In Re The Paternity of N.T. B.T. v. D.K. and K.K. , 2012 Ind. App. LEXIS 48 ( 2012 )

FILED
Feb 08 2012, 10:38 am
FOR PUBLICATION CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
JIM BRUGH DAN J. MAY
Logansport, Indiana Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF N.T. )
)
B.T., )
)
Appellant, )
)
vs. ) No. 09A02-1108-JP-693
)
D.K. and K.K., )
)
Appellees. )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Leo T. Burns, Judge
Cause No. 09C01-9906-JP-26
February 8, 2012
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
B.T. (Father) brings this interlocutory appeal from an order of the Cass County Circuit
Court (the paternity court) granting K.K.’s (Stepfather) motion for change of venue from the
judge. Father contends that, although subject to contempt proceedings, Stepfather is not a
party to the underlying paternity action and is not entitled to a change of venue from the
judge pursuant to Indiana Trial Rule 76.
We reverse and remand.
D.K. (Mother) and Father are the parents of N.T., born in July 1999. Mother’s
successful attempts to frustrate and deny visitation to Father through December 2007 are well
documented in the record. In particular, our prior memorandum decision recounts in detail
the egregious actions of Mother and Stepfather and the emotional harm inflicted on N.T.
while the two hid the child from Father and the State from August 2003 to December 2007 to
evade a change of custody order issued by the paternity court. See In re Paternity of N.T.,
Cause No. 09A02-0810-JV-883 (June 5, 2009).
Mother was located and arrested1 by Kokomo police on December 3, 2007, and the
child was taken into protective custody by the Grant County Department of Child Services.
CHINS proceedings were initiated, and a custody determination in the paternity action was
held in abeyance until the conclusion of the CHINS case. During the pendency of the
CHINS case, on February 18, 2008, the paternity court admitted Mother to bail with the
condition that she have no contact with N.T. until further order of the court. The paternity
court modified the contempt bond conditions on September 23, 2008, adding the condition
that Stepfather have no contact with the child and denying Mother’s request for supervised
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visitation as allowed by the CHINS court.
In a memorandum decision, issued June 5, 2009, this court affirmed the paternity
court’s bond modification order. Among other things, we upheld the court’s additional
condition place upon Mother’s bail that, in light of Stepfather’s active participation in her
contempt of the 2003 court order, Stepfather have no contact with N.T. In this regard, we
explained:
[W]e observe that “[o]ne not a party who has knowledge of a court order but
nevertheless aids, conspires with, and abets a party to an action in violating a
court order entered therein, may be punished for contempt.” Owen v. Vaughn,
479 N.E.2d 83, 86 (Ind. Ct. App. 1985). The evidence clearly establishes that
Step-father was aware of the paternity court’s order that Mother relinquish
custody of N.T. to Father and actively participated in hiding N.T. from Father
and the paternity court for approximately four years. In light of these facts, we
conclude that the paternity court did not abuse its discretion in extending to
Step-father the no-contact order issued as a condition to Mother’s bail for her
contempt of the court’s order.
In re Paternity of N.T., slip op. at 8-9.
In September 2010, the paternity court resumed jurisdiction and set all pending
matters for trial. Father then filed, on November 4, a supplemental application for contempt
citation against Stepfather for his active participation in Mother’s violation of the 2003 order.
Father asked the court to “consider whether Step-father’s conduct was contemptuous and
noted that Father had incurred legal fees in efforts to gain control over the child, including
but not limited to, participation in the CHINS proceeding”. Appendix at 62. Stepfather was
not served with the application for contempt until March 9, 2011. Thereafter, on April 6,
2011, Stepfather filed a motion to dismiss and a motion for change of venue from the judge.
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Mother was arrested on criminal charges and for contempt.
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Following a hearing, the paternity court granted Stepfather’s motion for change of venue
from the judge on May 20, 2011. Specifically, the court concluded that service of Father’s
application for contempt prompted Stepfather to actively protect his rights and defend the
action and, thus, resulted in joining him as a party in the paternity proceeding. As a party,
the court reasoned that Stepfather had a right to change of venue from the judge pursuant to
T.R. 76. Father filed a motion to reconsider, which the paternity court denied following
another hearing on the matter.
Upon Father’s motion, the trial court certified the May 20, 2011 order for
interlocutory appeal. We accepted jurisdiction of the appeal pursuant to Ind. Appellate Rule
14(B) on September 2, 2011.
Father contends the paternity court incorrectly concluded that Stepfather was
automatically joined as a party to the paternity action once he was served with Father’s
application for contempt citation. He argues that Stepfather is a nonparty who is subject to
contempt sanctions. Stepfather, on the other hand, contends that the application served upon
him was for civil contempt (as opposed to criminal contempt) and he should be afforded “all
the procedural rights of an original [civil] litigant, including the right to a timely change of
venue from the judge.” Appellee’s Brief at 7.
Indiana trial courts have inherent authority to enforce their orders through contempt
powers, even against nonparties. See Owen v. Vaughn, 479 N.E.2d 83. See also La Grange
v. State, 153 N.E.2d 593 (Ind. 1958). “This power is essential to the existence and
functioning of our judicial system, and the legislature has no power to take away or
materially impair it.” La Grange v. State, 153 N.E.2d at 595. Although the legislature has
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regulated the exercise of this inherent contempt power by prescribing rules of practice and
procedure, the statutory definitions of contempt are “not so all-inclusive as to exclude other
acts or conduct which may constitute contempt.” Id. at 596.
In this case, Stepfather’s focus on whether criminal or civil contempt has been alleged
against him is misplaced. As our Supreme Court has explained, contempt “is a sui generis
proceeding neither civil nor criminal in nature, although both of those labels are used to
describe certain categories of contempt.” State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990).
See also Mitchell v. Stevenson, 677 N.E.2d 551 (Ind. Ct. App. 1997) (noting that civil and
criminal contempts can arise out of the same conduct and are, therefore, not readily
distinguishable), trans. denied.2
In Owen v. Vaughn, we held that the trial court had personal jurisdiction over a
stepfather “for contempt purposes even though he was not a party to the [dissolution] action.”
479 N.E.2d at 86. In so holding we explained:
Owen had personal knowledge of these proceedings. He was physically
present at all the hearings regarding visitation. He was personally ordered not
to interfere by Judge Vaughn, and later personally named along with his wife,
Sandy, in the judge’s order of November 6, 1981…. One not a party who has
knowledge of a court order but nevertheless aids, conspires with, and abets a
party to an action in violating a court order entered therein, may be punished
for contempt.
Id. (citations omitted).
2
“The disobedience of a court order may be categorized as either civil contempt or criminal contempt.”
Mitchell v. Stevenson, 677 N.E.2d at 560. A civil contempt is a violation of a court order resulting in a
proceeding for the benefit of the aggrieved party, here Father. See Mitchell v. Stevenson, 677 N.E.2d 551.
Thus, any type of penalty imposed must be coercive or remedial in nature. Id. In contrast, criminal contempt
is an act directed against the authority of the court that obstructs the administration of justice and tends to
bring the court into disrepute. Id. The penalty imposed for criminal contempt, thus, is for the benefit of the
State and is punitive in nature in order to vindicate the authority of the court. Id.5
We observe that this case is before us on interlocutory appeal, therefore our review is
limited to the order granting change of venue from judge, and we express no opinion with
regard to the propriety of finding Stepfather in contempt. Rather, we simply hold that the
paternity court has the inherent power to subject nonparties to contempt proceedings for
violation of its orders.
Moreover, we cannot agree with Stepfather and the trial court that service of Father’s
application for contempt elevated Stepfather to the status of a party in the underlying civil
action entitling him to a change of venue from the judge pursuant to T.R. 76. This is not to
say, however, that Stepfather is not entitled to due process. To be sure, an indirect contempt,
which is at issue here, requires an array of statutorily prescribed due process protections,
including notice and the opportunity to be heard. See Ind. Code Ann. §§ 34-47-3-5 through -
7 (West, Westlaw through 2011 1st Regular Sess.). See also Mitchell v. Stevenson, 677
N.E.2d at 560 (“[w]here the conduct is categorized as civil contempt or criminal, the trial
court must still provide the defendant with the same statutorily prescribed due process
requirements”). On remand, Stepfather will be entitled to these statutory due process
protections in any contempt proceedings before the paternity court.
Reversed and remanded.
RILEY, J., and MATHIAS, J., concur.
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