Robert Middleton v. Paula Pyatte (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 08 2016, 7:55 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Bryan L. Ciyou Matthew A. Burkert Darlene R. Seymour Danville, Indiana Ciyou & Dixon, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Middleton, June 8, 2016 Appellant-Respondent, Court of Appeals Case No. 32A05-1509-DR-1461 V. Appeal from the Hendricks Superior Court Paula Pyatte, The Honorable Christopher L. Appellee-Petitioner. Burnham, Special Judge Trial Court Cause No. 32D02-1401-DR-58

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 1 of 10

Statement of the Case [1] In this contentious child support and custody case, Robert Middleton

(“Father”) appeals the trial court’s August 7, 2015 order (“2015 Fee Order”) in

which the trial court ordered him to: (1) pay a portion of Paula Pyatte’s

(“Mother”) appellate attorney fees; (2) pay a portion of the court-appointed

Guardian Ad Litem’s (“GAL”) fees; and (3) either report to the county jail to

serve time for contempt or purge himself of contempt by paying Mother

overdue child support, uninsured medical expenses, and attorney fees by a set

date. Father argues that the trial court lacked jurisdiction to enter this order

because Father had a petition to transfer in a prior appeal pending with the

Indiana Supreme Court. Because the first two issues considered by the trial

court and addressed in the 2015 Fee Order were independent of, and did not

interfere with, the subject matter of the pending petition to transfer, the trial

court retained jurisdiction to determine them. The third issue before the trial

court is now moot because Father complied with the trial court’s order and

purged himself of contempt. [2] We affirm.

Issue Whether the trial court had jurisdiction to enter the 2015 Fee Order.

Facts [3] We set forth the relevant facts in Middleton’s prior appeal as follows:

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On January 14, 2010, the parties’ marriage was dissolved and the trial court issued orders on custody, parenting time, and child support. . . . On January 3, 2013, [Mother] filed a motion requesting that [Father] show cause for failure to pay child support. . . . A hearing on the motion was set for March 7, 2013. [Father] filed and received a continuance postponing the hearing until June 24, 2013. On June 4, 2013, [Mother] filed a motion requesting a modification of custody and to appoint a guardian ad litem (“GAL”). On July 1, 2013, the trial court conducted the hearing on the issue of non-payment of child support and, in a subsequent order, appointed a GAL, found that [Father] was in arrears on his child support payments in the amount of $2270.00, held him in contempt, and set a hearing on the modification of custody for October 17, 2013. After [Father] filed a motion for continuance, the hearing on modification was reset for January 23, 2014. . . .

On January 17, 2014, the trial court judge, Mark A. Smith, recused himself and vacated the January 23, 2014 modification hearing. In his final order, Judge Smith noted the reasons for his recusal including that [Father] had made impliedly threatening statements and repeated allegations that Judge Smith, the GAL, the parenting time coordinator, and the attorneys had engaged in unethical and unlawful conduct. On January 29, 2014, Special Judge David H. Coleman was randomly selected and assigned to this case. On February 18, 2014, the trial court reset the modification hearing for April 25, 2014. Between April 17, and September 26, 2014, [Father] filed nine motions for continuance resulting in the modification hearing ultimately being rescheduled for December 3, 2014.

On June 11, 2014, [Mother] filed a motion requesting [Father] to show cause for nonpayment of child support and failure to reimburse unpaid medical bills. . . .

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Middleton v. Pyatte, No. 32A01-1410-DR-431, *2-5 (Ind. Ct. App. Feb. 13,

2015). [4] On September 18, 2014, the trial court held a hearing on the issues of child

support and unpaid medical expenses and subsequently issued an order on

September 22, 2014 holding Father in contempt (“2014 Contempt Order”).

Specifically, the trial court ordered Father to serve 180 days in the county jail

but stayed the sentence if Father purged himself of contempt by paying

$6,431.00 in past due child support, $330.26 for uninsured medical expenses,

and $1,000.00 in attorney fees to Mother’s attorney within 45 days. On

October 9, 2014, Father appealed the trial court’s 2014 Contempt Order. Five

days later, on October 14, 2014, the Notice of Completion of Clerk’s Record

was filed in our Court. [5] In that appeal, this Court concluded that: (1) the trial court’s order finding

Father in contempt was not unlawful; (2) there was sufficient evidence to

support the finding of contempt; and (3) Mother was entitled to appellate

attorney fees. Id. Regarding the attorney fees, we explained that, in light of

Father’s “eleven motions for continuance in 2014 alone, several other

seemingly frivolous motions, and repeated violations of court orders, we are

inclined to agree with [Mother’s] claims” that [Father’s] appeal is frivolous,

filed in bad faith and was pursued to further delay proceedings. Id. at 8. In

addition, we found that that “[Father’s] appeal ha[d] fulfilled every prerequisite

of procedural bad faith” and that his “noncompliance with our rules of

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appellate procedure [was] substantial, permeate[d] his entire brief, and ha[d]

hindered our review of his contentions of error on appeal.” Id. at 9-10. We

therefore remanded the case to the trial court with instructions to calculate the

amount of reasonable appellate attorney fees Mother was entitled to recover.

Id. at 10. [6] On April 16, 2015, Father filed a petition for rehearing. Six days later, on April

22, 2015, the trial court ordered Mother and Father to appear in court on July

24, 2015, for a hearing on pending motions and issues, including the “[a]ward

of reasonable appellate attorney fees payable by [Father] to [Mother], as

instructed by Court of Appeals in a memorandum decision handed down on 2-

13-2015,” “Guardian Ad Litem Petition for Fees payable by [Mother] and

[Father], and “[e]nforcement of [o]rders and/or [s]anctions against [Father] for

noncompliance with court orders.” (App. 89). Six days later, on April 28,

2015, this Court denied Father’s petition for rehearing. On May 28, 2015,

Father was deemed to have filed a petition to transfer wherein he argued that

(1) there was insufficient evidence to support the trial court’s finding that he

was in contempt; and (2) the trial court improperly applied the law of contempt

to the facts of his case. [7] While the petition for transfer was still pending, Mother and Father appeared

for the July 24, 2015 hearing as ordered by the trial court. At the beginning of

the hearing, the trial court explained that the first item to address was the

determination of reasonable appellate attorney fees as ordered by this Court.

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Father “raised[d] a standing objection to moving forward because the case [had

not] been certified back and [it was] still in the Supreme Court [pending]

transfer. . . .” (Tr. 4). Mother pointed out that Father’s petition to transfer “did

not mention anything about the appellate attorney fees.” (Tr. 6). [8] Mother’s counsel testified that his hourly rate was $150.00, which he claimed

was significantly lower than the usual and customary hourly rate charged by

attorneys in the Indianapolis area with similar experience. Counsel further

testified that he spent 89.9 hours preparing the appeal as well as $93 in printing

and binding costs, which totaled $13,578 in appellate attorney fees. An

affidavit revealed that the GAL was owed an unpaid balance of $6,290.00. [9] Father testified that he is a self-employed handyman and that his average yearly

gross income was between $25,000 and $28,000. He submitted tax records

from 2012, 2013, and 2014, as well as business checking account records from

March, April, May, and June 2015. Questioning whether Father had fully

disclosed his financial records, the trial court ordered Father to produce

information on two additional accounts. Father, however, specifically stated

that his financial disclosure was complete. [10] The trial court then proceeded to the issue of enforcement of orders and

sanctions against Father for failing to comply with the trial court’s 2014

Contempt Order. Father confirmed that he had not paid the past due child

support, uninsured medical expenses, or attorney fees.

Court of Appeals of Indiana | Memorandum Decision 32A05-1509-DR-1461 | June 8, 2016 Page 6 of 10 [11] On August 7, 2015, before Father had disclosed any additional financial

records, the trial court issued a detailed eight-page, single-spaced 2015 Fee

Order wherein it ordered Father to: (1) pay Mother’s attorney $7,468.00 in

appellate attorney fees; (2) pay the court-appointed GAL $3,145.00; and (3)

report to the county jail on September 8, 2015 or purge himself of contempt by

paying (a) Mother $6,431.00 for unpaid child support and $333.26 for unpaid

uninsured medical expenses; and (b) Mother’s attorney $500.00 for attorney

fees, all no later than noon on September 3, 2015. Six days later, on August 13,

2015, the Indiana Supreme Court denied transfer in Father’s pending appeal.

The case was certified on August 28, 2015. According to the Chronological

Case Summary, Father paid all sums necessary to purge himself of contempt on

August 31, 2015. He now appeals the trial court’s 2015 Fee Order.

Decision [12] At the outset we note that Mother has failed to file an appellee’s brief.1 When

an appellee fails to submit a brief, we need not undertake the burden of

developing an argument for the appellee. Santana v. Santana, 708 N.E.2d 886,

887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may

reverse the trial court if the appellant can establish prima facie error. Id.

However, we may in our discretion decide the case on the merits. Kladis v.

1 Although Mother’s counsel filed an appearance in this appeal, counsel did not tender an appellee’s brief.

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Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We exercise our

discretion here to consider the merits of the issues presented in this case.

1. Jurisdiction

[13] Father first argues that the trial court lacked jurisdiction to enter the 2015 Fee

Order because there was a petition to transfer pending in the Indiana Supreme

Court. We generally acquire jurisdiction over a matter on the date that the

notice of completion of the clerk’s record is noted in the Chronological Case

Summary (“CCS”). Ind. Appellate Rule 8. Once an appeal has been perfected

to this Court or the Indiana Supreme Court, the trial court has no further

jurisdiction to act upon the judgment appealed from until the appeal has been

terminated. In re Guardianship of Hickman, 811 N.E.2d 843, 848 (Ind. Ct. App.

2004), reh’g denied, trans. denied. This rule facilitates the orderly presentation

and disposition of appeals and prevents the confusing and awkward situation of

having the trial and appellate courts simultaneously reviewing the correctness of

the judgment. Id. Here, the notice of completion of the clerk’s record was

noted in the CCS on October 14, 2014, and the case was certified on August 28,

2015, thereby terminating the appeal. Thus, Father is correct that as a general

rule, the trial court did not have jurisdiction over the case when it entered its

order on August 7, 2015. [14] However, there are situations in which a trial court may retain jurisdiction over

certain matters notwithstanding a pending appeal. Id. For example, a trial

court retains jurisdiction to perform such ministerial tasks as reassessing costs,

correcting the record, and enforcing a judgment. Id. The trial court may also

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preside over matters that are independent of and do not interfere with the

subject matter of the appeal. Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct.

App. 2008). [15] For example, in Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995), the Indiana

Supreme Court concluded that the trial court retained jurisdiction to proceed

with a criminal trial pending the appeal of the denial of bail because the bail

appeal was entirely independent of the trial and would not intermeddle with the

subject matter of the appeal. Further, in Clark v. State, 727 N.E.2d 18, 21 (Ind.

Ct. App. 2000), trans. denied, this Court concluded that the trial court retained

jurisdiction to proceed with a probation revocation hearing during the pendency

of a direct appeal from drug convictions because the appeal was entirely

independent of the revocation proceedings. Here, as in Bradley and Clark, the

trial court retained jurisdiction to proceed with determining appellate attorney

and GAL fees during the pendency of the transfer petition because the transfer

petition was entirely independent of these fees. [16] We further note that, because Father complied with the trial court’s order and

purged himself of contempt, the issue of whether the trial court had jurisdiction

to address the contempt issue is moot. See Rainbow Cmty., Inc. v. Town of Burns

Harbor, 880 N.E.2d 1254, 1261 (Ind. Ct. App. 2008) (explaining that an issue is

moot when: (1) it is no longer live or when the parties lack a legally cognizable

interest in the outcome; (2) the principal questions in issue have ceased to be

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matters of real controversy between the parties; or (3) the court on appeal is

unable to render effective relief upon an issue). 2 [17] Affirmed.

Kirsch, J., and Riley, J., concur.

2 [1] Father further argues that even if the trial court had jurisdiction to enter the 2015 Fee Order, the trial court prematurely issued an order and deprived him of his due process rights without allowing him to present his entire case. However, our review of the transcript reveals that Father never told the trial court that he had additional evidence about his income. Rather, Father specifically told the trial court that his financial disclosure was complete. The issue is therefore waived. See GKC Ind. Theaters, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002) (noting that a party generally waives appellate review of an issue unless it raises that issue at trial).

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