FILED Oct 27 2023, 9:27 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ralph E. Dowling Amy O. Carson Muncie, Indiana Jacob W. Zigenfus Massillamany Jeter & Carson, LLP Fishers, Indiana
IN THE COURT OF APPEALS OF INDIANA
August Wohlt, October 27, 2023 Appellant-Respondent, Court of Appeals Case No. 22A-DR-2685 v. Appeal from the Delaware Circuit Court Christi Wohlt, The Honorable Marianne Vorhees, Appellee-Petitioner. Judge Trial Court Cause No. 18C01-1507-DR-78
Opinion by Judge Riley. Judges Crone and Mathias concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 1 of 21 STATEMENT OF THE CASE [1] Appellant-Respondent, August Wohlt (Husband), appeals following the trial
court’s entry of judgment in favor of Appellee-Petitioner, Christi Wohlt (Wife),
on claims relating to the property settlement agreement resulting from their
divorce proceedings.
[2] We affirm in part, reverse in part, and enter summary judgment for Husband.
ISSUES [3] Husband presents this court with six issues, which we consolidate, restate, and
address as the following two issues:
(1) Whether Husband was entitled to summary judgment as a matter of law on the issue of whether certain cryptocurrencies were subject to division; and
(2) Whether the trial court abused its discretion when it ordered Husband to pay expert witness and attorney’s fees.
FACTS AND PROCEDURAL HISTORY [4] On June 16, 2007, Husband and Wife married. Three children were born of the
marriage. During the marriage, the couple owned and operated Echo Systems,
Inc. (Echo), which was engaged in the business of mining and trading
cryptocurrency. Wife was the Chief Financial Officer of Echo, and the
company was owned in her name. During the marriage, Echo owned 6.21
units of Bitcoin and 1,000 units of Ethereum Classic (ETC).
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 2 of 21 [5] On July 22, 2015, Wife filed a petition for dissolution. The parties exchanged
information, but Wife did not conduct formal discovery during the dissolution
proceedings. On June 1, 2016, the parties engaged in mediation, resulting in
the Property Settlement Agreement (PSA). The PSA provided that the parties
agreed to close Echo within thirty days and that “Husband shall retain all assets
of the business, except for the following items: Wife’s Mac computer and
printer, iPhone, iPad and laptop.” (Appellant’s App. Vol. II, p. 59). The PSA
did not specifically address the cryptocurrencies owned by Echo. At the time of
the mediation, the Bitcoin and ETC units had a combined value of
approximately $18,000. On June 6, 2016, the trial court issued a decree of
dissolution approving the PSA and finding that “it was entered into fairly,
without fraud, duress or undue influence and was fair and equitable.”
(Appellant’s App. Vol. II, p. 73).
[6] After the entry of the decree of dissolution, in July 2016, ETC was “forked”
into two cryptocurrencies, ETC and Ethereum (ETH). (Exh. Vol. VII, p. 58).
As part of the fork, owners of ETC were entitled to an equal number of units of
the new currency, ETH. Therefore, in July 2016, Husband came into
possession of 1,000 units of ETH. Shortly after the entry of the decree in 2016,
Husband sold some of his Bitcoin holdings. In November 2017, Husband
searched the Echo computer hardware and software he had acquired as part of
the divorce proceedings and discovered records pertaining to the ownership of
the cryptocurrencies, which led him to confirm that he was still in possession of
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 3 of 21 the ETC units. In December 2017, Husband alerted his counsel as to the
existence of the cryptocurrencies.
[7] On October 30, 2018, Husband’s counsel sent a letter to Wife’s counsel
providing notice that Husband had become aware of the existence of the
Bitcoin and ETC cryptocurrencies. On May 14, 2020, Wife filed her Verified
Motion to Address Asset Omitted from the Marital Estate and Child Support
Matters. Wife alleged that Husband had “failed to disclose” the Bitcoin and the
ETC. (Appellant’s App. Vol. II, p. 80). Wife sought the division of those
cryptocurrencies and an adjustment of Husband’s child support obligation from
2017 forward. On August 18, 2020, Wife filed a request for relief pursuant to
Indiana Trial Rule 60(B) in which she reiterated the allegations of her previous
verified motion but in which she also acknowledged that Husband disputed
whether the Bitcoin and ETC were subject to division.
[8] On October 2, 2020, the trial court held the first hearing in the instant litigation.
Husband testified that during the parties’ mediation and prior to the entry of the
decree of dissolution, he had forgotten about the Bitcoin and ETC owned by
Echo. Husband also testified regarding the forking of the ETH cryptocurrency
from the ETC cryptocurrency. Wife testified that she was not aware of the
Bitcoin and the ETC at the time of the parties’ mediation because “[b]oth of us
had forgotten about it.” (Exh. Vol. VII, p. 40). The hearing was not
completed, and the trial court took all matters under advisement so that the
parties could submit briefing. Thereafter, the parties engaged in further
discovery.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 4 of 21 [9] On January 21, 2021, Husband filed his motion for partial summary judgment
and designation of evidence on the issues of Wife’s request to divide the
cryptocurrencies, a request which now included the ETH units acquired by
Husband as a result of the forking which occurred after the execution of the
PSA, and her request to modify child support from 2017 forward. Regarding
the cryptocurrencies, Husband argued, in relevant part, that he was
unambiguously awarded those assets by the PSA and that, due to the PSA’s
disclosure provisions, Wife could not request that the cryptocurrencies, which
both parties agreed had been forgotten, should be divided. As to the support
modification, Husband argued that Wife was precluded by long-standing
Indiana precedent from seeking a support modification for any time period
prior to the filing of her petition for modification and that no exceptions to this
general rule applied.
[10] On February 19, 2021, Wife filed her response in opposition to summary
judgment, along with her designation of evidence. Wife argued that there were
genuine issues of material fact regarding whether the trial court had the
authority to divide the cryptocurrencies. Wife further argued that, because
Husband had waited more than a year to disclose those assets to Wife upon
their rediscovery by Husband and because Husband had made inconsistent
statements about whether he still had the Echo-owned Bitcoin units in his
possession, there were genuine issues of material fact regarding whether he had
acted fraudulently.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 5 of 21 [11] On March 18, 2021, the trial court held a hearing on Husband’s motion for
partial summary judgment. 1 On March 26, 2021, the trial court denied
Husband’s motion, ruling that the fact issues precluding summary judgment
were “what did the parties know, and when did they know it?” (Appellant’s
App. Vol. II, p. 29). Regarding the issue of child support, the trial court found
that it was “not seeing this as a retroactive support modification issue. After a
hearing, I may find this is a failure to disclose and a failure to share irregular
income for the child’s benefit, and [Wife] has a legal right in either law or
equity to make a claim to her percentage share of the irregular income.”
(Appellant’s App. Vol. II, p. 29).
[12] Fact-finding hearings were scheduled on March 3 and 4, 2022, on Wife’s
petition. In advance of the March hearings, on February 23, 2022, Husband
filed a motion to compel discovery pertaining to Wife’s expert witness, Erik
Min (Min), who would testify regarding cryptocurrency issues. In conjunction
with his motion to compel, Husband filed a motion to continue the matter and
to set a Daubert hearing on the scientific reliability of Wife’s expert evidence.
On February 28, 2022, the trial court denied Husband’s motions. The March
hearings took place as scheduled, at which Min testified regarding the forking of
the ETH from the ETC cryptocurrency and his verification of the information
1 This hearing was not transcribed for appeal.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 6 of 21 regarding the Bitcoin acquisition and sale. Min’s report was also admitted into
evidence.
[13] On April 1, 2022, the trial court entered its Order equally dividing the value of
the cryptocurrencies, resulting in an award to Wife of $1,842 for the Bitcoin,
$14,000 for the ETC, and $208,441.63 for the ETH, for a total of $224,283.63.
On April 8, 2022, the trial court entered its Order denying Wife’s request to
increase Husband’s support obligation retroactive to the filing of her petition on
May 15, 2020, finding that it could not locate any authority for doing so. The
trial court also adopted the parties’ pre-hearing support modification agreement.
[14] On September 1, 2022, the trial court held a hearing to address Wife’s motion
for expert witness and attorney’s fees. Husband incurred $50,011.60 in
attorney’s fees, and Wife incurred $51,636 in attorney’s fees. Min requested
$42,000 for his services. At the hearing, Wife requested that Husband pay a
portion of her fees, but Husband did not make any similar request. On October
14, 2022, the trial court ordered Husband to pay Wife $15,042 in attorney’s
fees, which it calculated by applying the parties’ income allocations for
purposes of child support (Husband 64%/Wife 36%) to the total attorney’s fees
incurred by both parties. The trial court also ordered Husband to pay half of
Min’s fees, $21,000. In awarding the expert witness fees, the trial court found
that Wife was not required to take Husband’s word about the cryptocurrencies,
that Wife was justified in hiring an expert, and that the trial court had found
Min’s report and testimony to be “very helpful.” (Appellant’s App. Vol. II, p.
48).
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 7 of 21 [15] Husband now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Summary Judgment
[16] Husband contends that the trial court erred when it denied his motion for
partial summary judgment on the issue of whether the Bitcoin, ETC, and ETH
cryptocurrencies were subject to division. Summary judgment is appropriate if
the designated evidence “shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Ind.
Trial Rule 56(C). We review the denial of summary judgment de novo and
apply the same standard as the trial court. Kerr v. City of South Bend, 48 N.E.3d
348, 352 (Ind. Ct. App. 2015). The party moving for summary judgment bears
the initial burden of making a prima facie showing that there are no genuine
issues of material fact and that it is entitled to judgment as a matter of law.
Sargent v. State, 27 N.E.3d 729, 731 (Ind. 2015). “Summary judgment is
improper if the movant fails to carry its burden, but if it succeeds, then the
nonmoving party must come forward with evidence establishing the existence
of a genuine issue of material fact.” Id. at 731-32. “All disputed facts and
doubts as to the existence of material facts must be resolved in favor of the non-
moving party.” Kerr, 48 N.E.3d at 352. If the facts are undisputed, we
determine the law applicable to those facts, and whether the trial court correctly
applied it. King v. Ebrens, 804 N.E.2d 821, 825 (Ind. Ct. App. 2004). A
property settlement agreement which has been incorporated into a dissolution
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 8 of 21 decree becomes a binding contract which is interpreted according to the general
rules of contract construction. Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind.
2008). The interpretation of a property settlement agreement is a matter of law
which we review de novo. Id.
A. PSA Interpretation
[17] Husband asserts that he was entitled to summary judgment because the PSA
unambiguously awarded him the cryptocurrencies. Wife counters that the PSA
could not have awarded Husband those assets because the cryptocurrencies had
been forgotten by the parties and, thus, it could not have been the parties’
intention to divide those assets when executing the PSA.
[18] The Dissolution Statute provides that “orders concerning property disposition
entered under this chapter . . . may not be revoked or modified, except in case
of fraud.” Ind. Code § 31-15-7-9.1(a); see also Ryan v. Ryan, 972 N.E.2d 359,
362 (Ind. 2012) (noting that the statutory proscription on the modification or
revocation of property settlement agreements is unambiguous). However, a
trial court may interpret and enforce a property settlement agreement, and
when doing so, the general rules of contract construction apply. Id. at 364;
Fackler v. Powell, 839 N.E.2d 165, 169 (Ind. 2005).
[19] Unless the terms of a property settlement agreement are ambiguous, we will
give those terms their plain and ordinary meanings, we will consider those
terms conclusive, and we will not resort to extrinsic evidence or construe the
agreement. Bailey, 895 N.E.2d at 1217; Harris v. Copas, 165 N.E.3d 611, 619
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 9 of 21 (Ind. Ct. App. 2021). It is a well-settled principle of contract construction that
terms are not ambiguous simply because a controversy exists between the
parties as to their meaning. Harris, 165 N.E.3d at 619.
[20] Here, the PSA provided that “Husband shall retain all assets of the business, except
for the following items: Wife’s Mac computer and printer, iPhone, iPad and
laptop.” (Appellant’s App. Vol. II, p. 59) (emphasis added). Wife did not
identify any ambiguity in the wording of this provision in her initial petition
seeking to divide the disputed assets, her Trial Rule 60 motion, in her response
to Husband’s summary judgment pleadings, or on appeal. The term “all” is
generally used to refer to the totality of what is being designated and is not a
term that is reasonably susceptible to more than one interpretation. See
Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/all (last visited October 12, 2022) (defining “all” as
“the whole amount, quantity, or extent of” and “every member or individual
component of”). We find that this provision of the PSA unambiguously means
that every asset owned by Echo would be awarded to Husband, apart from the
five specifically listed items awarded to Wife.
[21] We are aware that in Dewbrew v. Dewbrew, 849 N.E.2d 636, 646 (Ind. Ct. App.
2006), this court concluded that a property settlement agreement which
purported to settle the rights of the parties to real and personal property then
owned by them was ambiguous because it was silent as to “the most significant
marital assets,” namely, the marital residence and two businesses, which were
acquired during the marriage. However, it cannot be said that the Bitcoin and
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 10 of 21 ETC, the cryptocurrencies which existed at the time of the signing of the PSA
which were indisputably forgotten by both parties, were among their “most
significant” marital assets for purposes of the PSA that otherwise disposed of
the parties’ marital residence, business, vehicles, investments, bank accounts,
and personal property. Id. The fact that these assets, particularly the ETH
currency, may have increased in value after the parties entered into the PSA
does not inject ambiguity into the PSA itself. Dewbrew does not extend to the
instant case for the additional reasons that the assets at issue in Dewbrew were
specifically discussed by the parties prior to the entry of the settlement
agreement, the wife in that case did not have her attorney review the finalized
settlement agreement prior to signing it, and we remanded for recalculation of
the division of the marital estate for other reasons apart from the omissions of
the marital estate and the two businesses from the parties’ settlement
agreement. Id. None of those factors are at issue here.
[22] We also observe that as part of her attempts to have the cryptocurrencies
divided, Wife filed a Trial Rule 60 motion seeking relief from judgment. Parties
seeking such relief are allowed to raise claims of mutual mistake occurring at
the time of the settlement agreement. See Ryan, 972 N.E.2d at 370-71
(observing that a Trial Rule 60 motions seeking relief from a property
settlement agreement should be viewed as a contract claim and that “[i]f there is
a mutual mistake, contract law provides the rules for resolving it”). However, a
party may not assert mutual mistake as a basis for relief under Rule 60(B)(1)
more than one year after the entry of the judgment, and the “reasonable time”
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 11 of 21 period for seeking relief under the catch-all provision of Rule 60(B)(8)
specifically excludes claims of mistake. Ind. Trial Rule 60(B)(1), (8); Dusenberry
v. Dusenberry, 625 N.E.2d 458, 462 (Ind. Ct. App. 1993). The decree of
dissolution in this case was entered on June 6, 2016, and Wife filed her initial
petition seeking to divide the disputed assets on May 14, 2020, which was more
than one year after the entry of judgment. Therefore, a claim of mutual mistake
was unavailable to Wife as a basis for disputing summary judgment. On
appeal, Wife does not cite any legal authority pertaining to mutual mistake in
her argument as to why summary judgment was inappropriate on this issue. In
light of this lack of citation to authority, even if such a claim were available to
her, she has waived it for our consideration. See Ind. Appellate Rule
46(A)(8)(a) (providing that appellate arguments must contain the party’s
contentions supported by cogent reasoning); Martin v. Hunt, 130 N.E.3d 135,
137 (Ind. Ct. App. 2019) (noting that the “[f]ailure to present a cogent argument
results in waiver of the issue on appeal”).
[23] Neither can we credit Wife’s assertion that we should not consider Husband’s
appellate arguments on this issue because he took a contrary position in the trial
court. “The premise of judicial estoppel is that, absent a good explanation, a
party should not be permitted to gain an advantage by litigating on one theory
and thereafter pursuing an incompatible theory in subsequent litigation.”
ArcBest Corp. v. Wendel, 192 N.E.3d 915, 928 (Ind. Ct. App. 2022). However,
the doctrine only applies where the litigant has made intentional
misrepresentations, so the litigant’s bad-faith intent is dispositive of its
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 12 of 21 application. Id. In support of her claim that Husband is estopped from arguing
that the PSA awarded him the cryptocurrencies, Wife cites Husband’s
testimony at the October 2, 2020, hearing in this matter prior to the summary
judgment proceedings which included the following:
Husband’s Counsel: Let’s get down to the nitty gritty of what the Judge has to do in this case of cryptocurrency. The Judge has to decide whether to give [Wife] anything, and if so, how much of it to give her. What do you think is a fair resolution of the cryptocurrency issue for the [c]ourt to provide for you today?
Husband: What makes sense to me is that I get it between filing and mediation . . . If at all. I don’t fully understand the wording in our decree and there may be something in there that affects that, but I defer to the Judge’s decision on that.
(Tr. Vol. VII, p. 51). Later on cross-examination, Husband was asked if he felt
that “an adjustment is warranted,” to which he responded “Yeah. I believe, at
this time, the reasonable approach would be to settle on a value between the
mediation and the divorce, the filing.” (Tr. Vol. VII, p. 62). However, as early
as her August 18, 2020, request for relief pursuant to Indiana Trial Rule 60(B),
Wife acknowledged that Husband disputed whether the trial court had the
authority under the PSA to divide the cryptocurrencies. After a review of the
parties’ pleadings and the context of Husband’s responses cited above, it is clear
to us that Husband did not assent to divide the challenged assets with Wife or
that he took a position contrary to that which he now argues on appeal. Even if
Husband had taken divergent positions, Wife does not even attempt to
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 13 of 21 demonstrate any bad-faith intent on Husband’s part. Therefore, the doctrine
does not apply. See ArcBest Corp., 192 N.E.3d at 928.
[24] On appeal, Wife also asserts that the trial court properly denied summary
judgment to Husband because the parties disagreed about whether the trial
court had the authority to divide the cryptocurrencies and whether the PSA was
ambiguous so as to require interpretation. These arguments are not persuasive,
as both are predicated on the meaning of the PSA which is a question of law for
the trial court. See Bailey, 895 N.E.2d at 1217.
[25] Because the PSA’s terms are unambiguous, we must apply the plain terms of
the agreement, and we cannot credit Wife’s argument concerning what the
parties might or might not have intended when entering into the PSA because
that would entail looking beyond the four corners of the unambiguous contract.
See Niccum, 734 N.E.2d at 639. There was no factual dispute that the Bitcoin
and the ETC, from which the ETH forked, were assets owned by Echo.
Therefore, we conclude that there was no genuine issue of material fact
precluding summary judgment to Husband on this issue.
B. Constructive Fraud
[26] Wife alleged in her verified petition to divide the cryptocurrencies that Husband
had failed to disclose those assets, and she clarified in her response to
Husband’s motion for summary judgment that she claimed Husband had
committed constructive fraud by failing to disclose those assets prior to the
parties entering into the PSA. In order to demonstrate constructive fraud, a
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 14 of 21 party must establish the following elements: (1) a duty owed by the party
charged to the complaining party as a result of their relationship; (2) a violation
of that duty through deceptive material misrepresentations of past or existing
facts or through remaining silent where there was a duty to speak; (3) reliance
by the complaining party; (4) injury to the complaining party; and (5) an
advantage gained by the charged party to the detriment of the complaining
party. Ehle v. Ehle, 737 N.E.2d 429, 434 (Ind. Ct. App. 2000). In Selke v. Selke,
600 N.E.2d 100, 101-02 (Ind. 1992), our supreme court held that, while a duty
to disclose information regarding assets between dissolution litigants “may arise
from unique factual circumstances including the express terms of a property
settlement agreement, or from a request for discovery under the Indiana Trial
Rules,” there is no spontaneous duty of disclosure.
[27] The PSA contained the following relevant provisions:
Section 5.12. Fully Advised. Each of the parties hereto has been fully, separately, and independently apprised and advised of their respective legal rights, remedies, privileges and obligations, arising out of the marriage relation or otherwise, by counsel of their own choice and selection, and each has, in addition thereto, made such independent inquiry and investigation with respect to all of the same as they deemed necessary to be fully informed. Each party acknowledges that he or she has consulted with and sought the advice of legal counsel and other professional persons, such as, but not limited to, accountants and other counselors, as he or she desires, and with or without the advice of such professionals, each party has made his or her own determination as to the valuation of all assets and liabilities. [].
****
Section 5.20. Disclosure. Husband and Wife acknowledge that each party is entitled to thorough discovery, analysis and Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 15 of 21 investigation of the other party’s financial information and all data and facts relevant to the dissolution proceeding. Husband and Wife expressly waive that right for the purpose of this Agreement and hereby certify that they have full and adequate knowledge of all such relevant financial and other information, data and facts. Each party represents to the other that they have relied on the full and complete disclosure of the other person upon entering into this Agreement.
(Appellant’s App. Vol. II, pp. 70-72) (emphasis added). Taken together, these
provisions did not impose any duty upon Husband to proactively search the
Echo software and hardware and to disclose what he discovered there prior to
entering into the PSA. Although formal discovery requests could have been
propounded to Husband to discover the assets of Echo, in the PSA, Wife
waived her right to formal discovery. Instead of conducting discovery, Wife
agreed that she had made an independent inquiry and investigation of her legal
rights and privileges which she deemed necessary to be fully informed, and
Wife certified that she had complete knowledge of all relevant information prior
to entering into the PSA. We find this waiver of discovery and certification of
full knowledge to be significant to any claim of constructive fraud here. In
Voight v. Voight, 645 N.E.2d 623, 626 (Ind. Ct. App. 1994), trans. denied, we
found no constructive fraud in a wife’s failure to disclose certain bank accounts
she had forgotten about prior to entering into a property settlement agreement
with her husband, where the husband “had access to information regarding
each of the disputed accounts and yet he also failed to recall that they existed.”
Here, Wife could have had access to information about Echo’s business assets,
yet she waived that right according to the terms of the PSA she voluntarily
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 16 of 21 executed. In addition, while Husband and Wife warranted to each other that
they relied on the “full and complete disclosure of the other person upon
entering into” the PSA, warranting reliance on full disclosure is not warranting
that such full and complete disclosure has actually been made to the other
party. (Appellant’s App. Vol. II, p. 72).
[28] In her response to Husband’s motion for summary judgment, Wife relied on
Atkins v. Atkins, 534 N.E.2d 760, 762-63 (Ind. Ct. App. 1989), trans. denied, in
which this court found that the husband had committed constructive fraud by
failing to disclose to the wife the fact that a certain stock owned in his name had
doubled in value prior to the signing of the settlement agreement and the entry
of the decree. Atkins is factually distinguishable for the principal reason that the
settlement agreement in that case contained the provision that “Husband and
Wife warrant and represent that the financial information and statements of
Husband and the Wife supplied to Husband's and Wife's counsel as of diverse
dates, past and present, have been true, accurate and complete as to any
interest, direct, indirect or beneficial, that either may have,” an express
warranty of full disclosure not present in this case. Id. at 762. In her summary
judgment response, Wife also contended that Husband’s failure to disclose the
existence of the cryptocurrencies for more than a year after their discovery, his
inconsistent statements after this litigation had commenced about whether he
still had the Bitcoin units in his possession, and his sale of the ETH for
substantial gains all created issues of material fact regarding his fraudulent
intent. However, all of these events occurred after the parties had entered into
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 17 of 21 the PSA and their divorce had been finalized and do not reflect circumstances
bearing on his intent at the time of executing the PSA.
[29] In light of the express language of the PSA, we conclude that Husband was
unambiguously awarded the cryptocurrencies at issue and that Husband owed
Wife no duty to find and disclose the cryptocurrencies so as to support a claim
of constructive fraud. Therefore, we reverse the denial of summary judgment
and enter summary judgment in favor of Husband. 2
II. Expert Witness and Attorney’s Fees
[30] The trial court ordered Husband to pay $21,000 in expert witness fees and
$15,042 of Wife’s attorney’s fees. Husband separately challenges the expert
witness and attorney’s fees associated with Min and the attorney’s fees
associated with the denial of Husband’s motion for summary judgment on the
issue of Wife’s claim to retroactive child support. We address each of these
issues in turn.
A. Fees Associated with Min
[31] Husband argues that Wife did not provide him with adequate pre-hearing
discovery pertaining to Min, Min’s opinions were not supported by the
2 In light of our entry of summary judgment in favor of Husband on this issue, we do not address his claims that the trial court erred when it awarded Wife half of the value of the cryptocurrencies after trial as argued in his Issues II and III or his argument that the trial court abused its discretion in denying his motions to compel discovery and to continue the final hearing pertaining to the expert witness, Min, as presented in Issue V. Those issues are now moot. In his Issue IV, Husband acknowledges that he does not contest the merits of the trial court’s denial of summary judgment on the issue of retroactive child support, as the trial court ultimately ruled in Husband’s favor on that issue.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 18 of 21 evidence, Min’s opinions were rendered in an inefficient manner that resulted
in unnecessary costs, and that Min’s expertise was unnecessary because Min
ultimately concluded that the information provided by Husband about the
acquisition and sales of the cryptocurrencies was accurate. As a result,
Husband contends that he should not have been ordered to pay half of Min’s
fee or “related attorney fees.” (Appellant’s Br. p. 61). For each issue presented
to us, an appellant is required to provide a concise statement of the applicable
standard of review. App. R. 46(A)(8)(b). An appellant is also required to
support his argument with cogent reasoning, including citation to legal
authority. App. R. 46(A)(8)(a). In contravention of the Indiana Appellate
Rules, Husband has not provided us with a standard of review applicable to an
award of expert witness fees, nor has he cited any statutes or caselaw in support
of his challenge demonstrating that a trial court errs in awarding expert fees
under these circumstances. Therefore, Husband has waived this claim, and we
decline to address it. Martin, 130 N.E.3d at 137.
[32] Husband’s one-phrase argument that he should not have been ordered to pay
any attorney’s fees related to Min’s expert testimony fails for the same reason.
Although Husband cites a standard of review for a trial court’s award of
attorney’s fees, he has provided us with no pertinent legal authority to support
his challenge to those attorney’s fees. Therefore, that claim is also waived. See
Halum v. Halum, 492 N.E.2d 30, 31 n.1 (Ind. Ct. App. 1986) (declining to
address wife’s claim regarding the trial court’s denial of attorney’s fees, finding
it waived for failure to present cogent argument), trans. denied.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 19 of 21 [33] Husband further argues that, because of the purported deficiencies in Min’s
testimony and report, Husband should have been awarded attorney’s fees for
having to defend against this expert. Our review of the transcript of the
September 1, 2022, hearing on expert witness and attorney’s fees revealed that
Husband did not request an award of attorney’s fees on this basis. Because we
cannot discern that Husband requested an award of attorney’s fees for having to
defend against Min’s expert testimony, he has waived this claim as well. See
Wireman v. LaPorte Hosp., Co., LLC, 205 N.E.3d 1041, 1046 n.2 (Ind. Ct. App.
2023) (“It is well settled that an appellant cannot present an argument for the
first time on appeal[.]”), trans. denied.
B. Denial of Summary Judgment on Retroactive Child Support
[34] The trial court denied Husband’s motion for summary judgment on Wife’s
claim to retroactive child support but ultimately ruled in Husband’s favor on
this issue. Husband claims that the trial court’s “erroneous denial of the motion
for summary judgment on this issue subjected [Husband] to paying substantial
amounts of attorney fees to litigate the issue that should have been resolved on
March 26, 2021, not April 8, 2022” and that he should have been awarded
attorney’s fees for “needless litigation.” (Appellant’s Br. p. 52). However, the
record does not reveal that Husband requested attorney’s fees on this basis, and,
therefore, we find that his has also waived this claim. Wireman, 205 N.E.3d at
1046 n.2.
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 20 of 21 [35] Inasmuch as Husband asserts that the trial court’s order that he pay a portion of
Wife’s attorney’s fees was unreasonable in light of the litigation on this issue,
his argument is unpersuasive. The trial court entered findings and conclusions
on attorney’s fees in which the trial court apportioned the parties’ combined
attorney’s fees based upon their relative incomes. Pursuant to Indiana Code
section 31-16-11-1 and within its broad discretion in awarding attorney’s fees, a
trial court may take into consideration the financial resources of the parties.
Redd v. Redd, 901 N.E.2d 545, 554 (Ind. Ct. App. 2009). Husband does not
address his argument to the trial court’s findings and conclusions regarding the
award of attorney’s fees, and, therefore, he has failed to demonstrate that the
trial court abused its discretion.
CONCLUSION [36] Based on the foregoing, we hold that Husband was entitled to summary
judgment as a matter of law on the issue of whether the cryptocurrencies were
subject to division. We further hold that Husband waived the majority of his
claims regarding the trial court’s award of expert witness and attorney’s fees
and that he has failed to demonstrate the merit of any preserved claims.
[37] Affirmed in part, reversed in part, and summary judgment entered for Husband.
Crone, J. and Mathias, J. concur
Court of Appeals of Indiana | Opinion 22A-DR-2685 | October 27, 2023 Page 21 of 21