Caitilin Ashley v. Richard F. Ashley, Jr. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 15 2019, 9:25 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Carl Paul Lamb Ryan M. Spahr
Matthew L. Fox Spahr Law Office, LLC
Lamb & Fox LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Caitilin Ashley, August 15, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-DR-354
v. Appeal from the Marion Superior
Court
Richard F. Ashley, Jr., The Honorable Patrick J. Dietrick,
Appellee-Respondent. Judge
The Honorable Caryl F. Dill,
Magistrate
Trial Court Cause No.
49D12-1510-DR-35333
Bailey, Judge.
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Case Summary
[1] Caitilin Ashley (“Wife”) appeals an order finding her in contempt of court and
ordering that she pay attorney’s fees on behalf of Richard Ashley (“Husband”).
Additionally, she challenges the trial court’s denial of her motion for contempt
against Husband. We affirm in part and reverse in part.
Issues
[2] Wife presents the following consolidated and restated issues: 1
I. Whether the trial court abused its discretion by finding
her, as opposed to Husband, in contempt of court; and
II. Whether the sanction for contempt is an abuse of
discretion.
Facts and Procedural History
[3] In 2016, after thirty years of marriage and the acquisition of several real
properties, Wife and Husband divorced. Their mediated settlement, adopted by
the dissolution court, provided that Husband would have possession of
properties at 3650 Washington Boulevard and 3755 Washington Boulevard in
Indianapolis (“the Properties”), pending their sale. Wife was to be afforded
1
Because we reverse, we do not reach the issue of whether Wife was entitled to a continuance of the trial
proceedings to obtain successive counsel.
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access as reasonably necessary for the sale process. Each spouse was awarded
other parcels of real estate as his or her individual property.
[4] The settlement agreement contained provisions that the trial court would later
describe as “conflicting.” Appealed Order at 3. The agreement provided that
each of the properties should be listed for sale in its current condition and
“neither party shall be obligated to make improvements or remediations except
as mutually agreed in writing through the sale process.” Id. Another paragraph
of the settlement agreement stated: “Each party shall cooperate fully with all
reasonably necessary sales efforts including but not limited to allowing access
for reasonable walk-throughs, open houses, showings appraisals, inspections,
cleanings, etc., and reasonably maintaining the ‘show-ready’ condition.” Id.
[5] On April 21, 2017, the trial court approved an Agreed Modification to the
Mediated Marital Settlement Agreement. Pursuant to that agreement, Husband
was to receive as his sole property an additional parcel of real estate located at
3920 Washington Boulevard, and Wife was to be paid her equity in 3920
Washington Boulevard from the proceeds of the sale of 3755 Washington
Boulevard.
[6] At the expiration of a one-year listing contract, neither of the Properties had
been sold and thus Wife had not received her equity in 3920 Washington
Boulevard. For a time, the former spouses amicably discussed re-listing the
Properties. Wife, who had obtained a realtor’s license, considered listing the
Properties but learned that she could not list 3755 Washington Boulevard
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because she was not licensed to sell commercial property. Cooperative efforts
broke down when Husband and Wife could not agree on a successive realtor or
listing price.
[7] More fundamentally, and eventually giving rise to the instant litigation,
Husband and Wife did not agree on the extent of Husband’s obligation to clean
and present the Properties for showing. Wife requested, in writing, that
Husband perform landscaping tasks, eliminate rust stains from sinks or re-glaze
them, repair water damage, and remove construction debris, items stored in a
garage, and numerous boxes of business records. She opined that these efforts
would bring the Properties to a show-ready condition and, without the
measures, the commercial property would be devalued by $100,000.00.
Husband’s position was that, under the decree adopting the mediated
settlement, the Properties were being offered for sale in an as-is condition.
[8] On April 12, 2018, Wife filed her “Petition for Rule to Show Cause,
Enforcement of Decree, and Request for Attorney’s Fees.” (App. Vol. II, pg.
59.) She alleged that Husband was in contempt of court for failing to keep the
Properties in a “show-ready” condition, denying her reasonable access, refusing
to agree upon a realtor, refusing to refinance the mortgage for 3920 Washington
Boulevard, and delaying the tender of her vehicle title and proceeds from an
IRA. Id. She asked that Husband be ordered to better maintain the Properties
and pay her for the claimed reduction in value. She also requested that final
proceeds of the sale be used to pay 2015 income taxes and a $4,400.00 medical
bill. On August 31, 2018, Husband filed a petition for rule to show cause,
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alleging Wife was in contempt of court because she had “continued to make
unjustified and outlandish demands on Husband before she would agree to
participate and cause the listing of the properties.” Id. at 84.
[9] The trial court conducted a hearing on the respective contempt petitions on July
9 and October 5, 2018.2 By the final hearing date, Husband had cleared out his
personal and business property and vacated the Properties, moved into the
residence at 3920 Washington Boulevard, and delivered to Wife the title to her
vehicle and $2,000.00 from an IRA. He had paid $14,000.00 of the 2015
income taxes but had not paid any part of the medical bill. A sale of the 3755
Washington Boulevard property was pending. The property at 3650
Washington Boulevard was listed for sale at an agreed listing price of
$395,000.00.
[10] Although the property distribution was substantially completed, each party
desired that the other be held in contempt for wrongfully interpreting their
settlement and causing delays. Wife had incurred approximately $25,000.00 for
attorney’s fees, and Husband had incurred approximately $28,000.00. Each
desired a sanction order against the other for payment of fees.
[11] Realtors Larry Gregerson (“Gregerson”) and Ken George (“George”) testified
regarding the condition of the Properties during the time they were listed
2
Wife had filed, and later moved to dismiss, a petition for modification of child support. She had also twice
petitioned for appointment of a receiver; the trial court summarily denied those petitions.
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without selling. Gregerson described the Properties as having construction
debris, water leaks, rusty sinks, and “pretty overgrown landscaping.” (Tr. Vol.
II, pg. 11.) The biggest concerns, according to George, were stored boxes and
the need for exterior upkeep. Wife testified that, in her opinion, Husband had
not kept the Properties in show-ready condition. She described being “horrified
by so much clutter, boxes, and junk.” Id. at 32. She also claimed that Husband
had denied her access and she had not refused to agree upon a successive
realtor. She acknowledged that Husband had provided her with a vehicle title
and IRA funds but faulted his delay.
[12] In turn, Husband testified that he had followed the court order and had not
been obligated to improve the Properties beyond their condition at the time of
the initial listing (which predated the divorce). He claimed that he had allowed
Wife reasonable access to the Properties and the lack of sale was traceable to
her “adamant” refusal to lower the price. Id. at 190. Husband testified that he
was compliant with court-ordered payments and transfers (but he
acknowledged that neither spouse had paid a portion of the medical bill despite
each receiving $25,000.00 from a prior real estate transaction). He further
testified that he had not immediately refinanced the mortgage for 3920
Washington Boulevard because, upon investigation, he learned that only he
was liable on the mortgage.3
3
Nonetheless, Husband stated that he had recently applied to refinance the mortgage for his own budgetary
purposes.
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[13] On January 4, 2019, the trial court issued an order finding Wife in contempt of
court and ordering that she pay $15,000.00 of Husband’s attorney’s fees. The
order specified that Wife was found in contempt of court “for her unreasonable
refusal to agree on listing prices, act as listing agent, agree on a listing agent and
reduce the listing prices of the properties as well as her refusal to acknowledge
that the properties were to be listed and sold in ‘their current condition.’”
Appealed Order at 8.
[14] With respect to Husband, the order stated:
The Court finds [Husband] was not in contempt of court for
refusing to allow [Wife] access to the properties or for failing to
maintain the properties in “show ready” condition. The Court
finds he was required to put forth additional efforts and expend
funds in an effort to clean and unclutter the properties to placate
[Wife] because of her unreasonable refusal to act as listing agent,
agree on a listing agent and agree on listing prices to sell the
properties “IN THEIR CURRENT CONDITION.”
Id. Additionally, the trial court found that Husband’s delay in providing the
vehicle title and IRA funds was “inadvertent and not willful” and he was not
required to refinance a mortgage solely in his name. Id. The order further
provided that “outstanding debts, if any, as outlined in the Settlement, shall be
paid from the proceeds of the sale of 3650 and 3755 Washington Boulevard.”
Id. at 8-9. Wife now appeals.
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Discussion and Decision
Finding of Lack of Contempt – Husband
[15] When dissolving a marriage, parties are free to negotiate their own settlement
agreements and may incorporate those into a dissolution decree. Ind. Code §
31-15-2-17. Such agreements are contractual in nature, and once incorporated
into a trial court’s final order, the agreements become binding on both parties.
Whittaker v. Whittaker, 44 N.E.3d 716, 719 (Ind. Ct. App. 2015). All orders
contained within a divorce decree may be enforced in contempt proceedings.
I.C. § 31-15-7-10.
[16] Whether a party is in contempt of court is a matter within the trial court’s
discretion, and its finding will be reversed only for an abuse of that discretion.
In re Adoption of A.A., 51 N.E.3d 380, 385 (Ind. Ct. App. 2016). “A court has
abused its discretion when its decision is against the logic and effect of the facts
and circumstances before the court or is contrary to law.” In re Paternity of M.F.,
956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).
[17] There are two types of contempt, that is, direct and indirect. In re A.A., 51
N.E.3d at 385. Indirect contempt, at issue here, is defined as “willful
disobedience of any lawfully-entered court order of which the offender had
notice.” Id. The order must “command the accused to do or refrain from doing
something.” Piercey v. Piercey, 727 N.E.2d 26, 32 (Ind. Ct. App. 2000). The
contemptuous act must be done willfully and with the intent to show disrespect
or defiance. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). Also,
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the order must have been so clear and certain that there could be no question
concerning what the party must do, or refrain from doing, such that there could
be no question as to whether the order is violated. City of Gary v. Major, 822
N.E.2d 165, 170 (Ind. 2005). A party may not be held in contempt of court for
failure to comply with an order that is either ambiguous or indefinite. Id.[18] Wife argues that the trial court abused its discretion by refusing to find Husband
in contempt of court when, by his own admission, he delayed beyond the
parameters of the dissolution decree in refinancing a mortgage and tendering to
Wife the title to her vehicle and $2,000.00 from an IRA. However, he testified
to the following circumstances: he discovered Wife was not obligated on the
mortgage; he paid off her vehicle and put aside the title, remembering it only
during mediation; and it was a mere oversight when he withheld the $2,000.00
IRA proceeds while focusing on larger IRA accounts. “Crucial to the
determination of contempt is the evaluation of a person’s state of mind, that is,
whether the alleged contemptuous conduct was done willfully.” Witt, 964
N.E.2d at 202. Here, the trial court found that Husband’s conduct was
inadvertent and not willful. We will not reweigh the evidence to conclude
otherwise. Piercey, 727 N.E.2d at 32.
Finding of Contempt – Wife
[19] Wife argues that Husband’s motion for a rule to show cause did not sufficiently
allege facts constituting contempt, thus denying her due process. She further
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argues that the trial court then abused its discretion by finding her in contempt
without identifying a court-ordered act that she willfully refused to perform.
[20] Indiana Code Section 34-47-3-5(b) requires in relevant part that a rule to show
cause must:
(1) clearly and distinctly set forth the facts that are alleged to
constitute the contempt; [and]
(2) specify the time and place of the facts with reasonable
certainty, as to inform the defendant of the nature and
circumstances of the charge against the defendant[.]
[21] However, a party may waive a due process violation claim by failing to raise an
argument at the trial level. McKibben v. Hughes, 23 N.E.3d 819, 828 (Ind. Ct.
App. 2014). Wife failed to argue to the trial court that she was denied due
process because she lacked knowledge of the allegations against her. She thus
waived this argument for appeal. We turn to her contention that the trial court
abused its discretion when deciding the merits of the contempt allegation
against her.
[22] The trial court determined that the settlement agreement, adopted by the
dissolution court, contained conflicting provisions regarding how the parties
were to present the Properties for sale. It did not define show-ready, nor did it
specify the steps to be taken if the initial real estate listing expired without a
sale. Yet Wife was found in contempt of court for “refusal to agree on listing
prices, act as listing agent, agree on a listing agent and reduce the listing prices
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[and] acknowledge the properties were to be listed and sold in their current
condition.” Appealed Order at 8. Critically, Wife was not ordered to do any of
these things in either the dissolution decree or order adopting the modification
settlement. The finding of contempt was an abuse of discretion.
Attorney’s Fees
[23] To support his testimony that he incurred attorney’s fees, Husband submitted
his Respondent’s Exhibit C, which provides in full:
Olson Law Office – Ashley – Attorney Fee Summation
March $ 1,750.00
April $ 600.00
May $ 4,075.00
June $ 895.00
July $ 4,625.00
August $ 4,750.00
September $ 4,200.00
October $ 3,390.00
November $ 3,955.00 (7.8 paralegal, 3.7 attorney prep on 10-4
$28,240.00 and 9 hours on 10-5)
[24] The trial court ordered Wife to pay $15,000.00 of the fees, reasoning:
[Husband] incurred attorney fees in excess of $28,000.00 in
defending [Wife]’s Rule to Show Cause and in prosecuting his
own. The Court finds that the fees were reasonable and that a
substantial portion was incurred because of [Wife]’s lack of
cooperation and unreasonable interpretation of the terms of the
Settlement Agreement.
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Appealed Order at 9.
[25] A trial court may impose sanctions to compensate a party for injuries incurred
as a result of contempt and this may include attorney’s fees. Witt, 964 N.E.2d
at 204. We review for an abuse of discretion and reverse only when there is no
evidence to support the award. Id. Here, assuming that Wife unreasonably
interpreted the settlement agreement, there is no evidence that she was in
contempt of court. The attorney’s fees award may not be justified as a sanction
for Wife’s contempt.
[26] Husband testified that he “had filed for frivolous litigation fees.” (Tr. Vol. II,
pg. 54.) But it is not apparent that the partial fees award included any
compensation for frivolous litigation. The trial court did not reference a
statutory basis and did not specifically address the parties’ respective financial
positions. See In re Marriage of Lewis, 638 N.E.2d 859, 861 (Ind. Ct. App. 1994)
(observing that misconduct directly resulting in added litigation expense may be
considered in awarding attorney’s fees in a dissolution proceeding, but the court
must consider the respective economic conditions of the parties). As the trial
court observed in its order, Wife had filed two motions for appointment of a
receiver and a motion to have the elected judge hear the case. But these
motions were summarily denied and did not lead to protracted litigation. And
Husband’s Exhibit C, which appears to include charges for one month before
the instant litigation ensued, does not allocate any charge to a particular task
performed. In short, the $15,000.00 award appears to be supported only by the
trial court’s erroneous conclusion that Wife was in contempt and should be
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sanctioned therefor. The sanction order is an abuse of the trial court’s
discretion.
Conclusion
[27] The motion for contempt against Husband was properly denied in that his
actions were found to be inadvertent and not willful. Lacking evidentiary
support, the contempt order against Wife must be reversed as an abuse of the
trial court’s discretion. The award of attorney’s fees as a sanction for contempt
is also an abuse of the trial court’s discretion.
[28] Affirmed in part; reversed in part.
Najam, J., and Crone, J., concur.
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