MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 25 2019, 6:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Nicholas J. Hursh Michael A. Setlak Shambaugh, Kast, Beck & Williams, Perry D. Shilts LLP Shilts & Setlak, LLC Fort Wayne, Indiana Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gregory Rietdorf and September 25, 2019 Brenda Rietdorf, Court of Appeals Case No. Appellants/Cross-Appellees - Petitioners, 19A-MI-695 Appeal from the Allen Superior v. Court The Honorable Charles F. Pratt, Michelle Rietdorf, Judge Appellee/Cross Appellant - Respondent. The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D08-1801-MI-26
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 1 of 20 Case Summary and Issues [1] Gregory and Brenda Rietdorf (collectively, “Grandparents”) filed a petition
seeking grandparent visitation with their grandson, T.R. The trial court granted
the petition but imposed certain conditions and restrictions on Grandparents’
visitation. The trial court also ordered Grandparents to pay $10,000 of
Mother’s attorney fees. Grandparents appeal the trial court’s order, raising the
following consolidated issues for our review: 1) whether the trial court erred in
placing conditions on Grandparents’ visitation with T.R., and 2) whether the
trial court erred in awarding attorney fees to Mother. Mother cross-appeals,
requesting attorney fees under Indiana Appellate Rule 66(E) for defending this
appeal. With respect to Grandparents’ appeal, we conclude the trial court’s
order granting Grandparents visitation with T.R. under certain conditions was
not clearly erroneous, but there is no statutory authority for the trial court’s
award of attorney fees to Mother. Therefore, the trial court’s order is affirmed
with respect to visitation and reversed as to attorney fees. On Mother’s cross-
appeal, we conclude appellate damages are appropriate in this case and remand
to the trial court for a determination of the amount of appellate damages to
which Mother is entitled.
Facts and Procedural History 1
1 Grandparents have not stated their facts in accordance with the standard of review, instead stating the facts so as to portray themselves in the best possible light. However, Mother has gone overboard in criticizing
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 2 of 20 [2] T.R. was born on January 23, 2016, during Mother’s marriage to Anthony
Rietdorf (“Father”). Father is the son of Grandparents. During Mother and
Father’s marriage, the parties enjoyed a close relationship that included
frequent family dinners with Grandparents and extended Rietdorf family
gatherings. After T.R.’s birth, this close relationship continued, and the parties
would see each other two to three times per month. Sometimes, Mother and
Father were present while Grandparents visited with T.R. and sometimes,
Grandparents visited with T.R. alone. Mother knew Grandparents to be good
caretakers at that time and thought the relationship “felt healthy.” Transcript,
Volume 2 at 27.
[3] On September 11, 2016, Father passed away from injuries sustained in an off-
road utility vehicle accident. Mother was driving the vehicle at the time of the
accident. After Father’s death, the relationship between Mother and
Grandparents deteriorated rapidly, in part because Grandparents blamed
Mother for Father’s death. When Father was alive, Grandmother regularly
took T.R. from swim school to his babysitter because Mother had to work but
after Father’s funeral, she told Mother she would no longer be able to do that.
In October, Mother and Grandparents had a face-to-face meeting that lasted
approximately three hours. Following the meeting, Mother sent Grandparents
a letter because she was “very hurt by [the] 3 hour interrogation last week and
Grandparents’ statement of facts when simply stating the facts appropriately in her own brief would have been sufficient.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 3 of 20 must protect myself and [T.R.] from any toxic relationship[,]” Exhibits, Volume
1 at 47, and felt that “we all needed to have a third-party interaction and
counseling to come together to have a healthy relationship for the best interest
of [T.R.].” Tr., Vol. 2 at 47. Mother’s letter stated that she would be unable
“to continue further conversations . . . until [Grandparents] are ready to move
forward to a healthy relationship with me.” Exhibits, Vol. 1 at 47. Mother
asked Grandparents to “[p]lease contact me when you are ready to move
forward” and suggested mediation or counseling in a neutral location. Id.
Mother’s intention was not to quash the relationship between Grandparents
and T.R. See Tr., Vol. 2 at 18-19.
[4] Grandparents did not reach out to Mother after receiving her letter and by their
own decision, have not seen T.R. since receiving Mother’s letter. After
receiving the letter, Grandfather felt “it was very clear . . . that [Mother] cut off
the relationship . . . with [T.R.] and any hope of meeting again to work out our
differences.” Id. at 207. Grandmother indicated that at the time they received
the letter, she did not want to work on having a healthy relationship with
Mother. See id. at 136-37. In fact, she did not want any further relationship
with Mother. See id. at 168-69. Instead, Grandparents called a family meeting
and told Grandfather’s siblings that “either you’re on [our] side or you’re on
[Mother’s] side[,]” id. at 103; passed out a “poison file” of information about
Mother to the Rietdorf siblings at that meeting, id. at 198; refused to attend
extended family gatherings because Mother was still invited to attend even after
the family meeting; specifically declined to attend a gathering at which a group
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 4 of 20 family photo was to be taken to celebrate the Rietdorf patriacrch’s ninetieth
birthday but said “they were sure that [Mother] would immensely enjoy it and
that [the family] would be honored by her presence[,]” id. at 195; and chided
their daughter, Amber, for choosing to remain friends with Mother, began
arranging to see Amber’s children during her ex-husband’s parenting time so
they did not have to see Amber, and believe Amber has been “working against
[them] in this grandparents[’] procedure[,]” id. at 160. Mother took T.R. to
“every family gathering hoping that [Grandparents] would come[.]” Tr., Vol. 3
at 51.
[5] In January 2018, Grandparents filed a petition for grandparent visitation.
Receiving this petition was the first time Mother had heard from Grandparents
since October 2016. Mother acknowledges that she and Grandparents may
never see eye to eye, but she is willing for them to see T.R. “[w]hen they are in
a mentally healthy place[.]” Tr., Vol. 2 at 25. Currently, she does not believe
they are in that place, because of “things that they have said directly to me and
to family members and written that have tried to tarnish my reputation and they
think I killed my husband [and] I do not want my child around that.” Id. at 31.
Mother has “serious concerns that they will say something to [T.R.] and once
something is said to him” it cannot be unsaid or unheard and “he could be
damaged at any age from this.” Id. at 54. Mother is “not trying to withhold
[T.R.] from them[,]” id. at 23, but she does not want Grandparents to have
immediate unsupervised time with him. Instead, she would “like to see
[Grandparents] have therapy grief counseling[;] let go of their accusations and
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 5 of 20 blame[;] undergo psychological exams paid for by them[;] after a psychologist
gives the okay[,] supervised visits[;] and after a psychologist deems that it is still
okay they may have additional unsupervised visits.” Id. at 56-57.
[6] Grandmother indicated that she would be willing to take a psychological
evaluation and attend counseling if recommended by the evaluation. Id. at 153-
54. She also indicated she thought gradually being reintroduced to T.R. over
short periods of time would be appropriate. Grandfather also indicated he
would be willing to take a psychological evaluation if required, id. at 222; tr.,
vol. 3 at 19, but believes Mother’s request for supervised visitation is “totally
ridiculous[,]” tr., vol. 2 at 216.
[7] Following a hearing conducted over three days in August and September of
2018, the trial court issued its Findings of Fact, Conclusions of Law and
Judgment. In relevant part, the trial court found that “immediate and extended
familial relations have suffered . . . due in large part to the actions of
[Grandparents].” Appealed Order at 2, ¶ 16. The trial court also found that
Grandparents “would have had an opportunity to visit with [T.R.] had they
attended family functions for which they were welcome[; but] did not make a
demand or request for contact with [T.R.] until the initiation of this action[.]”
Id. at 2-3, ¶¶ 18, 22. The trial court concluded the Grandparents had “not
established the heightened standard of proof by [which they] must rebut the
presumption” that Mother is fit and acting in T.R.’s best interests. Id. at 5, ¶ 47.
The trial court further concluded that subjecting T.R. to the “hostile
environment” Grandparents’ feelings about Mother have created would not be
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 6 of 20 in his best interests. Id. at ¶¶ 42, 43. But giving “some weight” to the fact that
Mother had not denied Grandparents contact with T.R. but was in fact willing
to facilitate visitation if Grandparents participated in individual therapy and the
visits were, at least initially, therapeutically supervised, id. at ¶ 48, the court
granted the petition for grandparent visitation under the following conditions:
• Grandparents obtain separate psychological evaluations at their expense
and follow all recommendations as it relates to individual counseling,
grief counseling, and therapeutic reunification counseling, id. at 6, ¶
51(a);
• Grandparents participate in individual counseling, id. at ¶ 51(c); and
• Grandparents sign necessary HIPAA release forms allowing Mother to
access the psychological evaluations and recommendations and to verify
Grandparents’ participation in individual counseling, id. 6, ¶ 51(b), (c).
As for visitation, the trial court ordered that visitation be phased in as follows:
• After beginning individual counseling, Grandparents would have at least
four one-hour therapeutic supervised visits, occurring every other week at
their cost at Family Connections, until their individual counselor gives
permission to proceed, id. at ¶ 51(d);
• Grandparents would then have four two-hour supervised visits, occurring
every other week in a public location with Amber supervising, or, if
Amber is unwilling or unable to supervise, at their cost at Family
Connections, id. at ¶ 51(e); and
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 7 of 20 • Grandparents would then have unsupervised visits of increasing length as
T.R. grows older, id. at ¶ 51(f)–(i).
Finally, the trial court ordered that Grandparents not discuss details of Father’s
passing with T.R. unless Mother specifically consented to such conversations
and that all parties refrain from disparaging one another in T.R.’s presence. Id.
at 7, ¶ 51(k)–(l).
[8] Both Mother and Grandparents filed Motions for Attorney Fees. The trial
court concluded that Mother had substantially prevailed in her defense against
the Grandparents’ petition for grandparent visitation and ordered Grandparents
to be responsible for $10,000 of Mother’s attorney fees. Grandparents now
appeal the visitation order and the attorney fee order. Mother requests an
award of appellate attorney fees for defending this appeal.
Discussion and Decision I. Grandparent Visitation A. Standard of Review [9] When ruling on a petition for grandparent visitation rights, the court must enter
findings of fact and conclusions thereon in accordance with Trial Rule 52. See
Ind. Code § 31-17-5-6; Ind. Trial Rule 52(A). We conduct a two-tiered review
of those findings, first determining “whether the evidence supports the findings
and then whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H.,
903 N.E.2d 453, 457 (Ind. 2009). We do not reweigh the evidence, Stonger v.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 8 of 20 Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give “due regard . . . to the
opportunity of the trial court to judge the credibility of the witnesses[,]” T.R.
52(A). We “shall not set aside the findings or judgment unless clearly
erroneous[.]” T.R. 52(A). Findings are clearly erroneous when the record
contains no facts to support them, either directly or by inference. Fischer v.
Heymann, 12 N.E.3d 867, 870 (Ind. 2014). However, in this case, Grandparents
have not challenged any of the factual findings, and we therefore accept them as
proven. Coles v. McDaniel, 117 N.E.3d 573, 576 (Ind. Ct. App. 2018). “A
judgment is clearly erroneous when there is no evidence supporting the findings
or the findings fail to support the judgment.” K.I., 903 N.E.2d at 457. A
judgment is also clearly erroneous when the court “applies the wrong legal
standard to properly found facts.” Id. We give substantial deference to the trial
court in a family law matter. Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560
(Ind. Ct. App. 2012), trans. denied.
B. Visitation Order [10] “Indiana has enacted legislation . . . recogniz[ing] that ‘a child’s best interest is
often served by developing and maintaining contact with his or her
grandparents.’” In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015)
(quoting K.I., 903 N.E.2d at 462). Indiana Code section 31-17-5-1 gives
grandparents the right to seek visitation, and a court may grant visitation if it
“determines that visitation rights are in the best interests of the child.” Ind.
Code § 31-17-5-2(a). Notably, however, natural parents have a “fundamental
constitutional right to direct their children’s upbringing without undue
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 9 of 20 governmental interference[.]” In re Visitation of M.L.B., 983 N.E.2d 583, 586
(Ind. 2013). Thus, to “strik[e] a balance” between the interests of parents and
children, visitation orders must address:
(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests (thus placing the burden of proof on the petitioning grandparents);
(2) the “special weight” that must therefore be given to a fit parent’s decision regarding nonparental visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the presumption);
(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a denial means the very existence of a child-grandparent relationship is at stake, while the question otherwise is merely how much visitation is appropriate); and
(4) whether the petitioning grandparent has established that visitation is in the child’s best interests.
Id. (emphasis omitted). The Grandparent Visitation Act (the “Act”)
“contemplates only occasional, temporary visitation that does not substantially
infringe on a parent’s right to control the upbringing, education, and religious
training of their children.” K.I., 903 N.E.2d at 462 (internal quotations and
citations omitted).
[11] Grandparents are entitled to seek visitation rights because their son, T.R.’s
father, is deceased. Ind. Code § 31-17-5-1(a)(1). They argue that the trial court
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 10 of 20 erred in granting their petition but imposing conditions on their visitation with
T.R., as the Act does not “address supervised or therapeutic, supervised
visitation rights.” Brief of Appellants at 14. Instead, they assert the Act
“generally references authority to grant visitation rights, and the intent and
purpose with that authority is that those visitation rights [be] without
restriction[.]” Id. Grandparents specifically challenge that the initial visits were
to be therapeutic and supervised visits and that they were ordered to obtain
psychological evaluations and participate in counseling.
[12] Citing Indiana Code section 31-17-4-1(a), which concerns parenting time, and
which states that “a parent not granted custody of the child is entitled to
reasonable parenting time rights unless the court finds, after a hearing, that
parenting time by the noncustodial parent might endanger the child’s physical
health or significantly impair the child’s emotional development[,]”
Grandparents argue that a court may not restrict grandparent visitation unless
there is a showing that such visitation will endanger the child. They assert that
the evidence does not support, and the trial court did not find, endangerment
here. There is a fundamental difference between the rights of parents and the
rights of grandparents: parents have a constitutionally recognized fundamental
liberty interest in the upbringing of their children, but grandparents are not
afforded the same legal rights or obligations as parents and do not have a
constitutional liberty interest in visitation with their grandchildren. In re L-
A.D.W., 38 N.E.3d at 998. Instead, a grandparent’s right to seek visitation is
solely a product of legislation and “grandparent visitation is not to be confused
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 11 of 20 with the rights of the custodial parent.” Id. Accordingly, section 31-17-4-1(a),
which allows restriction of parenting time only in a case showing
endangerment, has no application to this grandparent visitation case.
[13] From our review of caselaw, it appears that ordering supervised visits for
grandparents is a common practice. See, e.g., In re Guardianship of C.R., 22
N.E.3d 657, 660 (Ind. Ct. App. 2014) (on remand from an appeal in which this
court instructed the trial court to modify its order for grandparent visitation to
provide, inter alia, that visitation will be supervised, trial court ordered that
grandparents were entitled to exercise supervised visitation up to twelve hours
per month); In re Visitation of C.S.N., 14 N.E.3d 753, 756 (Ind. Ct. App. 2014)
(trial court ordered that grandparents and grandchild have a “six-week
transition period of both supervised and unsupervised visits” before
grandparents were entitled to a regular schedule of unsupervised visitation).
“[I]n the case of grandparent visitation, the custodial parent’s right to direct the
upbringing of the child remains paramount.” In re L-A.D.W., 38 N.E.3d at 998.
Just as the amount of grandparent visitation is left to the sound discretion of the
trial court, K.I., 903 N.E.2d at 462, the conditions under which visitations will
occur should also be within the trial court’s discretion, as the paramount
consideration is that the visitation be in the child’s best interests, Ind. Code §
31-17-5-2(a). “[T]rial courts should be able to consider the various
circumstances presented in each individual case to determine what is in the
child’s best interest.” In re L-A.D.W., 38 N.E.3d at 1001. Based on the trial
court’s findings, conclusions, and the applicable law, the trial court’s judgment
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 12 of 20 imposing conditions on Grandparents’ visitation with T.R. is not clearly
erroneous.2
[14] We must also note that we agree with Mother that Grandparents’ assertion that
the trial court does not have legal authority to place conditions on their
visitation “implies that the trial court had only two options, either to deny the
Grandparents’ Petition or to grant the Petition and identify a [visitation]
schedule without restrictions.” Brief of Appellee at 20. And in this case, it is
clear from the trial court’s findings that without the restrictions, it would have
denied the petition. The trial court presumed that as a fit parent, Mother’s
decision was in T.R.’s best interests and concluded that Grandparents had not
rebutted that presumption because it was not persuaded that Grandparents
could “keep their feelings about [Mother] separate and distinct from their time
with [T.R.] given the campaign undertaken against [Mother.]” Appealed Order
at 5, ¶ 43. The trial court took particular note that Grandparents had “chosen a
course of action in which they have willingly not participated” in T.R.’s life
until filing this action, id. at ¶ 48 (emphasis added), and concluded it would not
be in T.R.’s best interests for Grandparents to have unfettered access to him
unless and until they sought psychological intervention. Were it not for the trial
2 As for the condition that Grandparents obtain psychological evaluations and attend counseling, Grandparents indicated they would be willing to undergo such evaluations and to attend counseling if the evaluations recommended it. See Tr., Vol. 2 at 153-54, 222; Tr. Vol. 3 at 19. The trial court noted as much in its order. See Appealed Order at 4, ¶ 31. This is essentially invited error: Grandparents cannot claim the trial court erred when it ordered evaluations and counseling they agreed to undergo. Invited error is not subject to appellate review. Hickey v. Hickey, 111 N.E.3d 242, 246 (Ind. Ct. App. 2018).
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 13 of 20 court giving some weight to Mother’s recognition of the importance of
Grandparents’ role in T.R.’s life and her willingness to allow visitation under
certain conditions, the trial court’s other findings and conclusions would not
have supported granting the petition for grandparent visitation. Thus,
Grandparents have essentially looked a gift horse in the mouth by seeking to
strike the very conditions that allow them to have visitation with T.R. at all.
II. Attorney Fees [15] The trial court ordered Grandparents to pay $10,000 of Mother’s attorney fees.
The order does not state the authority upon which the trial court relied to award
attorney fees, but it makes findings about each party’s employment status and
concludes that Mother “has substantially prevailed in her defense” against
Grandparents’ petition. Appealed Order at 7, ¶ 54. “As such, and in
consideration of the resources and income of the parties,” Grandparents were
ordered to pay $10,000 of Mother’s attorney fees at a rate of $1,000 per month
until paid in full. Id. at ¶¶ 54, 55. Grandparents contend the trial court lacked
authority to award attorney fees.
[16] Indiana follows the “American Rule” with respect to the payment of attorney
fees, which requires each party to pay his or her own attorney fees in the
absence of an agreement between the parties, statutory authority, or rule to the
contrary. Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans.
denied. Mother defends the trial court’s order by citing to Indiana Code sections
31-17-7-1 and 34-52-1-1.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 14 of 20 [17] Indiana Code section 31-17-7-1(a) (the “Costs and Attorney’s Fees” section of
the “Family Law: Custody and Visitation” article of the Indiana Code) allows
a trial court to periodically order one party to pay the other’s attorney fees in
proceedings under Indiana Code chapter 31-17-2 (actions for child custody and
modification of child custody orders), chapter 31-17-4 (actions for parenting
time), and chapter 31-17-6 (actions for appointment of guardians ad litem and
court appointed special advocates). The language of the trial court’s order,
including its consideration of the parties’ resources and the conclusion that
Mother substantially prevailed, seems to indicate the order may have emanated
from this provision and the authority it provides to award attorney fees in a
parenting time action. See Ind. Code § 31-17-4-3(b) (stating that in determining
whether to award reasonable attorney fees in an action to enforce or modify
parenting time, the court may consider whether the party asking for fees
“substantially prevailed”); In re B.J.N., 19 N.E.3d 765, 771 (Ind. Ct. App. 2014)
(noting that in the context of a parenting time action, the trial court must
consider, among other things, the resources of the parties in making an award
of attorney fees). However, this section is inapplicable to this case for two
reasons: one, this is not an action for parenting time, 3 and two, the Act is not
included amongst the chapters to which section 31-17-7-1 applies. Section 31-
3 Despite there being a clear distinction between parenting time and grandparent visitation, Mother’s brief uses the term “parenting time” nearly twenty times in reference to Grandparents’ petition. See Br. of Appellee at 12 (“The trial court was given the unenviable task of crafting a parenting time arrangement for these grieving Grandparents . . . .”) (emphasis added).
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 15 of 20 17-7-1 does not provide authority to order a party to pay for the opposing
party’s fees in a grandparent visitation action.
[18] Indiana Code section 34-52-1-1(b) provides that the court in a civil action “may
award attorney fees as part of the cost to the prevailing party” if it finds that
either party brought an action or continued to litigate an action that is frivolous,
unreasonable, or groundless or litigated the action in bad faith. With respect to
an attorney fee award under section 34-52-1-1, we first review the trial court’s
findings of fact under the clearly erroneous standard, and we then review de
novo its legal conclusions. Knowledge A–Z, Inc. v. Sentry Ins., 857 N.E.2d 411,
423 (Ind. Ct. App. 2006), trans. denied. We review the trial court’s decision to
award attorney fees and the amount of fees under an abuse of discretion
standard. Id. A claim is frivolous if it is made primarily to harass or
maliciously injure another, if counsel is unable to make a good faith and
rational argument on the merits of the claim, or if counsel is unable to support
the action by a good faith and rational argument for extension, modification, or
reversal of existing law. Id. at 424. A claim is unreasonable if, based upon the
totality of the circumstances, including the law and facts known at the time of
filing the claim, no reasonable attorney would consider the claim justified or
worthy of litigation. Id. A claim is groundless if no facts exist which support
the legal claim relied upon and presented by the losing party. Id. A claim is
litigated in bad faith if the party presenting the claim is affirmatively operating
with furtive design or ill will. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 16 of 20 [19] Here, Mother made no claim to the trial court that Grandparents’ action was
frivolous, unreasonable, groundless, or litigated in bad faith, and the trial court
made no findings along those lines. Mother argues on appeal that
Grandparents’ actions since receiving Mother’s October 2016 letter “support[] a
conclusion that Grandparents are litigating in bad faith and are motivated by
their ill will toward Mother.” Br. of Appellee at 28. We acknowledge that
neither party might have incurred attorney fees if Grandparents had not
withdrawn themselves from the family initially or filed suit for visitation
without first initiating a conversation with Mother. However, Grandparents
testified they thought Mother was cutting off their relationship with T.R. when
she wrote them the October 2016 letter. Under these circumstances, we cannot
say that Grandparents were acting in bad faith.
[20] Moreover, section 34-52-1-1 applies only to the prevailing party. A “prevailing
party” is one “who successfully prosecutes his claim or asserts his defense.”
Allstate Ins. Co. v. Axsom, 696 N.E.2d 482, 486 (Ind. Ct. App. 1998), trans. denied.
Grandparents sought an order granting them visitation with T.R.; the trial court
granted their petition. Although the trial court also imposed conditions on the
visitation in accordance with Mother’s wishes, we cannot say she was the
prevailing party in this litigation. For these reasons, section 34-52-1-1 does not
provide authority for an award of attorney fees in this case.
[21] In the absence of any statutory authority supporting such an award at the trial
court level, the trial court erred in ordering that Grandparents pay a portion of
Mother’s attorney fees.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 17 of 20 III. Cross-Appeal: Appellate Damages [22] Mother requests appellate attorney fees be awarded to her pursuant to Indiana
Appellate Rule 66(E), which provides for the assessment of damages “if an
appeal . . . is frivolous or in bad faith. Damages shall be in the Court’s
discretion and may include attorneys’ fees.” The discretion to award damages
under this rule is limited to instances when an appeal is “permeated with
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of
delay.” Poulard v. LaPorte Cty. Election Bd., 922 N.E.2d 734, 737 (Ind. Ct. App.
2010). We use extreme restraint in exercising our power to award damages on
appeal because of the potential chilling effect on the exercise of the right to
appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010).
Therefore, we require a “strong showing . . . to justify an award of appellate
damages, and the sanction is not imposed to punish mere lack of merit, but
something more egregious.” Id.
[23] Mother argues that Rule 66(E) damages are warranted because “Grandparents
continue to target Mother unfairly, unnecessarily and without justification,
thereby causing her to incur needless attorney fees.” Br. of Appellee at 14.
This is essentially a claim of substantive bad faith – “conscious wrongdoing
because of dishonest purpose or moral obliquity.” Harness, 924 N.E.2d at 168
(internal quotation omitted). As noted above, Grandparents appealed the trial
court’s order as improperly imposing conditions on their visitation with T.R.
despite agreeing that they would undergo psychological evaluations and
participate in counseling as ultimately ordered and despite the trial court clearly
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 18 of 20 indicating that they had not proven visitation was in T.R.’s best interests
without psychological intervention and supervision. The trial court’s order
went in Grandparents’ favor only because of Mother’s position that a
relationship between Grandparents and T.R. was important. By challenging
terms to which they had previously agreed in hopes of overriding Mother’s very
real concerns and gaining immediate unconditional access to T.R.,
Grandparents not only demonstrated disregard for making decisions in T.R.’s
best interests but also ran the very real risk of losing any access to him.
Grandparents have frivolously and unreasonably prolonged this legal process
for the prospect of little to no return.
[24] As for the trial attorney fees issue, although we have concluded there was no
legal basis to award the fees, we would be remiss not to note that both parties
filed motions in the trial court seeking payment of their attorney fees by the
other side. Despite their position now, after having been ordered to pay a
portion of Mother’s attorney fees, Grandparents must have thought at some
point that the trial court had authority to order fees in their favor and no doubt
would have as vigorously defended that award as they now condemn it.
[25] We are cognizant of the chilling effect that an award of appellate damages can
have on litigants, but we believe that Mother has shown “something more”
than a lack of merit in Grandparents pursuit of this appeal. See Harness, 924 at
168. She has shown that Grandparents’ appeal is permeated with efforts to
harass and vex her and shows disregard for the true best interests of their
grandson. See Poulard, 922 N.E.2d at 737. Moreover, Grandparents are now
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 19 of 20 contesting something they agreed to in the trial court. Therefore, an award of
appellate damages in Mother’s favor is appropriate, and we remand to the trial
court for a determination of appellate damages to which Mother may be
entitled pursuant to Appellate Rule 66(E).
Conclusion [26] The trial court did not abuse its discretion in crafting a grandparent visitation
order appropriate to T.R.’s best interests. There is no authority supporting the
trial court’s award of attorney fees to Mother, but we conclude an award of
appellate damages is appropriate in this case. We therefore affirm the trial
court’s order in part, reverse in part, and remand for the trial court to determine
the appropriate amount of appellate damages, which award may include an
appropriate amount of appellate attorney fees.
[27] Affirmed in part, reversed in part, and remanded.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019 Page 20 of 20