Tuesday, January 13, 2009

New Indiana Case: Swadner v. Swadner Part I (Children's Names)

Why Part I? Because this case from December 12 just too many interesting issues to write about. The Indiana Lawyer wrote up Swadner v. Swadner (PDF format) as Mom not in contempt over middle name change only makes one point out of several interesting ones.

I do start where TIL started - the issue over the child's middle name and contempt. After all, the Court of Appeals started here, too.

The facts show that a Guardian ad Litem was appointed to make recommendations about custody and parenting time. Both parties reserved the right to argue over those recommendations. Those points combine to create the critical problem for mother's contempt citation. The following comes at pages 8 - 9 in the opinion.

The trial court was required to find “willful disobedience” of its orders to hold Mother in contempt for violation of those orders. See Bowyer v. Ind. Dep‟t of Natural Res., 798 N.E.2d 912, 918 (Ind. Ct. App. 2003).
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. “A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.” Otherwise, a party could be held in contempt for obeying an ambiguous order in good faith.
Id. (citations omitted).

The record before us discloses no such explicit order concerning E.S.S.‟s middle name. The court-approved agreed entry adopting the GAL‟s preliminary recommendations was only in effect until the final order issued, and the parties both agreed that they could argue against those recommendations at the final hearing. Because Mother was not bound by the GAL‟s recommendation, the trial court could not hold her in contempt for failing to change E.S.S.‟s middle name. Moreover, in its final order, the trial court could have explicitly ordered Mother to change E.S.S.‟s middle name to Wakefield, but did not do so. Prior to the contempt proceedings, the trial court never issued an order unmistakably requiring Mother to change E.S.S‟s middle name. Accordingly, we conclude that the trial court abused its discretion when it found Mother in contempt of court.
Yes, judges make mistakes. I have often thought that the willfulness requirement of contempt gets short shrift, but here there was no order to disobey.

A client called last week about the other side threatening him with contempt over parenting time. He quoted the Parenting Time Guidelines back to me. He said that was what he did but he was still worried. For the most part, attorneys know better than to file a contempt citation where there is no violation of the court order but then, too, all we know of the facts are what clients tell us.

Back to the issue of the child's name itself, this is new law for Indiana. The child was still unborn when the GAL made its recommendations. Therein lies another oddity for this case - and one that may not be often repeated. Here is the Court of Appeals' decision on this point (pages 5 - 6, with a footnote omitted):
Our research has not revealed any Indiana case addressing a dispute concerning the first or middle name of a minor child. However, on numerous occasions, our courts have considered petitions to change a child‟s last name under the best interests standard. See e.g. In re Paternity of J.C., 819 N.E.2d 525, 527 (Ind. Ct. App. 2004). Consistent with those cases and Indiana Code section 34-28-2-4(d), we conclude that trial courts are required to consider the best interests of the child in ruling on a petition to change a minor child‟s first or middle name. Finally, we observe that a father and mother enjoy equal rights with regard to naming their child. See Tibbitts v. Warren, 668 N.E.2d 1266, 1267 (Ind. Ct. App. 1996), trans. denied.
Since the court made no findings about the child's best interests, the case was sent back to the trial court on this issue.

Names have been an issue on the paternity side for many years. I am left wondering how those cases will work with a newborn in a divorce case.

1 comment:

Debra said...

Dear Mr. Hasler,
Just wanted to compliment you on your blog. I am a pro se litigant in a child support hearing. I moved here from Minnesota and apparently Indiana does not recognize the decree from that state. I am being taken back to court by father to have the child support reduced to the Indiana level. Since I can't afford a lawyer I've been doing a lot of research on the net and your blog has helped clarify some things about this state's rules.

Again, just wanted to say thanks and keep writing!
Debra