indiana

          Pyle, Judge.

         Statement of the Case

         [¶1] 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 opinion.

         [¶2] We affirm, reverse in part, and remand.

         Issues

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.

         Facts

         [¶3] 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.[1] The amount and original date of her child support orders are not clear from the record.

         [¶4] 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.[2] 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.

         [¶5] 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).

         [¶6] Two more months passed, and Mother's child support arrearage grew to $6, 009.00, in spite of her new employment.[3] 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.

         [¶7] 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.

         [¶8] 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 arrearage.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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).

         [¶12] 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.

         [¶13] 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 clothes.

         [¶14] 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.

         [¶15] 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. ...


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