Paula Rorer (Hubbard) v. William Shane Rorer ( 2014 )

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 Apr 14 2014, 9:27 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JAMES E. STOLTZ MARK K. PHILLIPS
Stoltz Law Office Boonville, Indiana
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PAULA RORER (HUBBARD), )
)
Appellant-Petitioner, )
)
vs. ) No. 87A04-1310-DR-494
)
WILLIAM SHANE RORER, )
)
Appellee-Respondent. )
APPEAL FROM THE WARRICK CIRCUIT COURT
The Honorable David O. Kelley, Judge
Cause No. 87D01-1012-DR-644
April 14, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Paula Hubbard (“Mother”) appeals the trial court’s finding of indirect contempt in
post-dissolution proceedings with William Rorer (“Father”). We affirm.
Issues
Mother raises four issues, which we consolidate and restate as:
I. whether the trial court properly admitted police reports
and evidence of incidents that occurred after the
petition to show cause was filed;
II. whether the trial court properly found Mother in
indirect contempt; and
III. whether the trial court properly ordered a suspended
jail sentence.
Facts
Mother and Father had one daughter, P.R., and their marriage was dissolved in
April 2003. After years of disputes between Mother and Father regarding custody and
parenting time, the trial court suspended parenting time between Father and P.R. in
September 2010. However, on August 1, 2013, the trial court ordered that Father was
entitled to parenting time with then fourteen-year-old P.R. The trial court found:
[T]he basic dilemma of [P.R.] not wanting to visit with
her father is a direct result of the parents’ inability and refusal
to co-parent effectively.
The anger they share for each other and the desire to
“get the best of the other” is much more important to each
parent than meeting their responsibility to rear a child
together in a responsible manner. There is plenty of blame to
go around for each parent and a recitation of the offenses of
each parent would serve no good purpose. Collectively,
however, it is clear to the Court that the child and her overall
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welfare are secondary to the parents’ “personal war.” Given
the number of years it has gone on one would think the
parents would grow weary of combat but it appears to have
worsened rather than improving.
[P.R.] has recognized this conflict and seized the
opportunity to “drive the bus.” What teenager would pass on
the opportunity to be in complete control of her life? It is
clear to the Court that her rejection of her father is pleasing to
her mother and continued rejection will guarantee a continued
flow of favorable treatment from the mother.
Numerous mental health professionals have not been
able to address the parents’ issues and the Court has
absolutely no expectation that it can make things work
smoothly. The Court has considered drafting specific
measures that would direct each parent how to be an effective
parent but the Court doubts that either party would follow
those directives and also it is not [the] Court’s responsibility
to rear the child.
In summary, the Court cannot find a legitimate legal
reason why the father should not have parenting time.
It is therefore ordered that the father shall have
parenting time pursuant to the current Indiana Parenting Time
Guidelines in all respects and the parties shall not renegotiate
terms of those guidelines in any respect and any agreements
the parties may have previously made are voided. The only
exception the Court is ordering is the extended summer
visitation for 2013. Given the timing of this order with the
start of school, extended visitation will not be possible. The
father’s first weekend shall commence August 9, 2013 and
his weeknight shall be on Wednesday.
App. pp. 44-45.
On August 7, 2013, P.R. initially refused to participate in parenting time with
Father. Ultimately, however, P.R. cooperated after the police arrived. On August 9,
2013, P.R. refused to participate in parenting time. On August 12, 2013, Father filed a
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petition for contempt against Mother. Father alleged that Mother “has done everything in
her power to attempt to discourage [P.R.] from seeing” Father. Id. at 46. The trial court
set the matter for hearing on September 3, 2013.
At the hearing, Father called Officer Jack Donahoo, who was dispatched to deal
with problems during an attempted parenting time exchange on August 14th, to testify.
During Officer Donahoo’s testimony, Father offered Exhibit A into evidence. Exhibit A
included Officer Donahoo’s investigation report regarding the August 14th incident and
dispatch reports from the August 7th and August 9th incidents. Mother objected based on
relevancy because the records contained evidence concerning the August 14th incident
and the contempt petition concerned only the August 7th and 9th incidents. Mother also
argued that the documents were hearsay and did not fall under the business records
exception. The trial court admitted Exhibit A over Mother’s objection. Mother also
objected to Officer Donahoo’s testimony regarding the August 14th incident, and the trial
court overruled the objection.
After the hearing, the trial court issued an order finding Mother in contempt. The
trial court found:
The evidence was uncontroverted that since the
Court’s Order of August 1, 2013, the child has visited only on
August 7, 2013 and at no other time despite the Court’s Order
for Guideline visitation which would mean every other
weekend and one evening a week which apparently is
Wednesday.
The evidence was also uncontroverted that after the
visit of August 7, 2013, the child has simply refused to get
out of the car at the exchange point.
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The Court also finds from the evidence that the Mother
has failed to take a positive or active role in encouraging the
child to engage in visitation and is allowing the child to
decide if she wants to visit. The Court finds that the Mother
is in contempt of the Court’s August 1, 2013 Order.
The Court orders the Mother to serve seven (7) days in
the Warrick County Security Center. The Court will stay the
execution of the sentence on the condition that the child visits
with the Father as ordered in the Court’s Order of August 1,
2013 and the further condition that the Mother pay $300.00
for the Father’s attorney fees within 30 days of this Order.
App. p. 43. Mother now appeals.
Analysis
I. Admission of Evidence
Mother argues that the trial court erred by admitting Officer Donahoo’s testimony
concerning the August 14th incident and Exhibit A, which included Officer Donahoo’s
investigation report regarding the August 14th incident and dispatch reports from the
August 7th and August 9th incidents. According to Mother, Officer Donahoo’s testimony
regarding the August 14th incident should not have been admitted because the contempt
petition concerned only the August 7th and 9th incidents. As for Exhibit A, Mother argues
that the police reports were hearsay.
We disregard errors in the admission of evidence as harmless error unless they
affect the substantial rights of a party. Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010);
Ind. Trial Rule 61. “Likewise, reversible error cannot be predicated upon the erroneous
admission of evidence that is merely cumulative of other evidence that has already been
properly admitted.” Id.
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Although Mother objected to the evidence concerning the August 14th incident
during Officer Donahoo’s testimony and when Exhibit A was admitted, additional
evidence of the August 14th incident and later attempted parenting times was admitted
during Father’s testimony and a family friend’s testimony. Mother did not object to that
additional evidence. The failure to object at trial waives any claim of error and allows
otherwise inadmissible hearsay evidence to be considered for substantive purposes.
Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000). Officer Donahoo’s testimony and
Exhibit A were merely cumulative of the other evidence, and any error in the admission
of the testimony and Exhibit A was harmless.
II. Contempt
Next, Mother argues that the trial court erred by finding her in contempt.
“‘Uncontradicted evidence that a party is aware of a court order and willfully disobeys it
is sufficient to support a finding of contempt.’” Bessolo v. Rosario, 966 N.E.2d 725, 730
(Ind. Ct. App. 2012) (quoting Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind. Ct. App.
2002)), trans. denied. A determination of whether a party is in contempt is a matter
within the trial court’s sound discretion, and we reverse only where there has been an
abuse of that discretion. Id. An abuse of discretion occurs where the trial court’s
decision is against the logic and effect of the facts and circumstances before the court. Id.
The willful disobedience of any lawfully entered court order of which the offender
had notice is indirect contempt. Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind.
Ct. App. 2010); see also Ind. Code § 34-37-3-1. The trial court here ordered “that the
father shall have parenting time pursuant to the current Indiana Parenting Time
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Guidelines in all respects and the parties shall not renegotiate terms of those guidelines in
any respect and any agreements the parties may have previously made are voided.” App.
p. 45. The Indiana Parenting Time Guidelines provide:
If a child is reluctant to participate in parenting time, each
parent shall be responsible to ensure the child complies with
the scheduled parenting time. In no event shall a child be
allowed to make the decision on whether scheduled parenting
time takes place.
Commentary:
In most cases, when a child hesitates to spend time with a
parent, it is the result of naturally occurring changes in the
life of a child. The child can be helped to overcome
hesitation if the parents listen to the child, speak to each other
and practically address the child’s needs.
Parents should inquire why a child is reluctant to spend time
with a parent. If a parent believes that a child’s safety is
compromised in the care of the other parent, that parent
should take steps to protect the child, but must recognize the
rights of the other parent. This situation must be promptly
resolved by both parents. Family counseling may be
appropriate. If the parents cannot resolve the situation, either
parent may seek the assistance of the court.
Ind. Parenting Time Guideline § I(E)(3) (emphasis added).
According to Mother, she did not violate the Indiana Parenting Time Guidelines,
and she encouraged P.R. to participate in parenting time with Father. Mother recorded
the parenting time exchange on August 7th, and the trial court listened to the recording.
Father presented evidence that, at the August 7th parenting time exchange, Mother started
crying and hugging P.R. when P.R. was ready to leave with Father. At the August 9 th
parenting time exchange, Mother would not get out of the vehicle and only cracked her
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window to talk to Father. The family friend testified that she never heard Mother say
anything that encouraged P.R. to participate in the parenting time. Father presented
evidence that Mother failed to ensure that P.R. complied with the scheduled parenting
time in violation of Parenting Time Guideline I(E)(3). Mother’s argument is merely a
request that we reweigh the evidence.
III. Sanctions for Contempt
Mother also argues that the sanction imposed by the trial court was improper. The
primary objective of a civil contempt proceeding is not to punish the contemnor but to
coerce action for the benefit of the aggrieved party. In re Paternity of M.F., 956 N.E.2d
1157, 1163 (Ind. Ct. App. 2011). A contempt order that neither coerces compliance with
a court order nor compensates the aggrieved party for loss and does not offer an
opportunity for the recalcitrant party to purge himself may not be imposed in a civil
contempt proceeding. Id.
The trial court here ordered Mother to serve seven days in jail but stayed the
execution of the sentence if P.R. visited with Father pursuant to the August 1st order.1
Mother argues that the order does not give her an opportunity to purge herself of the
contempt, that the order encourages Father to disrupt the parenting time, and that it places
all of the burden on Mother. “While any imprisonment, of course, has punitive and
deterrent effects, such imprisonment shall be viewed as remedial rather than punitive if
the court conditions the contemnor’s release upon the contemnor’s willingness to comply
1
The trial court also ordered Mother to pay $300.00 for Father’s attorney fees within 30 days of the order.
However, Mother makes no argument concerning this provision.
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with the order from which the contempt finding was based upon.” Thompson v.
Thompson, 811 N.E.2d 888, 906 (Ind. Ct. App. 2004). The trial court’s order allows
Mother to avoid the jail sentence by ensuring that P.R. participates in parenting time with
Father. Consequently, Mother was given the opportunity to purge herself. As for
Mother’s assertion that the order encourages Father to disrupt parenting time and places
all of the burden on Mother, Father is still required to follow the trial court’s August 1st
order and the Parenting Time Guidelines and could be subject to contempt for failing to
do so.
Conclusion
Any error in the admission of Officer Donahoo’s testimony and Exhibit A was
harmless. The trial court did not abuse its discretion by finding Mother in contempt, and
the sanction imposed was proper. We affirm.
Affirmed.
BAKER, J., and CRONE, J., concur.
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