Mark A. Roesler v. Amy S. (Roesler) Riesmeyer (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jun 29 2018, 6:04 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Theodore J. Minch Margaret M. Christensen
Sovich Minch, LLP Bingham Greenebaum Doll LLP
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Roesler, June 29, 2018
Appellant-Respondent, Court of Appeals Case No.
73A01-1708-DR-1926
v. Appeal from the Shelby Circuit
Court
Amy S. (Roesler) Riesmeyer, The Honorable Jennifer K.
Appellee-Petitioner Kinsley, Magistrate
The Honorable Charles D.
O’Connor, Judge
Trial Court Cause No.
73C01-9809-DR-71
May, Judge.
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[1] Mark A. Roesler (“Father”) appeals the trial court’s denial of his verified
petition for educational and other expenses. He argues the trial court erred
when it determined it lacked authority pursuant to Indiana Code section 31-16-
6-6 (2012) to issue an order for post-secondary educational expenses because
Father’s petition was untimely. Amy S. (Roesler) Riesmeyer (“Mother”) argues
the court did not err when it so decided, and she requests we award appellate
attorney fees. We dismiss this appeal and remand for the court to calculate an
award of appellate attorney fees for Mother.
Facts and Procedural History
[2] Mother and Father married in 1986. Three children were born of the marriage.
The marriage was dissolved in 2001 by agreement. The dissolution decree
provided for support and custody of the three then-minor children, but was
silent regarding post-secondary expenses for the children.
[3] On October 29, 2012, Father filed a verified petition to recognize emancipation
and to modify child support, which sought to emancipate their two older
children and modify Father’s child support accordingly. On August 18, 2014,
the parties filed an agreed entry emancipating their two older children and
modifying Father’s child support to an amount solely for the support of the
youngest child, J.R. The court approved that agreed entry and entered an order
(hereinafter, “2014 Order”) that in relevant part provided:
D. Mother and Father, by this Agreed Entry, agree to resolve all
pending issues and issues discussed between the parties
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(excepting college expense allocation, which is expressly reserved
for future review), including but not limited to past child support,
payment of child support through the date of [J.R.’s]
emancipation (May 30, 2016), private high school costs, and
property settlement payments.
*****
7. [J.R.’s] College Expenses. The parties defer addressing the
issue of payment of [J.R.’s] college expenses to a later date.
(Appellant’s App. Vol. II at 43 & 46.) 1
[4] On June 9, 2016, Father filed a verified petition asking the court to recognize
J.R.’s emancipation and terminate child support. Father’s request did not
address J.R.’s post-secondary education expenses. The trial court granted
Father’s petition the same day (“2016 Order”).
[5] On November 19, 2016, Father filed a verified petition for educational and
other related expenses. Father’s petition acknowledged the trial court’s 2016
Order and stated J.R. was enrolled in post-secondary education at the
University of Southern California and was participating in a study-abroad
program as a full-time student effective Fall 2016. Father asked the trial court
1
The pages in Appellant’s Appendix are not numbered as required by Indiana Appellate Rule 51(C). This
oversight has hampered our review of the facts of this case.
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to determine Mother’s obligation for J.R.’s educational expenses and other
special related expenses totaling at least $65,000.
[6] On December 22, 2016, Mother filed a motion to dismiss Father’s petition
pursuant to Indiana Trial Rule 12(H)(2). Mother argued the trial court lacked
authority to issue an order for educational support. On the same day, Mother
also filed a motion for attorney’s fees.
[7] Mother filed a brief supporting her motion to dismiss on April 19, 2017. Father
responded thereafter and the trial court held a hearing on Father’s petition on
July 7, 2017. On July 28, 2017, the trial court denied Father’s petition, finding
it lacked authority to issue an order allocating post-secondary educational
expenses. The trial court’s order did not address Mother’s request for attorney’s
fees.
Discussion and Decision
Jurisdiction
[8] Our authority to exercise appellate jurisdiction is generally limited to appeals
from final judgments, certain interlocutory orders, and agency decisions. Ind.
Appellate Rule 5. A judgment is final if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial
Rule 54(B) or Trial Rule 56(C) that there is no just reason for
delay and in writing expressly directs the entry of judgment (i)
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under Trial Rule 54(B) as to fewer than all the claims or parties,
or (ii) under Trial Rule 56(C) as to fewer than all the issues,
claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to
Correct Error which was timely filed under Trial Rule 59 or
Criminal Rule 16; or
(5) it is otherwise deemed final by law.
Ind. App. R. 2(H). Whether an order is a final judgment governs our subject
matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003), reh’g
denied.
Neither the parties nor the trial court can confer appellate
jurisdiction over an order that is not appealable either as a final
judgment or under Trial Rule 54(B). To the contrary, the lack of
appellate jurisdiction can be raised at any time, and if the parties
do not question subject matter jurisdiction, the appellate court
may consider the issue sua sponte.
Id.[9] Here, the trial court’s order denied Father’s petition for educational and other
expenses but does not address Mother’s petition for attorney’s fees. Thus, it
does not dispose of “all claims” between the parties as required by Indiana
Appellate Rule 2(H)(1). See Clark v. Atkins, 489 N.E.2d 90, 99 (Ind. Ct. App.
1986) (trial court’s order was not final order because it did not fully address
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issue of attorney’s fees), reh’g denied, trans. denied, overruled on other grounds by
Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008). The order also does not
contain language pursuant to Indiana Trial Rule 54(B) or Indiana Trial Rule
56(C) directing the entry of judgment as to fewer than all the issues.
Additionally, the order was not deemed final for the purposes of relief from the
judgment pursuant to Indiana Trial Rule 60(C), it is not a ruling on a timely-
filed mandatory or permissive motion to correct error under Indiana Trial Rule
59, and has not been otherwise deemed final by law. Therefore, we lack subject
matter jurisdiction and cannot entertain Father’s challenge of the trial court’s
order.
Appellate Attorney’s Fees
[10] In her cross-appeal, Mother requests appellate attorney’s fees pursuant to
Indiana Appellate Rule 66(E), which states in relevant part: “The Court may
assess damages if an appeal, petition, or motion, or response, is frivolous or in
bad faith. Damages shall be in the Court’s discretion and may include
attorneys’ fees.” An award of appellate attorney’s fees pursuant to Indiana
Appellate Rulle 66(E) is discretionary and may be ordered when an appeal is
“replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or
purpose of delay.” Trost–Steffan v. Steffan, 772 N.E.2d 500, 514 (Ind. Ct. App.
2002), reh’g denied. In awarding these fees we must use extreme restraint
because of the potential chilling effect on the exercise of the right to appeal. Id.Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018 Page 6 of 8
[11] There are two types of bad faith that permit appellate attorney fees -
“substantive” and “procedural.” Wressell v. R.L. Turner Corp., 988 N.E.2d 289,
299 (Ind. Ct. App. 2013), reh’g denied.
To prevail on a substantive bad faith claim, the party must show
that the appellant’s contentions and arguments are utterly devoid
of all plausibility. Procedural bad faith, on the other hand,
occurs when a party flagrantly disregards the form and content
requirements of the rules of appellate procedure, omits and
misstates relevant facts appearing in the record, and files briefs
written in a manner calculated to require the maximum
expenditure of time both by the opposing party and the reviewing
court. Even if the appellant’s conduct falls short of that which is
“deliberate or by design,” procedural bad faith can still be found.
Id. (quoting Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003))
(citations omitted).
[12] Here, Father filed an appeal from an order that was not a final judgment, which
required us to dismiss the appeal without addressing the merits of his argument
challenging the trial court’s decision, such that his arguments are devoid of
plausibility due to our lack of jurisdiction. In addition, Father’s appendices
have no page numbers, which makes review of and citation to the record
difficult. While these substantive and procedural missteps do not rise to a level
that would justify appellate sanctions, they are an unnecessary drain on not
only our judicial resources, but also Mother’s resources. Therefore, we remand
for the trial court to determine an appropriate award of appellate attorney’s fees
to cover the costs Mother incurred defending this appeal. See In re Walter Penner
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Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014) (awarding appellee Trust
appellate attorney’s fees based on appellant’s procedural violations), trans.
denied.
Conclusion
[13] Because the trial court’s order denying Father’s petition for educational and
other expenses is not a final appealable order, we dismiss. We remand to the
trial court for determination of appropriate appellate attorney’s fees to be paid
to Mother by Father.
[14] Dismissed and remanded.
Riley, J., and Mathias, J., concur.
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