Wednesday, November 4, 2009

Why an attorney should know caselaw and be able to do math

One of the Indiana Custodial Rights Advocates activists, Don Chavis, was recently hailed into court on a "Petition for Contempt" filed by what I have throughout the proceedings referred to as one of Indiana's most incompetent attorneys. Her name is Jennifer A Bonesteel [#27520-49] who I affectionately refer to as "Bone-a-head". She represents the Respondent, Clarra Chavis, in this matter.

I have appeared in Marion County Superior Court IV twice now in anticipation of being called as a witness and to coach Don about his courtroom performance. The first time was on 01 September 2009, the date that the contempt hearing was first scheduled, and then again Tuesday after it was continued. Although never called as a witness I was pleased to have first-hand sight of this very interesting case.

Master Commissioner Deborah Shook sat as the judicial officer for the hearing. Shook is also a member of the Indiana Domestic Relations Committee whom I have met through that affiliation. I do hope that this case provides her with some insight into the silliness and abuses which take place in the family law courts.

Here is some background that will help you to understand just what is going on here. Don Chavis, the Petitioner, filed for divorce in August 2008. Clarra then immediately sought a Protective Order citing that Don had physically assaulted her although no prior complaint during the marriage had ever been made. This should sound familiar to many people.

The parties marriage was dissolved through a Decree of Dissolution of Marriage entered by the court on 03 March 2009. The relevant portion of that decree is as follows:
IT IS FURTHER ORDERED BY THE COURT that as the parties have not divided their personal property, Wife shall provide a list of property she intends to retrieve from the marital residence to the Court and to the Husband with [SIC] 14 days of the date of this Decree. Wife shall be allowed to return to the marital residence under the care and supervision of the IMPD to claim her personal property and the property of the minor child set forth on the list and/or stated generally, such as toys, make up etc.

I have some issues with the order. First it unilaterally allows one party to divide the marital property which is the responsibility of the court. There should be a provision that Husband may request a hearing if he wished to challenge any portion of the list. Second, is that it is open-ended. There should be something that says husband must make the items available within X days of the list being provided to him or further order of the court. The Wife should be required to retrieve the items within a specified amount of time.

On 23 March 2009, 20 days after the Decree was dated Clarra submitted her list to the Court and Don. Don had at that time already assembled most of her belongings into one room. He then placed her belongings on the porch within a few days of receiving the list. On 22 June 2009 Clarra retrieved her items following a phone call from Don's landlord to the law office where Ms Bonesteel works. Don was in the process of moving and the landlord had been notified by the City of Indianapolis that the porch filled with those items was a nuisance.

Since I had first met Don in April at his house and parked in his yard numerous times during the month of May since he lived near the Indy 500 track I was prepared to testify that those items were there and covered with plastic to protect them. I did notice one time that it appeared that someone had picked through the stuff which could explain why some of the items were missing.

On 06 July 2009 Ms Bonesteel filed a Petition for Contempt against Don. Clarra alleged that some of the items were missing which mostly consisted of consumables such as office supplies and toiletries. The matter was set for hearing on 01 September 2009.

Don filed a Motion to set aside the hearing in which he cited the following:
“A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.” see City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005).
"The order allegedly violated must have been so clear and certain that there could be no question as to what a party must do, or not do, and so there could be no question regarding when the order is violated." see Indiana High School Athletic Ass’n, Inc. v. Martin, 765 N.E.2d 1238, 1241 (Ind. 2002).
That Respondent's Petition for Contempt is vexatious, without merit and is made for the purpose of harassing the Petitioner.

At the hearing on 01 September 2009 Bonesteel contended that Don should have called Clarra to inform her that the items were available and that his failure to do so placed him in contempt. She also alleged that she was sure that a list had been sent to Don within two weeks of the order and that she wouldn't have violated the order. Don argued that Bonesteel's boss had been contacted about the items being available and needing to be moved. Bonesteel then asked for a continuance which was granted to 03 November 2009.

On Tuesday Bonesteel's Boss, Gary Selig, testified that he did receive a call from a man claiming to be Don's landlord saying that the items needed to be removed. Selig states he then notified Ms Bonesteel. Don cross examined and then both sides rested since Clarra did not bother to attend the hearing. In closing Don stated that there was a protective order in place that forbids him to have direct or indirect contact with Clarra and that there is nothing in the decree that says he must contact her.

Commissioner Shook then told Don she certainly does not want him violating the protective order and would not write an order requiring him to do so. She read from Don's Motion to Vacate Hearing where he alleged that the Petition for Contempt was vexatious, without merit and made for the purpose of harassing him. She followed that with a statement that there is no finding of contempt.

I thought as Don did, that Commissioner Shook could have disposed of this matter through the pleadings since the list was clearly not provided within 14 days. But, she was quick to dispose of it at Tuesday's hearing and I think tried to send a message to Bonesteel about frivolous litigation. To that we have to say good going Commissioner Shook.

As for Bonesteel all we can say is take a remedial math class and then get in tune with the concept of caselaw. It's a great way to learn about law. Indiana Court of Appeals opinions may be read here.

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