FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Aug 29 2012, 9:44 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DONALD K. MCCLELLAN PERRY D. SHILTS McClellan & McClellan Shilts Law Office Muncie, Indiana Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
WILLIAM N. GERARD, ) ) Appellant, ) ) vs. ) No. 90A04-1112-DR-642 ) ALTHEA L. GERARD, ) ) Appellee. )
APPEAL FROM THE WELLS SUPERIOR COURT The Honorable Frederick A. Schurger, Judge Cause No. 90D01-0806-DR-32
August 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge William Gerard (Father) appeals the award of attorney and expert witness fees to
Althea Gerard (Mother) in an action involving the modification of Father’s parenting time
with the parties’ minor child, C.G. On appeal, Father claims that the trial court abused its
discretion by ordering him to pay these fees, totaling over $14,500.
We affirm.
Mother and Father were married in January 1999 and separated in June 2008, when
their only child, C.G., was seven years old. During the parties’ two-year separation, Father
had little contact with his daughter. At the beginning of her parents’ separation, C.G. began
therapy with Christine Ottaviano Shestak to deal with anxiety and other issues.
On July 1, 2010, the trial court entered an order approving the marital settlement
agreement executed by the parties. The agreement granted Mother sole custody of C.G. and
provided for parenting time as follows:
[Father] and [C.G.] shall attend family therapy sessions with Christine Ottaviano Shestak commencing Monday, June 7, 2010, in order to work toward a goal of secure interpersonal exchanges between [Father] and child. Said family therapy shall continue between [Father] and [C.G.] until otherwise jointly determined by Christine Ottaviano Shestak and [Father’s] counselor, Dr. Glenn Davidson. Christine Ottaviano Shestak and Dr. Glenn Davidson shall jointly determine when [Father] shall commence to have supervised parenting time with the parties’ minor child. Any supervised parenting time shall initially be in a community setting and in the presence of Norman Glass and Joan Nusbaumer as the supervisors. Christine Ottaviano Shestak and Dr. Glenn Davidson shall jointly determine when [Father] shall commence any unsupervised parenting time. Each time the parenting time is increased it will be required to be reported to the Court by Christine Ottaviano Shestak and Dr. Glenn Davidson. If at any time Christine Ottaviano Shestak and Dr. Glenn Davidson cannot agree on the issue of parenting time, then the issue shall be submitted to the Court for determination. [Father] and [Mother] agree that the intent and basic goal of the above- described phase-in parenting time is for the reunification of [Father] with child. All of the Indiana Parenting Time Guidelines shall be followed except as above-described. [Mother] shall continue to attend her counseling sessions with Ann Flaningam, the maximum amount as said counselor feels necessary. [Father] shall continue to counsel with Dr. Glenn Davidson, the maximum amount as said counselor feels necessary. [C.G.] shall continue to counsel with Christine Ottaviano Shestak, the maximum amount as said counselor feels necessary. All of the parties hereto will make a conscious effort not to denigrate any other party hereto most particularly in the presence of [C.G.] [Father’s] counselor, [Mother’s] counselor, and child’s counselor will be required to exchange information amongst each other in order to facilitate reunification of [Father] with child.
Appellant’s Appendix at 23-24.
Father had two family therapy sessions with Shestak, C.G.’s established counselor,
prior to the dissolution decree being entered. These occurred on June 7 and 22, 2010. At the
end of the second session, Mother, Father, and Shestak began discussing supervised
parenting time on July 11 and follow-up family therapy on July 13. A disagreement arose
between Father and Mother regarding whether one or two supervisors were required to be
present during parenting time. Shestak indicated that the supervised parenting time should be
in compliance with the dissolution decree at which time Father angrily advised that he had
not yet signed the agreement and accused Shestak of trying to keep his daughter from him.
In a follow-up letter to counsel sent June 23, Shestak provided in part:
I gave a note to both [Father] and [Mother], stating that I would recommend a 4 hour, supervised parenting time on Sunday, July 11, 1-5 p.m., if the divorce order with the parenting time provisions is signed, and if the parenting time is set up according to the provisions of the court order. I have promised this child safe contact with her father. I came to court and spoke with Dr. Davidson and both of you about how to ensure that the child’s anxiety can be managed while increasing her time with her father. Without a signed divorce decree, which includes the parenting time recommendations we all discussed and agreed upon on June 1, I cannot guarantee this child any degree of
3 emotional or physical safety. Therefore, I cannot recommend that the parenting time proceeds as planned unless the divorce decree is signed.
I am copying this letter to Dr. Davidson so that he is aware of my high level of clinical concern about [Father’s] lack of ability to control his outbursts and the impact it had on [C.G.] The angry outburst occurred with no warning and continued with little ability to redirect his verbal output. By the time I remembered that the child was present, she had turned white and was frozen in place, looking very anxious. Having witnessed the intensity of the anger and the rapidity with which it occurred, I have a high level of clinical concern that Dr. Davidson and [Father] work on this particular clinical issue so that the child can continue her progress toward decreasing the anxiety she feels when the topic of spending the night at her father’s house, without her mother’s presence [sic]. I continue to have a high level of clinical concern that without such change in [Father’s] behavior, [C.G.’s] emotional functioning will continue to be significantly impaired by his behaviors toward her and toward others while in her presence.
Exhibits at 54. Father executed the agreement on June 30, and the agreement was approved
by the trial court as set forth above.
By July 2, Shestak had learned that Father, by advice of counsel, secretly audio taped
the two family therapy sessions in June. After speaking with Dr. Davidson and consulting
the ethics departments of the American Counselors Association and the American Mental
Health Counselors Association, Shestak cancelled the upcoming supervised parenting time
and suspended family therapy until a court order could be issued directing Father not to tape
the sessions in violation of HIPAA.1
1 In a lengthy letter sent to the parties on July 2, Shestak stated in part: There can be no parenting time on July 11, despite the fact that the judge has signed the order because there can be no follow-up family session on July 13. There can be no unsupervised contact between father and child until [Father] is able to demonstrate that he understands the need to put his daughter’s emotional health before anything else. There can be no family sessions until [Father] is able to demonstrate with Dr. Davidson that he is capable of entering into a therapeutic relationship, understands the concept of confidentiality, and can use the time to promote his relationship with his daughter, and unless and until there is a court order mandating that there will be no covert taping of the session[.]
4 On July 7, less than a week after entry of the dissolution decree, Father filed a petition
for citation against Mother. As grounds for contempt, the petition provided in part:
3. That the Counselor provided by [Mother] for the benefit of [C.G.] refuses to reinstate family counseling sessions in this matter unless there is an agreed entry wherein [Father] shall not tape the sessions and further that all family counseling sessions will be held at Ms. Shestak’s office. 4. [Father] believes that it would be potentially detrimental to he and his daughter to meet any further in Ms. Shestak’s office and he has no objection to not taping without notification so long as Dr. Davidson is present. 5. [Father] believes that the child’s counselor did misrepresent the events of the last session in her report of June 23, 2010 to the extreme detriment of [Father], namely the accusations of anger regarding [Father]. 6. [Father], at the direction of [his counsel] and using said counsel’s equipment, recorded the two sessions that were very beneficial to all concerned. 7. That [Mother] herein has willfully denied [Father] the parenting time he that he [sic] is entitled under the current MARITAL SETTLEMENT AGREEMENT currently in place, as well as a little over two years, all without any reason being presented and all against the goal of reunification between [Father] and [child].
Exhibits at 36-37.
Thereafter, on July 21, Mother filed a petition for citation against Father, alleging in
part:
3. [Father] attended two (2) family therapy sessions…wherein he taped said sessions without consent…. Said family sessions have been suspended by Ms. Shestak until [Father] enters into a Court Order prohibiting him from taping any family therapy sessions, the sessions shall take place at Ms. Shestak’s office, and [Father] shall continue in therapy with Dr. Glenn Davidson. 4. [Father] has failed, neglected, and refused to comply with the terms of the Marital Settlement Agreement entered by the Court on July 1, 2010. Specifically, [Father] has failed to cooperate with Ms. Shestak in the family therapy sessions. Further, [Father] has failed to continue to counsel with Dr. Glenn Davidson.
Exhibits at 57.
5 Id. at 39. This same day, Mother also filed a request for production of electronically stored
information, seeking copies of all tapes made by Father during the family therapy sessions.
On August 5, Father filed a petition for contempt finding against Shestak and to
remove her from the case.2 He also filed a Trial Rule 60(B)(1) motion for relief from
judgment or, in the alternative, to modify parenting time under the agreement. Under the
former, he specifically sought relief from or modification of the provision requiring Norman
Glass and Joan Nusbaumer to supervise parenting time. Father claimed it was his intent and
understanding that supervision was to be performed by Glass or Nusbaumer. In the motion,
Father further asserted, “unsuspectedly, [Mother] through Christina Shestak has taken the
position that both Norman Glass and Joan Nusbaumer must be present as the Supervisors for
[Father] to have supervised parenting time”. Appellant’s Appendix at 44.
The trial court held an evidentiary hearing on all pending matters on September 17
and December 15, 2010. Between these two dates, Mother filed a motion for appointment of
a guardian ad litem (GAL). Over Father’s objection, the court appointed a GAL on
November 3.
Following the December hearing, the trial court issued an order, on December 20,
quashing the subpoena issued to Shestak by Father, denying the petition for contempt against
2 A copy of this filing is not included in the appendices filed by the parties. The record establishes that Shestak retained counsel and filed a motion to quash subpoena and a request for a protective order, as well as a request for a hearing.
6 Shestak and to remove her from the case, prohibiting the recording of family therapy sessions
without the written authorization of all present, and finding that Father violated HIPPA by
secretly recording the counseling sessions. Further, the court ordered Father to pay Shestak’s
attorney fees in the amount of $3403.60.
On December 21, the trial court issued a temporary order regarding supervised
parenting time, as agreed by the parties at the prior hearing. Accordingly, Father was granted
parenting time on five different days (December 23 and 24, January 8 and 22, and February
5) for three to four hours each. Two supervisors were required to be present during parenting
time, one selected by Father and one selected by Mother. Further, the order provided that
Shestak and Dr. Davidson would remain involved in the post-dissolution matter. A status
hearing was scheduled for February 7, 2011.
Following the February status hearing, the court issued another temporary order
increasing by one hour each period of supervised parenting time, which was set at about
twice a month. The court scheduled a hearing “on the issue of parenting time” for April 21,
2011. Appellant’s Appendix at 64. The hearing was ultimately delayed until November 2,
2011.
In the interim, Father filed a motion for C.G. to see Dr. Davidson. Mother objected
and noted that the GAL had previously proposed a joint session between Father, C.G.,
Shestak, and Dr. Davidson. The court agreed with Mother and ordered a joint session, which
the court viewed as “more likely to be emotionally easier on the child and therefore more in
the child’s best interest”. Id. at 72. The joint session occurred in April. Dr. Davidson
subsequently filed a report with the court, the parties, and the GAL providing a number of
7 recommendations regarding future family therapy and indicating some concern with the
therapy provided by Shestak. In sum, he stated that he saw no benefit to C.G. for his
continued involvement in “so called family sessions” and no benefit in further
communication with Shestak. Id. at 75.
On June 22, 2011, Mother and Father agreed with the GAL’s recommendation to
switch to Dr. Therese C. Mihlbauer for family therapy. After meeting with Father on
October 21, however, Dr. Mihlbauer advised the GAL that she was not willing to work with
Father “given his current mindset” and indicated that Father should not be seen for therapy
with his child.3 Exhibits at 73.
On November 2, 2011, the court held an evidentiary hearing on Father’s request for
“the expansion of parenting time.” Transcript at 122-23. When the court indicated at the
beginning of the hearing that it believed Father was the moving party for change and that he
should go first, Father did not object. Rather, he proceeded with the presentation of his
evidence in support of increased parenting time. Father acknowledged on cross examination
that he does not trust Shestak, Dr. Mihlbauer, or the GAL. He believes no change is needed
on his part and that C.G. has been brainwashed by Mother and is not in a fragile,
psychological state as represented by others.
At the hearing, Mother requested that the supervised parenting time remain the same
(a four to five hour period every other week) until the professionals involved in the case
advised otherwise. Mother also requested attorney and witness fees incurred since Father’s
3 Dr. Mihlbauer gave a detailed list of reasons for her refusal.
8 contempt filing against her in July 2010. Mother claimed that the contempt filing was
frivolous and noted that she also incurred fees as a result of his filings with regard to Shestak
and the instant hearing on the expansion of parenting time. Mother testified that paying the
fees was difficult for her, detailing her current financial situation.
In addition to her own testimony, Mother called Dr. Mihlbauer, Dr. Gregory Sowles,
Shestak, and the GAL as witnesses. Dr. Sowles, the original custody evaluator who prepared
psychological evaluations of the parties, opined that C.G. had a genuine fear of Father that
was not coached. Dr. Sowles described it as “a global sense of anxiety where her dad is
concerned.” Transcript at 205. Shestak and the GAL both testified that C.G. continues to
exhibit great fear of Father and that in their opinion C.G. cannot emotionally handle more
parenting time with Father yet. Both felt that an increase in the parenting time schedule
could significantly impair the child’s emotional development given her high level of anxiety
and Father’s demonstrated unwillingness to change.
The trial court took the matter under advisement and issued its order on November 21,
2011. In its lengthy order, the court ultimately found:
“based upon the testimony of Dr. Therese Mihlbauer, Dr. Greg Sowles, Christine Ottaviano Shestak, and [the GAL], that it is in the best interest of the parties’ minor child to deny [Father’s] request to modify parenting time, and that any expansion of parenting time might significantly impair the child’s emotional development.”
Appellant’s Appendix at 18. Thus, the order maintained the status quo, including the
requirement of two supervisors during Father’s parenting time. Citing Ind. Code Ann. § 31-
17-4-3 (West, Westlaw current with all 2012 legislation), the court also ordered Father to pay
Mother’s attorney fees ($8360.04) and witness fees ($6195.00), as well as one-half of the
9 GAL fees. Father now appeals, challenging only the award of attorney fees and witness fees.
I.C. § 31-17-4-3 provides:
(a) In any action filed to enforce or modify an order granting or denying parenting time rights, a court may award: (1) reasonable attorney’s fees; (2) court costs; and (3) other reasonable expenses of litigation. (b) In determining whether to award reasonable attorney’s fees, court costs, and other reasonable expenses of litigation, the court may consider among other factors: (1) whether the petitioner substantially prevailed and whether the court found that the respondent knowingly or intentionally violated an order granting or denying rights; and (2) whether the respondent substantially prevailed and the court found that the action was frivolous or vexatious.
This statute is discretionary and allows the court to consider an unlimited number of factors.
In assessing the award of attorney and litigation expenses, the court may consider such
factors as the respective economic conditions of the parties, whether misconduct of one party
resulted in the other party incurring additional fees, and other factors which bear on the
reasonableness of the award. Meade v. Levett, 671 N.E.2d 1172 (Ind. Ct. App. 1996). The
court, however, is not required to give a reason for its decision to award fees. Holmes v.
Holmes, 726 N.E.2d 1276 (Ind. Ct. App. 2000), trans. denied. We will reverse a trial court’s
decision in this regard only if the award is clearly against the logic and effect of the facts and
circumstances before the court. Meade v. Levett, 671 N.E.2d 1172.
The essence of Father’s appellate argument is that I.C. § 31-17-4-3 is not applicable in
the instant case because he never filed a request to modify or enforce an order regarding
parenting time. If Father’s contempt filings against Mother and Shestak, his petition to
remove Shestak from the case, his “60(B)(1) Motion for Relief from Judgment or
10 Alternatively, to Modify Section VIII Parenting Time/Parental Access”,4 and his subsequent
litigation at the November 2011 hearing regarding the expansion of parenting time do not
constitute actions filed to enforce or modify the existing parenting time order, we do not
know what they are.5 In fact, in his written argument filed with the trial court following the
November hearing, Father requested that the court “institute immediately unsupervised
parenting time for a short phase-in period followed by the implementation of the Indiana
parenting time guidelines for visitation with a child 5-years and older”. Id. at 93.
The record reveals that the November 2, 2011 hearing was conducted with Father as
the moving party on the issue of his request for expanded parenting time as contemplated by
the original decree. Regardless of Father’s assertion regarding the state of the pleadings, he
cannot reasonably claim that he was not seeking enforcement or modification of his parenting
time rights throughout this process, which entailed multiple hearings, two temporary orders
regarding parenting time, and a final order. Accordingly, the trial court had authority to
award reasonable attorney fees, court costs, and other reasonable expenses of litigation
pursuant to I.C. § 31-17-4-3.6
4 Appellant’s Appendix at 43. 5 Father’s objection to allowing the testimony of Dr. Sowles at the November 2011 hearing indicates that Father was seeking to modify parenting time. Father’s counsel argued: Judge, it would be just as much relevant if you had a custody evaluation. You have a determination and then you have a petition for change of custody. Then are you going to go back behind the decree and bring in the original determination as to the custody? No. You go from the date of the order forward. [Dr. Sowles] doesn’t have anything to give us relevantly because he hasn’t seen anybody in three years. Transcript at 195. 6 We note that Father’s reliance on Beeson v. Christian, 583 N.E.2d 783 (Ind. Ct. App. 1991) and Mehl v. Mehl, 699 N.E.2d 787 (Ind. Ct. App. 1998) is misplaced. These cases involved the review of modification of custody and visitation in the limited context of the custodial parent’s filing of a petition to relocate. In
11 We now consider whether the trial court abused its broad discretion by awarding
attorney and witness fees to Mother. On appeal, Father argues only that the factors expressly
listed in I.C. § 31-17-4-3(b)(1) and (2) are inapplicable to this case. He ignores, however,
that these factors are nonexclusive and that an award of fees may be premised on other
factors.
In the instant case, the trial court did not explain the basis of the award of fees to
Mother. Thus, we look to the record to determine whether the award is clearly against the
logic and effect of the facts and circumstances before the trial court. At the final hearing,
Mother testified briefly regarding her financial situation and indicated that it is difficult for
her to pay the attorney and witness fees that have accumulated during the post-dissolution
proceedings. Further, the record indicates that Father’s unauthorized recording of the June
2010 family therapy sessions, in violation of HIPPA, is what led to the temporary cessation
of family therapy sessions, delay in supervised parenting time, and the flurry of filings
immediately following entry of the dissolution decree.
Finally, although we agree with Father that his basic action to obtain additional
parenting time was not frivolous, some of his filings were. Of particular note, we observe
that there was no basis for his 60(B)(1) Motion for Relief from Judgment or Alternatively, to
Modify Section VIII Parenting Time/Parental Access, which was filed only one month after
the decree was entered. The record clearly establishes that the number of supervisors to be
Beeson, the court observed that “matters of custody and visitation will necessarily arise” when such a petition is filed and that “this does not change the gravamen of the action”. Beeson v. Christian, 583 N.E.2d at 790. The relocation statute expressly limited the award of attorney fees in such cases to cases of “extreme hardship.” Id. In the instant case, the trial court was not so limited.
12 present during parenting time was a negotiated term in the settlement agreement of which
Father was well aware.7 Thus, Father’s claim that it was his “intent and understanding” that
only one of the supervisors needed to be present and that Mother and Shestak
“unsuspectedly” took a contrary position is spurious. Appellant’s Appendix at 44. Father’s
contempt actions against Mother and Shestak were also dubious.
In sum, Father has failed to establish an abuse of discretion regarding the award of
attorney fees and witness fees pursuant to I.C. § 31-17-4-3.8
Judgment affirmed.
MAY, J., and BARNES, J., concur.
7 During negotiations, when Father suggested changes regarding the provision establishing supervisors, Mother’s counsel advised in a letter dated June 18, 2010: Page 3, paragraph VIII: Please be advised that I inserted the following language: “Any supervised parenting time shall initially be in a community setting and in the presence of Norman Glass and Joan Nusbaumer as the supervisors.” At the hearing, you advised me that [Father] agreed to utilize Norman Glass and Joan Nusbaumer jointly as the supervisors. My client is not willing to agree to insert the language of Norman Glass or Joan Nusbaumer as the supervisors. Exhibits at 36. Mother’s counsel provided Father with the revised agreement, which had been signed by Mother. Despite arguing with Mother about this issue at the end of the June 22 family therapy session, Father executed the agreement as drafted by Mother’s counsel on June 30, 2010. 8 We reject Mother’s passing invitation to sua sponte assess appellate attorney fees under Indiana Appellate Rule 66(E).