Julie D. Himes v. Todd A. Himes (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 14 2016, 8:51 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Michael F. Vertesch Shana D. Tesnar
Greenwood, Indiana Adler Tesnar & Whalin
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Julie D. Himes, June 14, 2016
Appellant/Petitioner, Court of Appeals Case No.
16A01-1510-DR-1599
v. Appeal from the Decatur Circuit
Court
Todd A. Himes, The Honorable Brian D. Hill,
Appellee/Respondent. Special Judge
Trial Court Cause No.
16C01-9609-DR-206
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 1 of 19
Statement of the Case
[1] In this contentious post-secondary educational expense action, Julie Himes
(“Mother”) argues that the trial court abused its discretion by: (1) granting the
parties’ children, twenty-two-year-old Maggie (“Maggie”) and twenty-year-old
Bryant (“Bryant”) leave to intervene as parties; (2) granting the children the
exclusive right to pursue any arrearage; (3) terminating the educational
expenses order; (4) concluding that Mother’s overpaid college expenses were
gifts; (5) failing to find Todd Himes (“Father”) in contempt; and (6) failing to
award her attorney fees. The trial court did not err in granting the children the
exclusive right to pursue any arrearage and in concluding that Mother’s
overpaid college expenses were gifts. However, because the trial court abused
its discretion in all other aspects of the case, we affirm in part, reverse in part,
and remand with instructions for the trial court to determine the amount of
attorney fees Mother is to receive as compensation for her injuries incurred as a
result of Father’s contempt. In addition, the sanction for contempt may exceed
any award for attorney fees.
[2] We affirm in part, reverse in part, and remand with instructions.
Issues
1. Whether the trial court abused its discretion in granting the
parties’ adult children leave to intervene as parties.
2. Whether the trial court erred in granting the children the
exclusive right to pursue any arrearage.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 2 of 19
3. Whether the trial court abused its discretion in terminating the
educational expenses order.
4. Whether the trial court abused its discretion in concluding
that Mother’s overpaid college expenses were gifts.
5. Whether the trial court abused its discretion in failing to find
Father in contempt.
6. Whether the trial court abused its discretion in failing to
award Mother attorney fees.
Facts
[3] Mother and Father have two children, daughter Maggie who was born in
August 1992 and son Bryant who was born in December 1994. Mother and
Father’s marriage was dissolved in February 1997; however, they have
apparently spent years litigating issues regarding their children. In January
2014, Mother and Father entered into the following Mediated Agreement to
resolve pending issues:
1. Child support for both Maggie Himes . . . and Bryant
Himes . . . shall terminate on November 20, 2013. . . .
* * * * *
4. As of November 20, 2013, all child support owed has been
paid in full and there are no overpayments.
5. As of November 20, 2013, there are no child-related
uninsured medical, dental or any other medical related expenses
due or overpayments by either party; and both parties stipulate
that neither party was in contempt of any Court Order.
6. As of the end of the summer semester of 2013, all Court-
Ordered payments for post-secondary education expenses for
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 3 of 19
Maggie have been paid by all parties and there are no
overpayments.
* * * * *
8. The new post-secondary education expense order [has
been] calculated . . . . Maggie shall contribute the sum of
Thirteen Thousand Five Hundred Fifty One Dollars ($13,551.00)
per school year in grants, cash and student loans as her share of
her yearly post-secondary education expenses. Bryant shall
contribute the sum of Fifteen Thousand Four Hundred Ninety
Five Dollars ($15,495.00) per school year in grants, cash and
student loans as his share of his yearly post-secondary education
expenses.
9. Commencing July 22, 2013, in the event that Maggie
Himes earns a 2.5 or better semester g.p.a. (out of a 4.00 scale),
at the previous Fall or Spring semester’s conclusion, Father shall
pay to Indiana University the sum of Five Thousand Three
Hundred Dollars ($5,300.00) per semester on behalf of Maggie’s
account as a reimbursement for his share of Maggie’s post-
secondary education expenses in the previous Fall or Spring
semester. Mother’s share shall be One Thousand Seven Hundred
Seventy Three Dollars ($1,773.00) . . . .
In the event that Maggie attends Summer semester classes
and Maggie earns a 2.50 or better semester g.p.a. (out of a 4.0
scale) at the conclusion of Summer semester, Father shall pay
Seventy Five Percent (75%) of any of Maggie’s Summer semester
tuition, books and fees and Mother shall pay Twenty Five
Percent (25%) of such expenses.
10. Commencing July 22, 2013, in the event Bryant Himes
earns a 2.50 or better semester g.p.a. (out of a 4.0 scale), at the
previous Fall or Spring semester’s conclusion, Father shall pay to
Cincinnati University the sum of Six Thousand Two Hundred
Dollars ($6,200.00) per semester on behalf of Bryant’s account as
a reimbursement for his share of Bryant’s post-secondary
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 4 of 19
education expenses in the previous Fall or Spring semester.
Under those same conditions, Mother’s share shall be Two
Thousand Fifty Dollars ($2,050.00) per semester . . . .
11. In the event that Bryant attends Summer semester classes
and Bryant earns a 2.50 or greater g.p.a. (out of a 4.00 scale), at
the conclusion of Summer semester, Father shall pay Seventy
Five Percent (75%) of any of Bryant’s Summer semester tuition,
books, fees, room and board and any other living expenses and
Mother shall pay Twenty Five Percent (25%) of such expenses.
12. All post-secondary education payments owed by Father
shall be made within ten (10) days of written confirmation from
the child that the child’s past semester grades were a 2.50 or
better semester g.p.a. (out of a 4.00 scale). In the event that
either university will not apply all or part of Father’s payment to
the child’s bursar account, the money shall be paid directly to the
child.
* * * * *
18. This Mediated Agreement was reached and signed during
a Court-Ordered mediation session and both parties acknowledge
that they enter this Mediation Agreement knowing that once signed, they
have no right to revoke their signature or the effectiveness of this Mediated
Agreement.
(App. 13-16) (emphasis added).
[4] In July 2014, Mother filed a petition for contempt, which she has failed to
include in her appendix. Apparently, Mother claimed that Father had failed to
pay the children’s post-secondary expenses as previously agreed and ordered
pursuant to the Mediated Agreement. Following a hearing on Mother’s
petition, the trial court concluded in an October 30, 2014 order (“Contempt
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 5 of 19
Order”) that Father had not paid his children’s post-secondary school expenses.
Specifically, the trial court concluded in relevant part as follows:
(6) It is the Court’s finding that based upon the evidence
presented, Todd A. Himes has not complied with the Mediated
Agreement dated January 7, 2014 with respect to his obligation
to pay college expenses for Maggie Himes for the fall 2013 and
spring 2014 semesters and his obligation to pay college expenses
for Bryant Himes[’] college education for the fall 2013 and spring
2014 semesters. Todd A. Himes is obligated to comply
specifically with the order and pay the total sum of Ten
Thousand Six Hundred Dollars ($10,600.00) to the college which
Maggie Himes attended for the fall 2013 semester and the spring
2014 semester. In the event the college refuses such payment,
then the payment shall be paid directly to Maggie Himes as
ordered in the mediated agreement dated January 7, 2014. The
Court will not accept evidence of payment testimony from Todd
A. Himes that he paid cash directly to the child. He must pay the
funds in a check or certified funds in order to receive credit for
the payment due to his efforts to avoid payment by alleging he
paid cash previously. Said payment shall be paid in full within
sixty (60) days from the date thereof.
(7) Todd A. Himes is also indebted in the sum of Twelve
Thousand Four Hundred Dollars ($12,400.00) for college
expenses owed for Bryant Himes[‘] college education for the fall
2013 and spring 2014 semesters. Todd A. Himes shall pay said
sum directly to the college attended by Bryant Himes during the
fall 2013 and the spring 2014 semester. In the event the college
refuses payment, he shall pay said amount directly to Bryant
Himes as called for in the Mediated Agreement dated January 7,
2014. The Court will not accept as evidence of payment
testimony from Todd A. Himes that he paid cash directly to
satisfy the obligation. He must satisfy the obligation by payment
of check or certified funds. Said payment shall be paid in full
within sixty (60) days from the date hereof.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 6 of 19
(8) The Court finds that Todd A. Himes has made deliberate
efforts to avoid payment of his share of college expenses as he
agreed to and as he has been ordered to pay in the Court’s
Mediated Agreement dated January 7, 2014. As a result, the
Court finds Todd A. Himes in contempt of the Court’s order
dated January 7, 2014. He shall be obligated to reimburse Julie
D. Himes the sum of One Thousand Five Hundred Dollars
($1,500.00) in attorney fees incurred in bringing the contempt
action before the court.
* * * * *
(10) The Court does not find Todd A. Himes in contempt for
failure to pay summer 2014 expenses since those expenses are
based on a percentage basis and he needs access to the children’s
Bursar accounts to determine the dollar amount owed. The
Court instructed Julie D. Himes to provide Todd A. Himes
access to the children’s Bursar accounts and/or have the children
provide him access to the Bursar accounts. On providing that
access, Todd A. Himes owes seventy-five percent of each child’s
summer 2014 college expenses as previously ordered.
(App. 25-27).
[5] In January 2015, more than sixty days after the trial court’s order, Father filed a
petition to modify wherein he asked the trial court to grant “Maggie and Bryant
leave to intervene as parties hereto and to thereafter terminate all Orders
relating to educational expenses.” (App. 37). The petition further stated that
Maggie and Bryant joined in and certified that “they ha[d] a good working
relationship with their Father and no longer need[ed] or desired any
intervention in their relationship with their Father . . . .” (App. 38). Father and
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 7 of 19
both children signed the petition under penalties of perjury. Mother responded
with an objection and a petition for contempt, which she failed to include in her
appendix. In February 2015, Father filed a motion for change of venue from
the judge, which resulted in the appointment of a special judge.
[6] In March 2015, Father renewed his motion to terminate all support orders and
to close the case. The trial court held a July 2015 hearing on Father’s petition
to terminate the educational support order as well as Mother’s petition for
contempt. The evidence revealed that Father had directly paid Maggie
$1,795.00 of the $10,600.00 that the trial court ordered him to contribute to her
fall 2013 and spring 2014 semesters, leaving an arrearage of $8,805.00. Father
had also accrued a $1,892.27 arrearage for Maggie’s summer 2014 semester.
Father’s total arrearage for Maggie was $10,697.27. In addition, Father had
directly paid Bryant $880.00 of the $12,400.00 that the trial court ordered him
to contribute to his son’s fall 2013 and spring 2014 semesters, leaving an
arrearage of $11,520.00. Father’s total arrearage for the fall 2013, spring 2014,
and summer 2016 semesters for both children was $22,217.27.
[7] Father testified that he had not complied with the Contempt Order contending
that it was unclear. Father explained that the order “didn’t really specify that I
was supposed to do anything other than pay money and continue to help my
kids . . . [which] I’ve been doing.” (Tr. 15-16). When confronted by Mother’s
counsel, Father conceded that the order was not confusing. Instead, he
explained that based on his counsel’s advice, he believed that his approximately
$2,700.00 in payments had satisfied the almost $25,000.00 due pursuant to the
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 8 of 19
Contempt Order. Specifically, he explained that he “had made payments,
working with [his] kids as needed, to help with school, and personal expenses
during school,” including rent and car repairs. (Tr. 9). Father further explained
that he “[did not] need a court order to help [his kids].” (Tr. 10). When asked
by Mother’s counsel if he owed money for Maggie’s educational expenses,
Father responded that he did not believe that he did. Father explained, “I’ve
been paying and . . . I’ve made payments to her and will continue to do so.”
(Tr. 26). Father also testified that he had “paid everything [Bryant] asked for
and more.” (Tr. 8). Father further testified that Maggie’s account had been
overpaid and she had received a refund from the Bursar’s Office. In addition,
she had finished the classroom portion of her college education and would
graduate as soon as she had finished her internship in September 2015. Bryant
was participating in a co-op engineering program that was part of his degree at
the University of Cincinnati, and he was earning approximately $20,000 in the
program. Lastly, Father testified that his annual income was approximately
$110,000.
[8] Although Mother acknowledged that Maggie had no more classes to attend or
tuition due as of the date of the hearing, she pointed out that Maggie had
$40,000 in student loans. She also pointed out that although Bryant was
currently participating in a co-op program, he had two years of college to
complete. Mother also testified that she had overpaid the educational expense
order for Maggie by $92.63 and for Bryant by $7,109.25. Mother asked the trial
court to enter a judgment in her name and to garnish Father’s wages. She
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 9 of 19
requested reimbursement for her overpayments, but she asked the trial court to
allow her to apply her overpayments to her future obligations. Last, Mother
testified that her annual income was $38,000 and asked the trial court to award
her attorney fees.
[9] Although the children were subpoenaed, they did not appear in court or testify.
The trial court sustained Mother’s objection to the admission of the children’s
depositions into evidence.
[10] In August 2015, the trial court issued an order that provides in relevant part as
follows:
1. Due to the fact that this Court has previously made the
adult children “third party” payees of funds to be made by
Father, the Court grants their motion to intervene as parties in
this matter. The Court finds, that on two occasions, both adult
children have affirmed under the penalties of perjury their wish
to have the previous education expense order terminated and that
they have a good working relationship with their Father and are
able to work out any of their educational needs with him. There
was no evidence that these signatures were forged or made under
duress.
2. The Court finds that the previous Order of Educational
Expenses should be and is hereby terminated effective January
26, 2015. The Court, however, does not vacate any previous
order of expense allocation or specific amounts owed by Father.
These amounts still may be owed by Father to children, and as
parties, one or both may request that said expenses be reduced to
judgment and/or proceed with collection measures under this
cause.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 10 of 19
3. By her own testimony, Wife is not requesting
reimbursement for any alleged overpayment of educational
expenses that she has made. The Court finds that any potential
overpayment should be considered a gift since the Court did not
order Former Husband to reimburse Former Wife or make any
future payments to her, she is not the appropriate party to enforce
payment to payees who apparently have no interest in pursuing
their claims at this time.
4. Former Wife has presented sufficient evidence to show
that Former Husband has not been in strict compliance with the
previous order of this Court requiring payments made to the
individual children by certified check or money order, however,
under the specific facts of this case, the Court finds that it would
be manifestly unreasonable to find Former Husband in contempt
for his actions due to the fact that payees have joined in his
motion to terminate the Court order of educational expense
allocation.
5. Therefore, Former Wife’s Petition for Contempt should be
and is hereby denied along with her request for attorney fees.
(Mother’s Br. 33-34). Mother appeals.
Decision
1. Granting Children Leave to Intervene as Parties
[11] Mother first argues that the trial court erred in granting Maggie and Bryant
leave to intervene as parties. We review the trial court’s ruling on a motion to
intervene pursuant to Indiana Trial Rule 24 for an abuse of discretion and
assume that all facts alleged in the motion are true. Citimortgage v. Barabas, 975
N.E.2d 805, 812 (Ind. 2012). A motion to intervene must be timely filed.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 11 of 19
White v. Vermillion County Bd. of Zoning Appeals, 568 N.E.2d 1106, 1107 (Ind. Ct.
App. 1991).
[12] Indiana Trial Rule 24(C) provides that a “person desiring to intervene shall
serve a motion to intervene upon the parties as provided in Rule 5. The motion
shall state the grounds therefor and set forth or include by reference the claim,
defense or matter for which intervention is sought.” Here, the children did not
comply with this rule. Specifically, they failed to file or serve their own motion
to intervene. Rather, Father’s petition to modify includes a brief request that
the trial court grant Maggie and Bryant leave to intervene.
[13] Maggie and Bryant also failed to comply with Trial Rule 3.1(C) which provides
that at the time the “matter is submitted to the court seeking to intervene in a
proceeding, the attorney representing the intervening party or parties, or the
intervening party or parties, if not represented by an attorney, shall file an
appearance form . . . .” No appearance forms were filed.
[14] Further, neither child appeared in court even though they had twice been
subpoenaed by Father’s counsel. Under these circumstances, where the
children failed to comply with the trial rules governing intervention and then
failed to appear in court despite a subpoena, the trial court erred in granting
them leave to intervene as parties.
2. Exclusive Right to Pursue any Arrearage
Mother also argues that the trial court abused its discretion in awarding Maggie
and Bryant the exclusive right to pursue any arrearage. Our review of the
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 12 of 19
record reveals that the trial court awarded the children the exclusive right to
pursue any arrearage because they were already third-party payees of funds paid
by Father. The children’s status as payees was reconfirmed in the trial court’s
Contempt Order. Mother cannot now complain about the children’s status as
payees where she agreed to this status in the January 2014 Mediated
Agreement. Agreements such as this will be upheld absent evidence of
unfairness, unreasonableness, or manifest inequity, or evidence that the
agreement was procured through fraud or coercion, none of which has been
alleged by Mother. See Reno v. Haler, 734 N.E.2d 1095, 1101 (Ind. Ct. App.
2000) trans. denied. The trial court did not abuse its discretion in determining
that those who had the exclusive right to be paid the money should also have
the exclusive right to collect any arrearage.
3. Termination of Educational Expenses Order
[15] Mother next argues that the trial court abused its discretion in terminating the
educational expenses order. Educational expenses are in the nature of child
support. Schacht v. Schacht, 892 N.E.2d 1271, 1275 (Ind. Ct. App. 2008). An
agreement between parents regarding child support may subsequently be
modified. In re Marriage of Kraft, 868 N.E.2d 1181, 1188 (Ind. Ct. App. 2007).
A modification of child support in such cases is governed by INDIANA CODE §
31-16-8-1, which provides that a child support order may be modified or
revoked upon a showing of changed circumstances so substantial and
continuing as to make the terms of the order unreasonable. See id. When
confronted with a petition to modify a support order, the trial court must
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 13 of 19
consider the totality of the circumstances involved in order to ascertain whether
the modification was warranted. Carter v. Dayhuff, 829 N.E.2d 560 (Ind. Ct.
App. 2005). As the party seeking modification, Father had the burden of
establishing that he was entitled to have the educational expenses order
modified. See Cross v. Cross, 891 N.E.2d 635, 641 (Ind. Ct. App. 2008).
[16] Modifications of child support are reviewed for an abuse of discretion. Miller v.
Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). We grant latitude and
deference to trial courts in family matters. Id. We neither we neither reweigh
the evidence nor reassess witness credibility. Id. Rather, we consider only the
evidence most favorable to the judgment and the inferences flowing therefrom.
Id.
[17] Here, the trial court terminated the educational expenses order effective
January 25, 2015. Mother argues that “there was no evidence introduced at
trial of this matter to support a finding of changed circumstances so substantial
and continuing as to make the terms unreasonable . . . .” (Mother’s Br. 20).
We agree.
[18] Mother and Father entered into a Mediated Agreement for the payment of their
children’s educational expenses in January 2014. The trial court’s order being
appealed in this case terminated those educational expenses in January 2015.
However, our review of the evidence reveals that the children’s educational
expenses had not substantially changed as of January 2015. Specifically,
Maggie and Bryant were both still students at their respective universities.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 14 of 19
Bryant participated in an engineering co-op program and earned $20,000.00
that year, which provided him with the funds to make his required $15,000.00
contribution to his educational expenses. However, this was not a changed
circumstance so substantial and continuing as to make Father’s agreed
contribution unreasonable.
[19] Further, to the extent that Father argues that Maggie’s refund from the Bursar’s
Office was a substantial and continuing change of circumstances, we note that
tuition payments are due at the beginning of the semester. Father is required to
contribute to his children’s educational expenses at the end of the semester if
the children achieve a certain G.P.A. Under these circumstances, it is
reasonable to infer that Maggie borrowed money to pay her tuition at the
beginning of the semester, and when Father went to the Bursar’s Office to pay
Maggie’s tuition at the end of the semester, there was nothing due. Thus,
although Maggie’s loan helped her to make her $13,551.00 required
contribution to her educational expenses, it was not a changed circumstance as
substantial and continuing as to make Father’s agreed contribution
unreasonable.
[20] Father has pointed to no additional evidence to show the required substantial
and continuing changed circumstances, and we find none. Father has therefore
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 15 of 19
failed to meet his burden. Under these circumstances, the trial court abused its
discretion in terminating the educational expenses order.1
4. Mother’s Overpaid Educational Expenses
[21] Mother also argues that the trial court abused its discretion in finding that any
educational expenses that she overpaid were gifts. She has waived appellate
review of this issue because she has failed to support it with cogent argument
and relevant authority. See Kentucky Nat’l. Ins. Co. v. Empire Fire and Marine Ins.
Co., 919 N.E.2d 565, 598 (Ind. Ct. App. 2010) (holding that argument was
waived for failure to cite authority or provided cogent argument).
[22] Waiver notwithstanding, we find no error. Where Mother did not request
reimbursement of the overpayments, the trial court did not abuse its discretion
in finding that they were gifts. See Carpenter v. Carpenter, 891 N.E.2d 587, 591
(Ind. Ct. App. 2008) (holding that voluntary overpayments of child support are
properly treated as gratuities to the children).
5. Contempt
1
Indiana’s policy is to encourage parents to settle their own affairs. Reno v. Haler, 734 N.E.2d 1095, 1100
(Ind. Ct. App. 2000), trans. denied. We have previously pointed out that a child support order and an
educational support order are separate and distinct because an educational support order can be terminated if
a child repudiates a parent. Lovold v. Ellis, 998 N.E.2d 1144, 1152 (Ind. Ct. App. 2013). We do not have that
here. What we do have here are two parents that properly executed a mediated agreement, which stated that
they both gave up any “right to revoke their signature or the effectiveness of this Mediated Agreement.”
(App. 16). There is no evidence in the record of fraud, duress, misrepresentation, or manifest inequities. See
Pond v. Pond, 700 N.E.2d 1130, 1136 (Ind. 1998). As a result, even if there was evidence to support a
modification, it is likely that the trial court would still have been bound to enforce the terms of the parties’
Mediated Agreement. However, we do not reach that conclusion today.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 16 of 19
[23] Mother next argues that the trial court abused its discretion in failing to find
Father in contempt for failing to comply with the Contempt Order. Whether a
party is in contempt is a matter left to the sound discretion of the trial court.
Sutton v. Sutton, 773 N.E.2d 289, 297 (Ind. Ct. App. 2002). We reverse the trial
court’s finding in contempt matters only if it is against the logic and effect of the
evidence before the trial court or is contrary to law. Id. When reviewing a
contempt order, we will neither reweigh the evidence nor judge the credibility
of witnesses. Id. We will affirm the trial court’s judgment unless a review of
the entire record leaves us with a firm and definite belief that a mistake has been
made. Id.
[24] To hold a party in contempt for a violation of a court order, the trial court must
find that the party acted with “willful disobedience.” Id. Simply establishing
the existence and knowledge of an arrearage may not amount to a “willful
disregard of a court order.” Id.
[25] Here, our review of the evidence reveals that the Contempt Order found Father
in contempt for making “deliberate efforts to avoid payments of his share of
college expenses agreed to and as he ha[d] been ordered to pay in the Courts’
Mediated Agreement dated Jan. 7, 2014.” (App. 24). The trial court ordered
Father to make the payments in full within sixty days of the date of the order.
However, almost a year later, Father, who had still not complied with this
order, testified that the order was not clear because it did not tell him what to
do. Later, he admitted that the order was clear and testified that he “[did not]
need a court order to help his kids.” (Tr. 10). According to Father, he believed
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 17 of 19
that his payments of almost $2,700.00 had satisfied his $25,000.00 court-
ordered contribution to his children’s educational expenses. Father’s failure to
pay was clearly willfully deliberate. Because a review of the entire record leaves
us with a firm and definite belief that a mistake has been made, we conclude
that the trial court abused its discretion in failing to find Father in contempt.
6. Attorney Fees
[26] Last, Mother argues that the trial court abused its discretion in failing to order
Father to pay her attorney fees. The determination of the payment of attorney
fees in proceedings to modify a child support award is within the sound
discretion of the trial court and will be reversed only upon a showing of a clear
abuse of that discretion. Id.
[27] Mother first contends that the trial court abused its discretion in failing to award
her attorney fees pursuant to INDIANA CODE § 31-16-11-1, which authorizes the
award of attorney fees in post-dissolution proceedings. In assessing attorney
fees, the court may consider such factors as the resources of the parties, the
relative earning ability of the parties, and other factors that bear on the
reasonableness of the award. Gilbert v. Gilbert, 777 N.E.2d 785, 795 (Ind. Ct.
App. 2002). In addition, any misconduct on the part of one of the parties that
directly results in the other party incurring additional fees may be taken into
consideration. Id. Mother complains that the trial court in this case failed to
consider Father’s superior financial situation and how he had “thwarted equal
access to the courts for others in the difficult economic position such as that
occupied by Mother.” (Mother’s Br. 31). However, the trial court reviewed the
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 18 of 19
parties’ economic circumstances at the hearing. We assume the trial court
considered such information and determined that it did not mandate the award
of attorney fees in this case. See id. (explaining that the trial court need not give
reasons for its determination). We find no abuse of the trial court’s discretion.
[28] Mother also contends that the trial court abused its discretion in failing to
award her attorney fees as a sanction upon a finding of contempt. See Adler v.
Adler, 713 N.E.2d 348, 355 (Ind. Ct. App. 1999) (explaining that the trial court
has inherent authority to compensate the aggrieved party for losses and
damages resulting from another’s contemptuous actions). Because the trial
court did not find Father to be in contempt, the court did not consider ordering
him to pay Mother’s attorney fees as a sanction. However, because we have
found that the trial court erred in failing to find Father to be in contempt, we
remand this case to the trial court with instructions to determine the amount of
attorney fees Mother is to receive as compensation her for injuries incurred as a
result of Father’s contempt. In addition, the sanction for contempt may exceed
any award for attorney fees.
[29] Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016 Page 19 of 19