In re the Marriage of: Thomas Todd Reynolds v. Tricia Reynolds

FILED
Dec 06 2016, 4:07 pm

CLERK
Indiana Supreme Court
Court of Appeals
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE and Tax Court

Ryan H. Cassman Eric J. Benner
Cathy M. Brownson Laurie D. Johnson
Coots Henke & Wheeler, P.C. Boje, Benner, Becker, Markovich & Hixson, LLP
Carmel, Indiana Noblesville, Indiana

In the
Indiana Supreme Court
No. 29S04-1612-DR-00636

IN RE THE MARRIAGE OF
THOMAS TODD REYNOLDS,
Appellant (Petitioner below),

v.

TRICIA REYNOLDS,
Appellee (Respondent below).

Appeal from the Hamilton Superior Court, No. 29D03-0904-DR-00515
The Honorable William J. Hughes, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 29A04-1505-DR-00265

December 6, 2016

David, Justice.

At issue is whether the trial court abused its discretion when it found Father in contempt
for failing to provide Mother certain income documentation as required by the parties’ dissolution
decree and agreed order of modification. We hold that it did not. Specifically, we hold that: 1)
Mother’s motion for rule to show cause was specific enough to excuse strict compliance with the
contempt statute and protect Father’s due process rights; 2) Father waived his objections to the
evidentiary findings of the trial court when he agreed to a summary proceeding with no objection;
and 3) under the facts and circumstances of this case, the trial court was not required to give Father
an opportunity to purge himself of contempt. Accordingly, we affirm the trial court.

Facts and Procedural History

In 2010, Thomas Todd Reynolds (Father) and Tricia Reynolds (Mother) divorced. The
dissolution decree established a child support obligation to be paid by Father and required that
upon written request from Mother, Father make certain tax documents available for inspection. In
2013, the trial court entered an agreed modification order wherein Father’s obligation was
modified to account for Father’s fluctuating income. This modification order required that Father
pay a set weekly sum as well as make quarterly payments based upon a percentage of his income.
The order further required that Father provide documentation of his income and a payment
calculation to Mother quarterly, beginning in the first quarter of 2013.

In March 2014, Mother served a written request for production of documents on Father
requesting tax information for Father for the years 2011-2013. In May 2014, after receiving no
response from Father, Mother’s counsel followed-up on the discovery requests in an attempt to
informally resolve the discovery dispute. In June 2014, Mother filed her motion to compel Father’s
discovery responses. The trial court granted Mother’s motion to compel, ordered Father to respond
to Mother’s request for production of documents and set a compliance hearing. During an August
compliance hearing, the court dismissed Mother’s motion to compel as moot, finding no petitions
for modification or contempt before the court.

Shortly thereafter, Mother filed a Verified Motion for Rule to Show Cause (“Contempt
Motion”), alleging Father should be held in contempt for failing to comply with the dissolution
decree and the agreed modification order regarding production of certain income and tax
documents. During the pendency of the Contempt Motion, Mother continued to actively seek the
requested documents. For instance, she served another request for production on Father, again
requesting his tax documents for 2011-2013, and in October 2014, she attended a document
inspection at the office of counsel for Father in effort to obtain the requested documents. While
Father provided some of the requested documents, he did not provide all of them or make them

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available at the inspection, and thus, Mother’s counsel sent correspondence to Father’s counsel
outlining the documents that had still not been produced.

In November 2014, Mother filed another motion to compel. The trial court granted
Mother’s motion to compel and set the matter for a compliance hearing. Father filed a motion to
set aside the order compelling discovery and to dismiss the rule to show cause.

In December 2014, the trial court held a hearing on the parties’ outstanding motions. The
parties agreed to present argument in summary fashion. Ultimately, the court found Father in
contempt for failing to provide Mother tax documentation from 2010 forward pursuant to the
parties’ dissolution decree. As sanctions for contempt, the trial court ordered that Father produce
the requested documents within thirty (30) days and further ordered that Father pay $3,000 of
Mother’s attorney fees. Father’s consolidated motion to correct errors, or, in the alternative,
motion for relief under Trial Rule 60(B) was denied after a hearing. Father then appealed.

On appeal, Father argued that the trial court abused its discretion by finding him in
contempt and ordering him to pay a portion of Mother’s attorney fees. Specifically, he argued that
the trial court did not issue a proper rule to show cause, that mother’s motion for rule to show
cause did not provide him with proper notice under the contempt statutes and that he did not
willfully violate the terms of the dissolution decree or agreed modification order. Mother
responded that Father did not provide all of the tax documents required by the dissolution decree
and agreed modification order despite her repeated requests. She further argued that her motion
sufficiently notified Father of the accusations against him and that Father waived any argument
regarding notice because he did not raise the issue at the trial court.

The Court of Appeals reversed the trial court for abuse of discretion in a memorandum
decision for two reasons: 1) the trial court did not strictly comply with the rule to show cause
statute; and 2) the trial court failed to give Father a way to purge himself of contempt. Reynolds
v. Reynolds, 2016 WL 612763 at *6 (Ind. Ct. App. 2016).

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 We now grant transfer and affirm the trial court, thereby vacating the Court of Appeals
opinion. Ind. App. Rule 58(A).

Standard of Review

“It is soundly within the discretion of the trial court to determine whether a party is in
contempt, and we review the judgment under an abuse of discretion standard.” Steele-Giri v.
Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202
(Ind. 2012)). We will reverse a trial court's finding of contempt only if there is no evidence or
inference therefrom to support the finding.” Id. The trial court has the inherent power to “maintain
[ ] its dignity, secur[e] obedience to its process and rules, rebuk[e] interference with the conduct
of business, and punish[ ] unseemly behavior.” Id.

Discussion

1. The Motion for the Rule to Show Cause contained sufficient factual detail so as to
excuse strict compliance and protect Father’s due process rights.

Contempt of court generally involves disobedience of a court or court order that
“undermines the court’s authority, justice, and dignity.” In re A.S., 9 N.E.3d 129, 131 (Ind. 2014)
(citing State v. Heltzel, 552 N.E.2d 31, 34 (Ind. 1990)). There are two kinds of contempt: direct
contempt and indirect contempt. Id. Indirect contempt, which is at issue in this case, involves
those acts “committed outside the presence of the court ‘which nevertheless tend to interrupt,
obstruct, embarrass or prevent the due administration of justice.’” Id. at 32. (quoting 6 Ind. Law
Encyc. Contempt §2 (1958)).

Indiana has codified the procedural requirements for finding indirect contempt at Ind. Code
section 34-47-3-5, which provides:

(a) In all cases of indirect contempt, the person charged with indirect
contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt;
to be served with a rule of the court against which the
contempt was alleged to have been committed.

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 (b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to
constitute the contempt;
(2) specify the time and place of the facts with reasonable
certainty, as to inform the defendant of the nature and
circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required
to show cause, in the court, why the defendant should not be
attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under
subsection (b)(3) to give the defendant a reasonable and just
opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts
alleged to constitute the contempt have been:
(1) brought to the knowledge of the court by an information; and
(2) duly verified by oath of affirmation of some officers of the
court or other responsible person.

This statute “[e]ssentially . . . fulfills the due process requirement that a contemnor be
provided with adequate notice and an opportunity to be heard.” In re Contempt of Wabash Valley
Hosp., Inc., 827 N.E.2d 50, 62 (Ind. Ct. App. 2005). Our Court has previously held that alleged
contemnors are guaranteed certain due process and procedural rights, but we have not yet had
reason to elaborate on these requirements. See In re Marriage of Neiswinger, 447 N.E.2d 257, 262
(Ind. 1985).

Generally, a court’s authority to find a person in contempt rests on whether a trial court has
strictly complied with the statutory requirements set forth in the rule to show cause statute. In re
Paternity of J.T.I, 875 N.E.2d 447, 451 (Ind. Ct. App. 2007). Our courts have found, however,
that strict compliance with the statute may be excused if “it is clear the alleged contemnor
nevertheless had clear notice of the accusations against him or her . . .” Id. See also Lasater v.
Lasater, 809 N.E.2d 380, 386 (Ind. Ct. App. 2004); In re Contempt of Wabash Valley Hosp., Inc.,
827 N.E.2d at 63-64. Examples of this “clear notice” exception include when a contemnor receives
a copy of an original contempt information that contains detailed factual allegations of contempt
or if the contemnor admits the factual basis for a contempt finding. In re Paternity of J.T.I., 875
N.E.2d at 451.

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 In this case, although Father disputes the notice he received, we are satisfied that Father’s
due process rights have been preserved in this case. Mother’s Motion for Rule to Show Cause
contained detailed factual allegations that Father failed to comply with provisions of the
dissolution decree and agreed modification order. The Motion also incorporated by reference
Mother’s request for production of documents to show which documents had been requested.

Admittedly, under a plain reading of the rule to show cause statutes, the contemnor is
entitled to be “served with a rule of the court against which the contempt was alleged to have been
committed.” Ind. Code § 34-47-3-5(a). We are not convinced, however, that a trial court itself
must bear the burden of articulating the specific facts alleging contempt in its Order to Appear and
Show Cause when a moving party has already done so and has properly served the defendant with
the contempt motion. As our Court of Appeals recently held, due process is only denied when
neither a court order nor a motion for rule to show cause contain sufficient factual detail about the
allegations of contempt. See Stanke v. Swickard, 43 N.E. 3d 245, 249 (Ind. Ct. App. 2015). In
this case, the motion for contempt was sufficient to provide Father with proper notice.

2. Father has waived his objections to the evidentiary findings of the trial court
because he agreed to proceed in summary fashion and the trial court’s factual
determinations are supported by the evidence.

Summary proceedings “allow the court to base its findings and conclusions upon the
arguments of counsel and limited evidence.” Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind. 2015).
They also allow parties that agree on most of the relevant facts to expedite the resolution of the
case. Id.

Both Father and Mother agreed to proceed in summary fashion in this case. During the
summary proceeding, Father argued that he did not fail to provide income and tax documents to
Mother upon her request. As discussed above, Father did not argue insufficient notice of the
allegations in support of a contempt finding; instead, Father argued in his Motion to Correct Errors
that “some of the background in this case… got lost in the shuffle in the summary presentation.”1
(Tr. at 32.) We construe this argument as an objection to the form of the proceedings.

1
Father seems to recognize his mistake in agreeing to a summary proceeding when he also notes in his
Motion to Correct Errors, “I guess in hindsight Your Honor maybe we should have more aggressively gone
6
 However, if Father believed that he could not ascertain the specific factual allegations
underlying the contempt proceeding or that a full evidentiary hearing was necessary, he should
have objected to a summary proceeding. See Bogner, 29 N.E.3d at 741 (finding that when a litigant
believes a full evidentiary hearing is necessary, he or she must make that objection known rather
than agree to a summary proceeding). We have previously upheld “the general principle that
objections not contemporaneously raised are waived.” Id. (citing Jackson v. State, 735 N.E.2d
1146, 1152 (Ind. 2000)). Appellants may not sit idly by and raise issues for the first time on appeal.
Id. (citing Trout v. Trout 638 N.E.2d 1306, 1307 (Ind. Ct. App. 1994)). Accordingly, because
Father raised no objections to the form of the proceeding, the issue becomes whether the trial
court’s finding of contempt was an abuse of discretion. See Steele-Giri, 51 N.E.3d at 124.

Our standard of review requires that we reverse the trial court only if there is no evidence
to support a finding of indirect contempt. Steele-Giri, 51 N.E.3d at 124. Father argues that the
dissolution decree simply required him to make documents “available” rather than “produce” the
documents and that the facts before the trial court did not support a finding of contempt.

However, we find that the trial court did not abuse its discretion when it found Father in
contempt because there was evidence that Father did not produce certain tax documentation as
required by parties’ dissolution decree. Based on the arguments presented at summary trial, the
trial court found that, although Father did produce some of the requested information including his
Federal 1040 tax returns for 2010, 2011, and 2012, he did not provide all appropriate tax
information from those years to Mother or otherwise make the documents available for inspection.
This is despite multiple discovery requests from Mother. Whether the dissolution decree required
Father to “make available” the documents or “produce” them is immaterial. Father had multiple
opportunities over the course of many months to produce or make the requested documents
available to Mother. 2 He failed to do so. Further, the trial court’s order explicitly states that

after the Rule to Show Cause that was filed. . .We didn’t want to bring before this [c]ourt just a who’s right
on some issue that we thought was frankly a lay down issue.” (Tr. at 38).
2
As discussed above, Mother requested documents in March 2014, reminded Father’s counsel of this
request in May 2014, filed a motion to compel discovery of documents in June 2014, served Father with a
another request for production of documents in August 2014 and filed another motion to compel discovery
in November 2014.
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Father “did not make such information available to [Mother] for inspection.” (Appellant’s App.
21.) Thus, the trial court did not abuse its discretion when it found that Father failed to abide by
the divorce decree.

With respect to the sanctions imposed by the trial court, our courts have held “trial court[s
have] inherent authority to award attorney’s fees for civil contempt.” Crowl v. Berryhill, 678
N.E.2d 828, 831 (Ind. Ct. App. 1997); see also Thomas v. Woollen, 266 N.E.2d 20, 22 (Ind. 1971);
J.S. v. W.K., 2016 WL 3442375 at *5-6 (Ind. Ct. App. June 23, 2016); and Ind. Code section 31-
16-11-13). Here, the sanctions for this contempt included providing the requested documentation
to Mother within thirty days and paying $3,000 of Mother’s attorney fees. We defer to the trial
court’s finding that these fees were reasonable in light of the circumstances and find that the trial
court did not abuse its discretion in this instance.

3. The trial court was not required to give Father an opportunity to purge himself.

The Court of Appeals addressed subsection (c) of the contempt statute sua sponte in its
memorandum decision, finding the trial court erred by not giving Father the opportunity to purge
himself of contempt.4 Reynolds at *5. At the outset, we reemphasize that the purpose of civil
contempt is to coerce action by the contemnor for the benefit of the aggrieved party; civil contempt
is not meant to punish the contemnor. See Deckard v. Deckard, 841 N.E.2d 194, 203 (Ind. Ct.
App. 2006). See also Crowl, 678 N.E.2d at 831. Furthermore, the “purge” portion of the statute
has typically only applied to cases where the trial court has ordered jail time to coerce action by

3
Ind. Code section 31-16-11-1(a) reads, in relevant part:

(a) The court periodically may order a party to pay a reasonable amount for:

(1) the cost of the other party of maintaining or defending any proceeding under this
chapter…;

(2) attorney’s fees…

(emphasis added).
4
Ind. Code section 34-47-3-5(c) reads: “The court shall, on proper showing, extend the time provided under
subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.”
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the contemnor.5 See Stanke, 43 N.E.3d at 249; Reed v. Cassady, 27 N.E.3d 1104, 1114 (Ind. Ct.
App. 2015); In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1210 (Ind. Ct. App. 2009); In re
Paternity of C.N.S., 901 N.E.2d 1102, 1106 (Ind. Ct. App. 2009). This is likely because jail time
is generally punitive in nature and civil contempt orders avoid punishing the contemnor by
allowing the party to be purged of contempt. Henderson v. Henderson, 919 N.E.2d 1207, 1212
n.3 (Ind. Ct. App. 2010). However, the trial court did not order Father to serve any jail time in this
case.

Further, subsection (c) of the rule to show cause statute contains the modifier “on proper
showing” before the clause allowing the defendant an opportunity to be purged of contempt. Thus,
Father must show the court why he should be allowed to purge the contempt before the court
allows the opportunity to purge. The Court of Appeals did not make mention of how this
subsection would apply in this case. Accordingly, because it is not clear that Father made the
proper showing and he was not facing jail time, we are unpersuaded that it would be necessary for
the trial court to outline the ways in which Father may be “purged of the contempt.” We note that
presumably Father could have produced or permitted inspection of the requested information prior
to the parties appearing in court, but he failed to do so.

Conclusion

In light of the standard of review and because: 1) Father received sufficient notice of the
specific factual allegations underlying the contempt proceeding; 2) Father did not object to a
summary proceeding and the evidence was sufficient to support the trial court’s findings; and 3)
the trial court was not required to offer Father an opportunity to purge his contempt under these
circumstances, we hold that the trial court did not abuse its discretion in finding Father in contempt
for not producing certain tax documents pursuant to the parties’ dissolution decree and the agreed
order of modification. Accordingly, we affirm the trial court.

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This is not to say that the purge portion of the statute could never apply in absence of jail time. We only
hold that it does not apply under the facts and circumstances of this case.
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Rush, C.J., Rucker and Massa, J.J., concur.

Slaughter, J., dissents with separate opinion.

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Slaughter, J., dissenting.

I respectfully dissent from the Court’s decision to reinstate the indirect contempt against
Father. A key procedural protection within the governing contempt statute applies here. See Ind.
Code § 34-47-3-5. Specifically, Father was entitled “to be served with a rule of the court” that
“clearly and distinctly set forth the facts that are alleged to constitute the contempt”. Id. §§ 34-47-
3-5(a), 5(b)(1). Given the trial court’s acknowledged failure to issue a rule to show cause in
accordance with this statutory prerequisite, I would reverse its contempt order.

The Court overlooks this omission by concluding the statute merely codifies the minimal
constitutional “due process requirement that a contemnor be provided with adequate notice and an
opportunity to be heard.” Supra at *5 (quoting In re Contempt of Wabash Valley Hosp., Inc., 827
N.E.2d 50, 62 (Ind. Ct. App. 2005)). According to the Court, it suffices that Mother’s motion for
rule to show cause “contained detailed factual allegations that Father failed to comply with
provisions of the dissolution decree and agreed modification order.” Supra at *6. I am unable to
join the Court’s opinion because I believe the legislature is entitled to require that alleged
contemnors receive greater procedural protections than the minimum constitutional requirements
afforded by the Fourteenth Amendment.

There can be no mistaking the legislative mandate here. The statute’s opening words
command that the procedural requirements recited in this chapter apply “[i]n all cases” of indirect
contempt. I.C. § 34-47-3-5(a). The statute’s plain meaning required the trial court to issue a rule
to show cause detailing the factual basis for Father’s alleged contempt. Because the court failed to
do so, its contempt order should not stand. I respectfully dissent from our decision excusing the
trial court’s noncompliance and reinstating Father’s contempt.