MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 04 2016, 6:06 am
regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Andrea L. Ciobanu Alex Beeman Ciobanu Law, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael C. Feldhake, February 4, 2016 Appellant-Respondent, Court of Appeals Case No. 49A02-1509-DR-1332 v. Appeal from the Marion Superior Court Meryle Lowe (Feldhake), The Honorable Michael Keele, Appellee-Petitioner Judge The Honorable Victoria M. Ransberger, Magistrate Trial Court Cause No. 49D07-1304-DR-15091
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 1 of 7 [1] Michael Feldhake appeals the judgment of the trial court (1) finding that Meryle
Lowe complied with the trial court’s previous order to pay Feldhake $1,200 and
(2) ordering Feldhake to pay $750 in attorney fees. Acknowledging that the
evidence presented by Lowe regarding her payment appears to be quite
dubious, we are nevertheless compelled to affirm the trial court’s decision given
our standard of review.
Facts [2] This is the second case before us arising from the dissolution of Feldhake and
Lowe’s marriage. The facts relating to the dissolution are laid out in our
previous memorandum decision and we will not recount them here. Feldhake v.
Feldhake, No. 49A04-1405-DR-250 (Ind. Ct. App. Feb. 25, 2015). Our previous
decision involved Feldhake’s challenge to various aspects of the trial court’s
division of property. We largely affirmed the trial court, but remanded for the
limited purpose of determining whether Lowe had complied with a provisional
order, which required her to pay Feldhake $600 a month to cover mortgage
payments for the months of December 2013 and January 2014. Id. at 6.
[3] On March 6, 2015, the trial court issued an order on the remanded issues,
ordering Lowe to either prove that she had already made the payments or pay
Feldhake the $1,200 owed. The trial court gave Lowe forty-five days to comply
with this order. On April 17, 2015, Lowe attempted to prove that she had made
the payments by submitting a “Verified Notice of Partial Compliance with
Order of Remanded Issues” to the trial court. Appellant’s App. p. 21-22.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 2 of 7 Attached to the notice were copies of checks for $600 each, which purported to
cover amounts due in November and December 2013. However, the
November 2013 payment had never been at issue and the notice, quite
inexplicably, contained no documentation of, or even reference to, the January
2014 payment that was at issue. Feldhake was suspicious that the copies of the
checks may have been forgeries, as he believed, mistakenly, that one of the
checks had been cashed before it had been signed. He filed a response to
Lowe’s notice on April 22, 2015, arguing that Lowe had not complied with the
trial court’s order “and maybe committed fraud on the court.” Id. at 30. On
May 11, 2015, he filed a motion for Lowe to show cause as to why she should
not be held in contempt.
[4] On July 23, 2015, the trial court held a summary hearing on all pending issues.
As to whether Lowe had made the January payment, Lowe’s counsel presented
the only evidence on the issue, stating that Lowe’s “testimony would be she
made a cash payment around that time to [Feldhake’s] friend Ricky to provide
to [Feldhake].” Tr. p. 8. On July 30, 2015, the trial court denied Feldhake’s
contempt petition. The trial court held that Lowe had “demonstrated she
satisfied her obligation to pay the mortgage payments” and that “the checks
were not in fact fraudulent.” Appellant’s App. p. 56. It further found that
Lowe “incurred attorney’s fees to address this wrongful allegation” and ordered
Feldhake to pay Lowe $750. Id. at 57. Feldhake now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 3 of 7 Discussion and Decision [5] Although neither party to this case requested that the trial court make findings
of fact before rendering its judgment, the trial court did so sua sponte. When a
trial court makes findings on its own motion, the general judgment will control
as to the issues upon which the court has not found and the specific findings
will control as to the issues they cover. In re Marriage of Snemis, 575 N.E.2d 650,
653 (Ind. Ct. App. 1991). We will reverse the trial court’s findings only if they
are clearly erroneous and the general judgment will be affirmed if it can be
sustained upon any legal theory supported by the evidence produced at trial. Id.
[6] The proceedings at issue here were conducted in summary fashion. Our
Supreme Court has observed that
[s]ummary proceedings function to efficiently resolve disputes by allowing parties and the court to forego the use of formal rules of procedure and evidence and instead allow the court to base its findings and conclusions upon the arguments of counsel and limited evidence. Summary proceedings commonly take place when parties are not disputing essential facts, but rather the legal outcome compelled by those facts.
Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind. 2015) (emphasis added).
[7] In this case, the hearing was held to determine essentially one disputed fact—
whether Lowe had made the January payment. As such, summary proceedings
were plainly not ideal. However, it appears from the record that both parties
agreed to summary proceedings and raised no objection. See tr. p. 5, 11-12. As
both parties chose to forego the possible advantages of an evidentiary hearing, Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 4 of 7 any challenge to the nature of these proceedings has been waived. Bogner, 29
N.E.3d at 740.
[8] Feldhake first argues that the trial court erred in finding that Lowe made the
January payment. He argues that the November and December checks cannot
possibly support an inference that a January payment was made. He further
argues that counsel’s statement that Lowe’s “testimony would be she made a
cash payment around that time to [Feldhake’s] friend Ricky to provide to
[Feldhake],” was “dismissed” by the trial court. Tr. p. 8; Appellant’s Br. p. 15.
[9] While we agree with Feldhake that the November and December checks cannot
possibly be construed as evidence of a January payment, we cannot agree that
Lowe’s testimony regarding payment she made to Ricky was dismissed by the
trial court. See tr. p. 8. Our own skepticism aside, this statement, if believed,
would have provided the trial court a basis for finding that the January payment
had been made. Though the veracity of this statement could have been, and
certainly should have been, challenged in an evidentiary hearing, Feldhake
chose to forego this opportunity. This Court cannot entertain requests to
reweigh evidence from a paper record.
[10] Feldhake next argues that the trial court erred in awarding Lowe $750 in
attorney fees. Indiana Code section 31-15-10-1(a) grants the trial court
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 04 2016, 6:06 am
regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Andrea L. Ciobanu Alex Beeman Ciobanu Law, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael C. Feldhake, February 4, 2016 Appellant-Respondent, Court of Appeals Case No. 49A02-1509-DR-1332 v. Appeal from the Marion Superior Court Meryle Lowe (Feldhake), The Honorable Michael Keele, Appellee-Petitioner Judge The Honorable Victoria M. Ransberger, Magistrate Trial Court Cause No. 49D07-1304-DR-15091
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 1 of 7 [1] Michael Feldhake appeals the judgment of the trial court (1) finding that Meryle
Lowe complied with the trial court’s previous order to pay Feldhake $1,200 and
(2) ordering Feldhake to pay $750 in attorney fees. Acknowledging that the
evidence presented by Lowe regarding her payment appears to be quite
dubious, we are nevertheless compelled to affirm the trial court’s decision given
our standard of review.
Facts [2] This is the second case before us arising from the dissolution of Feldhake and
Lowe’s marriage. The facts relating to the dissolution are laid out in our
previous memorandum decision and we will not recount them here. Feldhake v.
Feldhake, No. 49A04-1405-DR-250 (Ind. Ct. App. Feb. 25, 2015). Our previous
decision involved Feldhake’s challenge to various aspects of the trial court’s
division of property. We largely affirmed the trial court, but remanded for the
limited purpose of determining whether Lowe had complied with a provisional
order, which required her to pay Feldhake $600 a month to cover mortgage
payments for the months of December 2013 and January 2014. Id. at 6.
[3] On March 6, 2015, the trial court issued an order on the remanded issues,
ordering Lowe to either prove that she had already made the payments or pay
Feldhake the $1,200 owed. The trial court gave Lowe forty-five days to comply
with this order. On April 17, 2015, Lowe attempted to prove that she had made
the payments by submitting a “Verified Notice of Partial Compliance with
Order of Remanded Issues” to the trial court. Appellant’s App. p. 21-22.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 2 of 7 Attached to the notice were copies of checks for $600 each, which purported to
cover amounts due in November and December 2013. However, the
November 2013 payment had never been at issue and the notice, quite
inexplicably, contained no documentation of, or even reference to, the January
2014 payment that was at issue. Feldhake was suspicious that the copies of the
checks may have been forgeries, as he believed, mistakenly, that one of the
checks had been cashed before it had been signed. He filed a response to
Lowe’s notice on April 22, 2015, arguing that Lowe had not complied with the
trial court’s order “and maybe committed fraud on the court.” Id. at 30. On
May 11, 2015, he filed a motion for Lowe to show cause as to why she should
not be held in contempt.
[4] On July 23, 2015, the trial court held a summary hearing on all pending issues.
As to whether Lowe had made the January payment, Lowe’s counsel presented
the only evidence on the issue, stating that Lowe’s “testimony would be she
made a cash payment around that time to [Feldhake’s] friend Ricky to provide
to [Feldhake].” Tr. p. 8. On July 30, 2015, the trial court denied Feldhake’s
contempt petition. The trial court held that Lowe had “demonstrated she
satisfied her obligation to pay the mortgage payments” and that “the checks
were not in fact fraudulent.” Appellant’s App. p. 56. It further found that
Lowe “incurred attorney’s fees to address this wrongful allegation” and ordered
Feldhake to pay Lowe $750. Id. at 57. Feldhake now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 3 of 7 Discussion and Decision [5] Although neither party to this case requested that the trial court make findings
of fact before rendering its judgment, the trial court did so sua sponte. When a
trial court makes findings on its own motion, the general judgment will control
as to the issues upon which the court has not found and the specific findings
will control as to the issues they cover. In re Marriage of Snemis, 575 N.E.2d 650,
653 (Ind. Ct. App. 1991). We will reverse the trial court’s findings only if they
are clearly erroneous and the general judgment will be affirmed if it can be
sustained upon any legal theory supported by the evidence produced at trial. Id.
[6] The proceedings at issue here were conducted in summary fashion. Our
Supreme Court has observed that
[s]ummary proceedings function to efficiently resolve disputes by allowing parties and the court to forego the use of formal rules of procedure and evidence and instead allow the court to base its findings and conclusions upon the arguments of counsel and limited evidence. Summary proceedings commonly take place when parties are not disputing essential facts, but rather the legal outcome compelled by those facts.
Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind. 2015) (emphasis added).
[7] In this case, the hearing was held to determine essentially one disputed fact—
whether Lowe had made the January payment. As such, summary proceedings
were plainly not ideal. However, it appears from the record that both parties
agreed to summary proceedings and raised no objection. See tr. p. 5, 11-12. As
both parties chose to forego the possible advantages of an evidentiary hearing, Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 4 of 7 any challenge to the nature of these proceedings has been waived. Bogner, 29
N.E.3d at 740.
[8] Feldhake first argues that the trial court erred in finding that Lowe made the
January payment. He argues that the November and December checks cannot
possibly support an inference that a January payment was made. He further
argues that counsel’s statement that Lowe’s “testimony would be she made a
cash payment around that time to [Feldhake’s] friend Ricky to provide to
[Feldhake],” was “dismissed” by the trial court. Tr. p. 8; Appellant’s Br. p. 15.
[9] While we agree with Feldhake that the November and December checks cannot
possibly be construed as evidence of a January payment, we cannot agree that
Lowe’s testimony regarding payment she made to Ricky was dismissed by the
trial court. See tr. p. 8. Our own skepticism aside, this statement, if believed,
would have provided the trial court a basis for finding that the January payment
had been made. Though the veracity of this statement could have been, and
certainly should have been, challenged in an evidentiary hearing, Feldhake
chose to forego this opportunity. This Court cannot entertain requests to
reweigh evidence from a paper record.
[10] Feldhake next argues that the trial court erred in awarding Lowe $750 in
attorney fees. Indiana Code section 31-15-10-1(a) grants the trial court
authority to order a party to pay another party’s reasonable attorney fees in a
dissolution of marriage proceeding. The trial court has broad discretion in
awarding attorney fees and we will reverse the award only upon an abuse of
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 5 of 7 discretion. Foley v. Mannor, 844 N.E.2d 494, 501-02 (Ind. Ct. App. 2006). “In
assessing such fees, any misconduct on the part of one of the parties that
directly results in the other party incurring additional fees may be taken into
consideration.” Id. at 502.
[11] Here, the trial court found that
[Feldhake] has indicated to the court that [Lowe] “perpetrated a fraud upon the court” by submitting fraudulent copies of checks to the court. As [Lowe] demonstrated, the checks were not in fact fraudulent.
[Lowe] incurred attorney’s fees to address this wrongful allegation by [Feldhake], in addition to defending [Feldhake’s] unsuccessful contempt petition.
Appellant’s App. p. 56-57.
[12] Feldhake argues that the trial court misconstrued the nature of his contempt
petition. He maintains that Lowe was in contempt for failing to comply with
the trial court’s order to prove that she had paid Feldhake within forty-five days
of the trial court’s order on remand. Feldhake acknowledges that he alleged
that Lowe “maybe committed fraud on the court” by submitting fraudulent
checks. Id. at 30. He contends, however, that the gravamen of his complaint
was that Lowe had simply not abided by the court’s order by failing to even
attempt to prove that the January payment had been made. Feldhake believes
that his speculation as to possible fraudulent checks was not central to his
claim.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 6 of 7 [13] However, the trial court acknowledged that Feldhake’s allegation of check
forgery was not central to his claim, but nevertheless noted that Lowe had
incurred fees to address “this wrongful allegation” in addition to defending the
contempt petition generally. Id. at 57. This is true, as Lowe had to take
additional steps to prove that these checks were authentic. Consequently, the
trial court was within its discretion to award Lowe attorney fees insofar as they
related to defending this allegation. And Feldhake does not dispute the amount
awarded.
[14] We close by noting that we are sympathetic to Feldhake’s argument. Assuming
Lowe was not intentionally trying to mislead the trial court, her attempt to
prove compliance with its order by sending copies of checks for the incorrect
months was still unacceptable by any measure. However, Feldhake’s decision
to agree to summary proceedings invited the trial court to accept unchallenged
evidence. While this evidence may appear slim to us, it is nevertheless
sufficient if it is to be believed. As we have not had the benefit of observing the
parties, we can form no opinion as to their credibility, and cannot conclude that
the judgment was error.
[15] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016 Page 7 of 7