Mariea L. Best v. Russell C. Best (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 17 2015, 8:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew C. Mallor Andrew Z. Soshnick
Kendra G. Gjerdingen Teresa A. Griffin
Mallor Grodner LLP Faegre Baker Daniels LLP
Bloomington, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mariea L. Best, June 17, 2015
Appellant-Respondent, Court of Appeals Case No.
06A01-1501-DR-21
v. Appeal from the Boone Circuit
Court.
The Honorable Rebecca S. McClure,
Russell C. Best, Special Judge.
Appellee-Petitioner The Honorable J. Jeffrey Edens,
Judge.
Cause No. 06C01-0209-DR-381
Baker, Judge.
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[1] “The seemingly never-ending, post-dissolution litigation in this case has
resulted in this third appeal in which Mariea Best (“Mariea”) is challenging the
jurisdiction of the Boone Circuit Court and its contempt order against her.” 1
Here we are again, with a fourth appeal. We affirm in part, reverse in part, and
remand with instructions to recalculate the attorney fee award.
Facts
[2] The underlying facts, as previously described by this Court in Best III, are as
follows:
Mariea and Russell Best’s (“Russell”) marriage was dissolved in 2004.
They initially agreed to share joint legal and physical custody of their
two children, A.B., born in 1992 and M.B., who has Down Syndrome
and was born in 1995. Since 2006, the parties’ disagreements
concerning custody and other issues relating to their children have
been intensely litigated in Boone Circuit Court. A.B. is now
emancipated and Russell has custody of M.B.
The parties’ current dispute revolves around the establishment of a
guardian for M.B., who is now twenty years old. In October 2011, the
parties entered in a Mediated Agreed Entry, which was approved by
the Boone Circuit Court. The Agreed Entry provides in pertinent part:
Neither party (either personally or in a representative
capacity) will seek guardianship of [M.B.] prior to her
attaining twenty-one years of age unless necessary for
medical or public benefits purposes. If it becomes
necessary before age twenty-one (21), it is agreed that
Russell will serve as the guardian. Barring establishment
1
Best v. Best, No. 06A04-1403-DR-124, at *1 (Ind. Ct. App. Sept. 3, 2014) (“Best III”). See also Best v. Best, 941
N.E.2d 499 (Ind. 2011) (“Best I”); In re Marriage of Best, No. 06A04-1401-DR-46 (Ind. Ct. App. June 25, 2014)
(“Best II”). Additionally, there is a contemporaneous appeal pending from a guardianship action. In re
Guardianship of Best, No. 06A01-1408-GU-355 (“Guardianship Appeal”).
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of a guardianship, the custody order and jurisdiction of
this Court remain in full force and effect.
After M.B.’s nineteenth birthday, the parties ultimately agreed that a
guardianship over M.B. should be established even though she is not
yet twenty-one years old.
Best III, at *1 (internal citations omitted).
[3] Since the 2011 Agreed Entry, Mariea has repeatedly attempted to eviscerate its
term providing that Russell would be appointed as M.B.’s guardian. She filed
several motions in an attempt to be named as M.B.’s guardian, including a
guardianship petition. Russell filed a petition to enforce the Agreed Entry in
the dissolution court, which the court granted and this Court affirmed in Best II.
[4] While Best II was pending, Russell filed a petition to establish a guardianship
over M.B. and requested that Mariea consent. She refused, and he filed a
motion with the dissolution court requesting that she be held in contempt for
her failure to comply with the Agreed Entry. The dissolution court found
Mariea in contempt, she appealed, and this Court affirmed in Best III.
[5] The guardianship proceedings were being held contemporaneously with the
dissolution proceedings. On February 20, 2014, Mariea dismissed her
guardianship action and agreed to consent to and not oppose, directly or
indirectly, Russell’s guardianship petition. She reserved “the right to request a
replacement guardian” for M.B. in the guardianship proceedings. Tr. Ex. A.
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[6] Notwithstanding Mariea’s agreement to refrain from opposing Russell’s
guardianship petition, the Agreed Entry, and Best II, she proceeded to take the
following actions in the guardianship proceeding:
 On April 2, 2014, Mariea filed a petition to stay proceedings pending
appeal.
 On May 13, 2014, she filed an objection to the guardianship court’s
conclusion that she was not eligible for appointment as M.B.’s guardian.
 On June 16, 2014, she filed a petition for appointment of replacement
guardian of M.B.
 On July 9, 2014, she filed a continuing objection as to her eligibility for
appointment as M.B.’s guardian.
 On July 12, 2014, she filed a renewed application for permission to
participate in the guardianship proceedings.
 On July 15, 2014, Mariea attempted to file a trial brief in the
guardianship court asserting her right to be appointed M.B.’s guardian.
The guardianship court struck that brief from the record.
 At the guardianship hearing, which took place on July 15, 30, and 31,
2014, Mariea testified on behalf of her brother, Alex, who had intervened
and was seeking to be named as M.B.’s guardian.
 On August 1, 2014, Mariea filed a motion to reconsider.
On August 8, 2014, the guardianship court entered an order appointing Russell
as M.B.’s guardian (the Guardianship Order). Mariea is appealing that order in
the currently pending Guardianship Appeal.
[7] On April 4, 2014, Russell filed a petition with the dissolution court to find
Mariea in contempt for failing to comply with the Agreed Entry. The contempt
petition was originally based on her petition to stay the guardianship
proceedings, and was later updated to include some of her later actions in the
guardianship case. On August 25, 2014, the dissolution court granted Russell’s
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petition and found Mariea in contempt, ordering her to pay attorney fees in the
amount of $5,000. She did not appeal that order.
[8] On September 12, 2014, Russell filed a petition in the dissolution court to find
Mariea in contempt for her decision to appeal the Guardianship Order.
Following a hearing, the dissolution court issued an order on November 18,
2014, finding Mariea in contempt for the third time in less than a year. The
court ordered Mariea to pay Russell’s attorney fees in the amount of $118,000,
to compensate [Russell] for fees paid by him in the guardianship
proceeding . . . and the guardianship matter initiated by [Mariea] . . . .
These fees were incurred as a result of actions taken by [Russell] in
reaction to pleadings filed by [Mariea] in those cases and in direct
contravention of this Court’s earlier Orders. The Court also intends by
this sum to compensate fees incurred by Russell Best in pursuing the
action presently before the Court.
Appellant’s App. p. 66. The dissolution court also ordered that Mariea serve
thirty days in jail, “but stay[ed] execution of that sentence contingent upon
[Mariea’s] taking no further action in disobedience of the parties’ 2011
Mediated Agreed Entry or Orders of this Court.” Id. Mariea now appeals.
Discussion and Decision
[9] Mariea appeals the dissolution court’s order finding her in contempt. Whether
a party is in contempt of court is within the sound discretion of the trial court,
and we will reverse only upon an abuse of that discretion. In re Paternity of
M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011). An abuse of discretion
occurs if the trial court’s decision is against the logic and effect of the facts and
circumstances before the court or is contrary to law. Id. When reviewing a
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contempt order, we neither reweigh evidence nor assess witness credibility,
considering only the evidence and reasonable inferences that may be drawn
therefrom that support the trial court’s order. Id.I. Contempt Finding
[10] Mariea argues that the contempt finding was erroneous because (1) she was not
on notice that the act of filing a notice of appeal from the Guardianship Order
would violate the dissolution court’s orders, and (2) the act of appealing the
Guardianship Order did not violate the dissolution court’s orders.
A. Specificity of Dissolution Court Orders
[11] Mariea contends that the dissolution court orders were vague and indefinite.
Willful disobedience of any lawfully entered court order of which a litigant had
notice is indirect contempt. M.F., 956 N.E.2d at 1163. To be held in contempt
for failure to comply with a court order, “‘[t]he 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.’” Id. at 1163-64 (quoting Bandini v. Bandini, 935 N.E.2d
253, 264-65 (Ind. Ct. App. 2010)).
[12] In the Agreed Entry, Mariea agreed that Russell would be M.B.’s guardian if
one was needed before M.B. turned twenty-one years of age. This Court has
twice found the Agreed Entry to be a binding contract. Best II, slip op at 2; Best
III, at *3. In Best III, we noted that “Mariea conveniently ignores her decision
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to enter into the October 2011 Mediated Agreed Entry . . . .” Best III, at *3.
She continues to engage in this same willful ignorance.
[13] The dissolution court has issued a number of orders on the issue of Mariea’s
consent to Russell’s guardianship of M.B.:
 In October 2011, Mariea entered into an agreement that if M.B. needed a
guardian before the age of twenty-one, Russell would be appointed as her
guardian. The agreement was approved by the dissolution court and
became an order of that court. Appellant’s App. p. 62.
 On January 3, 2014, the dissolution court ordered that “if deemed
necessary for medical or public benefits purposes, Russell Best shall with
the consent of Mariea Best, file a petition to establish guardianship over the
person of [M.B.] in a court of proper jurisdiction.” Id. at 85 (emphasis
added).
 On February 19, 2014, the dissolution court “ordered Mariea to sign a
blanket consent to the guardianship of M.B. by Russell . . . .” Best III, at
*2. At that time, Mariea was also ordered “in open court to consent to
Russell Best’s guardianship” of M.B. Appellant’s App. p. 61.
 On August 25, 2014, the dissolution court noted that Mariea had the
right to appeal its orders. It further noted that her “continued course of
conduct involving actions other than her appeal is viewed by the Court to
demonstrate her knowing and intentional intent to disobey the earlier
Order of this Court that she abide by the parties’ Mediated Agreement
and that she consent to Russell’s appointment as guardian of [M.B.].”
Id. at 133.
It simply could not be clearer that Mariea has been ordered, on multiple
occasions, by both this Court and the dissolution court, to consent to the
appointment of Russell as M.B.’s guardian. She has also made multiple
binding agreements to that effect. It would vitiate her court-ordered consent to
permit her to appeal the order naming Russell as guardian without
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consequence.2 We find, therefore, that the dissolution court’s orders are not
vague and indefinite, and that Mariea had notice that the action of appealing
the Guardianship Order would be a violation of these orders.
B. Right to Appeal
[14] Next, Mariea argues that even if the orders were not vague and indefinite, the
act of filing the notice of appeal of the Guardianship Order should not support a
finding of contempt. The right to appeal in civil matters is guaranteed by
Article VII, Section 6 of the Indiana Constitution.
[15] In the contempt order at issue in this appeal, the dissolution court explicitly
acknowledged Mariea’s right to appeal the Guardianship Order:
31. The issue is not Mariea Best’s right to appeal the [Guardianship
Order].
32. Her right to pursue that appeal will be decided by [the
guardianship court] or by the Indiana Court of Appeals.
33. The sole issue before the [dissolution court] at [the] hearing on
October 31, 2014, was whether Mariea Best’s filing a notice of
appeal of the [Guardianship] Order in an attempt to divest
Russell Best of guardianship, constituted a willful violation of
2
Mariea claims she “is not seeking to ‘divest’ Russell of his guardianship over [M.B.], she is appealing the
Guardianship Court’s denial of her request to be appointed [M.B.]’s replacement guardian . . . .” Appellant’s
App. p. 19. This is a distinction without a difference. While she is entitled, pursuant to the dissolution
court’s order, to file a petition for a new, or “replacement,” guardian, Russell must first be named guardian.
Not until the Guardianship Order is final will Mariea be entitled to file a petition seeking the appointment of
a different guardian. See Appellant’s App. p. 61 (dissolution court noting that the guardianship consent
signed by Mariea “was signed without prejudice to Mariea’s right to seek a replacement guardian after Russ
was appointed [M.B.]’s guardian”) (emphasis added). As noted by Russell, “[if] Mariea’s intent was not to
divest Russ of guardianship of [M.B.], why [did Mariea] not forego an appeal and file a petition for
replacement guardian?” Appellee’s Br. p. 30 (emphasis original).
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the Mediated Agreed Entry of the parties and/or earlier Orders
of this Court.
34. This Court would not presume to say that Mariea Best is
precluded from appealing a decision of this Court or any other
court. That is not the issue before the Court presently.
Appellant’s App. p. 64-65.
[16] Mariea was not precluded from appealing the Guardianship Order. Indeed, she
did appeal it. But in making that choice, she opened herself up to the
consequences imposed upon her by the dissolution court. It is well established
that constitutional rights may be waived. See, e.g., McBride v. Monroe Cnty. Office
of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). More
specifically, the right to appeal may be waived by agreement of the parties. See,
e.g., Bowling v. State, 960 N.E.2d 837, 841-42 (Ind. Ct. App. 2012) (holding that
a defendant may waive the right to appeal pursuant to the terms of a guilty plea
agreement); Ind. Dep’t of Ins. v. Vernon Gen. Ins. Co., 784 N.E.2d 556, 563 (Ind.
Ct. App. 2003) (holding that in a civil context, “an appeal may be validly
waived by agreement of the parties”); Raper v. Union Fed. Sav. & Loan Ass’n of
Evansville, 166 Ind. App. 482, 489, 336 N.E.2d 840, 488-89 (Ind. Ct. App. 1975)
(holding that where a party stipulated to certain facts, that party waived the
right to appeal based on those facts).
[17] In this case, Mariea waived—or bargained away—her right to a consequence-
free appeal of the appointment of Russell as M.B.’s guardian by entering into
the Agreed Entry. The agreement to “consent” to that guardianship necessarily
implies an agreement to refrain from appealing said guardianship. We do not
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go so far as to say she is not entitled to that appeal at all—that will be for the
other panel of this Court considering the Guardianship Appeal to decide.
Instead, we merely say that at the least, she may be sanctioned for her decision
to appeal.
[18] The dissolution court is entitled to enforce its own orders, which is precisely
what it did here. It neither overstepped nor erred by finding that Mariea’s
decision to appeal violated multiple orders. Therefore, we decline to reverse on
this basis.
II. Contempt Sanctions
A. Attorney Fees
[19] Next, Mariea argues that the dissolution court abused its discretion in ordering
her to pay Russell’s attorney fees in the amount of $118,000. If a party is found
in contempt, the trial court has the inherent authority to compensate the
aggrieved party by awarding attorney fees that were expended by that party to
enforce a court order. Scoleri v. Scoleri, 766 N.E.2d 1211, 1221 (Ind. Ct. App.
2002). The trial court “possesses personal expertise that he or she may use
when determining reasonable attorney’s fees.” Id. An award of attorney fees
“‘is appropriately limited to those fees incurred because of the basis underlying
the award.’” Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 838 (Ind. Ct.
App. 2005) (quoting Brant v. Hester, 569 N.E.2d 748, 755 (Ind. Ct. App. 1991)).
[20] In this case, the attorney fee award was based on fees “incurred as a result of
actions taken by [Mariea] in reaction to pleadings filed by [Russell] in [the
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guardianship cases instituted by Mariea and by Russell] and in direct
contravention of this Court’s earlier Orders.” Appellant’s App. p. 66. The fee
award should have been based on the fees incurred by Russell as a result of
Mariea’s contemptuous actions as alleged in that specific contempt petition. In other
words, the dissolution court found Mariea in contempt of court (on this
occasion) for filing the notice of appeal of the Guardianship Order. Therefore,
Russell is only entitled to attorney fees that directly relate to her Guardianship
Appeal and to his litigation of that specific contempt petition.3 We reverse the
attorney fee award and remand to the dissolution court for a recalculation of
the attorney fees to be paid by Mariea.4
B. Jail
[21] Finally, Mariea argues that the stayed jail sentence imposed by the dissolution
court was an abuse of discretion. A trial court may order imprisonment as part
of a finding of contempt, but imprisonment must be for the purpose of coercing
compliance with the court order. Duemling v. Fort Wayne Cmty. Concerts, Inc.,
243 Ind. 521, 526, 188 N.E.2d 274, 276 (Ind. 1963). In other words,
imprisonment for contempt must be coercive rather than punitive. Id.3
Russell maintains that he had requested attorney fees in his past contempt petitions and that the dissolution
court merely neglected to rule on the issue. The proper course of action in that case would have been to file a
motion to correct error or to reconsider the fee award for the fees related to those contemptuous acts. It is
improper to re-raise the issue in a subsequent petition for new, unrelated contemptuous acts.
4
We encourage Russell to present affidavits or other evidence aside from his own testimony providing a
specific basis for the attorney fees he requests on remand.
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[22] Mariea argues that the imprisonment order in this case was purely punitive
because she cannot purge herself of the contempt given that she has already
filed the Guardianship Appeal. We disagree. The dissolution court ordered
that she serve thirty days in jail, but stayed execution “contingent upon
[Mariea’s] taking no further action in disobedience of the 2011 Mediated
Agreed Entry or Orders of this Court.” Appellant’s App. p. 66. Mariea carries
the proverbial “keys to the jail” in her pocket—she need not serve a single day
in jail so long as she abides by the Agreed Entry and the dissolution court’s
orders. Given Mariea’s litigious and obstreperous history in the course of the
dissolution case, it is readily apparent that the dissolution court was merely
trying to coerce her into following its orders. We decline to reverse the
imprisonment portion of the contempt order.
[23] The judgment of the dissolution court is affirmed in part, reversed in part, and
remanded with instructions to recalculate the attorney fee award consistent with
this opinion.
Najam, J., and Friedlander, J., concur.
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