Opinion
24A-DC-1362
01-23-2025
Jessica Dawn Hampton, Appellant-Petitioner v. Joshua Craig Hampton, Appellee-Respondent
ATTORNEY FOR APPELLANT Andrew Thompson Bloomington, Indiana ATTORNEY FOR APPELLEE Cassandra A. Kruse Emswiller, Williams, Noland & Clarke, LLC Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court The Honorable William J. Hughes, Judge Trial Court Cause No. 29D03-1702-DC-1535
ATTORNEY FOR APPELLANT
Andrew Thompson Bloomington, Indiana
ATTORNEY FOR APPELLEE
Cassandra A. Kruse Emswiller, Williams, Noland & Clarke, LLC Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] The trial court awarded Joshua Hamilton ("Father") legal and physical custody of the minor children, N.H. and K.H., he shares with Jessica Hamilton ("Mother"). The trial court also ordered Mother to pay child support to Father, found Mother in contempt for disparaging Father to the children in violation of the parties' settlement agreement, and awarded attorney fees to Father. Mother then filed a motion to correct error, which the trial court denied. Mother argues that the trial court abused its discretion by denying her motion to correct error. We disagree and, accordingly, affirm.
Issues
[¶2] Mother raises six issues, which we consolidate and restate as the following five:
I. Whether the trial court erred by refusing to consider the affidavits presented in Mother's motion to correct error.
II. Whether the trial court erred by declining to hold an incamera interview of K.H.
III. Whether the trial court erred by modifying legal and physical custody of K.H. in favor of Father and ordering Mother to pay child support.
IV. Whether the trial court erred by finding Mother in contempt.
V. Whether the trial court erred by awarding Father attorney fees.
Facts
[¶3] Father and Mother have three children: M.H., born in 2002; N.H., born in 2006; and K.H., born in 2009 ("the Children"). On September 25, 2018, Father's and Mother's marriage was dissolved pursuant to a settlement agreement ("Settlement Agreement"). The parents agreed to share legal custody of the Children, with Mother having primary physical custody. Father agreed to parenting time pursuant to the Indiana Parenting Time Guidelines, to pay child support, and to reimburse Mother for certain expenses.
[¶4] The Settlement Agreement contained the following relevant provision:
I. Affections of the Children. [E]ach of the Parties shall take all measures and actions deemed advisable to foster a feeling of affection between the Minor Children and the other party, and neither party shall do anything which may estrange the Minor Children from the other party or impair the children's esteem or regard for the other party.
Appellee's App. Vol. II pp. 9-10.
[¶5] In March 2021, M.H. began living primarily with Father and her paternal grandmother. M.H. turned nineteen in June 2021 and began living in her own apartment. In the fall of 2023, N.H. and K.H. were rotating between staying with Father for one week and then staying with Mother the next week. N.H. attended online school, and K.H. attended middle school in person. Father lived with his girlfriend, J.T., at her house in Noblesville at the time.
[¶6] On August 4, 2023, Mother filed a motion to modify custody and child support. The same day, Mother filed a motion to hold Father in contempt for failing to reimburse Mother for several of the Children's expenses pursuant to the Settlement Agreement. Mother did not provide Father with supporting documentation regarding her claims for reimbursement until Father filed a motion to compel discovery.
[¶7] On September 19, 2023, K.H. had a football game that Father, Mother, and N.H. attended. N.H. and Mother got into an argument, which resulted in N.H. staying with Father and refusing to return to Mother's residence. The following month, K.H. also began staying with Father and refusing to return to Mother's residence. Mother sent K.H. text messages encouraging him to come back. Mother's texts to K.H. included the following statements about Father:
• "Your dad is not a good person. I [don't] want you around him."
• "[Father] is not a good influence."
• "He's your roommate NOT A DAD.... Respect the parent that made you kids #1 your entire life."
• "Your dad is why you don't want to come home. He's a sick evil nasty person."
• "You'll never see me again. You got what you wanted all 3 of you. Don't come crying when [Father] f****s up again."
• "[Father is] brain washing you to think I'm crazy."
Ex. Vol. pp. 62, 64, 65, 66, 74, 80, 84. Around this time, Mother also sent a text message to M.H. and N.H., stating, "The hate and tension your dad has created is disgusting. Ask yourself . . Who has ALWAYS been there? Who WILL ALWAYS BE THERE for us?" Ex. Vol. p. 55.
[¶8] In response to Mother's August 2023 motions, Father filed a motion for an in-camera interview of N.H. and K.H. to determine their wishes regarding custody. On November 1, 2023, Mother filed a motion to hold Father in contempt for refusing to return N.H. and K.H.
[¶9] The trial court held a hearing on these motions on November 8, 2023; however, the trial judge determined that he had a conflict and recused. The hearing was rescheduled for January 30, 2024, with a different judge presiding.
[¶10] In the meantime, on November 21, 2023, Father filed an amended motion to modify legal and physical custody, parenting time, and child support, and to hold Mother in contempt. Father sought to modify custody, parenting time, and child support because N.H. and K.H. were now living with him and because of the breakdown between Mother's relationship with N.H. and K.H. Father sought to hold Mother in contempt for her disparaging text messages to the Children about him, arguing that the messages violated the Settlement Agreement's prohibition on turning the affections of the Children against the other parent.
[¶11] At the January 30, 2024 hearing, Mother indicated that she no longer wished to proceed on her August motions for modification of custody and child support. The parties stipulated that M.H. was emancipated as of her nineteenth birthday. This left at issue Mother's motions to hold Father in contempt for failing to reimburse Mother for expenses and failing to return N.H. and K.H.; Father's motion to hold Mother in contempt for disparaging him to the Children; Father's motion to modify custody, parenting time, and child support; and Father's motion for an in-camera interview.
[¶12] Mother testified that Father failed to reimburse her for K.H.'s phone usage expenses and extracurriculars and the Children's uninsured medical expenses. She voiced concern that Father lived approximately forty minutes away from K.H.'s middle school. Mother further testified that she was beginning a new job and would be earning $25.00 per hour and working forty hours per week.
[¶13] Father then presented his case-in-chief. Father testified to the following: Father was employed as a firefighter, and his weekly gross income was $1576.00. Father encouraged K.H. to earn good grades so K.H. could play sports. N.H.'s attendance at online school had improved since she began living with Father.
[¶14] Father claimed that he paid his share of the Children's expenses to Mother. Father had concerns about N.H. and K.H. living with Mother based on the deterioration of Mother's relationship with the Children. Father also alleged that Mother disparaged him in front of the Children through her text messages, disparaged Father to his employer, and disparaged his girlfriend, J.T. Father requested attorney fees; however, he did not offer evidence regarding how many hours his attorney worked on the case nor how much Father paid his attorney.
[¶15] The trial court issued a written order on April 11, 2024. The trial court: (1) denied Father's motion for an in-camera interview, finding that K.H.'s and N.H.'s refusal to return to Mother indicated their wish to remain with Father; (2) modified legal and physical custody of N.H. and K.H. in Father's favor, finding that N.H. and K.H. wished to live with Father and that their relationship with Mother had deteriorated; (3) ordered Mother to pay Father child support based on the modification of custody; (4) denied Mother's motion to hold Father in contempt; (5) granted Father's motion to hold Mother in contempt, finding that Mother violated the Settlement Agreement by disparaging Father in the presence of the Children; and (6) ordered Mother to pay Father $3,000.00 in attorney fees based on its finding that Mother was in contempt and that Mother failed to cooperate in discovery.
[¶16] On May 10, 2024, Mother filed a motion to correct error. Mother argued that the trial court erred by awarding legal and physical custody of K.H. to Father; modifying child support; finding Mother in contempt; and awarding attorney fees to Father.
[¶17] Mother attached to her motion two affidavits. The first was from Hope Sparks, a counselor K.H. and Mother had been seeing since the trial court issued its order. Sparks stated that K.H. indicated to her that he "would prefer his living situation to be one week on and one week off; staying at his mother's one week and his father[']s the next week." Appellant's App. Vol. II p. 66. The second affidavit was from Mother. Mother stated that she "did not understand what a non-disparagement clause was, and [she] was unaware that (Section 1. Affections of the Children) [of the Settlement Agreement] is similar to non-disparagement." Id. at 67. Mother further stated that her relationship with K.H. had improved and that the Children had been seeing her more regularly. The trial court summarily denied Mother's motion to correct error. Mother now appeals.
Discussion and Decision
[¶18] Mother argues that the trial court abused its discretion by denying her motion to correct error. Specifically, Mother argues that the trial court erred by: (1) refusing to consider the affidavits contained in the motion to correct error; (2) denying K.H. the opportunity for an in-camera interview to express his wishes regarding custody; (3) modifying legal and physical custody of K.H. in favor of Father and ordering Mother to pay child support;(4) finding Mother in contempt; and (5) awarding Father attorney fees. We conclude that the trial court did not abuse its discretion by denying Mother's motion to correct error.
Mother does not appeal the trial court's order with regard to N.H.
I. Standard of Review
[¶19] We review a trial court's ruling on a motion to correct error for an abuse of discretion, which occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Coronado v. Coronado, 243 N.E.3d 1121, 1124 (Ind.Ct.App. 2024) (citing Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind.Ct.App. 2017)). Our review "'necessarily involves review of the underlying order.'" Id. (quoting In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind.Ct.App. 2008)).
[¶20] In issuing its underlying order here, the trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), which prohibits a court on appeal from setting aside the trial court's judgment unless the judgment is clearly erroneous. Randolph v. Randolph, 210 N.E.3d 890, 896 (Ind.Ct.App. 2023) (citing Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). A trial court's findings of fact are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A trial court's judgment is clearly erroneous only if its findings of fact do not support its conclusions of law or its conclusions of law do not support its judgment. Id.
[¶21] Lastly, in reviewing the trial court's order, we are mindful that "'[a]ppellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.'" Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind.Ct.App. 2022) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). As our Supreme Court has explained:
[T]here is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. Appellate courts are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence. On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (citations and internal quotations omitted).
II. The trial court did not abuse its discretion by denying Mother's motion to correct error.
A. Affidavits attached to motion to correct error
[¶22] Mother argues that the trial court "summarily denied Mother's motion to correct errors without any consideration of the affidavits whatsoever." Appellant's Br. p. 13. Appellate Rule 46(A)(8)(a) provides that the appellant's argument "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on."
The purpose of our appellate rules, Ind. Appellate Rule 46 in particular, is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case. We will not step in the shoes of the advocate and fashion arguments on his behalf, nor will we address arguments that are too poorly developed or improperly expressed to be understood.Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023).
[¶23] Here, Mother provides no support for her assertion that the trial court failed to consider the affidavits attached to her motion to correct error. The fact that the trial court denied Mother's motion does not indicate that the trial court failed to consider Mother's affidavits. Mother's argument is not cogent and is, therefore, waived.
B. Denial of motion for in-camera interview
[¶24] Mother argues that the trial court erred by denying K.H. "the opportunity for an in-camera interview" to express his wishes regarding custody. Appellant's Br. p. 14. Mother, however, never requested that the trial court conduct an incamera interview of K.H. at or before the hearing, and Mother did not raise the issue until filing her motion to correct error. Although Father filed a motion for an in-camera interview, Mother never joined in that motion.
[¶25] It is well established that "issues raised for the first time in a motion to correct error are waived." Carmichael v. Separators, Inc., 148 N.E.3d 1049, 1058 (Ind.Ct.App. 2020) (citation omitted), trans. denied. Here, Mother cannot argue that the trial court failed to do something that she did not request until filing her motion to correct error. Mother's argument regarding an in-camera interview, therefore, is waived.
C. Modification of custody of K.H. and child support
[¶26] Mother argues that the trial court erred by modifying custody of K.H. in favor of Father and, as a result, ordering Mother to pay child support. We review the modification of custody for an abuse of the trial court's discretion. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
Mother does not challenge the amount of child support ordered by the trial court.
[¶27] Indiana Code Section 31-17-2-21 requires that the party seeking to modify an existing custody order prove: (1) modification is in the best interests of the Child; and (2) there has been a substantial change in one or more of the factors set forth in Indiana Code Section 31-17-2-8. The factors set forth in Indiana Code Section 31-17-2-8 are:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
(9) A designation in a power of attorney of:
(A) the child's parent; or
(B) a person found to be a de facto custodian of the child.
[¶28] Here, the evidence presented during the hearing showed a substantial change in several statutory factors. The most important factor was the change in K.H.'s relationship with Mother, which had deteriorated. K.H. had been living with Father and refusing to return to Mother's house since the fall of 2023. K.H. was also older and more mature than when custody was initially determined under the Settlement Agreement. The trial court understood K.H.'s refusal to return to Mother as an indication of his preference to live with Father.
[¶29] Mother argues that modification of custody was not in K.H.'s best interests because, as stated in the affidavit of Sparks attached to Mother's motion to correct error, K.H. wanted to spend alternating weeks with Mother and Father. Mother also argues that N.H.'s and K.H.'s grades and school attendance had dropped since they began living with Father. Lastly, Mother argues that, at some point in the past, Father did not exercise parenting time. With due deference to the trial court, we are not persuaded that the trial court abused its discretion by modifying custody nor by denying Mother's motion to correct error. Furthermore, because the trial court did not err by modifying custody, the trial court did not err by ordering Mother to pay child support.
D. Finding of Mother in contempt
[¶30] Mother argues that the trial court abused its discretion by finding her in contempt for violating the provision of the Settlement Agreement regarding the affections of the Children. When reviewing a trial court's decision regarding a contempt motion, we note that "[t]rial courts maintain considerable discretion in determining whether a party should be found in contempt of court," and we review the trial court's determination only for an abuse of that discretion. In re Paternity of B.Y., 159 N.E.3d 575, 577 (Ind. 2020). "Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Id. at 578.
[¶31] The Settlement Agreement provides that neither parent "shall do anything which may estrange the Minor Children from the other party or impair the children's esteem or regard for the other party." Appellee's App. Vol. II p. 10. In 2023, Mother sent text messages to the Children in which she stated that Father was "not a good person," "not a good influence, and "a sick evil nasty person." Ex. Vol. pp. 62, 64, 66, 81. Additionally, Mother discouraged the Children from spending time with Father.
[¶32] Mother argues that the Settlement Agreement "does not provide enough clarity as to what conduct would constitute a violation for which she could be held in contempt, and thus is too vague for enforcement ...." Appellant's Br. p. 18. She further argues that the Settlement Agreement constitutes an impermissible "prior restraint" on Mother's "First Amendment right of freedom of speech." Id.
[¶33] We are not persuaded by Mother's arguments. Mother's text messages to the Children regarding Father clearly sought to "estrange" the Children from Father and "impair the Children's esteem" for him in violation of the Settlement Agreement. Appellee's App. Vol. II p. 10. As for Mother's argument that the Settlement Agreement impairs her First Amendment right to freedom of speech, we point out that Mother agreed to follow the terms of the Settlement Agreement. See Pond v. Pond, 700 N.E.2d 1130, 1136 (Ind. 1998) (noting that, due to Indiana's respect for private contracts, "Indiana courts have not hesitated to enforce a divorce settlement agreement which would have been in excess of the divorce court's authority had it been crafted by the divorce court and which was shown to be, over time, grossly inequitable.").
[¶34] We also find instructive In re Paternity of G.R.G., 829 N.E.2d 114 (Ind.Ct.App. 2005). In that case, the father challenged the trial court's order prohibiting the parents from "discussing their disputes" with their minor child as a prior restraint on free speech. Id. at 123. The Court rejected this argument, holding that the order did not "restrain speech that is protected as a contribution to the 'marketplace of ideas.'" Id. at 125 (quoting Rzeszutek v. Beck, 649 N.E.2d 673, 681 (Ind.Ct.App. 1995)); see also Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir. 1990) (noting that the marketplace of ideas is "broadly understood as the public expression of ideas, narratives, concepts, imagery, opinions-scientific, political, or aesthetic-to an audience whom the speaker seeks to inform, edify, or entertain"). Moreover, the order was in the child's best interests and did not restrain the parents from discussing their disputes with third parties other than the child.
[¶35] Here, as in G.R.G., the Settlement Agreement only restrained Mother from disparaging Father in the presence of the Children. It did not restrain Mother's protected ability to participate in the marketplace of ideas, nor did it restrain Mother's ability to voice her opinions regarding Father outside the presence of the Children. The Settlement Agreement does not constitute a prior restraint on free speech, and the trial court did not abuse its discretion by finding Mother in contempt for violating the Settlement Agreement.
V. Award of Attorney Fees to Father
[¶36] Lastly, Mother argues that the trial court abused its discretion by ordering her to pay $3,000.00 in Father's attorney fees. The trial court ordered Mother to pay these fees as a sanction for finding her in contempt and for her discovery violations.
[¶37] As this Court has explained:
Trial courts in this state have inherent authority to award attorney fees for civil contempt. Reynolds v. Reynolds, 64 N.E.3d 829 (Ind. 2016). This authority stems from the court's power to enforce compliance with its orders and decrees. In re Paternity of Pickett, 44 N.E.3d 756 (Ind.Ct.App. 2015). Further, once a party is found in contempt, the trial court has the authority to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions, including the award of attorney fees. Id.McCallister v. McCallister, 105 N.E.3d 1114, 1120 (Ind.Ct.App. 2018). Additionally, "[m]isconduct that directly results in additional litigation expenses may properly be taken into account in the trial court's decision to award attorney's fees. Barton v. Barton, 47 N.E.3d 368, 377 (Ind.Ct.App. 2015) (citing Hendricks v. Hendricks, 784 N.E.2d 1024, 1028 (Ind.Ct.App. 2003)), trans. denied. We review a trial court's award of attorney fees as a sanction for a contempt finding for an abuse of the trial court's discretion. McCallister, 105 N.E.3d at 1120.
[¶38] We conclude that the trial court did not abuse its discretion by awarding Father attorney fees here. Mother clearly and repeatedly violated the Settlement Agreement by disparaging Father in the presence of the Children. Mother also withheld from Father documentation regarding Mother's claims for reimbursement, which necessitated Father seeking an order to compel discovery. See id. at 1121 (affirming award of $3,000.00 in attorney fees as a sanction for contempt finding).
[¶39] Mother argues that the trial court erred by awarding Father attorney fees because Mother is not in a "superior" financial position compared to Father. See, e.g., Townsend v. Townsend, 20 N.E.3d 877, 880 (Ind.Ct.App. 2014). We are not persuaded by this argument. First, although a trial court should consider the parties' relative financial positions when awarding attorney fees under the dissolution of marriage statutes, the trial court need not make such an inquiry when awarding attorney fees as a sanction for a finding of contempt.
See, e.g., Ind. Code § 31-15-10-1(a) ("The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney's fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment.").
[¶40] Moreover, both Mother and Father here earned an income. Mother owned a house, and Mother's own attorney fees were $11,128.77. The trial court noted that Father earned a higher income than Mother, but the trial court balanced this against the fact that Mother did not succeed on any of her motions, which required Father to incur expenses for his defense. We are not persuaded that Mother's financial position relevant to Father precluded an award of attorney fees to Father.
[¶41] Mother also argues that the trial court erred because it did not consider evidence regarding "the amount of fees to be awarded to Father." Appellant's Br. p. 20. Father presented no evidence regarding his actual attorney fees during the proceedings.
It is true in general that [attorney fee] judgments should be based on evidence directly submitted by the parties to the tribunal, but it is also true that what transpires from beginning to end of a lawsuit is indirect evidence of what constitutes reasonable attorneys fees. Combined with the judge's knowledge and experience in the legal profession, he "may take judicial notice" of what constitutes a reasonable attorneys fee . . . and it is expeditious that he do so.Fox v. Galvin, 381 N.E.2d 103, 108 (Ind.Ct.App. 1978) (quoting McDaniel v. McDaniel, 201 N.E.2d 215, 220 (Ind. 1964)).
[¶42] Here, the trial court awarded Father $3,000.00 in attorney fees because the trial court "expect[ed] that [Father's] fees meet or exceed those of [Mother]." Appellant's App. Vol. II p. 49. Mother's attorney fees totaled $11,128.77. Given the trial court's considerable discretion in awarding attorney fees and the fact that Father incurred legal expenses due to Mother's violation of the Settlement Agreement and failure to cooperate in discovery, we are not persuaded that the trial court abused its discretion by awarding $3,000.00 in attorney fees to Father. See Fox, 381 N.E.2d at 108 (affirming $2,000 attorney fee award as reasonable although no evidence was introduced regarding actual attorney fees incurred).
Although we affirm the trial court's attorney fee award here, the better practice is for attorneys to submit an affidavit regarding the actual attorney fees incurred.
Conclusion
[¶43] The trial court did not abuse its discretion by denying Mother's motion to correct error, and we affirm the trial court's ruling.
[¶44] Affirmed.
May, J., and DeBoer, J., concur.