John E. Roberts, Jr. v. Nichole Roberts (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 13 2017, 10:05 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Austin T.B. Malayer
Greencastle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John E. Roberts, Jr., March 13, 2017
Appellant-Respondent, Court of Appeals Case No.
67A04-1606-DR-1404
v. Appeal from the Putnam Circuit
Court
Nicole Roberts, The Honorable Charles D. Bridges,
Appellee-Petitioner Special Judge
Trial Court Cause No.
67C01-0207-DR-228
Crone, Judge.
Case Summary
[1] John E. Roberts, Jr. (“Father”), appeals the trial court’s order dismissing his
petition for contempt filed against Nicole Roberts (“Mother”). We affirm.
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Facts and Procedural History
[2] The marriage between Father and Mother was dissolved on October 31, 2002.
Three daughters were born of the marriage. The oldest child is emancipated,
and the two younger daughters currently attend college. On May 27, 2015, the
trial court entered an order obligating Mother to pay forty percent of the
parents’ portion of the two younger daughters’ college costs.1 On November
18, 2015, Father filed a petition for contempt and request for a rule to show
cause alleging that Mother failed to pay those costs as required. On November
25, 2015, Mother filed her response to Father’s contempt petition stating that
she had no intention of disregarding the court’s order and explaining that she
had already paid some of the obligation and further explained her attempts to
obtain a receipt for the expenses so that she could properly pay them.
[3] Thereafter, on April 14, 2016, Mother filed a motion to dismiss the contempt
petition with an attached affidavit and exhibits demonstrating that the expenses
had been paid. One day later, the trial court granted Mother’s motion to
dismiss. On April 21, 2016, Father responded to the motion to dismiss with a
motion to correct error and for sanctions alleging that Mother’s motion to
dismiss was converted to a summary judgment motion, that Mother failed to
comply with Indiana Trial Rule 56, and that a factual dispute remained for trial
such that dismissal was inappropriate. On April 25, 2016, the trial court
entered an order vacating its previous order of dismissal and set the contempt
1
Father did not include a copy of the trial court’s order in his appendix.
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matter for hearing. Mother filed her response to Father’s motion to correct
error before learning that the court had already ruled on the motion, and then
on May 16, 2016, she filed a motion to reconsider again requesting that the
court dismiss the contempt petition and requesting that the court vacate its
order granting Father’s motion to correct error and setting the matter for
hearing. Father filed his response, and on May 23, 2016, the trial court granted
Mother’s motion to reconsider and again dismissed Father’s contempt petition.2
This appeal ensued.
Discussion and Decision
[4] Initially, we note that Mother did not file a brief.
When an appellee fails to submit a brief, we do not undertake the
burden of developing appellee’s arguments, and we apply a less
stringent standard of review. We may reverse if the appellant
establishes prima facie error, which is error at first sight, on first
appearance, or on the face of it. The prima facie error rule
relieves this Court of the burden of controverting arguments
advanced in favor of reversal where that burden properly rests
with the appellee.
2
We observe that much procedural confusion was caused in this case due to the trial court ruling on pending
motions almost immediately after they were filed rather than waiting for a response from the nonmovant.
See, e.g., Ind. Trial Rule 59(E)(party opposing a motion to correct error may file statement in opposition to
motion to correct error not later than fifteen days after service of the motion). Although we are generally in
favor of the expeditious resolution of disputes, some confusion may have been obviated by a less hasty
procedure. Indeed, curiously, the very same day that the trial court dismissed the contempt petition it also
granted a motion to compel discovery filed by Father. However, that ruling is not a subject of this appeal, so
we decline to address it further.
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Jenkins v. Jenkins, 17 N.E.3d 350, 351-52 (Ind. Ct. App. 2014) (citations
omitted).
[5] Father appeals the trial court’s order dismissing his contempt petition. Because
Mother included, and the trial court clearly considered, her affidavit and
exhibits filed in support of her motion to dismiss the contempt petition, the
motion was converted to one for summary judgment under Trial Rule 56. See
Azhar v. Town of Fishers, 744 N.E.2d 947, 950 (Ind. Ct. App. 2001); Ind. Trial
Rule 12(B) (if matters outside pleading are presented to and not excluded by
court, motion to dismiss for failure to state a claim shall be treated as one for
summary judgment and disposed of as provided in Rule 56). To the extent
Father suggests that he was prejudiced by the procedure employed by the trial
court, we disagree.
[6] Where a trial court treats a motion to dismiss as one for summary judgment,
the court must grant the parties a reasonable opportunity to present Trial Rule
56 materials. Azhar, 744 N.E.2d at 950. The court’s failure to give express
notice of its intended conversion of a motion to dismiss to one for summary
judgment “is reversible error only if a reasonable opportunity to respond is not
afforded a party and the party is thereby prejudiced.” Id. There are several
considerations pertinent to a determination of whether a trial court’s failure to
give express notice deprives the nonmovant of a reasonable opportunity to
respond. Doe v. Adams, 53 N.E.3d 483, 493 (Ind. Ct. App. 2016), trans. denied.
First, we consider whether the movant’s reliance on evidence
outside the pleadings should have been so readily apparent that
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there is no question that the conversion is mandated by T.R.
12(B). Second, we consider whether there was ample time after
the filing of the motion for the non-movant to move to exclude
the evidence relied upon by the movant in support of its motion
or to submit T.R. 56 materials in response thereto. Third, we
consider whether the non-movant presented “substantiated
argument” setting forth how [he] “would have submitted specific
controverted material factual issues to the trial court if [he] had
been given the opportunity.
Id. (quoting Azhar, 744 N.E.2d at 950-51).
[7] Based upon the record, we conclude that Father was not prejudiced. Mother’s
reliance on evidence outside the pleadings in her initial response to Father’s
contempt petition as well as her motion to dismiss and her motion to reconsider
was readily apparent such that there was no question that the trial court would
be compelled to convert the motion to dismiss to a summary judgment motion.
Moreover, despite Father’s implications to the contrary, he was given a
reasonable opportunity to respond to Mother’s factual assertions, and in fact he
did respond to her assertions on more than one occasion. Most significantly,
although Father presents argument setting forth a specific controverted factual
issue that he claims he would have submitted to the trial court if he had been
given the opportunity, i.e., more time for discovery and/or a hearing, we
conclude that such factual issue is not material to the contempt petition. 3 Thus,
3
In his motion to correct error, Father argued that he intended “to present evidence at a hearing that [one of
the daughters] incurred debt with family to keep her enrolled in college.” Appellant’s App. at 38. However,
even assuming that Father could present this evidence, the evidence does not concern a factual issue material
to the contempt proceedings. As we discuss more fully below, the purpose of civil contempt is to coerce
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Father has not demonstrated how he was prejudiced by the fact that the trial
court treated Mother’s request for dismissal as one for summary judgment.
[8] Upon appellate review of an entry of summary judgment, our standard of
review is the same as that of the trial court.
Considering only those facts that the parties designated to the
trial court, we must determine whether there is a genuine issue as
to any material fact and whether the moving party is entitled to
judgment as a matter of law. In answering these questions, the
reviewing court construes all factual inferences in the nonmoving
party’s favor and resolves all doubts as to the existence of a
material issue against the moving party. The moving party bears
the burden of making a prima facie showing that there are no
genuine issues of material fact and that the movant is entitled to
judgment as a matter of law; and once the movant satisfies the
burden, the burden then shifts to the non-moving party to
designate and produce evidence of facts showing the existence of
a genuine issue of material fact. The party appealing from a
summary judgment decision has the burden of persuading this
court that the grant or denial of summary judgment was
erroneous.
Id. at 494-95 (citation and quotation marks omitted). A trial court’s ruling on a
motion for summary judgment comes to this Court clothed with a presumption
action by the contemnor for the benefit of the aggrieved party. Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind.
2016). While we conclude that Mother is not in willful disobedience of the May 2015 order and that coercive
intervention by the court is unnecessary, even assuming that she was and that Father could present the
evidence that he claims, Father would not be the aggrieved party under such circumstances. Accordingly,
Father has failed to present substantial argument setting forth how he would have submitted specific
controverted material factual issues to the trial court if he had been given the opportunity.
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of correctness, and we may affirm on any theory supported by the properly
designated evidence. Id. at 495.
[9] Indirect contempt is the willful disobedience of any lawfully entered court order
of which the offender had notice. Akiwumi v. Akiwumi, 23 N.E.3d 734, 737
(Ind. Ct. App. 2014). The purpose of civil contempt proceedings is to “coerce
action for the benefit of the aggrieved party.” Marks v. Tolliver, 839 N.E.2d 703,
707 (Ind. Ct. App. 2005). Civil contempt is not meant to punish the
contemnor. Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind. 2016). Father’s
petition for contempt alleged that Mother had “failed and refused” to pay her
portion of the daughters’ college expenses as provided by the May 2015 court
order, and that she should be held in contempt for such failure. Appellant’s
App. at 22. However, Mother’s affidavit filed in support of her motion to
dismiss the contempt petition included Mother’s statements as well as
documentary exhibits evidencing that Mother’s portion of the college expenses
had indeed been paid such that no coercive action was necessary and that the
petition was essentially moot. Father does not challenge Mother’s evidence
and, in fact, he concedes that, at the time Mother requested dismissal of his
contempt petition, Mother’s obligation to pay her portion of the college
expenses had been satisfied. Nevertheless, he asserts that a factual dispute
remains as to whether Mother “herself had actually paid the college expenses as
ordered” because Mother did not specifically aver that “she” paid the expenses
and admitted that her mother paid some of the expenses. Appellant’s Br. at 6,
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8. Father has not met his burden to persuade us that a genuine issue of material
fact remains for trial.
[10] Father has not provided this Court with a copy of the May 2015 order that he
claims Mother is in willful disobedience of, and we will not speculate as to the
exact wording of that order. See Shoemaker v. Ind. State Police Dep’t, 62 N.E.3d
1242, 1245 (Ind. Ct. App. 2016) (observing that it is appellant’s burden to
present complete record with respect to issues raised on appeal). What we are
able to surmise is this: Mother is responsible for a portion of the college
expenses, and she has aptly demonstrated that those expenses have been paid.
Exactly how or with what funds she satisfied the obligation is of no moment to
Father. Because the undisputed material facts demonstrate that Mother’s
obligation has been satisfied, we conclude as a matter of law that she is not in
willful disobedience of any lawfully entered court order and that no coercive
action of the trial court is necessary. Under the circumstances, we see no
reason for any further consideration of Father’s petition for contempt. As no
genuine issue of material fact remains, summary judgment in favor of Mother is
appropriate. The trial court’s order dismissing Father’s petition for contempt is
affirmed.
[11] Affirmed.
Riley, J., and Altice, J., concur.
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