In re the Paternity of A.D.: Abram M. Dwyer v. Lindsy L. (Redden) Eickhoff (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 23, 2016
• Docket: 82A01-1512-JP-2308
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 23 2016, 6:36 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jared Michel Thomas Thomas A. Massey Evansville, Indiana Massey Law Offices, LLC Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Paternity of A.D.: August 23, 2016 Court of Appeals Case No. 82A01-1512-JP-2308 Abram M. Dwyer, Appeal from the Vanderburgh Appellant-Defendant, Superior Court The Honorable Leslie C. Shively, v. Judge Trial Court Cause No. Lindsy L. (Redden) Eickhoff, 82D01-0909-JP-601 Appellee-Plaintiff.

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 1 of 13 Case Summary [1] Abram Dwyer (“Father”) and Lindsy Eickhoff (“Mother”) are the parents of a

daughter, A.D. Between 2013 and 2015, they made numerous filings relating

to the custody of A.D., including several petitions to modify custody and

petitions to have the other parent found in contempt. Following a hearing, the

trial court (1) granted sole legal custody to Mother, (2) ordered Father to obtain

the court’s permission before filing any further custody-modification or

contempt petitions, and (3) ordered Father to pay $10,000 of Mother’s

attorney’s fees. We affirm the first two rulings but remand for revision of the

award of attorney’s fees.

Facts and Procedural History 1

[2] This case concerns the custody of A.D., who was born to Mother and Father in

2008. In March 2010, the trial court approved an agreed entry that established

Father’s paternity, granted primary physical custody to Mother and parenting

time to Father, and gave the parties joint legal custody. The parties amended

their agreement slightly in December 2011. Then, in November 2013, Father,

acting pro se, filed a petition to modify in which he sought additional weekday

overnights during the school year. Over the next six months, the parties made

1 Father’s Statement of the Case and Statement of Facts do not include any citations to his appendix, in violation of Indiana Appellate Rules 22(C) and 46(A)(5)-(6). His brief does not include a Summary of Argument, in violation of Rule 46(A)(7). And 338 of the 555 pages in his appendix consist of a complete reproduction of the separately filed transcript and exhibits, in violation of Rule 50(F).

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 2 of 13 additional filings accusing each other of contempt. In early June 2014, the trial

court held a hearing and issued an order in which it denied Father’s petition to

increase his parenting time, rejected Father’s contempt claim against Mother,

found Father in contempt for wrongfully claiming A.D. as a dependent on his

2012 tax return, and ordered him to pay $500 in attorney’s fees to Mother. The

court concluded its order as follows: “Father is warned against excessive

requests for additional parenting time. He shall not harass or annoy mother in

this regard.” Appellee’s App. p. 4.

[3] Notwithstanding that warning, two months later, in August 2014, Father filed

another petition to modify, again seeking additional weekday overnights during

the school year. The trial court held a hearing on September 3, 2014, and two

weeks later issued an order denying Father’s petition to modify and directing

Father to pay the previously awarded $500 in attorney’s fees by the end of the

month.

[4] On June 29, 2015, Father filed a third petition seeking additional weekday

overnights during the school year, as well as an Information for Contempt in

which he accused Mother of various wrongdoing. On July 24, 2015, Mother

filed her own Information for Contempt, Petition to Modify, and Petition for

Attorney’s Fees from Father. Among other things, Mother asked the trial court

to give her sole legal custody of A.D. and to award her attorney’s fees “in an

amount sufficient to deter the Father from future frivolous and harassing

conduct.” Appellant’s App. p. 160. Over the next three-and-a-half months,

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 3 of 13 Father filed four more petitions to modify and three more informations for

contempt.

[5] The trial court held a hearing on all of the parties’ motions on November 17,

2015. From the bench, the trial court denied all of Father’s petitions to modify

and rejected all of his claims of contempt against Mother, and it granted

Mother’s request for sole legal custody and ordered Father to pay $10,000

toward Mother’s attorney’s fees within 180 days. After the judge left the

courtroom, Father engaged in some sort of “inappropriate conduct,” prompting

the judge to return and admonish him. Tr. p. 171-73.

[6] In a written order issued after the hearing, the trial court laid out the reasons for

its rulings. Regarding legal custody, the court wrote:

The Court finds overwhelming evidence establishes the Father’s unwillingness to work with the Mother on joint legal custody decisions for [A.D.]. As the sole result of the Father’s conduct, the joint legal custody Order has become unreasonable, unworkable, and certainly not in [A.D.’s] best interests. The Court finds the Mother has been extremely patient, civil, and at all times appropriate in her dealings with the Father regarding [A.D.].

Appellant’s App. p. 52. The court also explained that all of Father’s pending

petitions to modify and informations for contempt were “frivolous and without

merit” and ordered him to seek leave of court before filing any such documents

in the future. Id. at 53. Addressing its award of attorney’s fees to Mother, the

court wrote that “Father’s frivolous, repetitive, and harassing pleadings filed

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 4 of 13 with the Court over the past 14 months were the sole cause for the Mother to

incur attorney’s fees in defense thereof[.]” Id. at 54. Finally, in light of Father’s

post-hearing behavior, the trial court sua sponte issued an order “restraining

and enjoining the Father from harassing or bothering the Mother at any time or

place.” Id. at 55.

[7] Father now appeals.

Discussion and Decision [8] Father challenges the trial court’s legal custody ruling, its order restricting his

ability to file further motions, and its award of attorney’s fees to Mother. Such

determinations lie within the discretion of the trial court. See Higginbotham v.

Higginbotham, 822 N.E.2d 609, 611 (Ind. Ct. App. 2004) (legal custody); Allied

Prop. and Cas. Ins. Co. v. Good, 919 N.E.2d 144, 154 (Ind. Ct. App. 2009)

(sanctions); In re Paternity of M.R.A., 41 N.E.3d 287, 296 (Ind. Ct. App. 2015)

(attorney’s fees). As such, we will reverse only if the decision is clearly against

the logic and effect of the facts and circumstances before the trial court.

Higginbotham, 822 N.E.2d at 611. In considering Father’s arguments, we are

guided by the “well-established preference in Indiana for granting latitude and

deference to our trial judges in family law matters.” Steele-Giri v. Steele, 51

N.E.3d 119, 125 (Ind. 2016).

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 5 of 13 I. Legal Custody [9] Father argues that the trial court abused its discretion by finding that joint legal

custody is no longer workable.2 In paternity proceedings, the question of joint

legal custody is governed by Indiana Code section 31-14-13-2.3, which

provides, in subsection (a), that “the court may award legal custody of a child

jointly if the court finds that an award of joint legal custody would be in the best

interest of the child.” In turn, subsection (c) provides:

(c) In determining whether an award of joint legal custody under this section would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint legal custody have agreed to an award of joint legal custody. The court shall also consider:

(1) the fitness and suitability of each of the persons awarded joint legal custody;

(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child’s welfare;

(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;

2 Father does not make the argument that he, rather than Mother, should be the custodian if sole legal custody is appropriate. Therefore, we need only address the trial court’s determination that joint legal custody is no longer workable.

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 6 of 13 (4) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;

(5) whether the persons awarded joint legal custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so;

(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and

(7) whether there is a pattern of domestic or family violence.

[10] As stated, the primary consideration in determining whether joint legal custody

is appropriate is whether “the persons awarded joint legal custody have agreed

to an award of joint legal custody.” Here, the parties originally reached such an

agreement, but that has obviously changed. This lack of agreement weighs

heavily in favor of the trial court’s decision to modify the parties’ arrangement.

[11] In addition, we have held that consideration (2)—“whether the persons

awarded joint custody are willing and able to communicate and cooperate in

advancing the child’s welfare”—is “[p]articularly germane to whether joint

legal custody should be modified[.]” Julie C. v. Andrew C., 924 N.E.2d 1249,

1260 (Ind. Ct. App. 2010) (addressing issue in dissolution context, under

Indiana Code section 31-17-2-15). If the record before us demonstrates

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 7 of 13 anything, it is that Father and Mother are currently unable to communicate and

cooperate, even with regard to relatively minor issues. Things have gotten so

bad that the trial court found it necessary to sua sponte issue an order

“restraining and enjoining the Father from harassing or bothering the Mother at

any time or place.” Therefore, we cannot say that the trial court abused its

discretion by terminating joint legal custody and awarding sole legal custody to

Mother. See Higginbotham, 822 N.E.2d at 612 (affirming modification to sole

legal custody where record demonstrated “breakdown in communication and

cooperation”); Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001)

(affirming modification to sole legal custody where parents “cannot work and

communicate together to raise the children”); cf. Julie C., 924 N.E.2d 1249, 1260

(Ind. Ct. App. 2010) (affirming grant of joint legal custody where one parent

testified that parties “communicate best through email and respond fairly

promptly to each other”); Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct.

App. 2008) (affirming grant of joint legal custody where parties “demonstrated

their general ability to communicate and work together to raise their children”);

Walker v. Walker, 539 N.E.2d 509, 513 (Ind. Ct. App. 1989) (affirming grant of

joint legal custody where the parties “demonstrated a willingness and ability to

communicate and cooperate”).

II. Restriction on Filing [12] Father also contends that he “has not exhibited the characteristics of an abusive

litigant” and that the trial court therefore abused its discretion by requiring him

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 8 of 13 to seek leave of court before filing any new petitions to modify, informations for

contempt, or similar documents. Appellant’s Br. p. 19. We disagree.

[13] Father filed seven petitions to modify in less than two years, including five in

just a few months in 2015, most of them seeking relief that had already been

denied: additional weekday overnights during the school year. He did so after

being explicitly warned, in June 2014, “against excessive requests for additional

parenting time.” Appellee’s App. p. 4. He also filed four informations for

contempt during the same stretch in 2015, all of which the trial court found to

be frivolous and without merit.

[14] Father points out that he alleged new and different facts in each of his filings

and asserts that this distinguishes him from abusive litigants who file

“repetitive” motions. As just noted, though, Father’s petitions to modify were

repetitive, at least on the issue of additional weekday overnights. And, in any

event, a filing can be frivolous and meritless even if it is not “repetitive.” Father

focuses entirely on the issue of repetition and makes no effort to refute the trial

court’s conclusion that his petitions were frivolous and harassing.

[15] We have recognized the inherent power of our trial courts to impose sanctions

in order to maintain their dignity, secure obedience to their process and rules,

rebuke interference with the conduct of business, and punish unseemly

behavior. Good, 919 N.E.2d at 152 (citing City of Gary v. Major, 822 N.E.2d 165,

169 (Ind. 2005)). This power “enables courts to protect their institutional

integrity and to guard against abuses of the judicial process with contempt

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 9 of 13 citations, fines, awards of attorneys’ fees, and such other orders and sanctions

as they find necessary[.]” Id. at 153 (quoting Shepherd v. Am. Broad. Cos., Ind.,

62 F.3d 1469, 1472 (D.C. Cir. 1995)). More recently, our Supreme Court

explained, “The courts of this state, after due consideration of an abusive

litigant’s entire history, may fashion and impose reasonable conditions and

restrictions . . . on the litigant’s ability to commence or continue actions in this

state that are tailored to the litigant’s particular abusive practices.” Zavodnik v.

Harper, 17 N.E.3d 259, 266 (Ind. 2014).

[16] Here, we conclude that the trial court acted within its discretion when it found

that Father has become an abusive litigant and that some sort of filing limit is

necessary to protect Mother from his harassment. Furthermore, while the trial

court imposed an additional procedural requirement for the filing of certain

documents in the future, it did not bar any type of filing entirely. In other

words, Father will still be able to go to the court when he believes that court

action is justified; only those petitions that are patently frivolous or redundant

would be rejected. Under the circumstances, we decline to disturb the modest

restriction imposed by the trial court.

III. Attorney’s Fees [17] Finally, Father argues that Mother was barred by the doctrine of res judicata

from seeking reimbursement for any attorney’s fees incurred before the trial

court’s September 2014 order and that the trial court therefore abused its

discretion by including such fees in its award to Mother. Mother does not

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 10 of 13 respond to Father’s res judicata argument, which means that Father need only

establish prima facie error to prevail. See Front Row Motors, LLC v. Jones, 5

N.E.3d 753, 758 (Ind. 2014). We conclude that Father has done so.

[18] First, even though the trial court’s written attorney’s-fees order referred to

Father’s misconduct “over the past 14 months,” i.e., since the previous order in

September 2014, see Appellant’s App. p. 54, it is apparent that the court’s award

to Mother included at least some fees incurred before the court’s September

2014 order. At the hearing on November 17, 2015, Mother testified that, as of

November 6, 2015, she had paid $6,804.80 in fees and still owed $3,290.16, a

total of $10,094.96.3 Mother did not provide any sort of itemization, but when

questioned by the court, Mother explained that these were all of the fees she

had incurred since Father’s original petition to modify in November 2013.

Having heard Mother’s testimony, the trial court ordered Father to pay

$10,000, essentially the full amount.

[19] In support of his res judicata claim, Father cites Small v. Centocor, Inc., where we

explained:

The doctrine of res judicata bars litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies. The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute. The

3 Mother also testified that she would be responsible for additional fees relating to her attorney’s preparation for and attendance at the November 17, 2015 hearing, but she did not specify a dollar figure.

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 11 of 13 following four requirements must be satisfied for a claim to be precluded under the doctrine of res judicata: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.

731 N.E.2d 22, 26 (Ind. Ct. App. 2000) (citations omitted, emphasis added),

reh’g denied, trans. denied. Here, it is undisputed that the trial court awarded

attorney’s fees to Mother in its June 2014 order and that it reiterated that award

in its September 2014 order. Moreover, even if all possible fee issues were not

raised by Mother and determined by the trial court at that time, they certainly

could have been. The doctrine of res judicata bars the litigation of both matters

that have already been determined and those that “could have been”

determined. See id. Father has demonstrated at least prima facie error on the

issue of attorney’s fees. Therefore, we remand this matter to the trial court with

instructions to issue a revised fee award that excludes any fees incurred by

Mother before the court’s September 2014 order.4

[20] Affirmed in part and remanded in part.

4 Father also argues that the trial court abused its discretion by ordering him to pay the full $10,000 within 180 days without first inquiring into his ability to do so. In light of our remand of the attorney’s-fees issue, we need not address this argument. If the trial court includes a time limit in its revised fee award, Father is free to raise an ability-to-pay objection.

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 12 of 13 Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016 Page 13 of 13