ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOEL M. SCHUMM RONALD W. OAKES
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
ROCKY A. FLASH, )
vs. ) No. 49A04-0210-CV-480
SUSAN HOLTSCLAW, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49D05-0110-PO-1565
April 21, 2003
OPINION - FOR PUBLICATION
Rocky Flash (Flash) appeals the trial courts determination that he is in contempt
of court for violating a protective order and also appeals the penalties imposed,
the denial of his motion for a protective order against Susan Holtsclaw (Holtsclaw)
and an order for the payment of attorney fees. We affirm in
part and reverse in part.
Flash purportedly raises six issues. We address those issues that
are not waived,
See footnote which we consolidate and restate as four issues:
Whether the finding of contempt was proper;
II. Whether the orders for incarceration were proper;
Whether the trial court erroneously denied Flashs motion for a protective order against
Whether the trial court erroneously awarded attorney fees incurred in defending federal lawsuits.
Facts and Procedural History
Flash and Holtsclaw were romantically involved for several months. During the relationship,
Flash became convinced that Holtsclaw needed treatment for alcohol abuse. He endeavored
to secure her alcohol treatment by various means: writing to the President
of the United States, writing to Florida Governor Jeb Bush, drafting the Susan
Holtsclaw Bill (the Bill), calling an Indianapolis radio talk show to discuss the
merits of the Bill, disseminating copies of the Bill to Holtsclaws friends and
acquaintances, contacting various businesses to demand that no alcohol be served to Holtsclaw,
declaring his candidacy for Congress and naming Holtsclaw as the Treasurer of his
Florida campaign funds, writing to the trial court judge to request examination of
Holtsclaw, inducing an alcohol treatment counselor in Washington, D.C. to contact Holtsclaw by
telephone, and filing various lawsuits in federal courts, including his Complaint for Dangerous
See footnote (Pet. Ex. 1.) Flash also disseminated approximately one hundred copies
of a letter from a mental health counselor discussing Holtsclaws possible alcohol dependence.
On June 29, 2001, Holtsclaw secured an Emergency Temporary Protective Order against Flash.
On August 24, 2001, Holtsclaw filed the first of eight petitions for
contempt. On November 28, 2001, a hearing was held to determine whether
the temporary protective order should be made permanent and whether Flash should be
held in contempt of court for violation of the existing order. At
the conclusion of the hearing, the trial court issued a permanent protective order
and found Flash in contempt of court. Flash was sentenced to sixty
days imprisonment, suspended on the condition that he have no contact with Holtsclaw.
Flash was also ordered to pay $1,000.00 in attorney fees. The
judgment was not appealed.
On July 16, 2002, Flash filed a petition for a protective order against
Holtsclaw. On August 27, 2002, Holtsclaw filed a motion to extend the
permanent protective order against Flash. On September 4, 2002, a hearing was
held on the respective protective order motions and the successive motions for contempt.
At its conclusion, the court found Flash in contempt, ordered him to
serve the previously suspended sixty days in jail as well as an additional
ninety days, denied Flashs motion for a protective order, and extended Holtsclaws protective
order against Flash to November 28, 2003. Flash was also ordered to
pay $3,500.00 in attorney fees. Flash now appeals.
Discussion and Decision
I. Finding of Contempt
Indiana Code section 34-47-3-1 provides as follows:
A person who is guilty of any willful disobedience of any process, or
any order lawfully issued:
by any court of record, or by the proper officer of the court;
under the authority of law, or the direction of the court; and
after the process or order has been served upon the person;
is guilty of an indirect contempt of the court that issued the process
Indirect contempt proceedings require due process protections, including notice and the opportunity to
be heard. Carter v. Johnson, 745 N.E.2d 237, 241 (Ind. Ct. App.
Civil contempt is failing to do something that a court in a civil
action has ordered to be done for the benefit of an opposing party.
Cowart v. White, 711 N.E.2d 523, 530 (Ind. 1999). A party
who has been injured or damaged by the failure of another to conform
to a court order may seek a finding of contempt. Id.
Whether a party is in contempt is a matter left to the discretion
of the trial court. Id. We reverse a trial courts finding
of contempt only if there is no evidence or inferences drawn therefrom that
support it. Id.
Here, the trial court held Flash in contempt of the protective order, reasoning
You are going around to various bars and
other locations, sending them letters with no legal basis, based upon my opinion
of current Indiana law, with the sole intent to harass her, to stop
her from frequenting those places, and to stop her from doing what she
has every legal right to do in this state, which is consume what
I call adult beverages, alcoholic beverages. . . .
His method of service, among the many other
things that were testified to today, the many other pleadings that have been
filed in this court and others, constitute a violation of the Courts previous
orders. His efforts, again, in sending letters to these various bars, these
businesses, also constitute a violation of the protective order.
(Tr. 175-78.) We agree with Flash that the trial courts finding of
contempt may not properly be predicated upon his exercise of the right to
pursue claims in federal courts. However, the courts finding of contempt does
not rest solely upon the filing of lawsuits, but was partially predicated upon
Flashs attempt to personally serve Holtsclaw documents relative to a lawsuit ostensibly filed
by his ex-wife and children, a lawsuit in which Flash was not a
named party. Moreover, the finding of contempt is supported by testimony that
Flash ignored former orders of court when he telephoned Holtsclaw, monitored her activities,
and disseminated information about Holtsclaw via the Internet, mail and telephone. There
is sufficient evidence to support the trial courts determination that Flash knowingly violated
an order of court that he refrain from contacting Holtsclaw and from harassing
II. Order for Incarceration
Further, we reject Flashs contention that he was denied due process. Flash
was given notice and the opportunity to show that he should not be
punished, unlike the defendant who appealed ex parte proceedings in Carter, upon which
Flash relies to no avail. Although Flash arguably lacked ample time to
respond to the eighth motion for contempt, filed eight days in advance of
the hearing, his counsel specifically acquiesced to its inclusion at the September 4,
As such, the trial court was within its discretion in finding Flash in
contempt of court.
A courts inherent civil contempt powers are both coercive and remedial in nature.
Evans v. Evans, 766 N.E.2d 1240, 1244 (Ind. Ct. App. 2002).
The primary objective of a civil contempt proceeding is not to punish the
contemnor, but to coerce action or to compensate the aggrieved party. Id.
at 1245. In a civil contempt action, imprisonment is for the purpose
of coercing compliance with the order. MacIntosh v. MacIntosh, 749 N.E.2d 626,
631 (Ind. Ct. App. 2001), trans. denied. Nevertheless, a contempt order which
neither coerces compliance with a court order or compensates the aggrieved party for
loss, and does not offer an opportunity for the recalcitrant party to purge
himself, may not be imposed in a civil contempt proceeding. Id.
The trial court properly ordered Flash to serve the sixty-day suspended sentence.
The suspended sentence order was clearly intended to coerce Flashs compliance
with the protective order. He was afforded the opportunity to purge himself
of contempt, and avoid serving the sentence, by adhering to the protective order.
He failed to do so.
However, the ninety-day additional sentence is purely punitive. The order punishes a
past act, and affords Flash no opportunity to avoid the term of imprisonment.
As such, it is improper in civil contempt proceedings.
III. Denial of Flashs Motion for Protective Order
Flash also complains that the trial court erred in denying his
motion for a protective order against Holtsclaw. When, as here, the appeal
is from a negative judgment, this Court will reverse only if it is
convinced that the evidence as a whole was such that it leads unerringly
and unmistakably to a decision opposite that reached by the trial court.
Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). Too, we defer
to the trial courts determination of the credibility of witnesses. Cowart, 711
N.E.2d at 531.
In support of his motion, Flash testified that Holtsclaw had broken his finger
two years earlier. He did not elaborate on the circumstances surrounding that
event. He also testified concerning conduct he considered harassment by unidentified individuals,
I was playing a two-hand actually a flag football game last Wednesday.
I have received numerous phone calls from people I cant say
if theyre actually from McGilverys or not on my answering machine telling
me to stop, leave Susan alone or else. I thought I had
scored a touchdown and I was the quarterback. I kind of went
through the end zone. Somebody tackled me wearing a McGilverys t-shirt.
One of the opposing players was wearing a McGilverys t-shirt and broke my
ankle. Though I cannot prove that it was by her order, which
I dont believe it was, it is amazing how somebody that attends McGilverys
would take a blatant cheap shot at me. But that is not
her, but this is what Ive had to endure. The slander case,
I wish to point to the Court, that it includes mafia-style intimidation which
Judge Barker has not dismissed. This Court, upon granting Susan the protective
order, has made me a mark for these two want-to-be New York City
ganglanders. And they have attacked me, they have harassed me, they have
abused me, they have slandered my name, they have defamed my character.
(Tr. 159-60.) In sum, Flash presented evidence that Holtsclaw had broken his
finger under undisclosed circumstances and that he perceived intimidation from unidentified persons possibly
acting on Holtsclaws behalf. We do not conclude that the evidence pointed
unerringly to a decision opposite that reached by the trial court.
IV. Attorney Fees
Finally, Flash challenges the $3,500.00 award of attorney fees as improperly inclusive
of fees generated when Holtsclaw defended against federal lawsuits.
Attorney fees are available in civil contempt proceedings. Cowart, 711 N.E.2d at
533. While the taking of evidence on reasonable attorney fees is a
preferable practice, the trial court may take judicial notice of what constitutes a
reasonable amount of attorney fees in routine cases involving relatively small amounts.
Reed Sign Serv., Inc. v. Reid, 755 N.E.2d 690, 699 (Ind. Ct. App.
Holtsclaws counsel represented to the court that his legal fees had reached $14,000.00,
a sum beyond Holtsclaws ability to pay. Inasmuch as Flash had initiated
several federal lawsuits, at least one of which named Holtsclaws counsel as a
defendant, it is reasonable to assume that the $14,000.00 sum included fees incurred
in defending against federal lawsuits. However, the trial court awarded substantially less
than $14,000.00; specifically, $3,500.00. The trial court was within its discretion to
find this relatively small amount reasonable for legal representation through protracted proceedings involving
eight motions for contempt and multiple court appearances.
We find no error in the trial courts determination that Flash was in
contempt of a court order, the denial of Flashs motion for a protective
order or the award of attorney fees. We affirm the trial courts
order revoking the suspension of Flashs sixty-day sentence, but reverse the order for
an additional ninety days imprisonment.
Affirmed in part; reversed in part.
ROBB, J., and BARNES, J., concur.
Flash alleges deficiencies in some of the trial courts orders on Rule
to Show Cause and in Holtsclaws petition for an extension of the protective
order. Further, he attempts to challenge the propriety of the trial courts
appointment of Flashs public defender to simultaneously represent him, in consolidated proceedings, in
pursuing his motion for a protective order. He does not claim any
prejudice from the representation. Nevertheless, these matters were not litigated before the
trial court. It is well-settled that a party cannot argue on appeal
an issue that was not properly presented to the trial court.
v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999). When an
issue is not presented before the trial court, appellate review of that issue
is waived. Id.
On February 25, 2002, the Marion County Superior Court received a copy
of an order from the United States District Court Middle District of Florida,
Tampa Division, dismissing Flashs Complaint for Breach of a Parol [sic] Contract as
frivolous and malicious. (App. 6, 76.)