• II. The Court Abused Its Discretion Concluding That Jeanne Willfully Failed To Meet Myriad Commitments A. “Ability To Pay” and Willfulness Daniel’s Burden (At Least As Drafter) Goes Beyond Proof Of Belated Compliance: Nor Is Contempt Available In Every Case Where A Child Support Delinquency Arises. Only Upon A Finding By The Court That The Delinquency Was The Result Of A Wilful Failure By The Parent To Comply With The Support Order And That The Delinquent Parent Has The Financial Ability To Comply Is Contempt Available... Here, Michael Testified That He Was Aware That He Was In Arrears And Had No Sources Other Than Borrowing To Pay It. He Testified That A Bank Had Rejected His Loan Application Because He And His Present Wife Did Not Have Enough Income, And Therefore, His Parents Would Be The Only Possible Source Of A Loan. However, There Was No Evidence That His Parents Were Willing Or Able To Make The Loan And, Of Course, They Were Not Obligated To Do So. In Short, There Was No Evidence That Michael’s Failure To Pay Was Willful. In Re Marriage Of Pettit, 626 N.E. 2d at 447-448 (Cites Omitted). The Record Shows That Jeanne Added Daniel As An Insured On All The Policies But Could Not Increase Residential Coverage Beyond Value, Tr. 144, 159-161, 201 (“I Can’t... It Doesn’t Exist”), and There Should Be No Contempt For That. Bartlemay v. Witt, Supra at p. 24; Sizemore v. Glasscock (In Re C.N.S.), 901 N.E. 2d 1102, 1106 (Ind. Ct. App. 2009) (“Incarceration For Contempt Is Legally Allowable Only Where The Support Order... Is Attainable By The Obligor”). The Findings Ignore Other Relevant Factors. Jeanne Testified That She Was Timely With Documents; Missed A Meeting Because Attending To A “Cave In” At A Rental; And, “Begged And Pleaded” To See The Document Exchange Complete. Tr. 167, 168, 182. She Was Late On Some Debts, Trying To Gather Resources, But “I Don’t Have The Funds To Pay Them All In Full.” Tr. 171. She Correctly Expressed It Throughout: * * *
  • July 3, 2014
  • Law Firm: Benson Pantello Morris James Logan - Fort Wayne Office
  • II. THE COURT ABUSED ITS DISCRETION CONCLUDING THAT JEANNE WILLFULLY FAILED TO MEET MYRIAD COMMITMENTS

    A. “ABILITY TO PAY” AND WILLFULNESS
     
    Daniel’s burden (at least as drafter) goes beyond proof of belated compliance:
     
    Nor is contempt available in every case where a child support delinquency arises. Only upon a finding by the court that the delinquency was the result of a willful failure by the parent to comply with the support order and that the delinquent parent has the financial ability to comply is contempt available...
     
    Here, Michael testified that he was aware that he was in arrears and had no sources other than borrowing to pay it. He testified that a bank had rejected his loan application because he and his present wife did not have enough income, and therefore, his parents would be the only possible source of a loan. However, there was no evidence that his parents were willing or able to make the loan and, of course, they were not obligated to do so. In short, there was no evidence that Michael’s failure to pay was willful.
     
    In re Marriage of Pettit, 626 N.E. 2d at 447-448 (Cites omitted).

    The record shows that Jeanne added Daniel as an insured on all the policies but could not increase residential coverage beyond value, Tr. 144, 159-161, 201 (“I can’t... it doesn’t exist”), and there should be no contempt for that. Bartlemay v. Witt, supra at p. 24; Sizemore v. Glasscock (In re C.N.S.), 901 N.E. 2d 1102, 1106 (Ind. Ct. App. 2009) (“incarceration for contempt is legally allowable only where the support order... is attainable by the obligor”). The Findings ignore other relevant factors. Jeanne testified that she was timely with documents; missed a meeting because attending to a “cave in” at a rental; and, “begged and pleaded” to see the document exchange complete. Tr. 167, 168, 182. She was late on some debts, trying to gather resources, but “I don’t have the funds to pay them all in full.” Tr. 171. She correctly expressed it throughout:

    “Due to rents being collected by Petitioner NO FUNDS are available. App. 175.
     
    “I’m making all these payment obligations... That’s part of the reason I don’t have a lawyer here because I can’t afford his fees.” Tr. 200.
     
    “Allow me to conduct business and get my loan.” Tr. 278.

    Conversely, the September 14, 2011, Findings, take for granted Daniel’s contentions, then see all of Jeanne’s “acts and omissions... not only willful” but also mix “no intention of remaining in compliance” into the kettle. Finding 25: App. 72. The November 14, 2011, Findings, at least acknowledge, “Jeanne’s periodic but unconvincing claims of penury,” Finding 20, though the curt phraseology omits the crucial, axiomatic and required finding: How might she pay? An antithesis of the delinquent father in Phillips v. Delks, 880 N.E. 2d 713, 719 (Ind. Ct. App. 2008), with “adequate funds, including, rental income” and salary, Jeanne is newly divorced from a $100,000 salary and without rental income to allocate toward $500,000 or so in loan obligations.[1]

    Daniel’s proofs - for September, 2011, a hodgepodge of e-mails and bank account statements, Tr. 25-27, 31-32; App. 342-345, and for November, 2011, no proofs discernable by your author but rather pure argument concerning what might have been proven provisionally, Tr. 298, with the pre-printed Finding following suit, “The Court also notes from previous proceedings substantial monies... for which she failed to adequately account,” November, 2011, para. 21 - do not pass muster.
     The court erred in concluding that Jeanne willfully failed to keep up with the debts and satisfy myriad contempt judgments and directives.

    B. “CLEAR AND CERTAIN” MANDATES

    Daniel’s Informations had to be founded upon clear and certain underlying mandates:

    In order to be held in contempt for failure to follow the court’s order, IHSAA must have willfully disobeyed the court order. See Meyer v. Wolvos, 707 N.E. 2d 1029, 1031 (Ind. Ct. App. 1999), transf. denied. The order must have been so clear and certain that there could be no question as to what IHSAA must do, and so there could be no question regarding when the order is violated. Martinal v. Lake O’ The Woods Club, Inc., 248 Ind. 252, 254, 225 N.E. 2d 183, 185 (Ind. 1967); Consolidated Rail Corp. v. Estate of Martin, 720 N.E. 2d 1261, 1265 (Ind. Ct. App. 1999); Meyer, 707 N.E. 2d at 1031.

    Ind. High Sch. Ath. Ass’n v. Martin, 765 N.E. 2d 1238, 1241 (Ind. 2002). [2]

    On June 28, 2011, there existed a number of measures to be performed by both parties (a threshold reason to question these fee awards). Daniel’s take-over of 412/414 Archer, 632 Archer, and 708 Putnam imported a change in titleship, insurance, taxes and tenant relations, plus “beginning June 16, 2011, rental payments will be due and owing by tenant or tenants to husband. To the extent Wife has accepted or received rent for the period following June 15, 2011, she shall immediately reimburse Husband.” Jeanne acknowledged the obligation but disputed Daniel’s figures; she additionally “tried to present to their office and they refused.” Tr. 173-174. The MSA left this work to be completed.

    Moreover, the MSA says nothing of tenant deposits, yet the September 14, 2011, Findings dismiss Jeanne’s argument with, “bespeaks a mindset and attitude.” The MSA says nothing of Transfer of Ownership or “proper check-in forms,” or Daniel’s Centennial Wireless obligation, and Jeanne said so, Tr. 140-141, 169-170, yet contrary to the evidence, the Findings read, “no legally justified reason or excuse” for not delivering in two weeks. September 14, 2011, Findings 14, 19 and 22. Lastly, the MSA mentions no washer/dryer or security deposits; Jeanne disputed the claims, Tr. 176, 203, 204, 252; but, “Jeanne did not deny... and offered no valid or other legal excusable reason.” November 14, 2011, Findings 11 and 12.

    There can be no contempt finding borne of the bad Quit-Claims and Disclosures, sundry rental forms, telephone bill, and washer and dryer; that is, the MSA was not “so clear and certain that there could be no question” Jeanne determined to flaunt the directives. Bailey v. Mann, 895 N.E. 2d 1215, 1218 (Ind. 2008) (“We therefore did not find a request to remove the husband’s name to be an inevitable inference”).

    The above Findings are not only erroneous but the court also abused its discretion premising findings and remedies upon “mindset and attitude” rather than “clear and certain” Orders.
    ____________________________________________________________________________

    [1] Also compare, Dawson v. Dawson, 800 N.E. 2d 1000, 1005 (Ind. Ct. App. 2003) (Husband earned $50,000 annually and expended $35,000 for an adoption and room addition rather than satisfy second mortgage); J.M. v. D.A., 935 N.E. 2d 1235, 1243-1244 (Ind. Ct. App. 2010) (Quoting Pettit and finding reversable error where “trial court did not find that Father has the financial ability to comply... and the record does not support such a finding”); Woodward v. Norton, 939 N.E. 2d 657, 662-663 (Ind. Ct. App. 2010), subsequent proceedings at 2012 Ind. App. Unpub. LEXIS 1562, 979 N.E. 2d 1073 (2012) (“Woodward’s income was $387,000”).

    [2] Indiana cases continue to offer detailed analysis. Michliki v. Woefel, 192 Ind. 62, 135 N.E. 177, 178 (1922) (Fee order “too indefinite and uncertain to be enforced by proceedings for contempt”); Nicholas v. Nicholas, 482 N.E. 2d 770 (Ind. Ct. App. 1985); In re Paternity of M.P.M.W., 908 N.E. 2d at 1209 (“The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated. A party may not be held in contempt for failing to comply with an ambiguous or indefinite order”); Bandini v. Bandini, 935 N.E. 2d 253 (Ind. Ct. App. 2010); N.F. v. J.T. (In re M.F.), 956 N.E. 2d 1157, 1164 (Ind. Ct. App. 2011) (“The order... did not expressly state that Mother was responsible for purchasing a plane ticket or otherwise arranging travel... Instead, the order merely set forth the 7-day period... Further, the record indicates that the parties were aware that the last day of school for M.F. was originally scheduled to be Friday... but that there was a possibility that the last day of school would be on Monday...”).