MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 08 2016, 7:55 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Bryan L. Ciyou Matthew A. Burkert
Darlene R. Seymour Danville, Indiana
Ciyou & Dixon, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Middleton, June 8, 2016
Appellant-Respondent, Court of Appeals Case No.
32A05-1509-DR-1461
V. Appeal from the Hendricks
Superior Court
Paula Pyatte, The Honorable Christopher L.
Appellee-Petitioner. Burnham, Special Judge
Trial Court Cause No.
32D02-1401-DR-58
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 1 of 10
Statement of the Case
[1] In this contentious child support and custody case, Robert Middleton
(“Father”) appeals the trial court’s August 7, 2015 order (“2015 Fee Order”) in
which the trial court ordered him to: (1) pay a portion of Paula Pyatte’s
(“Mother”) appellate attorney fees; (2) pay a portion of the court-appointed
Guardian Ad Litem’s (“GAL”) fees; and (3) either report to the county jail to
serve time for contempt or purge himself of contempt by paying Mother
overdue child support, uninsured medical expenses, and attorney fees by a set
date. Father argues that the trial court lacked jurisdiction to enter this order
because Father had a petition to transfer in a prior appeal pending with the
Indiana Supreme Court. Because the first two issues considered by the trial
court and addressed in the 2015 Fee Order were independent of, and did not
interfere with, the subject matter of the pending petition to transfer, the trial
court retained jurisdiction to determine them. The third issue before the trial
court is now moot because Father complied with the trial court’s order and
purged himself of contempt.
[2] We affirm.
Issue
Whether the trial court had jurisdiction to enter the 2015 Fee
Order.
Facts
[3] We set forth the relevant facts in Middleton’s prior appeal as follows:
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 2 of 10
On January 14, 2010, the parties’ marriage was dissolved and the
trial court issued orders on custody, parenting time, and child
support. . . . On January 3, 2013, [Mother] filed a motion
requesting that [Father] show cause for failure to pay child
support. . . . A hearing on the motion was set for March 7, 2013.
[Father] filed and received a continuance postponing the hearing
until June 24, 2013. On June 4, 2013, [Mother] filed a motion
requesting a modification of custody and to appoint a guardian
ad litem (“GAL”). On July 1, 2013, the trial court conducted the
hearing on the issue of non-payment of child support and, in a
subsequent order, appointed a GAL, found that [Father] was in
arrears on his child support payments in the amount of $2270.00,
held him in contempt, and set a hearing on the modification of
custody for October 17, 2013. After [Father] filed a motion for
continuance, the hearing on modification was reset for January
23, 2014. . . .
On January 17, 2014, the trial court judge, Mark A. Smith,
recused himself and vacated the January 23, 2014 modification
hearing. In his final order, Judge Smith noted the reasons for his
recusal including that [Father] had made impliedly threatening
statements and repeated allegations that Judge Smith, the GAL,
the parenting time coordinator, and the attorneys had engaged in
unethical and unlawful conduct. On January 29, 2014, Special
Judge David H. Coleman was randomly selected and assigned to
this case. On February 18, 2014, the trial court reset the
modification hearing for April 25, 2014. Between April 17, and
September 26, 2014, [Father] filed nine motions for continuance
resulting in the modification hearing ultimately being
rescheduled for December 3, 2014.
On June 11, 2014, [Mother] filed a motion requesting [Father] to
show cause for nonpayment of child support and failure to
reimburse unpaid medical bills. . . .
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 3 of 10
Middleton v. Pyatte, No. 32A01-1410-DR-431, *2-5 (Ind. Ct. App. Feb. 13,
2015).
[4] On September 18, 2014, the trial court held a hearing on the issues of child
support and unpaid medical expenses and subsequently issued an order on
September 22, 2014 holding Father in contempt (“2014 Contempt Order”).
Specifically, the trial court ordered Father to serve 180 days in the county jail
but stayed the sentence if Father purged himself of contempt by paying
$6,431.00 in past due child support, $330.26 for uninsured medical expenses,
and $1,000.00 in attorney fees to Mother’s attorney within 45 days. On
October 9, 2014, Father appealed the trial court’s 2014 Contempt Order. Five
days later, on October 14, 2014, the Notice of Completion of Clerk’s Record
was filed in our Court.
[5] In that appeal, this Court concluded that: (1) the trial court’s order finding
Father in contempt was not unlawful; (2) there was sufficient evidence to
support the finding of contempt; and (3) Mother was entitled to appellate
attorney fees. Id. Regarding the attorney fees, we explained that, in light of
Father’s “eleven motions for continuance in 2014 alone, several other
seemingly frivolous motions, and repeated violations of court orders, we are
inclined to agree with [Mother’s] claims” that [Father’s] appeal is frivolous,
filed in bad faith and was pursued to further delay proceedings. Id. at 8. In
addition, we found that that “[Father’s] appeal ha[d] fulfilled every prerequisite
of procedural bad faith” and that his “noncompliance with our rules of
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 4 of 10
appellate procedure [was] substantial, permeate[d] his entire brief, and ha[d]
hindered our review of his contentions of error on appeal.” Id. at 9-10. We
therefore remanded the case to the trial court with instructions to calculate the
amount of reasonable appellate attorney fees Mother was entitled to recover.
Id. at 10.
[6] On April 16, 2015, Father filed a petition for rehearing. Six days later, on April
22, 2015, the trial court ordered Mother and Father to appear in court on July
24, 2015, for a hearing on pending motions and issues, including the “[a]ward
of reasonable appellate attorney fees payable by [Father] to [Mother], as
instructed by Court of Appeals in a memorandum decision handed down on 2-
13-2015,” “Guardian Ad Litem Petition for Fees payable by [Mother] and
[Father], and “[e]nforcement of [o]rders and/or [s]anctions against [Father] for
noncompliance with court orders.” (App. 89). Six days later, on April 28,
2015, this Court denied Father’s petition for rehearing. On May 28, 2015,
Father was deemed to have filed a petition to transfer wherein he argued that
(1) there was insufficient evidence to support the trial court’s finding that he
was in contempt; and (2) the trial court improperly applied the law of contempt
to the facts of his case.
[7] While the petition for transfer was still pending, Mother and Father appeared
for the July 24, 2015 hearing as ordered by the trial court. At the beginning of
the hearing, the trial court explained that the first item to address was the
determination of reasonable appellate attorney fees as ordered by this Court.
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 5 of 10
Father “raised[d] a standing objection to moving forward because the case [had
not] been certified back and [it was] still in the Supreme Court [pending]
transfer. . . .” (Tr. 4). Mother pointed out that Father’s petition to transfer “did
not mention anything about the appellate attorney fees.” (Tr. 6).
[8] Mother’s counsel testified that his hourly rate was $150.00, which he claimed
was significantly lower than the usual and customary hourly rate charged by
attorneys in the Indianapolis area with similar experience. Counsel further
testified that he spent 89.9 hours preparing the appeal as well as $93 in printing
and binding costs, which totaled $13,578 in appellate attorney fees. An
affidavit revealed that the GAL was owed an unpaid balance of $6,290.00.
[9] Father testified that he is a self-employed handyman and that his average yearly
gross income was between $25,000 and $28,000. He submitted tax records
from 2012, 2013, and 2014, as well as business checking account records from
March, April, May, and June 2015. Questioning whether Father had fully
disclosed his financial records, the trial court ordered Father to produce
information on two additional accounts. Father, however, specifically stated
that his financial disclosure was complete.
[10] The trial court then proceeded to the issue of enforcement of orders and
sanctions against Father for failing to comply with the trial court’s 2014
Contempt Order. Father confirmed that he had not paid the past due child
support, uninsured medical expenses, or attorney fees.
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 6 of 10
[11] On August 7, 2015, before Father had disclosed any additional financial
records, the trial court issued a detailed eight-page, single-spaced 2015 Fee
Order wherein it ordered Father to: (1) pay Mother’s attorney $7,468.00 in
appellate attorney fees; (2) pay the court-appointed GAL $3,145.00; and (3)
report to the county jail on September 8, 2015 or purge himself of contempt by
paying (a) Mother $6,431.00 for unpaid child support and $333.26 for unpaid
uninsured medical expenses; and (b) Mother’s attorney $500.00 for attorney
fees, all no later than noon on September 3, 2015. Six days later, on August 13,
2015, the Indiana Supreme Court denied transfer in Father’s pending appeal.
The case was certified on August 28, 2015. According to the Chronological
Case Summary, Father paid all sums necessary to purge himself of contempt on
August 31, 2015. He now appeals the trial court’s 2015 Fee Order.
Decision
[12] At the outset we note that Mother has failed to file an appellee’s brief.1 When
an appellee fails to submit a brief, we need not undertake the burden of
developing an argument for the appellee. Santana v. Santana, 708 N.E.2d 886,
887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may
reverse the trial court if the appellant can establish prima facie error. Id.
However, we may in our discretion decide the case on the merits. Kladis v.
1
Although Mother’s counsel filed an appearance in this appeal, counsel did not tender an appellee’s brief.
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 7 of 10
Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We exercise our
discretion here to consider the merits of the issues presented in this case.
1. Jurisdiction
[13] Father first argues that the trial court lacked jurisdiction to enter the 2015 Fee
Order because there was a petition to transfer pending in the Indiana Supreme
Court. We generally acquire jurisdiction over a matter on the date that the
notice of completion of the clerk’s record is noted in the Chronological Case
Summary (“CCS”). Ind. Appellate Rule 8. Once an appeal has been perfected
to this Court or the Indiana Supreme Court, the trial court has no further
jurisdiction to act upon the judgment appealed from until the appeal has been
terminated. In re Guardianship of Hickman, 811 N.E.2d 843, 848 (Ind. Ct. App.
2004), reh’g denied, trans. denied. This rule facilitates the orderly presentation
and disposition of appeals and prevents the confusing and awkward situation of
having the trial and appellate courts simultaneously reviewing the correctness of
the judgment. Id. Here, the notice of completion of the clerk’s record was
noted in the CCS on October 14, 2014, and the case was certified on August 28,
2015, thereby terminating the appeal. Thus, Father is correct that as a general
rule, the trial court did not have jurisdiction over the case when it entered its
order on August 7, 2015.
[14] However, there are situations in which a trial court may retain jurisdiction over
certain matters notwithstanding a pending appeal. Id. For example, a trial
court retains jurisdiction to perform such ministerial tasks as reassessing costs,
correcting the record, and enforcing a judgment. Id. The trial court may also
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 8 of 10
preside over matters that are independent of and do not interfere with the
subject matter of the appeal. Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct.
App. 2008).
[15] For example, in Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995), the Indiana
Supreme Court concluded that the trial court retained jurisdiction to proceed
with a criminal trial pending the appeal of the denial of bail because the bail
appeal was entirely independent of the trial and would not intermeddle with the
subject matter of the appeal. Further, in Clark v. State, 727 N.E.2d 18, 21 (Ind.
Ct. App. 2000), trans. denied, this Court concluded that the trial court retained
jurisdiction to proceed with a probation revocation hearing during the pendency
of a direct appeal from drug convictions because the appeal was entirely
independent of the revocation proceedings. Here, as in Bradley and Clark, the
trial court retained jurisdiction to proceed with determining appellate attorney
and GAL fees during the pendency of the transfer petition because the transfer
petition was entirely independent of these fees.
[16] We further note that, because Father complied with the trial court’s order and
purged himself of contempt, the issue of whether the trial court had jurisdiction
to address the contempt issue is moot. See Rainbow Cmty., Inc. v. Town of Burns
Harbor, 880 N.E.2d 1254, 1261 (Ind. Ct. App. 2008) (explaining that an issue is
moot when: (1) it is no longer live or when the parties lack a legally cognizable
interest in the outcome; (2) the principal questions in issue have ceased to be
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 9 of 10
matters of real controversy between the parties; or (3) the court on appeal is
unable to render effective relief upon an issue). 2
[17] Affirmed.
Kirsch, J., and Riley, J., concur.
2
[1] Father further argues that even if the trial court had jurisdiction to enter the 2015 Fee Order,
the trial court prematurely issued an order and deprived him of his due process rights without
allowing him to present his entire case. However, our review of the transcript reveals that
Father never told the trial court that he had additional evidence about his income. Rather,
Father specifically told the trial court that his financial disclosure was complete. The issue is
therefore waived. See GKC Ind. Theaters, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652
(Ind. Ct. App. 2002) (noting that a party generally waives appellate review of an issue unless it
raises that issue at trial).
Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 10 of 10