CH v. AR ( 2017 )

FILED
Apr 12 2017, 9:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Jonathan R. Deenik
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.H., April 12, 2017
Appellant-Petitioner, Court of Appeals Case No.
29A05-1607-PO-1625
v. Appeal from the Hamilton Circuit
Court
A.R., The Honorable Paul A. Felix,
Appellee-Respondent. Judge
The Honorable Todd L. Ruetz,
Magistrate
Trial Court Cause No.
29C01-1504-PO-2994
Pyle, Judge.
[1] C.H. (“Grandmother”) appeals the trial court’s order that dismissed her
protective order petition and its ex parte protective order that she sought against
A.R. (“Mother”) for the protection of Mother’s son, H.L. (“Son”).
Grandmother also appeals the trial court’s order granting Mother’s petition for
attorney fees. Grandmother argues that the trial court erred by dismissing her
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protective order petition based on a finding that she lacked standing to file it
and by ordering her to pay Mother’s attorney fees based on a finding of bad
faith. Finding no error, we affirm the trial court’s order dismissing
Grandmother’s petition and its order granting Mother’s request for attorney
fees.
[2] We affirm.
Issues
1. Whether the trial court erred by dismissing Grandmother’s
petition for a protective order.
2. Whether the trial court erred by granting Mother’s request for
attorney fees.
Facts
[3] Before delving into the facts, we pause to note that the record on appeal—most
notably Grandmother’s Appellant’s Appendix—is scant in content, resulting in
limited available facts. Contrary to Indiana Appellate Rule 50, Grandmother
has failed to include in her Appellant’s Appendix the vast majority of
“pleadings and other documents from the Clerk’s Record” that were part of this
protective order proceeding. For example, she has failed to include a copy of
her petition for a protective order that explained the basis or allegations
supporting the petition. She also has failed to include the trial court’s ex parte
protection order. There were other pleadings filed and orders entered during
the course of this proceeding—including a transfer of the case to Grant County
and then a re-transfer back to Hamilton County—and Grandmother has not
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included these pleadings in her Appendix. Additionally, as part of the hearings
in this case, the trial court took judicial notice of the records from other
proceedings involving Mother and Grandmother; however, these records have
not been included in the record on appeal. Grandmother’s failure to include
these documents has required us to rely mainly upon the chronological case
summary and the trial court’s order on attorney fees to piece together the
relevant facts of this case.1
[4] We now turn to the facts most favorable to the judgment. Mother is the mother
of Son, who was born in September 1999. Mother was granted physical and
legal custody of Son by a Grant Superior Court in a paternity proceeding filed
in January 2000 under cause number 27D02-0001-JP-21 (“Grant County
paternity case”). The father of Son is deceased.2 Grandmother, who is the
paternal grandmother of Son, obtained grandparent visitation rights after she
intervened in the Grant County paternity case. The Grant Superior Court
granted Grandmother and her husband visitation with Son for eight hours every
other Saturday.
[5] In April 2015, Mother and Son, who was sixteen years old at that time, were
living in Hamilton County. On April 12, 2015, “an altercation occurred”
1
Moreover, contrary to Appellate Rule 46(A)(6)(a), Grandmother’s recitation of some facts are not
“supported by page references to the Record on Appeal or Appendix[.]”
2
The record on appeal does not reveal when father died.
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between Mother and Grandmother, and Son “attempted to intervene in the
altercation.” (App. 9).
[6] Subsequently, the State charged Mother with multiple charges, including
battery against Grandmother and against Son, under cause number 29D03-
1504-F6-3420 (“Hamilton County criminal case”). The trial court in the
Hamilton County criminal case issued a no-contact order for Grandmother’s
protection, but it did not issue an order pertaining to Son. Additionally, the
Department of Child Services (“DCS”) investigated the incident. DCS “did not
seek to detain or remove [Son] from Mother’s care” nor did it file a child in
need of services (“CHINS”) petition. (App. 10). Nevertheless, Grandmother
kept Son in her care and did not return him to Mother.
[7] On April 17, 2015, Grandmother filed, in Hamilton Circuit Court, a petition for
a protective order against Mother on behalf of Son (“Hamilton County
protective order case”).3 It is this petition that is at issue in this appeal. In her
petition, Grandmother “reported the child’s residence as the grandmother’s
residence” and did not inform the court that Mother had obtained custody of
Son pursuant to a court order in the Grant County paternity case. (App. 10).
That same day, the trial court issued an ex parte order for protection. The order
“required Mother to stay away from . . . [G]randmother’s residence where
[Son] was located and stay away from [his] school.” (App. 11).
3
We are unaware of the exact allegations in the petition for the protective order because Grandmother did
not include a copy of her petition in her Appendix. The details regarding the petition are found in the trial
court’s attorney fee order.
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[8] A few days later, on April 20, 2015, Grandmother filed an emergency petition
for the appointment of guardianship over Son. She filed this motion in
Hamilton Superior Court under cause number 29D03-1504-GU-45 (“Hamilton
County guardianship case”). In her petition, Grandmother did not inform the
court that “Mother had been granted sole legal and physical custody of [Son]”
in the Grant County paternity case. (App. 11).
[9] Immediately thereafter, Mother, who was then represented by counsel, filed
petitions—in both Grant County and Hamilton County—in an effort to get Son
back in her care. Specifically, Mother filed, in the Grant County paternity case,
a “Motion for Sheriff Assistance for Immediate Return of Child to Hamilton
County,” a “Motion to Suspend Grandparent Visitation,” and a “Motion to
Transfer to Hamilton County.” (App. 11).4 In this Hamilton County protective
order case, Mother filed a motion to dismiss the ex parte protection order, or, in
the alternative, a request for an immediate hearing. Additionally, Mother filed,
in the Hamilton County guardianship case, a motion to dismiss Grandmother’s
guardianship petition “due to the fact that a matter between the parties and
[Son] was already pending” in the Grant County paternity case. (App. 11). In
this motion, Mother alleged that Grandmother had “[e]ffectively stripped
Mother of custody by denying her, as a custodial parent, the ability to contact
and parent her child.” (App. 11-12).
4
Mother also filed a motion for attorney fees.
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[10] On April 28, 2015, the trial court in the Hamilton County guardianship case,
held a hearing and then entered an order dismissing Grandmother’s
guardianship petition. The trial court’s dismissal was “due to the Grant
Superior Court having custody jurisdiction over [Son] by its paternity case.”
(App. 12). After the dismissal, Grandmother “continued with the Ex Parte
Order for Protection and did not return [Son] to Mother’s care.” (App. 12).
[11] The following day, the Hamilton Circuit Court transferred jurisdiction of this
Hamilton County protective order case to the Grant Superior Court for a
hearing in conjunction with the Grant County paternity case. Grandmother
then filed a petition to modify custody in that paternity case.
[12] Thereafter, on May 6, 2015, following an agreement reached in a telephonic
attorney conference, the Grant Superior Court transferred the paternity case to
Hamilton County under cause number 29C01-1505-JP-659 (“Hamilton County
paternity case”) and transferred the protective order case back under its original
Hamilton County cause number. Grandmother continued to maintain control
over Son.
[13] Meanwhile, on September 25, 2015, Mother was acquitted, following a jury
trial, of the battery charge against Son and convicted of the battery charge
against Grandmother. Grandmother “continued to deprive Mother of custody
over [Son] by the Ex Parte Order for Protection.” (App. 13).
[14] Immediately thereafter, on September 28, 2015, Mother filed a pro se motion to
dismiss the ex parte protective order and a request for a hearing in this
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Hamilton County protective order case. Grandmother filed a response,
contending that Mother’s motion should be denied without a hearing because
Mother had not filed her request for a hearing within thirty days of the ex parte
order.
[15] On February 10, 2016, the trial court held a hearing on Mother’s motion to
dismiss. At the beginning of the hearing, the trial court advised that it had
reviewed the motions filed in the Grant County paternity case that were
transferred to and pending in the Hamilton County paternity case. The trial
court also took judicial notice of the records from Mother’s Hamilton County
criminal proceeding and the Hamilton County guardianship case. 5
[16] The trial court asked the parties to provide legal arguments as to whether
Grandmother had standing under the protective order statute to seek a
protective order for Son and whether the trial court had jurisdiction to enter an
ex parte protective order. In response, Mother argued that she had had “sole
custody” of Son since 2000, that Grandmother had filed the petition for the
protective order after DCS had investigated and “unsubstantiated” any claim
against Mother, and that Grandmother had misstated Son’s residence on the
petition by stating that Son lived with Grandmother. (Tr. 8, 10).
5
The records from these proceedings were not introduced as exhibits and have not been included in the
record on appeal. We note that our supreme court, in Horton v. State, 51 N.E.3d 1154 (Ind. 2016), has
discussed judicial notice under Indiana Evidence Rule 201 and the best practice for a trial court when taking
judicial notice of a court record or file.
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[17] Grandmother acknowledged that DCS had not filed a CHINS petition and had
not sought any court intervention to place Son with Grandmother.
Grandmother, however, argued that she had standing to file a protective order
on behalf of Son “because she [wa]s his grandmother and she was there to
witness the events that occurred.” (Tr. 9).
[18] The trial court expressed its concern that Grandmother did not have standing
and had sought the protective order “to bootleg around the intervention of
police, CPS, guardianship, [and the] custody order on an ex parte basis[.]” (Tr.
13). The trial court also noted that, under the protective order statute—
INDIANA CODE § 34-26-5-2(b)—only “a parent, a guardian, or another
representative” is authorized to file a petition for a protective order on behalf of
a minor. (Tr. 16).
[19] Grandmother then asserted that she had standing to file a petition for a
protective order on behalf of Son because she could be considered “another
representative” under the protective order statute. She did not, however,
provide any legal argument as to why she would fit into that category.
[20] The trial court noted that there was only one definition of “representative”
found in Title 34 of the INDIANA CODE. Specifically, the trial court referred to
INDIANA CODE § 34-6-2-130 and the definition in INDIANA CODE § 34-18-2-25,
which provides that a representative “means the spouse, parent, guardian,
trustee, attorney, or other legal agent . . . .” 6 The trial court gave Grandmother
6
This definition is contained in the Article pertaining to medical malpractice.
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the opportunity to provide an alternative definition of representative that would
be applicable to this protective order proceeding, but Grandmother’s attorney
stated that he had “not ever researched that” and “would need additional
time[.]” (Tr. 17). Using the statutory definition as a reference, the trial court
determined that the protective order statute contemplated that “another
representative” would be someone who was a “legal representative” of the
minor. (Tr. 17). The trial court then orally ordered that Son should be returned
to Mother, and it dismissed the ex parte protection order, noting that “to leave
the protection order in place is essentially leaving an unemancipated minor
child with someone who has no legal custody or entitled to their care and
control[.]” (Tr. 17).
[21] At the end of the hearing, Mother told the trial court that she was seeking
reimbursement of the attorney fees she had incurred in relation to the ex parte
order. The trial court acknowledged that Mother had previously requested
those fees in a petition but informed her that it could not hear argument on that
issue at that time. That same day, the trial court entered a general written
order, granting Mother’s motion to dismiss the petition for a protective order
and terminating the ex parte protective order.
[22] Thereafter, Mother filed a motion to correct error, in which she argued that
“she was entitled to attorney fees under IC [§] 34-52-1-1.” (App. 14). The trial
court interpreted Mother’s motion as a request for a hearing on the attorney fees
issue, and it held an attorney fee hearing on May 8, 2016. At this hearing,
Mother appeared pro se, and Grandmother was represented by counsel.
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[23] During this hearing, the trial court took judicial notice of the records from this
Hamilton County protective order case and the Hamilton County guardianship
case. Mother requested $5,323.00 in attorney fees and presented receipts for
payments made to her attorneys who represented her at the beginning of the
proceeding. When the trial court asked Grandmother if she had any objection
to the receipts, her attorney stated, “[i]f they’re being admitted for the purpose
of that’s what [Mother] claimed she’s paid to [her attorneys], I don’t have an
objection.” (Tr. 27).
[24] Subsequently, on June 14, 2016, the trial court entered an order, granting
Mother’s motion for attorney fees based on INDIANA CODE § 34-52-1-1, the
General Recovery Rule. The trial court found, in relevant part, that
Grandmother had litigated in bad faith. The trial court ordered Grandmother
to pay $5,323.00 of Mother’s attorney fees. Grandmother now appeals.
Decision
[25] Grandmother argues that the trial court erred by: (1) dismissing her petition for
a protective order and terminating the ex parte protective order; and (2)
granting Mother’s request for attorney fees. We will address each argument in
turn.
[26] Before we address Grandmother’s arguments, we note that Mother did not file
an appellee’s brief. When an appellee fails to submit an appellate brief, “‘we
need not undertake the burden of developing an argument on the [A]ppellee’s
behalf.’” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting
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Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we
will reverse the trial court’s judgment if the appellant’s brief presents a case of
prima facie error.’” Id. (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima
facie error in this context is defined as, at first sight, on first appearance, or on
the face of it.” Id. (internal quotation marks and citation omitted).
1. Dismissal of Ex Parte Protective Order
[27] We first address Grandmother’s challenge to the trial court’s dismissal of the ex
parte protective order against Mother. Grandmother argues that the trial court
erred by interpreting the meaning of “another representative” contained in the
protective order statute, INDIANA CODE § 34-26-5-2(b). Specifically,
Grandmother contends that the trial court erred by applying the definition of
“representative” contained in Title 34 and by determining that Grandmother
lacked standing to petition for a protective order on behalf of Son.
[28] Thus, we are called upon to review and interpret provisions of the protective
order statute. “Statutory interpretation is a ‘pure question of law,’ which we
review de novo.” J.D.M. v. State, 68 N.E.3d 1073, 1077 (Ind. 2017) (quoting N.L.
v. State, 989 N.E.2d 773, 777 (Ind. 2013)). See also Parkhurst v. Van Winkle, 786
N.E.2d 1159, 1160 (Ind. Ct. App. 2003) (explaining that “where, as here, the
sole issue presented is the interpretation of a statute, we review the trial court’s
legal conclusions de novo”). “‘Our first task when interpreting a statute is to
give its words their plain meaning,’ considering the text and structure of the
statute as a whole.” J.D.M., 68 N.E.3d at 1077 (quoting ESPN, Inc. v. Univ. of
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Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016)). “Under the rules of
statutory construction, when construing a statute, the legislature’s definition of
a word binds us.” Youngblood v. Jefferson Cty. Div. of Family & Children, 838
N.E.2d 1164, 1171 (Ind. Ct. App. 2005), trans. denied.
[29] “Civil protective orders are governed by the Indiana Civil Protection Order Act
(“CPOA”)[.]” Costello v. Zollman, 51 N.E.3d 361, 364 (Ind. Ct. App. 2016),
trans. denied. See IND. CODE §§ 34-26-5-1 et seq. Our legislature has explained
that the CPOA “shall be construed to promote the . . . (1) protection and safety
of all victims of domestic or family violence in a fair, prompt, and effective
manner; and (2) prevention of future domestic and family violence.” I.C. § 34-
26-5-1.
[30] “‘Generally, a trial court has discretion to grant protective relief according to
the terms of the CPOA.’” Costello, 51 N.E.3d at 367 (quoting A.N. v. K.G., 10
N.E.3d 1270, 1271 (Ind. Ct. App. 2014)). Under the CPOA, certain individuals
are authorized to file a protective order petition on behalf of a child.
Specifically, INDIANA CODE § 34-26-5-2(b) provides that “[a] parent, a
guardian, or another representative may file a petition for an order for protection
on behalf of a child against a . . . family or household member who commits an
act of domestic or family violence[.]” (Emphasis added).
[31] It is undisputed that Grandmother was neither a parent nor a guardian of Son
at the time she filed a petition for a protective order on Son’s behalf. The trial
court determined that Grandmother did not qualify as “another representative”
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and was, therefore, not authorized to file a petition on Son’s behalf. In so
doing, the trial court referred to the definition of “representative” contained in
Title 34 of the INDIANA CODE. Specifically, Article 6 of Title 34 contains the
definitions applicable to Title 34. INDIANA CODE § 34-6-2-130 provides that the
term, “representative,” “for purposes of IC 34-18, has the meaning set forth in
IC [§] 34-18-2-25[,]” which then defines the term as “the spouse, parent,
guardian, trustee, attorney, or other legal agent of the patient.”
[32] On appeal, Grandmother argues that the trial court erred by applying the
definition of “representative” found in INDIANA CODE § 34-18-2-25 because the
definition applied to medical malpractice proceedings and not to protective
order proceedings.
[33] Based on a review of the record on appeal, it appears that the trial court did not
strictly apply this definition but, instead, used it as a reference point for
determining the plain meaning of the term as used in the protective order
statute. During the protective order hearing, the trial court noted that this
definition of representative was the only definition contained in Title 34. The
trial court also gave Grandmother the opportunity to provide an alternative
definition of representative that would be applicable to this protective order
proceeding, but she did not do so. Using the definition as a reference, the trial
court determined that the protective order statute contemplated that “another
representative” would be someone who was a “legal representative[.]” (Tr. 17).
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[34] It is unclear why the legislature defined “representative” in Title 34 for its use in
the medical malpractice statutes but did not specifically do so in relation to the
protective order statute’s use of “another representative.” Nevertheless, we do
not find any error in the trial court’s use of the definition in INDIANA CODE §
34-18-2-25 as a reference point when determining the plain meaning of
“another representative” in the protective order statute. See I.C. § 34-6-1-1
(providing that, “[e]xcept as otherwise provided, the definitions in this article
apply throughout this title”). Furthermore, our supreme court has explained
that under the rule of statutory construction of noscitur a sociis—which means “it
is known by its associates”—the “meaning of doubtful words may be
determined by reference to their relationship with other associated words and
phrases.” ESPN, 62 N.E.3d at 1198 & 1198 n.5 (quoting BLACK’S LAW
DICTIONARY 1224 (10th ed. 2014)). See also Day v. State, 57 N.E.3d 809, 814
(Ind. 2016) (explaining that, under noscitur a sociis, “if a statute contains a list,
each word in that list should be understood in the same general sense”). Here,
INDIANA CODE § 34-26-5-2(b) lists “another representative” in conjunction with
“a parent” or “a guardian[,]” both of which have a legal right or relationship to
the child; thus, the meaning of that term should be determined by these words
that surround it. Considering the text and structure of the protective order
statute as a whole, we conclude that the trial court did not err when it
determined that Grandmother was not authorized to file a petition for a
protective order on behalf of Son because she was not considered as “another
representative.”
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2. Attorney Fees
[35] Lastly, we turn to Grandmother’s argument that the trial court erred by
granting Mother’s request for attorney fees.
[36] A trial court’s decision to award or deny attorney fees is “in the exercise of a
sound discretion, and in the absence of an affirmative showing of error or abuse
of discretion we must affirm [the trial court’s] order.” Malachowski v. Bank One,
Indpls., N.A., 682 N.E.2d 530, 533 (Ind. 1997) (quoting Zaring v. Zaring, 219 Ind.
514, 39 N.E.2d 734, 737 (1942)), reh’g denied. As we review Grandmother’s
challenge to the trial court’s order awarding attorney fees, we observe that the
trial court entered written findings and conclusions under Indiana Trial Rule
52(A) sua sponte. Where the trial court has entered such findings and
conclusions, we apply a two-tiered standard of review. See Marion Cty. Auditor
v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind. 2012). “We first determine
whether the evidence supports the findings and then whether the findings
support the judgment.” Id. We “shall not set aside the findings or judgment
unless clearly erroneous.” Ind. Trial Rule 52(A). When determining whether a
finding or judgment is clearly erroneous, we may neither reweigh the evidence
nor reassess the credibility of the witnesses. Sawmill Creek, 964 N.E.2d at 216.
“The evidence is viewed in the light most favorable to the judgment, and we
will defer to the trial court’s factual findings if they are supported by the
evidence and any legitimate inferences therefrom.” Id. at 216-17. A trial
court’s legal conclusions, however, are reviewed de novo. Id.
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[37] “Generally, Indiana has consistently followed the American Rule in which both
parties generally pay their own fees.” Dunno v. Rasmussen, 980 N.E.2d 846,
849-50 (Ind. Ct. App. 2012) (citing Loparex, LLC v. MPI Release Techs., LLC, 964
N.E.2d 806, 815-816 (Ind. 2012)). “In the absence of statutory authority or an
agreement between the parties to the contrary—or an equitable exception—a
prevailing party has no right to recover attorney fees from the opposition.” Id.
[38] Here, the trial court granted Mother’s request for attorney fees pursuant to
INDIANA CODE § 34-52-1-1, which is known as the General Recovery Rule.7
We have explained our standard of review for this statute as follows:
The trial court’s decision to award attorney fees under § 34-52-1-1
is subject to a multi-level review: the trial court’s findings of facts
are reviewed under the clearly erroneous standard and legal
conclusions regarding whether the litigant’s claim was frivolous,
unreasonable, or groundless are reviewed de novo. Purcell v. Old
Nat. Bank, 972 N.E.2d 835, 843 (Ind. 2012). Finally, the trial
court’s decision to award attorney fees and any amount thereof is
reviewed for an abuse of discretion. Id. A trial court abuses its
discretion if its decision clearly contravenes the logic and effect of
the facts and circumstances or if the trial court has misinterpreted
the law. Id.
Dunno, 980 N.E.2d at 851.
7
Grandmother argues that the trial court erred by awarding attorney fees to Mother under INDIANA CODE §
34-26-5-9, and she contends that it is unclear under what authority the trial court awarded attorney fees. We
disagree. It is clear from the record on appeal that the trial court awarded attorney fees pursuant to INDIANA
CODE § 34-52-1-1. Therefore, we will review the trial court’s award of attorney fees under INDIANA CODE §
34-52-1-1.
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[39] The General Recovery Rule, INDIANA CODE § 34-52-1-1(b), provides as
follows:
In any civil action, the court may award attorney’s fees as part of
the cost to the prevailing party, if the court finds that either party:
(1) brought the action or defense on a claim or defense that
is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the
party’s claim or defense clearly became frivolous,
unreasonable, or groundless; or
(3) litigated the action in bad faith.
(Emphasis added).
[40] The trial court awarded attorney fees to Mother after finding that Grandmother
had acted in bad faith. “Bad faith is demonstrated where the party presenting
the claim is affirmatively operating with furtive design or ill will.” Dunno, 980
N.E.2d at 851 (citing SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952
N.E.2d 758, 770 (Ind. Ct. App. 2011)).
[41] In regard to its determination of bad faith, the trial court made the following
relevant findings:
7. On April 17, 2015, [Grandmother] filed a Petition for an
Order for Protection against Mother in favor of [Son]. In the
Petition, [G]randmother reported the child’s residence as the
grandmother’s residence . . . . The grandmother also failed to
disclose that Mother is the custodial parent of the child as
ordered by the Grant Superior Court No. 2 under cause number
27D0[2]-0001-JP-0021 or that [G]randmother had limited rights
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of [grand] parenting time with the child in that cause. The
disclosure of such important information, consistent with IC [§]
34-26-5-5, was required under paragraph 4 of the Petition for an
Order for Protection which [G]randmother signed under oath.
Paragraph 4 specifically requests “Please list all (divorce,
protection orders, paternity, guardianship, criminal, juvenile,
civil) involving the Respondent, yourself, or a child you have
with the Respondent (attach additional sheets of paper if necessary).”
The only disclosure the grandmother made was a CPS case
number pending in Hamilton County. Additionally, there was
no effort to comply with Trial Rule 65(B) of the Indiana Rules of
Trial Procedure in effect[] circumventing a custody order and
restraining Mother from her child without notice to Mother.
*****
9. After securing the Ex Parte Order for Protection, the
grandmother . . . filed a Verified Petition for Emergency
Appointment of Temporary Guardian on April 20, 2015 under
cause number 29D03-1504-GU-045. [Grandmother] did not
allege in [her] Verified Petition that Mother had been granted
sole legal and physical custody of the child under 27D02-0001-
JP-0021. [Grandmother] knew the cause existed because [she]
had intervened in that cause and [had] been granted grandparent
visitation rights to the child. Notably, [Grandmother] filed the
guardianship in Hamilton County recognizing the child’s
residence to be in Hamilton County but [G]randmother did not
disclose the child’s residence in Hamilton County in the Petition
for an Order for Protection.
*****
13. Following a hearing on the PETITION FOR
EMERGENCY APPOINTMENT OF TEMPORARY
GUARDIAN on April 28, 2015, under 29D03-1504-GU-045,
Mother’s request to dismiss the guardianship was granted due to
the Grant Superior Court having custody jurisdiction over the
child by its paternity case. Despite this dismissal, [Grandmother]
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continued with the Ex Parte Order for Protection and did not
return the child to Mother’s care.
*****
21. From April 17, 2015, when the Ex Parte Order was entered,
to February 10, 2016, when the Ex Parte Order was dismissed,
almost ten (10) months transpired during which time
[Grandmother] kept the child from Mother with no order
granting [Grandmother] custody and deprived Mother of her
custody of the child as ordered by the Grant Superior Court No.
2.
*****
24. The court finds that [Grandmother] secured the Ex Parte
Order for Protection surreptitiously by failing to disclose to the
court pertinent information regarding the child’s residence and
Mother’s custody of the child, by failing to disclose the Grant
Superior Court’s jurisdiction over the child, and the limited
grandparent visitation rights afforded by the Grant Superior
Court. Such information regarding the Grant Superior Court’s
jurisdiction was also omitted from [Grandmother’s] PETITION
FOR EMERGENCY APPOINTMENT OF TEMPORARY
GUARDIAN filed in Hamilton County under 29D03-1504-GU-
045. [Grandmother was] advised by the court’s ruling in 29D03-
1504-GU-045 as early as April 28, 2015 that the Grant Superior
Court No. 2 had jurisdiction over issues pertaining to the child’s
custody. Notwithstanding, [Grandmother] continued to deprive
Mother of her custody of the child under the effect of the Ex
Parte Order for Protection by seeking to vacate the hearing on
Mother’s request to dismiss it. [She] sought to do so on
procedural grounds so as not to address the merits of [her]
Petition for an Order of Protection even after Mother was found
innocent of the charges against [Son].
25. The Ex Parte Order for Protection was not a custody order
granting [Grandmother] custody of [Son]. . . .
Court of Appeals of Indiana | Opinion 29A05-1607-PO-1625 | April 12, 2017 Page 19 of 22
*****
29. The court finds that the acts and omissions of
[Grandmother] in securing the Ex Parte Order for Protection
without disclosing information as to the custody of the child and
the continued pursuit of the Ex Parte Order for Protection in
deprivation of Mother’s custody rights constitutes bad faith. The
court finds that [Grandmother’s] actions to be more than bad
judgment or mere negligence. The grandmother demonstrated a
consciousness of wrongdoing by failing to provide pertinent
information to the court, by ignoring procedural due process, by
attempting to avoid a trial on the merits of her petition, and by
pursuing the matter when it became clear that jurisdiction over
matters of the child’s custody belonged in the paternity case.
Grandmother disregarded Mother’s inherent, court ordered, and
constitutional right to the custody of her child. Grandmother did
so believing her protection of the child justified [G]randmother’s
means of doing so. In this same regard, the court finds the
grandmother’s testimony, that she simply followed the advice of
others to file for an order for protection, and did so as directed by
Prevail, to be reprehensible and unjustifiable.8
(App. 15, 16) (emphasis and footnote in original).
[42] Grandmother contends that the trial court erred by awarding attorney fees
based upon her failure to disclose Son’s address and Mother’s court-ordered
custody. She does not deny that she failed to disclose certain information on
her petition for the protective order. Instead, she argues that the petition does
not specifically request information relating to a custody order. 9 She also
suggests that the trial court’s findings are insufficient to support an award of
8
Prevail is a victim advocacy agency.
9
Again, Grandmother has not included a copy of her petition in her Appendix.
Court of Appeals of Indiana | Opinion 29A05-1607-PO-1625 | April 12, 2017 Page 20 of 22
attorney fees because there was no specific finding that her failure to disclose
information was done with ill will or a furtive design.
[43] Grandmother seems to argue that the trial court should not have found that she
acted in bad faith because her petition for the protective order was done merely
to protect or shield Son. The trial court, however, determined that
Grandmother had effectively used the ex parte protective order as a sword by
depriving Mother of her “inherent, court ordered, and constitutional right to the
custody of her child.” (App. 16). We will not reweigh the trial court’s
assessment of evidence or credibility of the witnesses. See Sawmill Creek, 964
N.E.2d at 216. Additionally, the trial court entered findings describing
Grandmother’s actions that it considered when determining bad faith, and it
was not necessary for the trial court to use the definitional words of bad faith,
i.e., ill will or furtive design, in addition to its specific finding of bad faith.
Moreover, our review of the trial court’s order reveals that the trial court’s
finding of bad faith was not based solely on Grandmother’s failures to disclose
information on her initial petition. Instead, the trial court took into
consideration Grandmother’s actions and omissions during the course of this
proceeding, especially Grandmother’s continued act of depriving Mother of
custody of Son. Because the trial court’s findings support its determination of
bad faith, we conclude that the trial court did not abuse its discretion and affirm
the trial court’s award of attorney fees pursuant to INDIANA CODE § 34-52-1-1.
Court of Appeals of Indiana | Opinion 29A05-1607-PO-1625 | April 12, 2017 Page 21 of 22
See, e.g., SJS Refractory, 952 N.E.2d at 770 (affirming a trial court’s award of
attorney fees where the court’s findings demonstrated bad faith).10
[44] Affirmed.
Baker, J., and Mathias, J., concur.
10
Grandmother also contends that even if the trial court did not err by awarding attorney fees to Mother, the
amount of the award was an abuse of discretion because Mother did not introduce an itemized statement of
her fees paid. Grandmother, however, has waived any such argument because she made no such objection
during the hearing. Indeed, when Mother presented receipts for payments made to her attorneys who
represented her at the beginning of the protective order proceeding, the trial court asked Grandmother if she
had any objection to the receipts, and Grandmother’s attorney stated, “[i]f they’re being admitted for the
purpose of that’s what [Mother] claimed she’s paid to [her attorneys], I don’t have an objection.” (Tr. 27).
Court of Appeals of Indiana | Opinion 29A05-1607-PO-1625 | April 12, 2017 Page 22 of 22