dissenting.
I respectfully dissent because I do not believe that remand is necessary and that the sentence must be vacated.
The majority believes that Judge Bani-na's sentencing statement is inadequate because ". .. it is silent on whether Emery may leave upon payment of support." Op. p. ---. However, I believe that Judge Banina is abundantly clear when he tells Emery that, "Putting you in jail is not going to accomplish anything other than punishing you but I'm not so sure you don't deserve some punishment ... sometimes I guess punishment's the only thing left."
Simply said, Emery is being punished for prior failure to pay child support when he clearly had the means to do so, rather than being found in contempt for a present failure to pay child support despite adequate current income. While the latter is entirely proper, see Moore v. Ferguson, 680 N.E.2d 862, 866 (Ind.Ct.App.1997), Emery's incarceration for prior failure to pay without evidence of his present ability to pay is not. See id. at 865 (If a sentence is solely a punitive measure for a party's failure to pay child support in the past, the trial court abuses its discretion when ordering such a sentence for civil contempt.).
I fully understand the frustration felt by Judge Banina and Emery's ex-wife. As usual however, it's Emery's children who will suffer most, at a time when they need Emery's child support the most and are forming the image of him that they will hold for a lifetime and pass on to his grandchildren. It's a legacy that Emery should be ashamed to leave.
ORDER
This Court having heretofore handed down its opinion in this cause marked Memorandum Decision, Not for Publication now Orders that it be published.
IT IS THEREFORE ORDERED that this Court's opinion handed down in this cause on March 26, 2008, marked Memorandum Decision, Not for Publication, is now ordered published.