Opinion
23A-DC-2517
07-05-2024
Jason M. Smith, Appellant-Respondent v. Carrie A. Smith, Appellee-Petitioner
APPELLANT PRO SE Jason M. Smith Seymour, Indiana ATTORNEYS FOR APPELLEE Tara K.C.S.M. Herlitz Laura A. Raiman Columbus, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Brown Circuit Court Trial Court Cause No. 07C01-2206-DC-152 The Honorable Mary Wertz, Judge
APPELLANT PRO SE Jason M. Smith Seymour, Indiana
ATTORNEYS FOR APPELLEE Tara K.C.S.M. Herlitz Laura A. Raiman Columbus, Indiana
MEMORANDUM DECISION
Kenworthy, Judge
Case Summary
[¶1] Jason M. Smith ("Father") appeals the trial court's order dissolving his marriage to Carrie A. Smith ("Mother"). He contends the trial court denied him due process of law by entering a final dissolution decree in the absence of a psychological custody evaluation. He also raises an issue concerning distribution of marital property but fails to make a cogent argument. Because Father was not denied due process and waived his second contention on appeal, we affirm the trial court's judgment.
[¶2] In turn, Mother asks this Court to award her appellate attorney fees, alleging Father's brief demonstrates procedural bad faith. But because Father's poor briefing does not rise to such a level, we deny Mother's request for appellate attorney fees.
An appellant's brief must contain a statement of facts "relevant to the issues presented for review[.]" Ind. Appellate Rule 46(A)(6). We agree with Mother that Father's statement of facts fails to meet this standard. It is a loose interpretation of the testimony and contains self-serving arguments and improper speculation on Mother's motivations. For example, Father includes a three-page section summarizing his "allegations of personal and business sabotage" by Mother. Appellant's Br. at 12-16 (capitalization omitted). Father's statement of facts is largely irrelevant to the legal issues he raises. We therefore disregard the irrelevant language in consideration of this appeal. The quality of Father's briefing is especially concerning because this Court has previously chastised Father for submitting a nonconforming brief. See DuSablon v. Jackson Cnty. Bank, 132 N.E.3d 69, 71 n.2 (Ind.Ct.App. 2019), trans. denied. His statements in that brief led to Father's temporary suspension from the practice of law for violating Indiana Rule of Professional Conduct 8.2(a). See In re Smith, 181 N.E.3d 970, 974 (Ind. 2022) (imposing a thirty-day suspension with automatic reinstatement for making impertinent and unfounded attacks on the integrity of a trial judge in an appellate brief). We caution Father to follow the appellate rules more closely in future briefing to this Court.
[¶3] Father and Mother were married in 2008. They are the parents of three children, born in 2012, 2016, and 2019 ("Children"). During the marriage, the parties owned a commercial building on North Chestnut Street in Seymour. Father operated a law firm in the building and rented space to other businesses. For two months, the family lived in a renovated residential space in the building after selling their marital home.
[¶4] On June 7, 2022, Mother petitioned for dissolution of the marriage. The parties reached a provisional agreement, later approved by the trial court, with the following custody and parenting time terms: the parties would share joint legal custody of Children; if disagreement arose regarding major decisions, Mother would have final decision-making authority; Mother would have primary physical custody; and Father would exercise parenting time under the Indiana Parenting Time Guidelines. At the time, Father was living in the Chestnut Street building. The parties agreed Father's overnight parenting time should occur at his parents' house, and Father agreed not to take Children to the Chestnut Street building. The provisional agreement also addressed child support and payment of certain expenses for Children, among other issues.
[¶5] In October, Mother asked the trial court to order Father to participate in a psychological evaluation. She was concerned about Father's mental and emotional health and Children's well-being while in his care. At a hearing, both parties agreed to undergo a psychological custody evaluation, which the trial court later ordered.
[¶6] By the next hearing in May, the parties had not yet participated in the custody evaluation. They agreed to a specific evaluator at the hearing, and the trial court ordered them to contact the clinician within seven days to schedule the evaluation. The trial court also set the final dissolution hearing for August 24, 2023, at 9:00 a.m. In its written order-in part captioned "Notice of Final Hearing"-the trial court reiterated the final hearing date and time. Appellant's App. Vol. 2 at 17.
[¶7] On August 22, Father moved to continue the final hearing because it was "simply not possible to conduct such a hearing prior to the completion of the [psychological custody] evaluations[.]" Id. at 167. Mother objected, and the trial court denied the continuance the next day. In the early morning of August 24, Father again moved for a continuance for the same reason.
[¶8] The trial court held the final dissolution hearing as planned. Father appeared pro se and Mother appeared in person and by counsel. To begin, the trial court heard argument on Father's renewed motion for continuance. Mother and Father testified they submitted paperwork to the clinician, but the evaluation was not yet scheduled. The trial court decided to "hear the case today" and denied Father's motion. Tr. Vol. 2 at 146. The court agreed a psychological custody evaluation would be relevant to the child custody matters but reasoned it could always "do a partial order or take the . . . child related issues under advisement." Id. The trial court then took evidence on the child-related issues and marital property division. Later in the hearing, Father stated he was "still a little confused about when . . . we're final or not" and asked, "Are we just talking about property today?" Id. at 189. The trial court reiterated, "I want to take all evidence today on all final issues." Id.
[¶9] As to the custody and support arrangements, Mother requested no changes to the terms of the provisional agreement. Father testified he was "okay" with maintaining the status quo as to the child-related matters. Id. at 202-03. At the end of the hearing, the trial court took all matters under advisement. The trial court also ordered the parties to schedule the custody evaluation within fourteen days and file notice with the court when the evaluation was complete.
[¶10] On September 13, Mother moved for entry of the final decree. Mother asserted Father failed to complete the paperwork for the clinician to schedule the custody evaluation. In his response, Father acknowledged he had not sent the paperwork as he previously testified and had since lost the documents.
[¶11] The trial court entered its final dissolution decree on September 22. As to child-related matters, the trial court kept the terms of the provisional agreement in place. The trial court stated it would consider modifications upon request of either party after the parties completed the custody evaluation. The order also provided for distribution of all marital property. The trial court awarded Father the Chestnut Street building and awarded Mother $483,998.74 for her equitable interest in the property.
Father was not denied due process of law.
[¶12] Father argues the trial court denied him due process by entering its final order in the absence of a completed psychological custody evaluation.
[¶13] The Fourteenth Amendment prohibits a state from depriving a person of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Generally, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Whether a party was afforded an opportunity to be heard is a question of law, which we review de novo. Id.
[¶14] Father had ample notice of the final hearing. The trial court scheduled it in the parties' presence during the May hearing, included the final hearing date in a written order served on the parties, and docketed the hearing as a final hearing. Father appeared at the final hearing and presented evidence and argument. He testified on his own behalf and cross-examined Mother. In response to Father's questions, the trial court confirmed multiple times the hearing was a final hearing and the court intended to hear evidence on all issues.
[¶15] Father twice moved for a continuance of the final hearing, but he does not challenge the trial court's denial of those motions. Rather, he argues the trial court denied him the opportunity to introduce evidence that could have been presented if he completed the psychological custody evaluation. But Father was dilatory in completing the paperwork necessary to start the evaluation. At the final hearing, he misrepresented to the trial court he submitted it to the custody evaluator. When Mother moved for entry of the dissolution decree, Father still had not completed the paperwork. Under the invited error doctrine, a party may not take advantage of an error he commits, invites, or which is the natural consequence of his own neglect or misconduct. D.G. v. S.G., 82 N.E.3d 342, 347 (Ind.Ct.App. 2017), trans. denied. Father was not denied the opportunity to present evidence not yet in existence because he delayed the process to obtain it.
[¶16] In addition, the trial court's final dissolution decree stated either party could request a future modification based on the psychological custody evaluation results. Rather than deny Father due process, the trial court provided an avenue for Father to present more evidence should he act to obtain it.
[¶17] Father also argues the trial court disregarded evidence of his recent diagnosis of autism spectrum disorder. Father had the opportunity to present such evidence, and he did so in his own testimony. He introduced no other evidence of his diagnosis at the final hearing, although he could have. To the extent Father argues the trial court failed to give his testimony sufficient weight, it is not our role to reweigh evidence or reassess witness credibility. Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) ("Appellate judges are not to reweigh the evidence nor reassess witness credibility[.]") (citation omitted).
[¶18] Because Father had notice, an opportunity to be heard, and an opportunity to confront witnesses at the final dissolution hearing, he was not denied due process of law.
Father waived his argument about the distribution of marital property.
[¶19] Father also makes an argument about the distribution of marital property, particularly as to the Chestnut Street building.
[¶20] The Indiana Rules of Appellate Procedure require arguments to be "supported by cogent reasoning" and "citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]" App. R. 46(A)(8). We prefer to decide issues on the merits, but when an appellant's noncompliance with the appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived. Basic v. Amouri, 58 N.E.3d 980, 984 (Ind.Ct.App. 2016).
[¶21] This section of Father's brief is so contradictory, it is incoherent. He appears to argue the trial court "exceeded its statutory authority by attempting to distribute marital property by provisional order." Appellant's Br. at 25 (capitalization omitted). But Father simultaneously asserts "the trial court was clear it intended to enter a final decree[.]" Id. He also seems to argue the trial court improperly excluded or "set aside" the Chestnut Street building from the marital property. Id. But the trial court's order awarded him the Chestnut Street building and awarded a cash equalization payment to Mother for her equitable interest in the property. Father also fails to provide statute and record citations to help us discern his argument. Although we prefer to decide issues on the merits, we cannot "advocate for a party, or address arguments that are . . . too poorly developed or expressed to be understood." Basic, 58 N.E.3d at 984 (citation omitted). Father's argument as to the division of marital property is waived.
We deny Mother's request for appellate attorney fees.
[¶22] Mother argues Father's violations of the appellate rules amount to procedural bad faith, and she therefore is entitled to appellate attorney fees.
[¶23] We may assess damages, including attorney fees, "if an appeal, petition, or motion, or response, is frivolous or in bad faith." App. R. 66(E). "Our discretion to impose damages is 'limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.'" Basic, 58 N.E.3d at 986 (quoting Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003)). We do not impose the sanction for mere lack of merit, but reserve damages for more egregious cases. Id.
[¶24] Indiana appellate courts categorize claims for appellate attorney fees into "substantive" and "procedural" bad faith claims. Id. As we have explained:
To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility. Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Even if the appellant's conduct falls short of that which is "deliberate or by design," procedural bad faith can still be found.Thacker, 797 N.E.2d at 346-47 (citations omitted). We exercise "extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal." Id. at 346.
[¶25] Although Father's appellant's brief is wanting, it does not rise to the level of procedural bad faith. Father fails to tailor his statement of facts to the relevant issues, his brief lacks citations to the record, and his arguments are poorly developed. But he cites some relevant case law and the deficiencies do not bear the flagrancy and egregiousness seen in other cases in which we have assessed appellate attorney fees. See, e.g., Basic, 58 N.E.3d at 986 (imposing attorney fees where the brief is "practically devoid of discernible legal argument" and "laced with unseemly invective"). Mindful of the potential chilling effect of sanctions on the right to appeal, we decline Mother's request to impose appellate attorney fees in this case.
Conclusion
[¶26] Father was not denied due process of law, and he waived his argument about marital property distribution. Mother's request for appellate attorney fees is denied.
[¶27] Affirmed.
Riley, J., and Felix, J., concur