Stuart Showalter Law Blog: Indiana Court of Appeals Issues Published Opinion on When the Right to Counsel Applies in Child Support Contempt Hearings

At the outset I present a few words from Brian Moore;
“Maybe if society has to start paying for attorneys for some of the parents who have been driven into poverty by relentless divorce litigation, people will start to see the financial devastation that is wrought by divorce and that lawyers are the only winners.”

The right to counsel in a judicial proceeding when one's liberty is in jeopardy is a fundamental right embodied in the United States[en1] and Indiana Constitutions. Indiana has held that where the possibility exist that a defendant in a civil contempt proceeding for child support enforcement faces incarceration that defendant has to be informed of the right to counsel prior to commencement of the proceedings.[en2] The question facing the Indiana Court of Appeals was what constitutes the possibility of incarceration?

In the instant case Brian Moore was brought before the court on a petition by his former wife, Kristy Moore, seeking 30 days incarceration for failure to pay child support. Brian filed a motion seeking appointment of pauper counsel which was denied by Marion Superior Court Judge Robert Altice. Altice explained that he would not be facing incarceration that day but instead, if found in contempt, a status hearing would later be held and the issue of appointed counsel would be revisited then. Mr. Moore was found to be in contempt following the proceeding in which he was compelled to participate and was without the assistance of counsel. The position of Altice was that since he had taken the possibility of incarceration that day off the table that Brian was not entitled to pauper counsel. Brian's position was that because the evidence gathered that day could be used as a basis for his incarceration at a later date that he was thus entitled to the assistance of pauper counsel. This appeal ensued.

In his Appellant's Brief Brian raised two issues, the first being: “Whether the trial court erred when it did not advise Father of his right to counsel at the contempt hearing or appoint counsel for him.” The second issue he raised was “Whether the Petitioner presented sufficient evidence to support the contempt finding.”

The appellate panel restated the issues writing: “Brian raises two issues. We address the dispositive issue, which we restate as whether the trial court improperly denied his request for the appointment of counsel.” The Court noted, “Because of our resolution of the counsel issue, we need not address Brian’s challenge to the sufficiency of the evidence.” A prior panel has ruled that the underlying support order was without merit and vacated it.[en3]

As for the denial of appointment of pauper counsel Brian propounded the following argument in his brief:
In denying Father's motion the court stated “we don't appoint pauper counsel on civil matters” Father contends that the court erred as a matter of law. In civil contempt proceedings if an alleged contemnor cannot afford an attorney the court must appoint one to represent him. In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987). In the civil matter of Lassiter v Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that "an indigent litigant has a right to appointment of counsel . . . when, if he loses, he may be deprived of physical liberty." The Indiana Court of Appeals 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, at 1121 (Ind. App. 1987).
The Court did not inform father of his right to counsel but instead said that it does not appoint counsel in civil matters and that “I'm ready to proceed, and I'm going to proceed.” In this instance Father's liberty was in jeopardy on the day of the hearing based upon the careful presentation of evidence, defenses or objections, and other procedures of court more aptly navigated by a trained professional – competent legal counsel.
The Court premised the denial on the position that he would not be subject to execution of the sentence without further hearing at which time the Court expressed its view that “it's probably appropriate that I have somebody sit with you.” Tr. p. 56 The future hearing was termed a “compliance hearing” Tr. p. 54 The extent of the hearing will be to determine if father has complied with the court's 06 June 2013 order.
The court committed a fundamental error when it held a hearing on Mother's Motion for Rule to Show Cause for Father’s alleged willful failure to pay child support following denial of his motion for pauper counsel. Mother had requested that Father be incarcerated for failure to comply with the court's child support payment order. At the conclusion of the hearing Father was found to be in contempt and a sentence of incarceration was entered, although suspended. A future compliance hearing date was set.
Father contends that although he was not incarcerated on the hearing day that nonetheless, consistent with Stariha, he had the right to counsel because the content of the proceedings, including his own statements may lead to his incarceration. The future supplemental proceeding, a compliance hearing, is not for the purpose of determining the basis for contempt – his ability to pay and whether such failure to pay was willful – but to determine only if the payments have been made as ordered between the dates of the two hearings in question.
Thus it was the 13 September 2013 hearing which is the basis of Father's potential loss of liberty and which, consistent with Lassiter, triggered his right to counsel. The evidence admitted for the finding of contempt against Father had been made at the 13 September hearing. This finding resulted in a sentence of 30 days in jail, suspended. Therefore, it was the 13 September 2013 hearing at which the facts were elicited that would determine whether Father had the ability to comply with the Order and if such failure to do so was willful.
Father contends that the Court erred as a matter of law in not informing him of his right to counsel before proceeding with the 13 September 2013 hearing, that he had a right to counsel at that hearing, and that the court did not find by clear and convincing evidence that Father had willfully violated the court's order. For these reasons Father contends that the record of the 13 September 2013 hearing should be stricken, that the matter be remanded to the trial court to conduct a new hearing, and at such hearing that Father have the opportunity to obtain counsel and have counsel present or the Court appoint counsel for him if the complainant still seeks imposition of a term of incarceration.

The Court of Appeals was quite succinct in it's ruling, the analysis portion of his argument which I provide here in its entirety:
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. [emphasis added]

The panel concluded:
“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.

This case provides some significant ramifications. What I find most important is that Brian Moore did not acquiesce two erroneous decisions. When faced with imputed income that had no evidentiary basis he appealed, pro se, and won. Subsequently, when he was held in contempt for not complying with the erroneous order and without having had the assistance of counsel, despite his request, he again appealed . . . and won -- in a published opinion! Brian did what so many who complain about the courts do not – he availed himself of the due process rights granted to him under the Indiana Constitution. “This appeal was a huge amount of work and expense for me; as a self-employed person, time is money. I am glad that my work paid off, and I trust the Court of Appeals decision will help other people facing similar circumstances,” said Mr. Moore.

The reason that this opinion was published is because of the legal standard that it has now established in Indiana when it comes to the appointment of pauper counsel during child support payment contempt proceedings. That is, a court cannot escape appointing counsel be merely stating the incarceration is not an option at that moment when, at a subsequent hearing, the same evidence admitted at the instant proceeding may be used to deny a defendant of his physical liberty. If Kristy Moore does not seek transfer to the Indiana Supreme Court by 14 July 2014 then, consistent with the ruling in Moore v Moore (Ind. Ct. App. 2014) if a defendant “risk[s] the possibility of losing his physical liberty as a result of the trial court’s contempt finding . . . if indigent” he is “entitled to have counsel represent him at that hearing.”

At the outset here Brian mentioned the costs associated with protracted litigation and the expense that society will have to shoulder. This case clearly exemplifies the waste of time and resources that a vindictive and alienating parent can inflict especially when assisted by unscrupulous counsel. Kristy Moore and her attorney Jonathan Deenik have done just that. The June 2013 child support payment order which was the basis of the contempt hearing was the result of an erroneous support calculation after Kristy sought a modification. It was Deenik who submitted proposed findings and conclusions indicating that Brian Moore was capable of earning $50,000 per year which is the amount that Judge Altice imputed to Brian. However, in the 09 May 2014 decision on the appeal of that order another panel of the Indiana Court of Appeals stated:
The trial court determined that Father was capable of earning $50,000 per year. This finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s counsel if he was capable of earning $50,000 a year, Father testified that he had never made that much in his current field, which he had been in throughout the marriage and thereafter. At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. Nothing in the record indicates that Father’s income potential improved, let alone more than doubled, since the dissolution.
On remand, the trial court is directed to reconsider Father’s weekly income and child support obligation.

Thus, if Brian's income at the time of dissolution is used to calculate support then he would likely have a negative support obligation and not be required to pay anything to Kristy. Because of Kristy's desire to sever the relationship between Brian and their children these parents spent three days in court, both have expended considerable resources fighting and the State of Indiana may have to pay Brian's cost of the appeal and pay for an attorney to represent him at any subsequent contempt hearing.

Often times parents who go through this end up financially, physically, and spiritually drained. They lack any resources to go forth and combat these injustices such as those with which Brian Moore was saddled. But Brian did not give in or give up. He availed himself of resources in the community and, with coaching, those within himself. As he said, “I could not have done this without the help of Stuart Showalter. His assistance in teaching me how to perfect an appeal while keeping me focus and goal oriented was invaluable. I am grateful that a highly respected Indiana attorney who specializes in appeals recommended Stuart to me.” I again feel justified in restating what I have often declared – the court system works for those who have the patience and fortitude to fully use it. But even with Brian's dual victories I can say there were no winners here.

The ultimate victims of Kristy's agenda are the two Moore children and taxpayers who are footing the bill both psychologically and financially to support her vendetta.

Notes
1] Freedom “from bodily restraint” lies “at the core of the liberty interest protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80. See also - Turner v. Rogers, 131 S.Ct. 2507 (2011); Mathews v. Eldridge, 424 U.S. 319 (1976)
2] Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987).
3] Moore v Moore 09 May 2014

2015 Indiana Child Support Guidelines review scheduled for public comment

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