Brian S. Moore v. Kristy L. Moore

FOR PUBLICATION
Jun 13 2014, 6:37 am
APPELLANT PRO SE:
BRIAN S. MOORE
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRIAN S. MOORE, )
)
Appellant, )
)
vs. ) No. 49A04-1310-DR-499
)
KRISTY L. MOORE, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
Cause No. 49D05-0810-DR-44790
June 13, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Brian Moore appeals the trial court’s contempt finding and thirty-day suspended
jail sentence. We reverse and remand.
Issue
Brian raises two issues.1 We address the dispositive issue, which we restate as
whether the trial court improperly denied his request for the appointment of counsel.
Facts
Brian and Kristy Moore were married and have two children. Their marriage was
dissolved in 2009. On June 6, 2013, Brian was ordered to pay Kristy $139 per week in
child support. On August 12, 2013, Kristy filed a motion for rule to show cause why
Brian should not be found in contempt for failing to pay less than $50 in child support
since the June 2013 order. Kristy requested that the trial court order Brian to serve thirty
days in jail and that the sentence be suspended pending his compliance.
At the hearing on Kristy’s motion, Brian appeared pro se and requested that an
attorney be appointed to represent him because he faced jail time. The trial court denied
the request because any jail sentence would be suspended. An evidentiary hearing was
conducted, and the trial court found Brian in contempt. The trial court sentenced him to
thirty days and suspended the sentence until a compliance hearing was held in January
2014. The trial court also acknowledged that it would reconsider Brian’s request for the
appointment of counsel prior to that hearing. Brian now appeals.
1
Because of our resolution of the counsel issue, we need not address Brian’s challenge to the sufficiency
of the evidence.
2
Analysis
As an initial matter, Kristy has not filed an appellee’s brief. Under that
circumstance, we do not undertake to develop arguments for her. See Branham v.
Varble, 952 N.E.2d 744, 746 (Ind. 2011). Rather, we will reverse if Brian makes a prima
facie showing of reversible error. See id.
Brian argues that the trial court improperly denied his request for counsel prior to
sentencing him to thirty days in jail, all of which were suspended, for his failure to pay
child support pursuant to the June 2013 order. We have held “that where the possibility
exists that an indigent defendant may be incarcerated for contempt for failure to pay child
support he or she has a right to appointed counsel and to be informed of that right prior to
commencement of the contempt hearing.” In re Marriage of Stariha, 509 N.E.2d 1117,
1121 (Ind. Ct. App. 1987). This is so regardless of whether a private person or the State
initiates the contempt proceedings. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct.
App. 2005).
Here, there is a clear possibility that Brian is indigent. Furthermore, even though
the trial court suspended the sentence and indicated it would reconsider the issue of
appointing counsel prior to the compliance hearing, Brian clearly risked the possibility of
losing his physical liberty as a result of the trial court’s contempt finding. Thus, if
indigent, Brian was entitled to have counsel represent him at that hearing, not just at the
subsequent compliance hearing.
3
Conclusion
Brian has made a prima facie showing that the trial court erred by denying his
request for counsel. We reverse and remand for the trial court to determine if Brian is
indigent and, if so, to appoint counsel to represent him at a new contempt hearing.
Reversed and remanded.
BAKER, J., and CRONE, J., concur.
4