Pb v. Td , 1987 Ind. App. LEXIS 3416 ( 1987 )

507 N.E.2d 992 (1987)

P.B., Respondent-Appellant,
v.
T.D., Petitioner-Appellee.

No. 3-785A197.

Court of Appeals of Indiana, Third District.

May 18, 1987.

John R. Frechette, Elkhart, for appellant.

Edward J. Chester, Chester & Chester, Elkhart, for appellee.

OPINION ON PETITION FOR REHEARING

HOFFMAN, Judge.

P.B.'s petition for rehearing discloses that his appeal questioned the attorney's fees awarded at trial. In the original opinion, only the award of appellate attorney's fees was discussed. The rehearing is granted and the original opinion as to attorney's fees is now modified in that a more direct ground exists for disposing of the issue of attorney's fees awarded to T.D. for the trial and for the appeal.

The trial court awarded T.D. $4,500.00 in attorney's fees at the trial and another $3,000.00 in attorney's fees for the appeal. In both instances the court stated that the fees were being awarded because T.D. was forced to defend an unmeritorious case. In Barnett v. Barnett (1983), Ind. App., 447 N.E.2d 1172, 1175-1176, this Court found that a trial court abused its discretion in awarding appellate attorney's fees solely on the basis that an appeal was malicious. Notwithstanding IND. CODE § 31-1-11.5-16 (1984 Supp.) which allows an award of attorney's fees at any stage in dissolution proceedings, there is no authority for allowing the fees because the trial court determines that a cause or an appeal lacks merit. Barnett, supra. The statute allowing the award of attorney's fees is in place to insure equal access to the courts, no matter the relative financial conditions of the parties. Barnett, supra, 447 N.E.2d at 1176.

In the present case the evidence revealed fairly equal financial conditions by each party. However, T.D. earned a slightly higher weekly salary than P.B. Further, T.D. had fewer debts than did P.B. While the trial court acknowledged that P.B. may not be in the "greatest of financial conditions," the court stated that even if the appeal had merit T.D. could recover appellate attorney's fees. The court elaborated that if P.B. was in the financial position to generate an appeal, that there was an attendant risk of paying a portion of T.D.'s fees. Thus, it does not appear that the trial court's award of attorney's fees was based upon the financial conditions of the parties.

Accordingly, the trial court's award of both trial and appellate attorney's fees must be reversed. T.D.'s petition for rehearing is denied.

GARRARD, P.J., and STATON, J., concur.