FLCR: Trial Court’s Contempt Remedy Was Improper Because it Was Punitive, Rather Than Coercive

Case: Jason Stanke v. Nicole Swickard
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s finding of contempt was reversed because the order setting the contempt hearing did not recite the many particulars required by due process.

HELD: Trial court’s contempt remedy was improper because it was punitive, rather than coercive in nature, since the order did not provide an opportunity to purge the contempt.

HELD: Attorney fee award was reversed and remanded for recalculation, since it appeared to be based, at least in part, on the reversed finding of contempt.

Mother and Father divorced in 2013 with two children. The Decree included terms on child support and Father’s parenting time.

In 2014, a flurry of contempt petitions and petitions to modify were filed. The various motions were heard by the Court across two days of hearings. Following the hearings, the trial court issued an order finding Father in contempt for failing to return the children to Mother timely after midweek parenting time, ordering Father to 180 days in Hamilton County Jail, suspended on the condition that Father return the children to Mother as required by the Decree. The trial court also found Father in contempt for taking the children out of state without providing Mother with notice and travel details required by the IPTG. Again, Father was ordered to serve 180 days, suspended on the condition that Father not take the children out of state without providing required travel details. Finally, Father was held in contempt for failing to pay child support as required, again ordered to 180 days in jail, but which would be stayed for a period of one year on the condition that Father pay child support timely and as ordered. Father appealed.

The Court of Appeals reviewed the applicable case law and statutes regarding contempt, particularly with respect to due process considerations. In particular, the Court of Appeals focused on Ind. Code 34-47-3-5 and its notice requirements to a person that may be subject to the Court’s contempt powers. In this case, the order requiring Father to appear and show cause was fairly generic and only obliquely articulated that Father was subject to the possibility of being held in contempt and punished.

“Because [the order] fails to clearly and distinctly set forth the facts underlying [Father’s] contempt citations for failing to return the children to [Mother] after his midweek parenting time and taking the Children out of the State of Indiana without notice to [Mother], and fails to even include these allegations as ones on which [Father] was being ordered to show cause, the court’s order does not comply with Ind. Code 34-47-3-5(b).”  The order setting the hearing did not recite the statutorily required particulars concerning the child support charge, such as the history of Father’s support payments and the amount of the arrearage.

“For these reasons, we conclude that [Father’s] due process rights were violated and that the court erred in finding [him] in contempt of court.”

The Court of Appeals went on to observe that, even had due process been followed in putting Father on notice, the punishments imposed for not returning the children on time and for leaving the state without providing travel notice were inappropriate because they offered Father no opportunity to purge himself. This made the punishments “purely punitive and impermissible.”

Finally, an attorney fee award of $4750 in favor of Mother was reversed because it was based, at least in part, on Father being “blatantly in contempt.”  On remand, the trial court is to reconsider the fee award “without considering any finding of contempt.”

The trial court’s contempt order was reversed, and its attorney fee award was reversed and remanded.

To view the text of this opinion in its entirety, click here: Jason Stanke v. Nicole Swickard



James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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