Tuesday, March 3, 2015

The costs of a Child Custody Battle and Appealing an Indiana Child Support Contempt Finding

It seems that at least one of the parents or attorneys involved in the most litigious high conflict child custody cases in Indiana have a colloquy with me at some point. Some will employ me and embrace my program. While not all will experience a better parent-parent relationship, as this requires dedication by both parents, each will experience a more fulfilling life and improved parent-child relationship. Some will hold steadfastly to their combative ways and not only lose counsel but will see their parent-child relationships suffer because of it. The Indiana Court of Appeals opinion that I review herein is one such case. The opinion was issued upon Father’s pro seinterlocutory appeal following an order finding him in Contempt of Court for a wilful failure to pay child support.

In past articles I have made numerous admonishments about the risk of a pro se appeal and also about ensuring that represented parties have competent counsel. One such risk is having to pay Appellee’s cost of defending against the appeal which I will get to after the background of this case.

The history of this case
Before getting to why this immediate cause was remanded for attorney fee award calculation I want to present the background of how it got to that and, more importantly, what would have kept it from occurring.

As the panel noted in this case “[a] protracted litigation has ensued over the past four years to determine custody and parenting time arrangements regarding the parties’ minor child.” The marriage was dissolved and orders on custody, parenting time, and child support were issued on 14 January 2010. About 15 months later Father requested a Parenting Time Coordinator [PTC] which was granted. Both parents sought modification of custody during Autumn 2011. A year later the trial court issued a custody order and appointed a Level III PTC.

Then three months later in January 2013 Mother filed a motion requesting that Father show cause for failure to pay child support and not cooperating with the court ordered parenting time coordinator. After Father received a continuance the court held a hearing and found that Father was in arrears on his child support payments of about $2 per day [$2270.00] and held him in contempt. Mother again filed a motion to modify custody and parenting time which was set for Autumn 2013. After Father filed a motion for continuance, the hearing on modification was reset for January 2014.

In December 2013 Mother filed a Motion to Compel Discovery and the GAL requested that Father undergo a psychological evaluation. The court granted Mother’s discovery request but did not order a psychological evaluation of Father so as to not delay the January hearing. On Christmas Eve Father took the child in violation of the parenting time order. On 03 January 2014, the trial court conducted an emergency hearing and ordered Father to return the child to Mother. Father then filed a request for change of judge. Next, on 10 January 2014, the parenting time coordinator filed a notification of withdrawal due to “the absence of [Father’s] good faith and involvement in the process.” A week later the trial court judge recused himself noting that Father had made implied threatening statements and repeated allegations that he, the GAL, the parenting time coordinator, and the attorneys had engaged in unethical and unlawful conduct. The judge also vacated the 23 January 2014 modification hearing.

On 29 January 2014, Special Judge David H. Coleman was randomly selected and assigned to this case. The modification hearing was reset for 25 April 2014. But between 17 April and 26 September 2014, Father filed nine motions for continuance resulting in the modification hearing ultimately being rescheduled for 03 December 2014.

In June 2014 Mother filed a motion requesting Father show cause for nonpayment of child support and failure to reimburse unpaid medical bills. On 08 August 2014 the GAL filed a renewed request for Father to undergo a psychological evaluation citing the fact that “[Father’s] allegations have turned from calm and matter-of-fact to hostile and irrational.” On 18 September 2014 the trial court held a hearing on the issues of child support and unpaid medical expenses and subsequently issued an order finding Father in contempt. The trial court found that Father had failed to pay $330.26 of the child’s medical expenses and had not made any child support payments since October 16, 2013 ballooning the arrears to less than $5 per day [$6431.00].

On 29 September 2014 the GAL withdrew from the case due to allegedly defamatory statements made by Father who claimed that there is an “ongoing criminal conspiracy by” both judges, Appellee’s counsel, and the GAL who “are in collusion against [Father].” On 06 October 2014 Special Judge Coleman recused himself and vacated the 20 October 2014 modification hearing.

Case Summary
To summarize, Father is in arrears of less than $5 per day, failed to cooperate with discovery, took the child in contradiction of the parenting time order, induced two judges to recuse along with the PTC and GAL who both withdrew, and has sought 10 continuances of the modification hearing which is now further delayed due to the appeal.

The risk of a pro se appeal
In the immediate case the panel found that Father’s “noncompliance with our rules of appellate procedure is substantial, permeates his entire brief, and has hindered our review of his contentions of error on appeal. Keeping in mind our duty to use great restraint when determining whether an award of appellate attorney fees is warranted, we nonetheless find that such an award is appropriate under the facts of this case.” The matter was remanded “to the trial court with instructions to calculate the amount of reasonable appellate attorney fees [Mother] is entitled to recover.” The matter was heard by Special Judge David Coleman of the Hendricks Superior Court. In one case before Coleman I was assisting where a father appeared for a child support contempt cause, among other matters, and a motion for an attorney fee award. While I thought there was no way he could get out from less than $1200 of mother’s attorney fees, Coleman awarded mother only $700 of the approximately $6,000 she claimed was incurred because of father’s actions.

Beyond the risk of paying opposing attorney fees is, outright dismissal of the appeal, not getting an appropriate decision, going to jail for contempt, or, ultimately, damaging the parent-parent and parent-child relationships. The causes may include failure to comply with the rules, which I wrote about in pro se Litigant Child Custody Appeals and Indiana Appellate Attorney [Russell B. Cate] Incompetence can Ruin your Child Custody Case. Cogent reasoning, which I wrote about in How to Win Appeal of Indiana Child Custody Cases, often befuddles many but is what I enjoy most about writing appeals. And then there is the most troublesome, and costly, not having a valid legal claim upon which to appeal. The immediate case suffers from those three.

The decision
As previously noted the panel found that Father’s “noncompliance with our rules of appellate procedure is substantial, permeates his entire brief, and has hindered our review of his contentions of error on appeal.” Father’s argument lacked cogent reasoning, which I will explain, and also invited the panel to reweigh the evidence which it shall not do. Additionally, the panel concluded that Father’s ”appeal has fulfilled every prerequisite of procedural bad faith” which is a tough citadel to penetrate as the Court prefers to review cases on the merits if possible.

Contempt
Father argued that it was improper for the judge to impose a penalty of imprisonment contingent upon his future failure to comply with the support order. Father cited Indiana Code section 31-16-12-6 in support which provides that a trial court may order a party found in contempt for failure to pay child support to “(1) perform community restitution or service without compensation in a manner specified by the court; or (2) seek employment.” But let me draw an analogy to this. You are in a building when a fire erupts. You grab a fire extinguisher which has a label that reads, “Class C Dry Chemical - Halon Gas. Use this extinguisher on electrical fires.” The fire spreads and soon fire engines and their crews arrive and they begin to spray water on the building. You vigorously protest the use of fire hoses and water while holding the extinguisher over your head yelling “Use this extinguisher on electrical fires.” The extinguisher is but one option, not the only. In The Right to Counsel in Indiana Child Support Contempt Proceedings I wrote about the options judicial officers have for contemnors in child support payment arrears cases. For a deeper analysis of contempt for child support, farther down, I provide a link to what I wrote about the published opinion in an appeal I structured last year which clearly defines the right to counsel.

Sufficiency of the Evidence
Father argued that the court did not have sufficient evidence to find that he had willingly failed to pay support. The panel noted that although Father claimed to have expended particular amounts for various goods or services he was unable to provide evidence to support the assertion.
The respondent stated that he cannot afford to pay child support because he has to run ads for his business, pay for day-care expenses for [the child] and pay for karate lessons for [the child]. However, he admitted that he has run no ads during 2014, that he is not paying for day-care for [the child], and his mother ([the child’s] grandmother) has paid for karate lessons. The respondent stated that he needs child support modified. The respondent did not submit any profit and loss statements, bank account statements or any other evidence concerning his business income. The court could find no pleading filed by the respondent requesting a modification of child support since [summer of 2013].

I attended what was scheduled to be Father’s child support contempt hearing last year. The magistrate articulated that she had received notice from the Indiana Judicial Center about the recent opinion providing that indigent parties are entitled to counsel provided by the state in child support contempt hearings. I wrote about that opinion in Indiana Court of Appeals Issues Published Opinion on When the Right to Counsel Applies in Child Support Contempt Hearing. In that writing, at note 3, I provide a link to an earlier opinion involving the same parties regarding sufficiency of the evidence to establish a child support payment order. In the immediate case, instead of holding the contempt hearing the magistrate instead held a hearing to determine indigency. The Father was sworn in and questioned about business expenses, personal financial obligations and other perfunctory financial matters. According to his testimony he was unaware of his monthly mortgage amount, approximate business expenses or revenues, and couldn’t estimate his annual income. While this hearing was not the basis for any matter related to this appeal it is clearly misplaced for Father to argue lack of sufficiency of evidence when he, just as noted by the appellate panel, offers no contravening evidence. Indiana law does not provide that one may escape a child support payment obligation by refusing to tender evidence of income or expenses. To the contrary, it is well established that the failure to cooperate or provide information affords judicial officers the opportunity to assume financial information related to a party and impute income for child support payment purposes.

Ancillary Issues and Invectives
Examine the term “appeal” from its application through common vernacular. It is a request, a pleading for someone to do something. It may be couched with demur praises. An appropriate appeal will be forceful but favouring a contrite rather than contumacious tone. An effective appeal will also rest solely on the relevant issues which will be soundly supported by portions of the record germane to the argument. To embrangle the reviewing panel with impertinent material -- in both senses of the word -- non sequiturs, dead end assertions, and invectives against the legal institution creates a bias which is beyond remediation.

In this case Father raised several additional issues in his appeal which were dismissed due to a failure to follow the Indiana Rules of Appellate Procedure. The panel noted;
“[His] statement of the facts and statement of the case contain substantive arguments and are replete with statements that are unsupported by the record and/or have no bearing on the issues raised. Three of the seven Argument subsections in [Father’s] brief are wholly unrelated to the appealed orders and repeatedly request this court to award [Father] full custody of the child, despite the fact that he appeals no trial court orders dealing with custody. Throughout his brief, [Father] repeatedly alleges, without any basis, that the trial court, GAL, and other court officers are “overwhelmingly biased and prejudiced” in favor of [Mother] and that the trial court has actively protected [Mother] and enabled other court officers to engage in fraudulent ‘character assassinations of [Father]’.” Our courts have long held that this is improper appellate writing.

Our appellate court has noted that “[o]verheated rhetoric is unpersuasive and ill-advised.   Righteous indignation is no substitute for a well-reasoned argument.”  WorldCom Network Servs., Inc. v. Thompson, 698 N.E.2d 1233, 1236-37 (Ind.Ct.App.1998).   A brief cannot “be used as a vehicle for the conveyance of hatred, contempt, insult, disrespect, or profession discourtesy of any nature for the court of review, trial judge, or opposing counsel.”  Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Muncie & Portland Traction Co., 166 Ind. 466, 466, 77 N.E. 941, 941-42 (1906).

Father filed this appeal pursuant to Appellate Rule 14(A) governing interlocutory appeals as a matter of right. The trial court’s order of contempt is appealable as of right under Rule 14(A)(1). However, he attempted to appeal three other trial court orders which were not appealable as a matter of right. These were an order for psychological assessment, order setting emergency hearing, and order for selection of special judge.

An appellant must be pedantic. Father’s blatant disregard for the rules and prescriptives of appellate writing demonstrate his contempt for the appellate court as well. Not a sound strategy when arguing that one’s actions at the trial court level were not contemptuous. These violations are nearly an elenchus for the appellee.

Pyrrhic Victory
There is an axiom in law that says he who goes to court to fight for honour will ultimately lose. While the legal victor may obtain a favourable ruling it may come as such a cost in non recoverable fees, time, and stress as to not be a victory at all. High conflict child custody disputes tend to have homogeneous psychological origins. Likewise, they more often than not fall short of even a Pyrrhic Victory in that the most aggressive combatants usually suffer greater legal defeats as well. The instant case is such. Much of the conflict arises over a child support payment order, or rather, the almost $2 per day difference between what was ordered and Father’s remittance.

A rational observer should note that the attorney fees for fighting the support matters have likely exceeded the child support payment arrears. The additional costs such as loss of productivity due to being in court, preparing filings, or meeting with the attorneys must be added. Then there are those psychological costs; the stress of the relentless conflict, the anger, resentment, and sense of gloom that befall these aggressive combatants with each additional courtroom defeat. The conclusion must be that it is not worth those costs.

It is certainly rational to seek justice, to seek to protect your child, to seek reasonable support payments, to seek that wrongs be righted. However, it is the reasoned party who discerns the appropriate venue for each, and ultimately what will benefit the child who then acts with accord.

The Decision to Appeal
The appellate procedure is a process which allows for a reviewing court to correct errors made at the trial court level. As such, the initial necessary element for a successful appeal is that the trial court made an error. The appeal is not an opportunity to submit new evidence or propound novel theories for the admitted evidence. Neither is it to be construed as a means by which to get a supplemental hearing before a panel of judges.

If one believes that he has a legitimate basis, more than mere conjecture, for proposing that the trial court made a legal error then he may proceed to the next step. This is formulating the issues -- determining exactly what legal errors were made. Then a disputation for each must be established. At this point one may move beyond the purely legal considerations.

There is the filing fee, transcript fee, and, if legal counsel is sought, attorney fees. Even if proceeding as a self-represented litigant there is the dedication of time to perfecting an appeal. Rarely is this under 20 hours. I tend to find that the average for me settles around 40 hours. This may be high due to the complex nature and extensive litigation of the underlying proceedings for the appeals in which I assist.

Finally, there are the physical and psychological considerations. Is one stoic enough to pursue the matter passionately without being overwhelmed by subjective attachment to the cause? Does one possess the stamina to endure the dedication of waking hours and mental taxation? What is the ultimate goal of appealing? Can that goal be achieved in a less costly manner? What will be the impact of a win and of a loss?

If one is so inclined and positioned to do so, establish a prolepsis for each argument and a closing with an uncontroverted denouement. This devil’s advocate approach can remove any doubt as to the veracity of the basis for appeal. The Appellee’s attorney will be doing this.

As with any major decision appropriate counsel is always recommended. Had Father invested in me as counsel he would not have filed an appeal in this case and saved a tremendous amount of money. He would not be about to be hit with Mother’s appellate fees. His motive to vituperate would be ameliorated. He would likely be progressing toward achieving a greater relationship with his child. But he chose a different route. A choice for which he is paying and, as it appears, is likely to keep paying, and paying, and paying . . . without benefit.

The Decision to be in this mess
The postulate that we are where we have chosen to be is a result of the free will to take deliberate action. This is a rejection of determinism. While we may chose where to buy a sweater or what colour, determinism says that we have no will whether to buy that type of clothing because of the environment in which we live. This ignores that deliberate actions were taken that place us in this environment. The antithesis is the existential reality that places responsibility for deliberate actions on the individual.

In the instant case Father has decided to be responsible for Mother’s appellate attorney fees. Father decided to expend more money and resources to not fulfil his child support payment obligation than to do so. Father has decided to perpetuate the litigation and on multiple occasions has sought to avoid resolution. Father has decided that he wants to remain hostile, deplete his financial resources, risk being incarcerated, and, sadly, damage his relationship with his child. Succinctly, he chose to spend more and lose more.

The decision to appeal a finding of contempt for failure to comply with a child support payment order has been, for the most part, made long before the order was ever handed down. It does provide a portentous opportunity though. Choose wisely.

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