FILED
Apr 18 2018, 10:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Benjamin D. Ice Christopher Bandemer
William A. Ramsey Fort Wayne, Indiana
Barrett McNagny, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Matter of the April 18, 2018
Paternity of S.R.W., By Next Court of Appeals Case No.
Friend, 02A05-1711-JP-2778
Michele Renee Bessette, a/k/a Appeal from the Allen Superior
Michele Renee Wright Bessette, Court
a/k/a Michele Renee Wright, The Honorable Daniel G. Pappas,
Appellant-Petitioner, Special Judge
Trial Court Cause No.
v. 02D07-0102-JP-87
Bradley Turflinger,
Appellee-Respondent.
Barnes, Judge.
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Case Summary
[1] Michele Renee Bessette (“Mother”) appeals the trial court’s denial of her
motion for change of judge in this parenting time dispute with Bradley
Turflinger (“Father”). We affirm.
Issue
[2] Mother raises one issue, which we restate as whether the trial court properly
denied her motion for change of judge pursuant to Indiana Trial Rule 76(C)(3).
Father cross-appeals, arguing that Mother’s appeal should be dismissed as an
improper interlocutory appeal.
Facts
[3] Mother and Father are the parents of S.R.W., who was born in January 2001.
S.R.W. lives with Mother in Indiana, and Father lives in Minnesota. Mother
and Father have joint legal and physical custody, with Father exercising
parenting time according to the distance-based guidelines. The parties have had
numerous significant disagreements and contempt proceedings over custody,
parenting time, and support. In March 2014, the trial court found Mother in
contempt and sentenced her to “sixty (60) days in the Allen County
Confinement Facility, suspended on the condition that she abide by the Orders
of the Court as set forth herein, and all other prior Orders of the Court that do
not conflict with this Order.” Appellant’s App. Vol. II p. 49.
[4] In 2015, Father filed additional contempt proceedings against Mother. The
trial court found Mother in contempt twice. In December 2016, the trial court
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held a hearing on sanctions for the contempts. The trial court ordered Mother
to serve thirty days of her previously suspended sentence, ordered her to serve
two thirty-day sentences for her new contempt findings, and suspended the new
thirty-day sentences upon the condition that she strictly comply with the trial
court’s parenting time order and upon the condition that she pay $5,000 in
attorney fees to Father’s counsel within ninety days. Mother was then taken
into custody to serve the first thirty-day previously-suspended sentence.
[5] Mother appealed, and we affirmed in part, vacated in part, and remanded to the
trial court. On appeal, Mother challenged the trial court’s imposition of thirty
days of incarceration and the two new suspended sentences. Mother did not
challenge the condition that she pay $5,000 in attorney fees to Father’s
attorney. We held that the thirty-day incarceration was “punitive” and vacated
that portion of the order. In re Paternity of S.R.W., No. 02A05-1701-JP-144, slip
op. at 14 (Ind. Ct. App. Sept. 29, 2017). We affirmed the imposition of the two
thirty-day suspended sentences, but instructed the trial court to “revise its order,
striking the modifiers ‘strict’ and ‘strictly’ and conditioning execution of
Mother’s suspended sentences only upon willful non-compliance with its
orders.” Id. at 16-17.
[6] After remand to the trial court, Father filed a motion for an injunction to
prevent Mother from changing S.R.W.’s schooling for the 2017/2018 school
year, a verified petition for rule to show cause, a motion to modify support, and
a motion for proceedings supplemental. A January 2017 motion to reinstate
Mother’s jail sentence also remained pending. Mother filed a motion to change
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judge pursuant to Indiana Trial Rule 76(C)(3). The trial court issued the
following order addressing Father’s January 2017 motion to reinstate Mother’s
jail sentence and Mother’s motion for a change of judge:
1. “In a paternity action, Ind. Trial R. 76(B) allows a party to
make one change-of-judge request before entry of a final decree
and one change-of-judge request in connection with a petition to
modify that decree.” In Re V.A., 10 N.E.3d 61, 64 (Ind. Ct. App.
2014). Neither [Mother] nor [Father] timely requested a change
of judge prior to the entry of the final decree in this paternity case
entered on April 20, 2001. Accordingly, both parties waived
their first opportunity for a change of judge.
2. Subsequently, [Mother] timely requested a change of judge on
October 28, 2013, and Special Judge Daniel G. Pappas was
appointed by the Clerk as a special judge in this cause on
December 5, 2013. Accordingly, [Mother] exercised her second
opportunity for a change of judge and is not entitled to . . .
another change of judge for prospective pleadings filed in this
cause pursuant to Ind. Trial Rule 76(B). (See also Ind. Trial R.
79(1).)
3. However, referring to Ind. Trial R. 76(C)(3), [a] third
opportunity to request a change of judge arises in cases where the
trial court or a reviewing court orders a new trial, or where a
reviewing court remands a case such that a further hearing and
new evidence must be heard. In Re V.A. at p. 64. In its extant
memorandum decision, the Court of Appeals found that the trial
court abused its discretion in executing the initial thirty (30) day
sentence because the appellate court determined it to be punitive
not coercive as required. Accordingly, the Court of Appeals
vacated [Mother’s] initial thirty (30) day executed sentence
imposed by the trial court. No further proceedings are required
concerning the Court’s 30-day executed sentence order. The trial
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court’s executed sentence of thirty (30) days is now void and
conclusive between the parties.
4. The Court of Appeals passed no judgment regarding the length
of the two (2) pending thirty (30) day suspended sentences. No
evidence has been received to determine whether or not [Mother]
has met the conditions to purge herself of these two (2) contempt
findings or, in the alternative, whether further coercive orders are
required. Further, the Court of Appeals remanded with
instructions and directed the trial court to revise its contempt
purge conditions for these two (2) contempt findings by striking
strict and strictly from its order and conditioning [Mother’s]
suspended sentences only upon willful non-compliance with its
orders. No new trial is required and no reconsideration of
previously received evidence is required on remand. Rather, the
appellate court has rendered its decision and provided specific
instructions to the trial court to amend its contempt-purge
conditions.
5. [Mother’s] Motion for Change of Judge filed October 11, 2017
should be denied.
C. Based upon the above findings, the Court orders as follows:
1. [Mother’s] Motion for Change of Judge filed on October 11,
2017, is overruled and denied.
3. [FATHER’S] MOTION T0 REINSTATE MOTHER’S JAIL
SENTENCE FILED JANUARY 18,2017:
A. The Court finds that [Father’s] Motion to Reinstate Mother’s
Jail Sentence filed January 18, 2017 is moot, as the Indiana
Court of Appeals vacated the trial court’s decision which had
ordered [Mother] to serve thirty (30) days executed in the Allen
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County Confinement Facility for Mother’s failure to purge
herself of her contempt found by the Court in its March 14, 2014
Order of the Court.
B. The Court therefore orders that [Father’s] Motion to Reinstate
Mother’s Jail Sentence filed January l8, 2017 is dismissed.
4. AMENDED CONTEMPT PURGE CONDITIONS:
A. The Court hereby amends Paragraph 2.E. of its Order of the
Court dated December 20, 2016, in accordance with instructions
from the Indiana Court of Appeals, to now read as follows:
For her contempt found in Paragraph 2.A. of the Order of the
Court dated August 31, 2015, Mother is ordered to serve thirty
(30) days in the Allen County Confinement Facility, which order
of confinement is suspended upon the condition that she comply
with the parenting time orders of the Court until she is no longer
subject to a parenting time order, and upon the condition that she
pay the attorney fee award set forth below.
For her contempt found in Paragraph 3.A. of the Order of the
Court dated August 31, 2015, Mother is ordered to serve thirty
(30) days in the Allen County Confinement Facility, which order
of confinement is suspended upon the condition that she comply
with the parenting time orders of the Court until she is no longer
subject to a parenting time order, and upon the condition that she
pay the attorney fee award set forth below.
[Mother] may be purged of the aforesaid 30-day suspended
confinement orders by her compliance with the parenting time
orders of the Court, and the payment of $5,000.00 in attorney
fees to Father’s counsel, Christopher Bandemer, within ninety
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(90) days of this Order. An attorney fee judgment is entered in
favor of said Christopher Bandemer and against Mother.
*****
Appellant’s App. Vol. II pp. 31-33. Mother now appeals.
Analysis
[7] Before addressing Mother’s argument, we note that Father argues Mother’s
interlocutory appeal is improper. Our appellate authority is “generally limited
to appeals from final judgments.” Ball State Univ. v. Irons, 27 N.E.3d 717, 720
(Ind. 2015). “However, our Rules of Appellate Procedure also confer appellate
jurisdiction over non-final interlocutory appeals pursuant to Appellate Rule
14.” Id. “There are three ways a case may proceed as an interlocutory appeal:
an interlocutory appeal of right (Rule 14(A)); a discretionary interlocutory
appeal (Rule 14(B)); or an interlocutory appeal from an order granting or
denying class-action certification (Rule 14(C)).” Id. Mother argues that her
appeal is proper under Indiana Appellate Rule 14(A)(1), which allows an
interlocutory appeal as of right where the order is “[f]or the payment of
money.” According to Mother, the trial court’s order required her to pay
$5,000 to Father’s attorney and is a basis for an interlocutory appeal as of right.
[8] We make two observations regarding Mother’s argument. First, Mother raises
no argument on appeal regarding the order requiring her to pay $5,000 to
Father’s attorney. We acknowledge that “an interlocutory appeal raises every
issue presented by the order that is the subject of the appeal.” Tom-Wat, Inc. v.
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Fink, 741 N.E.2d 343, 346 (Ind. 2001). However, the purpose of allowing
appeals for the payment of money is to provide a remedy to parties compelled
to part with money which is tied up awaiting litigation. Ferguson v. Estate of
Ferguson, 40 N.E.3d 881, 885 (Ind. Ct. App. 2015). It seems to us to defeat the
purpose of allowing such interlocutory appeals if the party does not actually
raise an issue regarding the payment of money.
[9] Second, Mother was first ordered to pay the $5,000 in Father’s attorney fees in
December 2016. Mother appealed that order but did not raise any issue
regarding the payment of the attorney fees. The order at issue here merely
restated the trial court’s earlier order for Mother to pay $5,000 in attorney fees.
“The law is well-established that an issue is waived if it was available on the
first appeal but was not presented.” Citizens Action Coal. of Indiana, Inc. v. N.
Indiana Pub. Serv. Co., 582 N.E.2d 387, 391 (Ind. Ct. App. 1991).
Consequently, even if Mother had raised an issue regarding the $5,000
payment, we question whether the issue was available in this appeal.
[10] Although we question whether Mother’s interlocutory appeal is proper, even if
it is allowable, her argument that she was entitled to a change of judge fails.
Mother argues that she was entitled to a change of judge pursuant to Indiana
Trial Rule 76(C)(3), which provides:
In any action except criminal no change of judge or change of
venue from the county shall be granted except within the time
herein provided. Any such application for change of judge (or
change of venue) shall be filed not later than ten [10] days after
the issues are first closed on the merits. Except:
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* * * * *
(3) if the trial court or a court on appeal orders a new trial, or if a
court on appeal otherwise remands a case such that a further
hearing and receipt of evidence are required to reconsider all or
some of the issues heard during the earlier trial, the parties
thereto shall have ten [10] days from the date the order of the
trial court is entered or the order of the court on appeal is
certified[.]
[11] Mother argues that this court remanded the case such that a further hearing and
receipt of evidence was required to reconsider issues. In support of this
argument, Mother contends that this court ordered the trial court to modify its
orders of suspended sentences, reconsider Mother’s future incarceration, and
reconsider the contempt finding. Mother also argues that the trial court was
required to hear new evidence and reconsider issues when examining the
pending motions and Father’s motion to reinstate the jail sentence. Father
argues that the trial court properly denied Mother’s motion for a change of
judge under Indiana Trial Rule 76(C)(3) because this court did not order a new
trial or order the trial court to conduct further hearings or consider additional
evidence.
[12] We agree with Father. In the original appeal, we concluded as follows:
Thus, we conclude that the sanction imposed was punitive.
Although a trial court may impose a punitive contempt sanction,
it may do so only in criminal contempt proceedings, which
involve a variety of additional procedural safeguards that were
not present here. We must therefore vacate the punitive
incarceration order.
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*****
Thus, the authority to fashion a suspended sentence falls squarely
within the trial court’s inherent coercive and remedial civil
contempt power. We therefore affirm the imposition of the
suspended sanctions, while passing no judgment on the length of
those sentences. Rather, we remind the trial court that any future
order of incarceration must be reasonably necessary to garner
compliance, as determined at the time the incarceration is
imposed.
Finally, Mother points out that the order imposing suspended
sentences improperly “presume[s] that any failure to comply with
a future order will not only be willful but also will warrant time
in jail.” Appellant’s Br. at 27. The order states that Mother’s
confinement is “suspended on the condition that she strictly
comply with the parenting[-]time orders of the Court,” and that
she may be purged of her confinement orders “by her strict
compliance with the parenting[-]time orders.” Appellant’s App.
Vol. II at 133. We agree that the language requiring strict
compliance was over-inclusive, in that prohibiting unwillful
actions has no logical coercive effect. Therefore, on remand, we
instruct the trial court to revise its order, striking the modifiers
“strict” and “strictly” and conditioning execution of Mother’s
suspended sentences only upon willful non-compliance with its
orders.
Conclusion
The trial court abused its discretion in imposing a punitive
contempt sanction, and we therefore vacate the order of
incarceration. Moreover, although the imposition of suspended
sentences was a proper coercive sanction, the trial court abused
its discretion in conditioning execution of the sentences on strict
compliance with its parenting-time orders. We instruct the trial
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court to revise its order, instead conditioning the sentence upon
willful non-compliance.
S.R.W., slip op. at 14-17. (internal quotations and footnotes omitted).
[13] On remand, nothing in our opinion required the trial court to conduct a new
trial. Moreover, it was unnecessary for the trial court to conduct further
hearings or introduce additional evidence to reconsider all or some of the issues
heard during the earlier trial. Rather, the trial court only needed to revise its
order to comply with our decision. The fact that the trial court had to consider
new motions that were filed during or after the appeal is irrelevant to the
question of whether Mother was entitled to a change of judge under Trial Rule
76(C)(3). Trial Rule 76(C)(3) allows a change of judge only where a new trial is
ordered or the trial court is required to reconsider all or some of the issues heard
during the earlier trial. Consideration of new motions will not mandate a
change of judge under the rule. We conclude that the trial court properly
denied Mother’s motion for change of judge.
Conclusion
[14] The trial court properly denied Mother’s motion for a change of judge. We
affirm.
[15] Affirmed.
Najam, J., and Mathias, J., concur.
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