dissenting.
I respectfully dissent. In my view, the trial court abused its discretion by imposing what I perceive to be the equivalent of a “civil death penalty” to sanction Mary Ann, an incapacitated individual, for the failure of her guardian and attorney to timely produce requested documents and comply with the trial court’s discovery orders. While I agree that the trial court was clearly justified in imposing sanctions under Ind. Trial Rule 37, I believe terminating spousal maintenance for Mary Ann was unjust and unreasonable under the facts and circumstances of this case.-
Ind. Trial Rule 37(B) provides a trial court with sanctions it may impose upon litigants for failure to comply with discovery orders. If a party fails to obey an order to provide discovery, the court “may make such orders in regard to the failure as are just.” T.R. 37(B)(2). The choice of sanction to be imposed under T.R. 37(B) is a matter within the trial court’s discretion so long as the sanction imposed is “just.” See Wozniak v. Northern Indiana Public Serv., 620 N.E.2d 33, 36 (Ind.Ct.App.1993). While a trial court is not necessarily required to impose a lesser sanction before imposing the ultimate sanction of dismissal or default judgment, Marshall v. Woodruff, 631 N.E.2d 3, 5 (Ind.Ct.App.1994), this court has cautioned that such extreme sanctions should be rarely used. See Mulroe v. Angennan, 492 N.E.2d 1077, 1079 (Ind.Ct.App.1986). Further, as the majority correctly points out, extreme sanctions such as dismissal and default judgment may be appropriate when the disobedient party has demonstrated contumacious disregard for the court’s order to the extent that it has or threatens to delay or obstruct the rights of the opposing party to the extent that any other relief would be inadequate. See Nesses v. Specialty Connectors Co., Inc., 564 N.E.2d 322, 327 (Ind.Ct.App.1990); Marshall, 631 N.E.2d at 5.
Here, it is undisputed that Mary Ann has been incapacitated since 1990 as a result of her mental illness. As a result, a guardian was appointed to protect Mary Ann and her property. Although the trial court found Mary Ann in “wilful contempt” for failing to produce or properly respond to William’s motion for production, there is no evidence of record that Mary Ann personally possessed any of the requested documents or had the ability to respond to William’s motion for production. Instead, it is readily apparent that Mary Ann’s guardian and attorney had the responsibility of making a diligent effort to comply with the trial court’s discovery orders. The record is simply devoid of any evidence that Mary Ann personally contributed to her guardian’s failure to obtain the requested documents or her counsel’s failure to timely respond to William’s motion for production.
Further, while I acknowledge that the trial court was not required to impose a lesser sanction, there is no evidence that the trial court even considered whether less extreme sanctions would be reasonable and just under the circumstance. I believe imposition of lesser sanctions against Mary Ann’s guardian and/or attorney would not have been fruitless or added to William’s frustration but would have brought about compliance with the trial court’s discovery order. Alternatively, the trial court could have effectively achieved the same result by merely suspending William’s monthly spousal maintenance support pending the production of the requested documents. Depriving an incapacitated individual of all future maintenance as a result of the failure of Mary Ann’s guardian and attorney to diligently comply with William’s discovery requests strikes me as “unjust” in light of these circumstances. Therefore, I believe the trial court abused its discretion in terminating spousal maintenance as a penalty for failure to comply with discovery.
I would reverse and remand to the trial court for reconsideration of the imposition of a just sanction.