L.B. v. M.B. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 10 2020, 10:07 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu Lauren E. Harpold
Ciobanu Law, P.C. Lainie A. Hurwitz
Indianapolis, Indiana Ruppert & Schaefer, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
L.B., June 10, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-DC-2594
v. Appeal from the
Hamilton Superior Court
M.B., The Honorable
Appellee-Petitioner. Jonathan M. Brown, Judge
Trial Court Cause No.
29D02-1706-DC-5218
Kirsch, Judge.
[1] L.B. (“Mother”) appeals the trial court’s order finding her in indirect contempt
for violating the trial court’s previous order, contained in the dissolution decree,
that required the children of the marriage to be vaccinated with the schedules
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 1 of 19
set forth by the American Academy of Pediatrics or as otherwise suggested by
the children’s doctors. Mother raises several issues, which we restate as:
I. Whether the trial court erred in proceeding with the
contempt action while a prior appeal regarding the trial
court’s previous order granting M.B. (“Father”) sole legal
custody for medical decisions regarding their children and
ordering that the children be vaccinated was pending with
this court;
II. Whether the trial court abused its discretion when it found
Mother in indirect contempt for violating the trial court’s
previous order by objecting to having one of the children
vaccinated; and
III. Whether the trial court abused its discretion when it
awarded Father attorney fees in the amount of $3,000 for
Mother’s failure to comply with the trial court’s order.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father were married in August 2002, and their marriage was
dissolved by decree in November 2018. Appellant’s App. Vol. 2 at 33. Three
children were born in the marriage. This appeal concerns only A.B., who was
thirteen at the time of the proceedings at issue. Id. at 34, 134-37. By the
agreement of the parties and an order of the court, Father and A.B. began
participating in reunification therapy in November 2018. Id. at 21-22; Tr. Vo1. 2
at 71. All issues in the underlying dissolution proceedings were resolved by
agreement of the parties, except for the issue of legal custody pertaining to
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 2 of 19
medical decisions concerning the children. Appellant’s App. Vo1. 2 at 32.
Hearings regarding that issue involved substantial evidence from the parties and
various medical professionals and took place over the course of five days. Id.
After hearing the evidence and taking the matter under advisement, the trial
court issued an order on April 17, 2019, which, in relevant part, awarded
Father sole legal custody as to medical decisions for the children and ordered
the children to be vaccinated according to Father’s wishes and in accordance
with the schedules set forth by the American Academy of Pediatrics or as
otherwise suggested by the children’s doctors (“the April 2019 Order”). Id. at
100. Mother appealed that order, and the trial court’s decision was affirmed by
this court in an unpublished memorandum decision. See L.B. v. M.B., No. 19A-
DC-993, 2019 WL 6335334 (Ind. Ct. App. Nov. 27, 2019).
[4] On July 22, 2019, while the prior appeal was pending, Father filed his
“Verified Petition for Rule to Show Cause and Request for Attorney’s Fees”
with the trial court. Appellant’s App. Vol. 2 at 121-25. In this petition, Father
asserted, in relevant part, that: A.B.’s middle school required her to be current
with her vaccinations before school began or she would not be permitted to
attend; that reunification therapy between Father and A.B. was ongoing with
Dr. Kevin Byrd (“Dr. Byrd”); that Dr. Byrd recommended that Father not enter
any medical appointment room with A.B. and not force any interactions with
A.B.; that A.B. had an appointment with her pediatrician, Dr. Kristen Gollnick
(“Dr. Gollnick”), on June 28, 2019, at which A.B. was to get her vaccinations;
that when Dr. Gollnick brought up the topic of vaccinations, A.B. presented
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 3 of 19
Dr. Gollnick with “anti-vaccination” documentation and refused vaccinations
while Mother was present; and that Mother failed to assist Dr. Gollnick to
ensure A.B. was vaccinated consistent with Father’s wishes as medical legal
custodian. Id. Father requested that Mother be found in contempt and be
ordered to pay his attorney fees. Id. at 125.
[5] On July 25, 2019, Mother filed her “Verified Response to Verified Motion for
Rule to Show Cause and Request for Attorney Fees, Verified Cross Petition for
Rule to Show Cause and Request for Attorney Fees, and Motion to Compel.”
Id. at 127-33. In her pleading, Mother denied the allegations made in Father’s
petition and asserted: (1) that she could not be held in contempt because the
April 2019 Order was not “clear and certain”; (2) that Father should be held in
contempt because the April 2019 Order “is unambiguous in that the children
are to be vaccinated and that Father is the Medical Legal Custodian,” and by
failing to ensure that the children are vaccinated, Father was in contempt of the
April 2019 Order; and (3) that Father should be compelled to “accomplish [the]
task of completing vaccinations.” Id. Mother also sought an award of attorney
fees. Id.
[6] On July 31, 2019, a hearing was held on both parties’ pleadings. Id. at 16. At
the hearing, Dr. Gollnick testified as follows as to what transpired at the
appointment on June 28, 2019:
[W]hen I asked what we were going to be doing with shots, both
[A.B.] and [Mother] said that they did not consent. And then
they started discussing, again, the safety about shots and their
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 4 of 19
objections to the shots and why they didn’t want to get the shots.
And [A.B.] brought out some information that she had
researched that she wanted me to review. At which point I said
it really doesn’t matter. We need to get shots done because we
have a court order to get shots done and they are medically
necessary, but they both continued to voice their objections to the
shots.
Tr. Vol. 2 at 7. Dr. Gollnick further stated that “[Mother] did verbalize that she
didn’t consent to the vaccines.” Id. at 26. Dr. Gollnick also testified that
Mother never advised A.B. that there was a court order and that A.B. needed to
be vaccinated. Id. at 8. As a result, “[A.B.] did not get her shots” at the June
28, 2019 appointment. Id. Dr. Gollnick stated that the documentation A.B.
brought to the appointment was “what I would have expected from a 12-year-
old, but along the same -- same as what Mom has brought in.” Id. at 9.
Although Dr. Gollnick was willing to forcibly vaccinate A.B., it was her policy
to have a parent present for vaccination, she did not think it was fair for A.B. to
be alone, and Mother had previously been at every vaccination appointment for
the other children. Id. at 11, 15. However, Mother and A.B. continued to be
argumentative, and A.B. was not vaccinated. Id. at 8.
[7] Prior to and during the time of the June 28, 2019 appointment, A.B. and Father
were engaged in reunification therapy with Dr. Byrd, and Dr. Byrd had been
working for many months to repair the “substantial distortions” A.B. had of
Father. Id. at 28, 95. Progress had been “slow from the start” as A.B. was very
stubborn, and Father and A.B. were not yet at the point of being in a room
together at the time of the hearing, because A.B. refused to. Id. at 30, 38. Dr.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 5 of 19
Byrd therefore testified that he believed it was reasonable for Mother to be in
the exam room when A.B. received her vaccinations because “the idea of
having [Father] be in the room while [A.B.] is being vaccinated against her will
would have set the reunification process back months, if it didn’t completely
derail it,” and because A.B. had equated being vaccinated with being raped. Id.
at 38-39. Dr. Byrd further testified that requiring Father to be in the room when
A.B. was vaccinated would “fuel her biggest fears,” and that any plan requiring
Father to transport A.B. to her pediatrician and accompany her into the
examination room would be a “train wreck.” Id. at 93. Dr. Byrd stated that
after the months of reunification therapy, he “would have thought it would be
quite obvious to [Mother] that that would be a very bad idea, and it would reset
the reunification therapy back.” Id. at 40. The trial court then questioned Dr.
Byrd as follows:
And so, if I have the other parent who is not wanting to follow
the Court’s order and is still objecting to the physician about
vaccinations and still presenting information to the physician,
either directly or using her 13 year old daughter or 12 year old
daughter to dissemination [sic] this communication to the
physician, that Mother is indirectly thwarting this reunification
process by creating a situation by which, psychologically, [A.B.]
believes that Father is indirectly raping her by requiring her to get
a vaccination. Have I adequately summed up what’s going on
here, sir?
Id. at 83. Dr. Byrd responded, “That was perfect, yes.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 6 of 19
[8] Father testified that he had scheduled the June 28, 2019 vaccination
appointment for all the children and that he was in the waiting room during the
appointment. Id. at 102, 105. While Mother took A.B. back to the
examination room, Father stayed in the waiting room with the other two
children. Id. at 103, 105. Father explained that he did not go back to the
examination room with A.B. because of their strained relationship and
elaborated that he had “not talked to [his] daughter for almost two years”
because “her image and view of [Father] is so distorted that [he] can’t have any
interaction with her whatsoever.” Id. at 103. Father stated that it was not an
option for Father to “take [A.B.] over there [to get vaccinated] when she won’t
even acknowledge me, get in my car, look at me, talk to me.” Id.
[9] At the time of the July 31 hearing, A.B. had still not received her vaccinations,
her school was set to begin in less than two weeks, and she could not attend
school without receiving certain vaccinations. Id. at 107. Father requested that
Mother transport A.B. to the next scheduled appointment to get her
vaccinations and that she be present in the room with A.B. while she received
her vaccinations. Id. at 115. Father testified that he had incurred $2,390 in
attorney fees bringing his contempt action and submitted an affidavit from his
attorney documenting the fees. Id. at 117.
[10] At the hearing, Mother testified that she was in the room with A.B. and Dr.
Gollnick on June 28, 2019 for the vaccination appointment. Id. at 153. Mother
stated that, during that appointment, Dr. Gollnick told A.B. there was a court
order and that Mother said nothing to “back Dr. Gollnick up” regarding the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 7 of 19
court order because she was “not going to forcefully do anything to my child”
and did not “want to be a part of forcing any of my children to be vaccinated.”
Id. at 155, 158. Mother acknowledged that A.B. was unwilling to be in the
same room with Father but stated she still thought that Father should be the
one in the room with A.B. when she received vaccinations because Mother did
not “want to be a part of it.” Id. at 150-51. Mother admitted that A.B. had
drawn an analogy between rape and vaccination and that she had not corrected
A.B. because “[A.B.] genuinely feels that being forcefully held down and
injected with something against her will, to her meant what she looked in the
dictionary about.” Id. at 170, 172. The trial court asked Mother if she would
correct A.B. in the future, to which Mother eventually admitted that she did not
feel that she had to say anything because she could “see where [A.B.] was
coming from” in the analogy. Id. at 172, 175.
[11] At the conclusion of the hearing, the trial court advised the parties that A.B.
must be vaccinated as was required to begin school within ten days and that it
would take the parties’ pending motions under advisement. Id. at 190-91. On
August 14, 2019, Mother filed a notice indicating that A.B. had been
vaccinated. Appellant’s App. Vol. 2 at 17. On September 6, 2019, the trial court
issued an order, finding that, although Mother had testified that A.B. was
making the decision to object to vaccinations, the trial court believed that those
objections were “orchestrated by [Mother], and this Court attributes those
objections to [Mother] (which is in contravention of this Court’s order)” and
that “A.B. is a minor child, is not charged by this Court with decision-making
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 8 of 19
as to vaccinations, and [Mother] was in the examination room.” Id. at 135-36.
The order also found that Father “has medical legal custody, which means he
gets to make medical decisions as to vaccinations. This does not mean he must
be in the room enforcing a vaccination provision ordered by this Court when
[Mother] is fully aware of the same order.” Id. at 135. The trial court’s order
found Mother to be in indirect contempt and concluded:
16. As ordered previously, [Father] shall make arrangements for
A.B. to receive the vaccinations, as he has done previously. If
[Mother] is unable to transport A.B. to the appointment, [Father]
shall make arrangements for transportation of A.B. to the
appointment, or take A.B. to the appointment himself;
....
18. Though [Mother] did cooperate with vaccinations for A.B.
after the hearing on July 31, 2019, [Father] still incurred attorney
fees and had to file his motion in order to insure [sic] compliance
with this Court’s order;
19. The Court awards [Father] reasonable attorney fees in the
amount of $3000[] for [Mother’s] failure to comply with this
Court’s order;
20. With respect to [Mother’s] Verified Cross Petition for Rule to
Show Cause and Request for Attorney Fees and Motion to
Compel, the Court denies same.
Id. at 136-37. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 9 of 19
Discussion and Decision
I. Effect of Pending Appeal
[12] Initially, Mother argues that the trial court erred in issuing an order finding her
to be in indirect contempt because the trial court did not have jurisdiction over
the matter of whether she willfully violated the April 2019 Order due to the fact
that, at the time of the contempt proceedings, an appeal was pending regarding
the April 2019 Order’s grant of sole legal custody as to medical decisions to
Father. Mother asserts that the trial court had no further jurisdiction to act
upon the April 2019 Order once this court acquired jurisdiction over her appeal.
Mother further contends that Father’s petition for rule to show cause was a
“disguised effort to modify or create a new order that Mother be forced to
accomplish the vaccinations” and that no modifications could be done while
the appeal was pending. Appellant’s Br. at 17.
[13] This court acquires jurisdiction over an appealed case on the date the trial court
clerk issues its Notice of Completion of Clerk’s Record. Ind. Appellate Rule 8.
Generally, once an appeal is perfected, the trial court loses jurisdiction over the
case. In re N.H., 866 N.E.2d 314, 317 n.3 (Ind. Ct. App. 2007). “This rule
facilitates the orderly presentation and disposition of appeals and prevents the
confusing and awkward situation of having the trial and appellate courts
simultaneously reviewing the correctness of the judgment.” Southwood v.
Carlson, 704 N.E.2d 163, 165 (Ind. Ct. App. 1999). However, “we have held
that the trial court can still rule on issues that could not have been raised on
appeal.” In re N.H., 866 N.E.2d at 317 n.3. There are situations in which a trial
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 10 of 19
court may retain jurisdiction and act notwithstanding a pending appeal,
including to perform ministerial tasks such as reassessing costs, correcting the
record, or enforcing a judgment. In re Paternity of V.A., 10 N.E.3d 65, 68 n.4
(Ind. Ct. App. 2014) (citing City of New Haven v. Allen Cty. Bd. of Zoning Appeals,
694 N.E.2d 306, 310 (Ind. Ct. App. 1998), trans. denied). Further, in family law
cases, there are often issues unrelated to a pending appeal that the trial court
may still decide. See, e.g., Meade v. Levett, 671 N.E.2d 1172, 1180 (Ind. Ct. App.
1996) (trial court had authority to hold a contempt hearing and punish the
mother for failing to return child to the father even though issue of modification
of custody was pending on appeal).
[14] Here, while Mother was appealing the trial court’s April 2019 Order and the
grant to Father of sole legal custody as to medical decisions, she disobeyed the
order by objecting to A.B.’s vaccinations at the June 28, 2019 appointment.
“Even an erroneous order must still be obeyed.” D.G. v. W.M., 118 N.E.3d 26,
31 (Ind. Ct. App. 2019), trans. denied. “A party’s remedy for an erroneous order
is appeal, and disobedience of the order is contempt.” Id. Therefore, although
Mother may have believed the April 2019 Order to be erroneous, she was
required to obey it. When Mother disobeyed the trial court’s order, a new set of
facts was created that did not exist at the time Mother initiated her first appeal,
which created a new cause of action for Father to pursue, and the trial court
had authority to proceed on the contempt petitions filed by the parties and to
enforce its judgment. See City of New Haven, 694 N.E.2d at 310; Meade, 671
N.E.2d at 1180. We conclude that the trial court did not err when it issued its
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 11 of 19
order finding Mother in indirect contempt while Mother’s first appeal was
pending.
II. Finding of Contempt
[15] Whether a person is in contempt of a court order is a matter left to the trial
court’s discretion. Akiwumi v. Akiwumi, 23 N.E.3d 734, 741 (Ind. Ct. App.
2014). We will reverse the trial court’s finding of contempt only where an
abuse of discretion has been shown, which occurs only when the trial court’s
decision is against the logic and effect of the facts and circumstances before it.
Id. When we review a contempt order, we neither reweigh the evidence nor
judge the credibility of the witnesses. Id. “‘Willful disobedience of any lawfully
entered court order of which the offender had notice is indirect contempt.’” In
re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011) (quoting
Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010)). Mother
bore the burden of showing that her violation was not willful. Akiwumi, 23
N.E.3d at 741 (citing Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind. Ct. App.
2000)).
[16] Mother argues that the trial court abused its discretion when it found her in
indirect contempt of the April 2019 Order because the order is silent as to who
is to carry out the vaccinations, and although the April 2019 Order ordered that
the children shall be vaccinated in accordance with the schedules set forth by
the American Academy of Pediatrics or as otherwise suggested by the children’s
doctors, it does not state which parent is to effectuate the vaccinations. Mother
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 12 of 19
also contends that she should not have to participate in the children’s medical
care and that Father should have been forced to carry out A.B.’s vaccinations
because he has sole legal custody as to medical decisions, and “it is Father’s
responsibility to ensure that the children are transported to medical
appointments and that the appointments are completed.” Appellant’s Br. at 14.
She, therefore, asserts that the April 2019 order was not clear and certain, and
she could not be found to be in contempt for violating an order that was
ambiguous and indefinite.
[17] The willful disobedience of any lawfully entered court order of which the
offender had notice constitutes indirect contempt. Akiwumi, 23 N.E.3d at 737.
The order must have been so clear and certain that there could be no question
as to what the party must do, or not do, and so there could be no question
regarding whether the order is violated. Bandini v. Bandini, 935 N.E.2d 253,
264–265 (Ind. Ct. App. 2010). A party may not be held in contempt for failing
to comply with an ambiguous or indefinite order. Id. 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), trans. denied. In cases of indirect contempt, the person charged with
indirect contempt is entitled to be served with a rule to show cause. Akiwumi,
23 N.E.3d at 738. Pursuant to Indiana Code section 34-47-3-5, the rule to show
cause must, among other requirements, clearly and distinctly set forth the facts
that are alleged to constitute the contempt.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 13 of 19
[18] In its April 2019 Order, the trial court awarded Father sole legal custody for
medical decisions regarding the parties’ children and ordered that the children
shall be vaccinated in accordance with the schedules set forth by the American
Academy of Pediatrics or as otherwise suggested by the children’s doctors.
Appellant’s App. Vol. 2 at 100. Mother was aware of the trial court’s April 2019
Order and Father’s decision as legal custodian for medical decisions that the
children would be vaccinated. Mother was also aware that A.B. had to be
timely vaccinated to attend her school. Father made a vaccination appointment
for A.B. on June 28, 2019 to which Mother brought A.B. Mother knew that
Father had not had any real contact, including parenting time, with A.B. for
nearly two years, and that A.B. would not willingly be in any space with
Father, including a car or an examination room for vaccinations. Mother also
knew that Dr. Byrd had expressly recommended that Father and A.B. not be in
the same room, particularly for vaccinations, and Mother testified that she
agreed that such a situation would not be beneficial. Tr. Vol. 2 at 152. Dr.
Gollnick testified that it was her policy to have a parent in the room for all
vaccinations and that Mother had attended all prior vaccination appointments
for all three children. Therefore, Mother knew that A.B. was required to be
vaccinated and that it was not feasible for Father to physically ensure this
occurred, so Mother understood she must assist in accomplishing this and
refused to do so. See id. at 155 (Mother responding “because I am not going to
forcefully do anything to my child,” when asked why she did not support Dr.
Gollnick when the doctor reminded A.B. she had to be vaccinated on June 28,
2019).
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 14 of 19
[19] The evidence presented showed that Mother knew that, according to the April
2019 Order, the children, including A.B., were required to be vaccinated, and at
the June 28, 2019 appointment, Mother refused to accomplish this mandate.
Father made the vaccination appointment for June 28, 2019, and Mother
voluntarily transported A.B. to the appointment and went into the examination
room with A.B. When Dr. Gollnick sought to vaccinate A.B. during the
appointment, both A.B. and Mother stated that they did not consent. Id. at 7.
Mother and A.B. then started discussing the safety of vaccinations and their
objections and why they did not want to get the vaccinations. Id. A.B.
presented literature she wanted Dr. Gollnick to review that the doctor
recognized as similar to information she had previously received from Mother.
Id. at 8-9. Dr. Gollnick then reminded Mother and A.B. that the vaccinations
needed to be done because there was a court order and they were medically
necessary, and both Mother and A.B. continued to voice their objections to the
vaccinations. Id. at 7, 153. Mother did not reprimand A.B. or reinforce what
Dr. Gollnick said and, instead, voiced her objections. At that time, by refusing
to give consent and continuing to object to A.B. receiving vaccinations, Mother
willfully violated the trial court’s April 2019 Order. We, therefore, conclude
that the trial court did not abuse its discretion when it found Mother to be in
indirect contempt.
[20] Additionally, Mother contends that, even if she had violated the April 2019
Order and was found in indirect contempt, she should be purged of the
contempt because, after the July 31, 2019 hearing, A.B. received her
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 15 of 19
vaccinations when “the parties agreed upon a third party to transport the
children, which resulted in the children receiving their vaccinations.”
Appellant’s Br. at 20. “The purpose of civil contempt is to coerce action by the
contemnor for the benefit of the aggrieved party; civil contempt is not meant to
punish the contemnor.” Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind. 2016).
Mother is correct that Indiana Code section 34-47-3-5 states, “The court shall,
on proper showing, extend the time provided under subsection (b)(3) to give the
defendant a reasonable and just opportunity to be purged of the contempt.”
Ind. Code § 34-47-3-5(c). However, this “‘purge’ portion of the statute has
typically only applied to cases where the trial court has ordered jail time to
coerce action by the contemnor.” Reynolds, 64 N.E.3d at 835 (citations
omitted). Our Supreme Court explained that this is likely because jail time is
generally punitive in nature and civil contempt orders avoid punishing the
contemnor by allowing the party to be purged of contempt. Id. Here, as in
Reynolds, the trial court did not order Mother to serve any jail time. Because
Mother was not ordered to serve any jail time, she was not entitled to an
opportunity to purge herself, and the fact that the children later received their
vaccinations is irrelevant to the issue of whether she was properly found to be in
indirect contempt for her actions at the June 28, 2019 appointment, which
occurred before the hearing and necessitated Father’s petition for rule to show
cause and the later hearing on the petition.
[21] Mother further claims that her due process rights were violated because the trial
court’s order finding her in indirect contempt was actually a modification of the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 16 of 19
April 2019 Order. She asserts that the trial court’s order was a modification of
the April 2019 Order because it stated the following: (1) “[Father] has medical
legal custody, which means he gets to make medical decisions as to
vaccinations. This does not mean he must be in the room enforcing a
vaccinations provision [in the April 2019 Order] when [Mother] is fully aware
of the same order”; and (2) “[Father] shall make arrangements for A.B. to
receive the vaccinations . . . [i]f [Mother] is unable to transport A.B. to the
appointment, [Father] shall make arrangements for transportation of A.B. to
the appointment or take A.B. to the appointment himself.” Appellant’s App. Vol.
2 at 135-36. However, these statements were not modifications of the April
2019 Order and changed nothing that was true at the time of the June 28, 2019
doctor’s appointment when Mother willfully violated the April 2019 Order. In
its contempt order, the trial court did not impose any new or unforeseen
burdens on Mother; it did not compel any new transportation obligation on
Mother and only stated that if she is unable to transport A.B., either Father or a
third party shall do so. Prior to the contempt order, Mother had always taken
the children to their vaccination appointments, and she testified that she was
willing to drive A.B. to vaccination appointments or to allow someone else to
do so. Tr. Vol. 2 at 145, 148. Thus, the trial court did not modify the April
2019 Order, and to the extent the April 2019 Order was clarified, the trial court
did not violate Mother’s due process rights.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 17 of 19
III. Attorney Fees
[22] “‘Once a party has been found in contempt of court, monetary damages may be
awarded to compensate the other party for injuries incurred as a result of the
contempt.’” Bessolo, 966 N.E.2d at 731 (quoting Phillips v. Delks, 880 N.E.2d
713, 720 (Ind. Ct. App. 2008)). When determining whether to award attorney
fees, a trial court “must consider such factors as the resources of the parties, the
relative earning ability of the parties, and other factors, which bear on the
reasonableness of the award.” J.S. v. W.K., 62 N.E.3d 1, 9 (Ind. Ct. App.
2016). A trial court is not required to give reasons for its determination or
explicitly weigh the factors set forth above. Id. In determining an amount of
damages, the trial court may take into account the inconvenience and
frustration suffered by the aggrieved party. Bessolo, 966 N.E.2d at 731. The
determination of damages in a contempt proceeding is within the trial court’s
discretion, and we will reverse an award of damages only if there is no evidence
to support the award. Id.[23] At the end of her brief, Mother asserts that “the order on attorney’s fees should
be reversed for the reasons stated herein, because Mother should not be in
contempt, as well as the disparity of the income of the parties.” Appellant’s Br.
at 21. However, Mother cites to no authority or portion of the record to
support her argument. Generally, a party waives any issue raised on appeal
where the party fails to develop a cogent argument or provide adequate citation
to authority and portions of the record. Smith v. State, 822 N.E.2d 193, 202-03
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 18 of 19
(Ind. Ct. App. 2005), trans. denied. Accordingly, Mother’s argument as to the
award of attorney fees is waived.
[24] Waiver notwithstanding, the trial court did not abuse its discretion in awarding
attorney fees to Father or in the amount of the award. Mother’s actions
prevented A.B. from being vaccinated pursuant to Father’s determination as
A.B.’s sole legal custodian for medical decisions and pursuant to the trial
court’s April 2019 Order, which forced Father to pursue a contempt action. At
the time of the July 31, 2019 hearing, A.B. had still not received her
vaccinations and school was to begin in less than two weeks, which she could
not attend without receiving the vaccinations. At the hearing, Father’s counsel
submitted an affidavit of attorney fees related to his contempt action against
Mother and was allowed by the trial court to update the affidavit to include fees
associated with the hearing. Mother did not object at that time to the fees and
made no argument that an award of fees would be inappropriate due to income
disparity. When the trial court found that Mother was in indirect contempt, it
was within its discretion to order Mother to pay attorney fees as a sanction for
her contempt. Bessolo, 966 N.E.2d at 731. The trial court was not required to
expressly state the reasons for its determination or explicitly weigh the financial
factors that bear on the reasonableness of the award. J.S., 62 N.E.3d at 9. The
trial court did not abuse its discretion in its award of attorney fees to Father.
[25] Affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2594 | June 10, 2020 Page 19 of 19