MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 05 2018, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Lindsay D. Solon Andrew P. Simmons Van Gilder & Trzynka, PC Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Olga L. Perkins, April 5, 2018 Appellant-Respondent, Court of Appeals Case No. 02A04-1711-DR-2787 v. Appeal from the Allen Superior Court Robert E. Perkins, The Honorable Charles F. Pratt, Appellee-Petitioner. Judge Trial Court Cause No. 02D07- 1503-DR-374
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Respondent, Olga L. Perkins (Wife), appeals the trial court’s denial
of her motion for attorney fees stemming from the dissolution of her marriage
to Appellee-Petitioner, Robert E. Perkins (Husband).
[2] We reverse and remand.
ISSUE [3] Wife raises one issue on appeal, which we restate as: Whether the trial court
erred by denying Wife’s motion for attorney fees.
FACTS AND PROCEDURAL HISTORY [4] On March 13, 1999, Husband and Wife wed in Wife’s home country,
Columbia. Thereafter, they moved to their marital home in Fort Wayne, Allen
County, Indiana. No children were born during the marriage. In 2014, the
parties separated.
[5] On March 23, 2015, Husband filed a Petition for Annulment or in the
Alternative, Petition for Dissolution. In seeking to have the sixteen-year
marriage annulled, Husband claimed that he had been induced into the
marriage by Wife’s false promise to undergo a surgical procedure for a medical
condition that prevented her from engaging in sexual intercourse. On May 12,
2015, Wife filed a Verified Counter Petition for Dissolution of Marriage. On
August 26, 2015, the trial court issued Provisional Orders, granting Husband
temporary possession of the marital residence and directing him to pay
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 2 of 7 temporary spousal maintenance to Wife. The trial court also ordered Husband
to pay $1,500.00 in preliminary attorney fees to Wife’s attorney.
[6] On March 10, 2016, Wife filed a motion to dismiss Husband’s petition for
annulment pursuant to Indiana Trial Rule 12(B)(6). Wife argued that
Husband’s petition “fails to address any element of voidable marriage and
annulment.” (Appellant’s App. Vol. II, p. 73). On July 21, 2016, following a
hearing, the trial court denied Husband’s petition for an annulment.
[7] On February 10, 2017, and July 6, 2017, the trial court conducted a final
dissolution hearing, at the close of which, the trial court took the matter under
advisement. On July 10, 2017, Wife filed a motion for attorney fees, requesting
that Husband be required to pay $17,316.33 to Wife’s counsel. On November
6, 2017, the trial court issued a Decree of Dissolution. The trial court granted
the divorce and divided the marital property. As to attorney fees, the trial court
found:
[Wife] is requesting that the [c]ourt enter an order requiring [Husband] to pay additional attorney fees in the sum of Seventeen Thousand Three Hundred Sixteen Dollars and thirty- three cents ($17,316.33) for the costs of this action. This action has been litigated over the course of two and one-half years since the date of the filing of the Petition for Dissolution of Marriage. [Wife] received legal representation at no cost to her as her attorney represented her on a pro bono basis. As [Wife] did not incur attorney fees in this matter, the [c]ourt declines to enter an award of attorney fees.
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 3 of 7 (Appellant’s App. Vol. II, p. 26). On December 6, 2017, Husband filed a
motion to correct error, which does not appear to ever have been ruled upon.
[8] Wife now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[9] Pursuant to Husband’s request, the trial court issued specific findings of fact
and conclusions thereon in the Decree of Dissolution. Thus, pursuant to
Indiana Trial Rule 52(A), “we first must determine whether the evidence
supports the findings, and second, whether the findings support the judgment.”
O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). “Findings of fact
are clearly erroneous when the record lacks any evidence or reasonable
inferences from the evidence to support them.” Id. A judgment will be reversed
as being clearly erroneous if our “examination of the record leaves [us] with the
firm conviction that a mistake has been made.” Id. A judgment is also clearly
erroneous “if it applies the wrong legal standard to properly found facts.” Id.
Our court only considers the evidence “favorable to the judgment and all
reasonable inferences flowing therefrom.” Id. We do not reweigh evidence or
judge the credibility of witnesses. Id.
[10] Additionally, we note that Husband has not filed an appellate brief. “When an
appellee fails to submit a brief, we do not undertake the burden of developing
the appellee’s arguments, and we apply a less stringent standard of review.”
Harris v. Harris, 922 N.E.2d 626, 632 (Ind. Ct. App. 2010). Accordingly, we
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 4 of 7 may reverse if the appellant establishes prima facie error. Id. Prima facie error
“means at first sight, on first appearance, or on the face of it.” Everette v.
Everette, 841 N.E.2d 210, 212 (Ind. Ct. App. 2006). This less stringent standard
relieves our court “of the burden of controverting the arguments advanced in
favor of reversal where that burden properly rests with the appellee.” Harris,
922 N.E.2d at 632. Notwithstanding an appellee’s failure to submit a brief, we
review questions of law de novo. Id.
II. Attorney Fees
[11] Wife claims that she is entitled to an award of attorney fees. Indiana Code
section 31-15-10-1 specifically authorizes a court to “order a party to pay a
reasonable amount for the cost to the other party of maintaining or defending
any proceeding under this article and for attorney’s fees . . . .” We review a
trial court’s decision to award or deny a request for attorney fees in connection
with a decree of dissolution under an abuse of discretion standard. Ahls v. Ahls,
52 N.E.3d 797, 802-03 (Ind. Ct. App. 2016). The trial court has broad
discretion in determining whether to award attorney fees, and our court will
reverse only if the trial court’s decision “is clearly against the logic and effect of
the facts and circumstances before it or if it misapplies the law.” Id. at 803.
[12] When deciding whether to award attorney fees in the course of a dissolution,
the trial court “must consider the resources of the parties, their economic
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 05 2018, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Lindsay D. Solon Andrew P. Simmons Van Gilder & Trzynka, PC Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Olga L. Perkins, April 5, 2018 Appellant-Respondent, Court of Appeals Case No. 02A04-1711-DR-2787 v. Appeal from the Allen Superior Court Robert E. Perkins, The Honorable Charles F. Pratt, Appellee-Petitioner. Judge Trial Court Cause No. 02D07- 1503-DR-374
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Respondent, Olga L. Perkins (Wife), appeals the trial court’s denial
of her motion for attorney fees stemming from the dissolution of her marriage
to Appellee-Petitioner, Robert E. Perkins (Husband).
[2] We reverse and remand.
ISSUE [3] Wife raises one issue on appeal, which we restate as: Whether the trial court
erred by denying Wife’s motion for attorney fees.
FACTS AND PROCEDURAL HISTORY [4] On March 13, 1999, Husband and Wife wed in Wife’s home country,
Columbia. Thereafter, they moved to their marital home in Fort Wayne, Allen
County, Indiana. No children were born during the marriage. In 2014, the
parties separated.
[5] On March 23, 2015, Husband filed a Petition for Annulment or in the
Alternative, Petition for Dissolution. In seeking to have the sixteen-year
marriage annulled, Husband claimed that he had been induced into the
marriage by Wife’s false promise to undergo a surgical procedure for a medical
condition that prevented her from engaging in sexual intercourse. On May 12,
2015, Wife filed a Verified Counter Petition for Dissolution of Marriage. On
August 26, 2015, the trial court issued Provisional Orders, granting Husband
temporary possession of the marital residence and directing him to pay
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 2 of 7 temporary spousal maintenance to Wife. The trial court also ordered Husband
to pay $1,500.00 in preliminary attorney fees to Wife’s attorney.
[6] On March 10, 2016, Wife filed a motion to dismiss Husband’s petition for
annulment pursuant to Indiana Trial Rule 12(B)(6). Wife argued that
Husband’s petition “fails to address any element of voidable marriage and
annulment.” (Appellant’s App. Vol. II, p. 73). On July 21, 2016, following a
hearing, the trial court denied Husband’s petition for an annulment.
[7] On February 10, 2017, and July 6, 2017, the trial court conducted a final
dissolution hearing, at the close of which, the trial court took the matter under
advisement. On July 10, 2017, Wife filed a motion for attorney fees, requesting
that Husband be required to pay $17,316.33 to Wife’s counsel. On November
6, 2017, the trial court issued a Decree of Dissolution. The trial court granted
the divorce and divided the marital property. As to attorney fees, the trial court
found:
[Wife] is requesting that the [c]ourt enter an order requiring [Husband] to pay additional attorney fees in the sum of Seventeen Thousand Three Hundred Sixteen Dollars and thirty- three cents ($17,316.33) for the costs of this action. This action has been litigated over the course of two and one-half years since the date of the filing of the Petition for Dissolution of Marriage. [Wife] received legal representation at no cost to her as her attorney represented her on a pro bono basis. As [Wife] did not incur attorney fees in this matter, the [c]ourt declines to enter an award of attorney fees.
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 3 of 7 (Appellant’s App. Vol. II, p. 26). On December 6, 2017, Husband filed a
motion to correct error, which does not appear to ever have been ruled upon.
[8] Wife now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[9] Pursuant to Husband’s request, the trial court issued specific findings of fact
and conclusions thereon in the Decree of Dissolution. Thus, pursuant to
Indiana Trial Rule 52(A), “we first must determine whether the evidence
supports the findings, and second, whether the findings support the judgment.”
O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). “Findings of fact
are clearly erroneous when the record lacks any evidence or reasonable
inferences from the evidence to support them.” Id. A judgment will be reversed
as being clearly erroneous if our “examination of the record leaves [us] with the
firm conviction that a mistake has been made.” Id. A judgment is also clearly
erroneous “if it applies the wrong legal standard to properly found facts.” Id.
Our court only considers the evidence “favorable to the judgment and all
reasonable inferences flowing therefrom.” Id. We do not reweigh evidence or
judge the credibility of witnesses. Id.
[10] Additionally, we note that Husband has not filed an appellate brief. “When an
appellee fails to submit a brief, we do not undertake the burden of developing
the appellee’s arguments, and we apply a less stringent standard of review.”
Harris v. Harris, 922 N.E.2d 626, 632 (Ind. Ct. App. 2010). Accordingly, we
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 4 of 7 may reverse if the appellant establishes prima facie error. Id. Prima facie error
“means at first sight, on first appearance, or on the face of it.” Everette v.
Everette, 841 N.E.2d 210, 212 (Ind. Ct. App. 2006). This less stringent standard
relieves our court “of the burden of controverting the arguments advanced in
favor of reversal where that burden properly rests with the appellee.” Harris,
922 N.E.2d at 632. Notwithstanding an appellee’s failure to submit a brief, we
review questions of law de novo. Id.
II. Attorney Fees
[11] Wife claims that she is entitled to an award of attorney fees. Indiana Code
section 31-15-10-1 specifically authorizes a court to “order a party to pay a
reasonable amount for the cost to the other party of maintaining or defending
any proceeding under this article and for attorney’s fees . . . .” We review a
trial court’s decision to award or deny a request for attorney fees in connection
with a decree of dissolution under an abuse of discretion standard. Ahls v. Ahls,
52 N.E.3d 797, 802-03 (Ind. Ct. App. 2016). The trial court has broad
discretion in determining whether to award attorney fees, and our court will
reverse only if the trial court’s decision “is clearly against the logic and effect of
the facts and circumstances before it or if it misapplies the law.” Id. at 803.
[12] When deciding whether to award attorney fees in the course of a dissolution,
the trial court “must consider the resources of the parties, their economic
condition, the ability of the parties to engage in gainful employment and to earn
adequate income, and other factors that bear on the reasonableness of the
award.” Hartley v. Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 5 of 7 “Consideration of these factors promotes the legislative purpose behind the
award of attorney fees, which is to [e]nsure that a party in a dissolution
proceeding, who would not otherwise be able to afford an attorney, is able to
retain representation.” Id. at 286-87. “When one party is in a superior position
to pay fees over the other party, an award of attorney fees is proper.” Id. at 287.
The trial court has no obligation to give reasons for its determination. Id.
[13] At the time of the dissolution, Husband’s annual income was $54,756, whereas
Wife’s annual earnings amounted to approximately $15,140. Furthermore, due
to the trial court’s decision not to include a number of marital assets (for
example, real properties in Michigan and Columbia) in the marital pot before
effectuating a division, Husband received a substantially larger share of the
marital assets than Wife, despite the trial court’s explicit finding “that neither
party has rebutted the presumption that an equal division of the property is just
and reasonable and that the marital estate should, therefore, be divided
equally.” (Appellant’s App. Vol. II, p. 26). 1 Thus, it is clear that Husband was
in a financially superior position, which certainly could have justified an award
of attorney fees for Wife.
[14] Here, the trial court denied Wife’s request for attorney fees solely because
Wife’s attorney had agreed to pro bono representation. Our supreme court has
previously stated that the public policy of ensuring equal access to the courts
1 Wife has raised no argument on appeal that the trial court improperly calculated and divided the marital estate; therefore, we may not do so on her behalf.
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 6 of 7 “would be undermined if we were to hold that a party must be personally
obligated to pay attorney fees before the trial court could order the other party
to pay those fees.” Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992). “Such
a policy might, in some circumstances, effectively eliminate the right to appeal
in dissolution proceedings. This [c]ourt will not force a party in a dissolution
action to choose between foregoing legal action or obligating that party to a fee
agreement which such party could not meet.” Id. Accordingly, we conclude
that the trial court improperly relied on the pro bono status of Wife’s
representation in denying her request for attorney fees. We reverse and remand
with instructions for the trial court to consider the proper factors in assessing
Wife’s claim for attorney fees. See Hartley, 862 N.E.2d at 286 (setting forth the
factors to be considered). Furthermore, as Wife has also asserted a request for
appellate attorney fees, on remand, the trial court should consider the
aforementioned factors to determine whether such an award is appropriate
pursuant to Indiana Code section 31-15-10-1. See Townsend v. Townsend, 20
N.E.3d 877, 881 (Ind. Ct. App. 2014), trans. denied.
CONCLUSION [15] Based on the foregoing, we conclude that the trial court erred by failing to
consider the proper factors in determining whether Wife is entitled to an award
of attorney fees.
[16] Reversed and remanded.
[17] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018 Page 7 of 7