MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 27 2020, 8:08 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 APPELLANT ATTORNEY FOR APPELLEE Christine C. Douglas Melanie K. Reichert Keating Douglas LLP Broyles Kight & Ricafort, P.C. Carmel, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
T.J.W., February 27, 2020 Appellant/Cross-Appellee-Petitioner, Court of Appeals Case No. 19A-DC-2167 v. Appeal from the Marion Superior Court K.M.W., The Honorable Gary L. Miller, Appellee/Cross-Appellant-Respondent. Judge The Honorable Deborah J. Shook, Magistrate Trial Court Cause No. 49D03-1807-DC-29869
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 1 of 18 Case Summary [1] This appeal stems from the dissolution of the marriage between T.W.
(“Father”) and K.W (“Mother”). After Father petitioned to dissolve the
marriage, the parties resolved many issues through settlement agreements.
They eventually presented several issues to the trial court. Father appeals—and
Mother cross-appeals—from the trial court’s order addressing (1) the
distribution of personal property; (2) the educational and therapeutic plan for
the parties’ son (“Son”); and (3) the responsibility for attorney’s fees.
[2] We affirm.
Issues [3] Father presents the following restated issue:
1. Whether an approved settlement agreement resolved all marital-property issues, precluding further consideration.
[4] Mother presents the following restated issues:
2. Whether Father’s educational and therapeutic plan was contrary to the terms of a settlement agreement.
3. Whether the court abused its discretion by declining to order Father to contribute toward Mother’s attorney’s fees.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 2 of 18 Facts and Procedural History [5] Mother and Father married in 2011 and had two children during the marriage.
Son was born in 2014 and later diagnosed with autism. Son received services
and had an Individualized Education Program (“IEP”) in place at a school in
Winchester. At some point, Father moved from Winchester to Indianapolis.
As of the final hearing in this matter, Mother was living in Winchester.
[6] In July 2018, Father petitioned to dissolve the marriage. The trial court held a
provisional hearing in August 2018 and ordered the parties to participate in
mediation before the final hearing. Father and Mother then participated in a
mediation session, resulting in the first mediated settlement agreement. That
agreement stated that it was settling Mother’s and Father’s “respective rights to
and interests in property, real, personal and mixed, now owned by them,
separately or jointly.” Appellant’s App. Vol. 2 at 15. Under the agreement,
each party would have “one-half of the personal property and household goods
and furniture to be divided by agreement of the parties.” Id. at 16. The
agreement also included the following dispute-resolution provision:
If the parties are unable to agree on the division of personal property, the parties shall equally divide the cost for Bob Brown to appraise all property located on both sides of the marital residence duplex [in Indianapolis]; Wife’s residence in Winchester, Indiana and in the storage unit. The parties shall then take turns picking items until each has 50% of the value as set forth on Bob Brown’s appraisal.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 3 of 18 Id. 16-17. The agreement specified that “[p]ersonal property shall be removed
and distributed 30 days from the approval of this Agreement.” Id. at 17. The
agreement also contained a clause contemplating the possibility of waiving or
amending its terms: “No modification or waiver of any of the terms of this
Agreement shall be valid, unless in writing and executed by both parties
hereto.” Id. at 23. The trial court approved the agreement in April 2019.
[7] The parties participated in another mediation session, resulting in a second
mediated settlement agreement. That agreement provided for the appointment
of Lara Pendoski (“Pendoski”) as the Parenting Coordinator. This agreement
was approved by the trial court on May 20, 2019. Thereafter, the court entered
an order appointing Pendoski. Pursuant to the order, Pendoski’s role included
“facilitating conflict management” as well as “assisting the parties in the
development of parenting plans and alternative resolutions to other disputes.”
Appellee’s App. Vol. 2 at 3. The order specified that Pendoski “shall attempt to
resolve conflicts between the parties by recommendation, negotiation,
education, and discussion” and that, if the parties cannot resolve disputes on
their own or with Pendoski’s suggestions, Pendoski could “make reports or
recommendations to the parties and the court for further consideration.” Id.
[8] On June 8, 2019, Father and Mother met at Father’s residence to distribute
personal property. During the meeting, they signed a document that stated as
follows: “Within next month still go through misc. items in both basements &
5602 upstairs. [A friend] will come to see if they want outgrown children items.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 4 of 18 Contested items will be discussed at mediation & possible negotiation of
additional items if contested cannot be agreed upon.” Exhibit Vol. I at 15.
[9] Father and Mother participated in a third mediation session, resulting in a third
mediated settlement agreement. That agreement provided, in pertinent part,
that Father would have primary physical custody of Son. The agreement
specified that “[t]he parties shall share legal custody of both children with the
parent having primary physical custody having the ‘tie-breaking vote’ in the
event the parties cannot agree on a joint legal decision.” Appellant’s App. Vol.
2 at 37. The agreement also provided as follows: “[Father] shall have the final
decision about [Son’s] schooling and ABA services . . . . The parties agree that
[Son] will receive ABA services; OT; Speech Therapy; special education/IEP as
well as exposure to peer typical children until otherwise recommended by his
providers or until no longer covered by insurance or Medicaid.” Id. at 38.
[10] During the third mediation session, the parties did not resolve any marital-
property issues. Their third agreement stated that there was “a dispute as to
whether personal property has been distributed and finalized pursuant to the
First Partial Agreement which shall . . . be reserved for final hearing.” Id. at 40.
It also stated that “[t]he issue [of] attorney fees . . . shall be reserved for final
hearing set for August 19, 2019.” Id. The court approved the agreement in July
2019, and issued a decree dissolving the marriage between Father and Mother.
In issuing the decree, the court expressly incorporated the parties’ agreements.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 5 of 18 [11] Before the final hearing, a dispute arose over the educational and therapeutic
plan for Son. In July 2019, Father obtained an assessment from a provider of
ABA services. The assessment recommended that Son receive forty hours per
week of ABA therapy. Father planned to have son participate in the therapy.
Father was also exploring a preschool-like program to provide exposure to peer-
typical children. Mother asserted that Father’s plan violated the third
settlement agreement because the ABA services would not be administered at a
school with opportunities for concurrent exposure to peer-typical children.
Father and Mother brought the dispute to Pendoski, who prepared and filed a
report. Therein, Pendoski recommended following Father’s plan for Son.
[12] On August 19, 2019, a final hearing was held. The parties agreed to addressing
two issues at the final hearing—i.e., they agreed that the court should address
(1) the plan for Son and (2) attorney’s fees incurred during the proceedings, as
each party sought contribution from the other party. Mother also asked the
court to address contested marital property. Father objected, claiming that all
property issues had been resolved through the first settlement agreement. He
asserted that Mother waived any challenge to the division of property by failing
to follow the dispute-resolution procedures set forth in the first agreement.
[13] The court heard evidence and addressed all three issues in a written order. As
for personal property, the court determined that “[d]espite having ‘resolved’ the
personal property issues, the distribution of that personal property has not been
completed.” Appellant’s App. Vol. II at 47. In its written order, the court
ordered Mother to provide Father with a “specific list of property she claims she
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 6 of 18 has not received.” Id. The court also addressed gifts and heirlooms, ordering
that the parties were entitled to gifts and heirlooms from their respective
families. Id. As for the educational and therapeutic plan, the court adopted
Pendoski’s recommendation, determining that Father’s plan was not contrary
to the agreement. Finally, the court denied the parties’ requests for attorney’s
fees, noting that (1) the parties had incurred “about the same total amount” of
fees; (2) “[e]ach party had kept up with his/her fees throughout the cause”; and
(3) [b]oth parties[’] income, assets and access to income has been considered
and each has sufficient income/assets to pay for his/her own fees.” Id.
[14] Father now appeals. Mother cross-appeals.
Discussion and Decision [15] Where—as here—the trial court entered sua sponte findings and conclusions,
those findings and conclusions control the issues they cover, with a general-
judgment standard controlling “other issues . . . not covered by such findings.”
Ind. Trial Rule 52(D). We look to whether the evidence supports the findings
and the findings support the judgment. Masters v. Masters, 43 N.E.3d 570, 575
(Ind. 2015). Pursuant to Trial Rule 52(A), we “shall not set aside the findings
or judgment unless clearly erroneous” and shall give “due regard . . . to the
opportunity of the trial court to judge the credibility of the witnesses.” Clear
error is “that which leaves us with a definite and firm conviction that a mistake
has been made.” Masters, 43 N.E.3d at 575 (quoting Egly v. Blackford Cty. Dep’t
of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). Furthermore, findings are
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 7 of 18 clearly erroneous if “the record contains no facts supporting them either directly
or inferentially.” Town of Brownsburg v. Fight Against Brownsburg Annexation, 124
N.E.3d 597, 601 (Ind. 2019). Moreover, the “judgment . . . must follow from
the conclusions of law and is clearly erroneous if the court applied the ‘wrong
legal standard to properly found facts.’” Id. (quoting Town of Fortville v. Certain
Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016)).
Contract Issues [16] The parties to a dissolution action “may agree in writing” to contract terms
concerning “the disposition of any property” and “the custody and support of
the children of the parties.” Ind. Code § 31-15-2-17(a). If approved by the
court, those settlement terms “shall be incorporated and merged into the decree
and the parties shall be ordered to perform the terms.” I.C. § 31-15-2-17(b). At
that point, “[t]he disposition of property settled by [the] agreement . . . is not
subject to subsequent modification by the court, except as the agreement
prescribes or the parties subsequently consent.” I.C. § 31-15-2-17(c).
[17] In general, the meaning of a written contract “is a pure question of law for the
court,” subject to de novo review. Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind.
2002). Moreover, a marriage-settlement agreement is construed like any other
contract. See Ryan v. Ryan, 972 N.E.2d 359, 364 (Ind. 2012). “[U]nless the
terms of the contract are ambiguous, they will be given their plain and ordinary
meaning. Clear and unambiguous terms in the contract are deemed conclusive,
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 8 of 18 and when they are present we . . . will merely apply the contractual provisions.”
Id. (quoting Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006)).
Property [18] The first approved settlement agreement specified that it was settling matters
concerning personal property. That agreement contained a mechanism for
modifying the agreement—through a writing signed by Mother and Father.
After entering into the first agreement, the parties executed a document that
brought personal-property matters back into issue. Indeed, the document
specified that the parties would go through personal property and “[c]ontested
items will be discussed at mediation” with “possible negotiation of additional
items if contested cannot be agreed upon.” Exhibit Vol. at 15. The parties did
not resolve personal-property issues at the next mediation session, with their
third agreement identifying “a dispute as to whether personal property has been
distributed and finalized pursuant to the First Partial Agreement which
shall . . . be reserved for final hearing.” Appellant’s App. Vol. 2 at 40.
[19] Father argues that he and Mother fully resolved property issues in the first
settlement agreement—and that the trial court therefore erred by addressing
personal-property issues at the final hearing. He argues that Mother should
have followed the dispute-resolution procedures in the first agreement.
[20] In one sense, Father is correct; Father and Mother attempted to divide personal
property in the first agreement. However, the parties subsequently consented to
modifying the agreement as to personal property—contemplating bringing
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 9 of 18 unresolved personal-property issues to mediation. Following that modification,
those issues were not resolved prior to the final hearing. Therefore, we cannot
say the trial court erred by addressing these unresolved personal-property issues.
Educational and Therapeutic Plan [21] Pursuant to the third approved agreement, Father had primary physical custody
of Son. The parties had joint legal custody, meaning they would “share
authority and responsibility for the major decisions concerning the child’s
upbringing, including the child’s education, health care, and religious training.”
I.C. § 31-9-2-67. Nevertheless, Father had tie-breaking authority if there was a
disagreement as to Son’s upbringing. Moreover, the agreement specified that
Son “will receive ABA services; OT; Speech Therapy; special education/IEP
as well as exposure to peer typical children until otherwise recommended by his
providers or until no longer covered by insurance or Medicaid.” Appellant’s
App. Vol. 2 at 38. (emphasis added). The agreement also authorized Father to
make “the final decision” regarding Son’s schooling and ABA services. Id.
[22] Before the hearing, Father obtained an assessment from a provider of ABA
services—Bierman Autism Center. That provider recommended that Son
participate in forty hours of ABA services each week. Father planned to follow
the recommendation, which led to a dispute. According to Mother, the
agreement required a “combination of services/opportunities.” Appellee’s
App. Vol. 2 at 15. It appears that Mother wanted Son to have services more in
line with what he received at his former school in Winchester. Under the IEP
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 10 of 18 at that school, Son would receive approximately twenty-seven hours per week
of ABA therapy and “they would allow the ABA therapist to come to school,”
where the therapist “would be present to help [Son] attune to the preschool
teacher.” Tr. Vol. 2 at 83. With integrated ABA services, Son would have
exposure to peer-typical children and would also receive special education.
[23] Mother focuses on the provision specifying that Son “will receive” certain
services. Appellant’s App. Vol. 2 at 38. She argued at trial—and reasserts on
appeal—that, because the forty hours of ABA services would not include
concurrent exposure to peer-typical children, Father’s plan was contrary to the
agreement. Mother also asserts that providing forty hours of ABA services
would “eliminat[e] classroom time for special education.” Appellee’s App. Vol.
2 at 22. She contends that Pendoski should not have recommended Father’s
plan, and the trial court should not have adopted Pendoski’s recommendation.
[24] The trial court ultimately concluded that “the agreement at issue does not
require contemporaneous exposure to peer typical children and in [Son’s]
educational curriculum only.” Id. at 48. We agree. Although the agreement
specified that Son “will receive” several types of services, the agreement did not
specify how much time was to be allocated to each service or whether those
services were to be rendered concurrently—or in a particular order. Moreover,
the agreement gave Father final decision-making authority regarding ABA
services. There was evidence that Father selected an ABA service provider and
planned to follow its recommendations for Son. He was also exploring
alternative ways to provide exposure to peer-typical children. Furthermore,
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 11 of 18 Father had “indicated that if [the provider of ABA services] were to recommend
school and . . . special education services, . . . that’s what he would follow, that
recommendation.” Tr. at 20. There was evidence that, if the provider did not
recommend school and special education, the goal of the ABA services would
be to “prepare [Son] for that situation.” Id. Moreover, Father anticipated that
Son “would have an IEP and special education services in the future.” Id.
[25] We conclude that the plan was consistent with the provisions merged into the
dissolution decree. Thus, we cannot say the court erred in allowing the plan.1
Attorney’s Fees [26] A court may order a party to pay “a reasonable amount . . . to the other party”
for attorney’s fees associated with a dissolution action. I.C. § 31-15-10-1(a).
The court has broad discretion in deciding whether to award attorney’s fees,
and we will reverse its decision only upon a showing of an abuse of discretion.
See Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007). An abuse of discretion
occurs if the decision is clearly against the logic and effect of the facts and
1 Moreover, assuming arguendo the order was tantamount to a modification of the legal-custody arrangement, the court has authority to modify its custody order where doing so “is in the best interests of the child” and “there is a substantial change in one (1) or more of the factors” listed in Indiana Code Section 31-17-2-8. I.C. § 31-17-2-21. Among those factors is “[t]he mental and physical health of all individuals involved.” I.C. § 31-17-2-8. Here, there is evidence that Son would benefit from forty hours per week of ABA services with the goal of preparing Son for integration into a school setting with an IEP in place. To the extent Mother points out that a prior assessment recommended only twenty-seven hours of ABA services and Son already had an IEP, the court was free to give more weight to Father’s recent assessment. Ultimately, the evidence supports a determination that it is in Son’s best interests to receive increased ABA services now—which would preclude a more-integrated therapeutic approach—and strive for that integrated approach in the future.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 12 of 18 circumstances. DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 731-32 (Ind.
2015). An abuse of discretion also occurs if the court misapplies the law. Id.
[27] “In determining whether to award attorney’s fees in a dissolution proceeding,
trial courts should consider the parties’ resources, their economic condition,
their ability to engage in gainful employment and earn income, and other
factors bearing on the reasonableness of the award.” Eads v. Eads, 114 N.E.3d
868, 879 (Ind. Ct. App. 2018). Moreover, “[a] party’s misconduct that directly
results in additional litigation expenses may also be considered.” Id.
[28] Here, there is evidence that Mother incurred about $44,000 in attorney’s fees
and that Father incurred a similar amount—about $46,000. As to income,
Father earns a salary of about $109,000 per year and was eligible for an annual
bonus. Mother has an M.B.A. and worked full-time for the first three months
of the marriage, earning around $55,000 per year as the executive director of an
organization. She then transitioned to part-time work and took care of the
children. After Father filed the dissolution petition, Mother began working
about twenty hours per week as a paraprofessional at an elementary school. As
a paraprofessional, she earns $11.25 per hour. There is also evidence that, to
pay attorney’s fees, Mother borrowed $15,000 from individuals and incurred
substantial credit-card debt. As of the final hearing, Mother leased a home her
parents owned. Her parents were allowing her additional time to pay rent.
[29] The trial court denied Mother’s request for a fee contribution from Father. In
doing so, the court observed that Mother had kept up with her fees during the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 13 of 18 course of the proceedings. The court also noted that it had considered Mother’s
“income, assets and access to income” and that Mother “has sufficient
income/assets to pay for . . . her own fees.” Appellant’s App. Vol. 2 at 47.
[30] Mother argues that denying her request for attorney’s fees was an abuse of
discretion, contending that the court did not “fully [or] accurately assess the
parties’ financial situations.” Reply Br. of Cross-Appellant at 4. Mother
focuses on the difference between incomes. She also argues that Father is in a
better financial position due to the division of assets—that is, when the parties
divided assets, Father received real estate, “which can be accessed without tax
consequence through an equity line of credit,” whereas “the majority of the
marital assets received by Mother were in the form of retirement funds,” the
liquidation of which results in “tax consequences.” Br. of Appellee at 21.
[31] Mother also directs us to Barton v. Barton, a case involving income disparity. 47
N.E.3d 368 (Ind. Ct. App. 2015), trans. denied. However, there—unlike here—
the trial court elected to award attorney’s fees. See id. Indeed, in resolving
Barton, this Court identified evidence of income disparity and concluded there
was no abuse of discretion in ordering the higher-earning party to pay a portion
of the other party’s attorney’s fees. See id. In other words, the award was not
clearly against the logic and effect of the facts and circumstances in that case.
See id. To the extent Mother is arguing as much, Barton does not support the
proposition that a court must award fees upon a showing of income disparity.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 14 of 18 [32] Ultimately, regardless of tax consequences, Mother negotiated a settlement
agreement and left the marriage with assets—among them, $121,500 of a 401(k)
plan. Moreover, there is evidence that Mother has an advanced degree and is
employable—capable of obtaining a substantially higher-paying, full-time job.
Mother notes that “[t]he parties agreed that Mother would work primarily
within the home during the marriage, especially in light of the fact that their
younger child has special needs.” Br. of Appellee at 20. However, as of the
final hearing, Father had primary physical custody of Son. Their daughter—of
which Mother is the primary physical custodian—attends school, and there is
no indication that she requires special services in the way that Son does.
[33] It was not clearly against the logic and effect of the facts and circumstances to
decline Mother’s request to have Father contribute toward her attorney’s fees.
[34] Affirmed.
Kirsch, J., concurs. Mathias, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 15 of 18 IN THE COURT OF APPEALS OF INDIANA
T.J.W., Court of Appeals Case No. 19A-DC-2167 Appellant/Cross-Appellee-Petitioner,
v.
K.M.W., Appellee/Cross-Appellant-Respondent.
Mathias, Judge, dissenting.
[35] Although I concur with much of the majority’s reasoning and result, I
respectfully dissent as to the trial court’s decision not to award Mother any
attorney’s fees at all.
[36] As the majority points out in its opinion:
“In determining whether to award attorney’s fees in a dissolution proceeding, trial courts should consider the parties’ resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors bearing on the reasonableness of the award.” Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018). Moreover, “[a] party’s misconduct that directly results in additional litigation expenses may also be considered.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 16 of 18 Here, there is evidence that Mother incurred about $44,000 in attorney’s fees and that Father incurred a similar amount—about $46,000. As to income, Father earns a salary of about $109,000 per year and was eligible for an annual bonus. Mother has an M.B.A. and worked full-time for the first three months of the marriage, earning around $55,000 per year as the executive director of an organization. She then transitioned to part-time work and took care of the children. After Father filed the dissolution petition, Mother began working about twenty hours per week as a paraprofessional at an elementary school. As a paraprofessional, she earns $11.25 per hour. There is also evidence that, to pay attorney’s fees, Mother borrowed $15,000 from individuals and incurred substantial credit-card debt. As of the final hearing, Mother leased a home her parents owned. Her parents were allowing her additional time to pay rent.
The trial court denied Mother’s request for a fee contribution from Father. In doing so, the court observed that Mother had kept up with her fees during the course of the proceedings. The court also noted that it had considered Mother’s “income, assets and access to income” and that Mother “has sufficient income/assets to pay for . . . her own fees.” Appellant’s App. Vol. 2 at 47.
Slip op. at 13.
[37] The review standard in the area of the award of attorney fees is abuse of
discretion. Eads, 114 N.E.3d at 879. The question of an attorney fee award is
separate from the division of property. See id. (listing the factors the trial court
may consider in deciding whether to award attorney fees); Bloodgood v.
Bloodgood, 679 N.E.2d 953, 958 (Ind. Ct. App. 1997) (affirming an award of
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 17 of 18 attorney fees to Wife due to disparity in the parties’ incomes where the court
equally divided the marital estate).
[38] My review of the evidence cited by the majority leads me to the opposite
conclusion both it and the trial court reached. Mother’s economic condition is
quite poor, and there is no credible way to conclude that she will ever be able to
find a position like the executive directorship she left in order to care for the
parties’ children. Further, there is no credible way to impute that level of
income to Mother. All of the available evidence supports an award of attorney’s
fees to Mother in the full amount of her documented fees incurred. The failure
to award Mother any fees at all is a clear abuse of the trial court’s discretion and
should be reversed.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020 Page 18 of 18