dissenting.
I respectfully dissent from the majority opinion insofar as it holds that a trial court may not enter an award for appellate attorneys' fees once the record has been filed on appeal.
IND.CODE § 31-1-11.5-16 (1984 Supp.) provides, in relevant part:
"(a) The court may from time to time order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorneys' fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceedings or after entry of judgment."
While the statute does not specifically allow the award of appellate attorneys' fees after an appeal is taken, it arguably contemplates such action. Indeed, it would be unrealistic to expect a trial court to make an award of appellate attorneys' fees before the parties express an intention to appeal. To foreclose a trial court from holding an evidentiary hearing and awarding appellate attorneys' fees after perfection of an appeal, based upon a supposed jurisdictional impediment, would abrogate the clear intent of the statute; in that, the Court of Appeals is not the proper forum for an evidentiary hearing. See, Indiana Constitution Art. 7 § 6 (except direct review of administrative decisions, Court of Appeals has no original jurisdiction).
I am unpersuaded by Hudson v. Hudson (1985), Ind.App., 484 N.E.2d 579, from whence the present procedural conflict arose. Instead, I would follow the line of cases including Inkoff v. Inkoff (1974), 159 Ind.App. 239, 306 N.E.2d 132; Wagner v. Wagner (1986), Ind.App., 491 N.E.2d 549; and Scheetz v. Scheetz (1987), Ind.App., 509 N.E.2d 840. These cases recognize the trial court as the appropriate forum for such an award and note that the issue of the award of appellate attorneys' fees is separate and distinct from the issues on appeal. In examining the issue it is also useful to note that a trial court, in a dissolution proceeding, enjoys continuing jurisdiction over custody and support matters. State ex rel. Werthman v. Superior Court of Marion (1983), Ind., 448 N.E.2d 680, 683.
Consequently, because the majority's resolution of the issue will mislead and confuse practitioners as to when, where, and how to implement a request for appellate attorneys' fees pursuant to IND.CODE § 31-1-11.5-16, I must dissent.