ILNews

COA reverses contempt finding

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reversed a trial court order finding a father in contempt of court for not complying with orders stemming from post-dissolution proceedings, ruling the father did comply with an order requiring he update his ex-wife with documents regarding a trust for his children's education.

In David L. Bartlemay v. Nancy Witt, f/k/a Nancy Bartlemay, No. 89A04-0802-CV-50, David Bartlemay appealed a 2007 trial court order that he was in contempt of court for violating previous orders following the dissolution of his and Nancy Witt's marriage.

The couple has four children and a trust was set up by Bartlemay's father for the children's future college expenses with Bartlemay's sister, Robbin Myers, as the trustee. Later, the trust was terminated and a limited liability company was created to provide the college funds.

The original dissolution order stated Bartlemay would provide Witt with a semi-annual accounting of the children's college funds, which a 2006 order updated stating what documents Witt should receive annually.

After Bartlemay failed to provide the required financial documents, Witt filed a motion and asked that he be held in contempt and pay her attorney's fees.

In 2007, the trial court found Bartlemay in contempt for failing to directly provide Witt with financial statements of the limited liability company twice a year, ordered him to pay $13,000 for Witt's legal fees, and sentenced him to a 10-day jail sentence, which was suspended pending his compliance with the court orders in the future.

The Court of Appeals found Witt was being hypercritical about the manner in which she receives the financial information because she has received adequate information in a proper time frame, even though Myers, not Bartlemay, sent Witt the financial statements, wrote Chief Judge John Baker.

The appellate court also wrote in a footnote that it "strongly encourage(s) David and Nancy to find a way to navigate their differences on this issue," and use intervention by the court as a last resort.

The Court of Appeals reversed the trial court's finding that Bartlemay was in contempt for allegedly violating the previous orders regarding how and when he delivered the financial statements to Witt, the sentence of 10 days in jail because it doesn't give him an opportunity to purge himself of the contempt with compliance, and the finding that Bartlemay was in contempt for removing two of his daughters from school without Witt's permission so that they could testify at a March 2007 hearing.

Bartlemay violated the original dissolution order that states the children can't be removed from school without the permission of the other parent, but he did have the right to bring his daughters to testify at the trial, wrote the chief judge.

The appellate court also remanded to the trial court for a determination of how much Bartlemay should have to pay in attorney's fees. The original amount ordered by the trial court is based on its belief he intentionally gave inaccurate information while testifying before the 2001 order, but there is no evidence he intentionally misled the court.
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