David A. Scott v. Sara J. Scott (mem. dec.) ( 2018 )

MEMORANDUM DECISION FILED
Jan 30 2018, 9:24 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Christopher M. Forrest Laura Boyer King
Forrest Legal LLC Scott & Aplin LLC
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Scott, January 30, 2018
Appellant-Petitioner, Court of Appeals Case No.
02A03-1708-DR-1864
v. Appeal from the Allen Circuit
Court
Sara J. Scott, The Honorable Charles F. Pratt,
Appellee-Respondent Special Judge
Trial Court Cause No.
02C01-1410-DR-1333
Crone, Judge.
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Case Summary
[1] David A. Scott (“Father”) filed a motion for contempt and request for
attorney’s fees against Sara J. Scott (“Mother”). The trial court granted the
motion and found Mother in contempt, but denied Father’s request for fees.
Father appeals and contends that the trial court erred in denying his request for
attorney’s fees. Concluding that Father has waived this assertion of error, we
affirm.
Facts and Procedural History
[2] A decree dissolving the marriage between Father and Mother was entered on
April 25, 2016. The decree incorporated the parties’ mediated marital
settlement agreement (“the Agreement”). The parties were granted joint legal
custody of their three minor children, with Mother having primary physical
custody and Father having parenting time. Pursuant to the Agreement, the
parties are to maintain open communication “in an effort to mutually agree in
regard to the general health and welfare, education and development of the
minor children to the end that, insofar as possible, they may adopt a mutual
harmonious policy to said children’s upbringing.” Appellant’s App. Vol. 2 at
35. The Agreement further provides that the parties will jointly decide which
schools the children will attend. Id. at 37.
[3] Following the dissolution, Mother was required to vacate the marital residence
which was in the Fort Wayne Community Schools district. She moved with
the children to the Northwest Allen County Schools district. Because the
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parties’ oldest child had completed elementary school, Mother was required to
enroll him in middle school. In July 2016, Mother informed Father that she
had decided to enroll that child in Maple Creek Middle School in the
Northwest Allen County Schools system rather than Jefferson Middle School in
the Fort Wayne Community Schools system which he was otherwise in line to
attend. Mother and Father exchanged text messages in which Father clearly
objected to the enrollment.
[4] On August 25, 2016, Father filed a petition for contempt and request for
attorney’s fees against Mother. Father asserted that Mother intentionally and
willfully disregarded the Agreement by enrolling the parties’ oldest child in a
new school without Father’s agreement or consent, and without adequately
discussing the matter with Father. Father alleged that he incurred attorney’s
fees as a direct result of Mother’s “willful failure to abide by [the Agreement]
and her responsibilities as a joint legal custodian.” Id. at 57. Thus, Father
requested reimbursement for the reasonable fees incurred.
[5] The trial court held a hearing on Father’s contempt petition on January 20,
2017. On March 27, 2017, the trial court entered its order finding Mother in
contempt. The trial court determined that Mother did not provide Father an
opportunity to engage in discussion, but instead acted unilaterally in her
decision to enroll the parties’ oldest child in a new school, and that such action
was willful and violated the trial court’s orders. Regarding Father’s request for
attorney’s fees, the trial court stated,
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The Court is cognizant that the parties have had significant issues
between them over the course of the pendency of this case.
Taking judicial notice of the record the Court finds that there
were four (4) protective orders filed and dismissed by [Father]
against [Mother]. [Mother’s] testimony regarding the difficulty
with their communication was not contradicted. The
[Agreement] to mutually work together for the benefit of the
children is, then, a significant step in the right direction. More
time is likely needed for the parents to adjust to their new roles and the
new ways decisions must now be made. Accordingly, the cost of the
learning curve should not be assigned to one party. The request for fees is
thus denied.
Id. at 31 (emphasis added).
[6] Thereafter, Father filed a motion to correct error asserting that the trial court
erred in denying his request for attorney’s fees. In his motion, Father alerted
the trial court for the first time to the fact that the parties’ Agreement includes
an indemnification clause in which the parties agreed to “indemnify and save
and hold the other harmless from all damages, losses, expenses, fees (including
reasonable attorney fees), and other costs and expenses incurred by reason of
said party’s violation or breach of any of the terms and conditions” of the
Agreement. Following a hearing, the trial court denied the motion to correct
error. This appeal ensued.
Discussion and Decision
[7] In his motion to correct error and on appeal, Father claims that the trial court
erred in denying his request for attorney’s fees. As a general matter, a trial
court has broad discretion in awarding attorney’s fees in post-dissolution
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proceedings, including contempt actions. See Ind. Code § 31-15-10-1; Julie C. v.
Andrew C., 924 N.E.2d 1249, 1261 (Ind. Ct. App. 2010); Crowl v. Berryhill, 678
N.E.2d 828, 831 (Ind. Ct. App. 1997). However, Father asserts that the trial
court was without discretion to deny his request for attorney’s fees for Mother’s
contempt because he is entitled to such fees based upon the indemnification
clause in the parties’ Agreement. Mother contends that Father has waived this
assertion of error. We agree with Mother.
[8] Our thorough review of the record reveals that, other than making a general
request for attorney’s fees as a sanction for Mother’s contempt, Father did not
raise or even mention the indemnification clause as a basis for recovery of
attorney’s fees in his contempt petition, or at any time during the evidentiary
hearing before the trial court. Instead, he raised this basis for relief for the first
time in his motion to correct error. It is well established that a party may not
raise issues or arguments for the first time in a motion to correct error, and that
such issues or arguments are waived on appeal. Shepherd Props. Co. v. Int’l Union
of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 849 n. 3 (Ind. 2012).
[9] In his motion to correct error, Father speculates that the trial court “simply did
not recall” that the Agreement contained an indemnification clause and that is
what led to the court’s erroneous belief that it had discretion to deny Father’s
fee request. Appellant’s App. Vol. 2 at 68. However, Father did nothing to
refresh the trial court’s alleged lack of recollection and essentially invited the
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trial court to exercise its discretion in considering whether to award attorney’s
fees as a sanction for Mother’s contempt.1 Again, this amounts to waiver. See
Bunting v. State, 854 N.E.2d 921, 924 (Ind. Ct. App. 2006) (“A party may not sit
idly by, permit the court to act in a claimed erroneous manner, and
subsequently attempt to take advantage of the alleged error.”); trans. denied.
Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1077 (Ind. Ct.
App. 2003) (“A party cannot invite error and then request relief on appeal based
upon that ground; such an error cannot be reviewed by this court.”), trans.
denied. We conclude that Father has waived his assertion of error on appeal.
The trial court’s order is affirmed.2
[10] Affirmed.
Robb, J., and Bradford, J., concur.
1
We are unpersuaded by Father’s assertion that his request for the trial court to take judicial notice of its
records, including the Agreement, was sufficient to alert the court to the existence of the indemnification
clause.
2
Because we affirm the trial court’s order, we need not address Father’s request for appellate attorney’s fees.
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