Apr 30 2013, 9:20 am
FOR PUBLICATION
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
PHILLIP J. TROYER PERRY D. SHILTS
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PHILLIP J. TROYER, )
)
Appellant/Cross-Appellee-Respondent, )
)
vs. ) No. 02A03-1207-DR-319
)
TRACY L. TROYER, )
)
Appellee/Cross-Appellant-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Lori K. Morgan, Temporary Judge
The Honorable Thomas P. Boyer, Magistrate
Cause No. 02D07-1105-DR-365
April 30, 2013
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Phillip J. Troyer (“Husband”) and Tracy L. Troyer (“Wife”) were married in 1993 and
had one child, K.T., in 2000. In May 2010, Wife filed two petitions to dissolve the marriage,
which were later dismissed. The parties’ attempts at reconciliation were unsuccessful, and
Wife filed a third petition in May 2011. In July 2011, the trial court entered a Provisional
Order that awarded the parties joint legal custody and Wife primary physical custody of K.T.
The Provisional Order also addressed issues such as child support and K.T.’s healthcare
expenses. Between February and April of 2012, the trial court held four days of hearings on
the dissolution petition. Husband filed a petition for attorney fees. In April 2012, the court
issued a partial decree dissolving the marriage and holding the remaining issues under
advisement. In June 2012, the trial court issued a Final Decree containing extensive findings
of fact and conclusions thereon. In the Final Decree, the court valued the marital assets and
divided them equally between the parties. The court also awarded the parties joint legal
custody and Wife primary physical custody of K.T. Finally, the court denied Husband’s
petition for attorney fees.
Husband appealed, and Wife cross-appealed. Husband contends that the trial court
abused its discretion in valuing and dividing the marital estate; exceeded its statutory
authority in retroactively increasing his child support and healthcare expenses; abused its
discretion in denying his petition for attorney fees; and failed to rule on two issues that he
raised below. Wife contends that the trial court abused its discretion in awarding the parties
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joint legal custody of K.T. She also asserts that Husband’s appeal is frivolous or in bad faith
such that she is entitled to attorney fees pursuant to Indiana Appellate Rule 66(E).
We conclude as follows: (1) the trial court did not abuse its discretion in valuing and
dividing the marital estate; (2) the trial court exceeded its statutory authority in retroactively
increasing Husband’s child support and healthcare expenses; (3) the trial court did not abuse
its discretion in denying Husband’s petition for attorney fees; (4) the trial court did fail to
rule on Husband’s request for Wife to reimburse him for her share of K.T.’s private school
expenses; (5) the trial court did not abuse its discretion in awarding the parties joint legal
custody of K.T.; and (6) Husband’s appeal is neither frivolous nor in bad faith, and therefore
Wife is not entitled to attorney fees pursuant to Appellate Rule 66(E). Consequently, we
affirm in part, reverse in part, and remand.
Facts and Procedural History
Husband and Wife were married in January 1993 and had one child, K.T., who was
born in April 2000. On May 14, 2010, Wife filed a petition to dissolve the marriage, which
she dismissed less than two weeks later. Wife filed a second petition for dissolution on May
27, 2010. The parties continued to live together until they sold their home in early July 2010,
at which time Husband moved to an apartment. In December 2010, Wife asked Husband if
the two could reconcile; as such, Wife dismissed her second petition on February 22, 2011.
The attempted reconciliation failed, and Wife filed a third petition for dissolution on
May 3, 2011, which was deemed to be “the legal date of the parties’ separation.” Appellant’s
App. at 37. On July 15, 2011, the trial court entered a Provisional Order, which provided in
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pertinent part as follows: (1) at K.T.’s request, Wife requested that Husband’s parenting time
with K.T. be limited, reduced, or restricted; however, there was no evidence that the exercise
of Husband’s parenting time would endanger the emotional or physical well-being of the
child; (2) the trial court took judicial notice that Indiana caselaw prevents a child from
dictating when, and in what fashion, a parent will exercise his or her parenting time; if the
child has emotional issues that are interfering with parenting time, the solution is not to bow
to the child, but instead to seek appropriate treatment for the child; (3) absent evidence to the
contrary, there is an established presumption that each parent is a fit and proper person to
have the care, custody, and control of K.T.; (4) the trial court recognized the sincerity of love
and devotion by both parents toward K.T., and awarded joint legal custody; however,
historical involvement with K.T. warranted Wife having primary physical custody and
Husband exercising parenting rights under the Indiana Supreme Court’s Parenting Time
Guidelines; (5) by agreement of the parties, Wife was ordered to maintain health insurance
for K.T., and Husband was ordered to pay $53 a week, effective May 3, 2011 (a $530
arrearage was to be satisfied with Husband making extra payments of $20 per week until the
arrearage was paid); (6) each parent was responsible for his or her respective indebtedness
incurred since the separation; and (7) each party was restrained from transferring,
encumbering, concealing, selling, or otherwise disposing of joint marital property.
In September 2011, Husband asked Wife to reconcile, but Wife refused, stating that
the marriage had run its course. In April 2012, the trial court entered its “Partial Decree and
Dissolution of Marriage,” which in pertinent part stated that the “marriage being irretrievably
4
broken, is hereby dissolved,” that all other issues remain under advisement, and that “costs of
this action are assessed to [Wife].” Appellant’s App. at 37.
The Final Decree was fifteen pages long, identified eighty-three factual findings or
legal conclusions, and was entered following the final hearing, which took the better part of
four days and resulted in a transcript in excess of 800 pages. The Final Decree also: (1)
identified K.T.’s circumstances and health history, including that K.T. suffered from anorexia
nervosa and major depressive disorder; (2) identified the need for a Parenting Time
Coordinator; (3) analyzed five years of Husband’s income for child support purposes; (4)
dealt with health insurance, uninsured healthcare expenses, and tax exemption issues; and (5)
detailed the few agreements and the many disagreements of the parties, both prior to and
during the dissolution process. The Final Decree identified stipulated values for various
assets and then systematically resolved disputed property issues, including whether certain
assets or debts should be included in the marital estate, whether dissipation under the statute
had occurred from the actions of either party, and whether Wife’s sale of her interest in her
law practice eleven months prior to having filed the instant dissolution action was an arm’s-
length transaction. Ultimately, the trial court divided the marital estate equally and identified
a balancing equalization judgment. Husband now appeals, and Wife cross-appeals.
Additional facts will be included below.
Discussion and Decision
After the final hearing, the trial court, on its own motion, entered findings of fact and
conclusions thereon regarding the parties’ dissolution proceedings. In reviewing an order in
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which the trial court makes findings of fact and conclusions thereon, our standard of review
is well-settled:
First, we determine whether the evidence supports the findings and second,
whether the findings support the judgment. In deference to the trial court’s
proximity to the issues, we disturb the judgment only where there is no
evidence supporting the findings or the findings fail to support the judgment.
We do not reweigh the evidence, but consider only the evidence favorable to
the trial court’s judgment. Challengers must establish that the trial court’s
findings are clearly erroneous. Findings are clearly erroneous when a review
of the record leaves us firmly convinced a mistake has been made. However,
while we defer substantially to findings of fact, we do not do so to conclusions
of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule
52 if it relies on an incorrect legal standard. We evaluate questions of law de
novo and owe no deference to a trial court’s determination of such questions.
Thalheimer v. Halum, 973 N.E.2d 1145, 1149-50 (Ind. Ct. App. 2012) (quoting McCauley v.
Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied (2011)). On appeal, we
“shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial
Rule 52(A).
I. Valuation and Division of Marital Property
Husband contends that the trial court abused its discretion in valuing and dividing the
marital estate when it: (A) failed to include the value of Wife’s ongoing law practice in the
marital assets; (B) valued Wife’s jewelry at $1000; and (C) concluded that Husband had not
rebutted the presumption that an equal division of the marital property between the parties
was just and reasonable. The decision regarding the valuation and division of marital
property lies within the sound discretion of the trial court, and we will reverse only for an
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abuse of that discretion. Hartley v. Hartley, 862 N.E.2d 274, 285 (Ind. Ct. App. 2007). We
address each of Husband’s issues in turn.
A. Wife’s Ongoing Law Practice
Husband first contends that the trial court “misconstrued both the facts of this case and
applicable law” when it failed to attribute goodwill to Wife’s “ongoing law practice as a
marital asset or assign any value to it.” Appellant’s Br. at 15. Specifically, Husband
maintains that Wife still retained goodwill in the law firm, Boeglin Troyer & Gerardot, P.C.,
and that the value of that goodwill should have been included in the marital assets.
Wife’s “claimed one-half interest in Boeglin Troyer & Gerardot Sub S Corporation”
was listed as Item 17.2 on the Joint Marital Balance Sheet. Appellant’s App. at 92. Wife
attributed no value to this asset. Husband, however, valued this asset as being worth
$105,098. Id. at 93. Wife sold her shares in Boeglin Troyer & Gerardot, P.C. (“the Firm”),
on June 29, 2010. Id. at 68. The Joint Marital Balance Sheet was completed as of May 3,
2011—eleven months after Wife sold her share of the Firm. In its Final Decree, the trial
court made the following finding regarding this asset:
59. On or about June 29, 2010, [Wife] sold her fifty (50) shares of capital
stock in Boeglin Troyer & Gerardot, P.C. to Jane M. Gerardot for
Fifteen Thousand Three Hundred Eighty One Dollars and Twenty Five
Cents ($15,381.25). This transaction took place approximately one (1)
year prior to the filing of this case, and therefore the capital stock is not
a marital asset.
Id. at 19. Thus the trial court did not abuse its discretion in finding that the capital stock of
the Firm was not a marital asset.
7
On appeal, however, Husband contends that Wife retains enterprise goodwill in her
ongoing law practice that should have been included in the marital assets. As background,
we add the following facts. Husband and Wife are both attorneys. In June 1999, Husband
became a partner in the Firm, which previously consisted of Wife and Jim Boeglin.1 In 2000,
Boeglin retired from the Firm, and pursuant to a stock purchase agreement, Husband and
Wife purchased Boeglin’s interest in the firm for $70,000. This price was based on
Boeglin’s goodwill contained in the extensive wills and trust files that he left with the Firm.
In the summer of 2002, Husband left the Firm to return to an in-house counsel
position with an insurance company, and Jane Gerardot joined the Firm as a partner.
Thereafter, Wife and Gerardot each owned fifty percent of the Firm. Wife and Gerardot
entered into various agreements, including a stock purchase agreement (“Agreement I”),
dated September 15, 2006. Under Agreement I, Wife and Gerardot agreed that, in the event
one of the partners completely retired from the practice of law in Indiana and surrendered her
client files to the Firm, the retiring partner would be entitled to receive a “Goodwill
Reimbursement” based upon her “contribution toward the [F]irm’s goodwill.” Id. at 49.
This provision provided as follows:
Goodwill Reimbursement. It is understood and agreed that, in addition to the
Sale Price, upon the occurrence of any Triggering Event other than death, a
departing Shareholder who is no longer engaged in the private practice of law
in the State of Indiana and who leaves all of his or her client files, documents,
and data with the firm, shall be entitled to receive additional consideration
1
Initially, the Firm was called Boeglin & Troyer, P.C. When Gerardot joined the Firm in 2002, the
name was changed to Boeglin Troyer & Gerardot, P.C.
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based upon his or her contribution toward the firm’s goodwill (“hereinafter
referred to as the “Goodwill Reimbursement”).
Id. at 49 (emphasis added). Agreement I also included a formula for calculating the
Goodwill Reimbursement. Id. at 50.
On June 29, 2010, Wife and Gerardot entered into a second stock purchase agreement
(“Agreement II”) that replaced Agreement I. Id. at 68. Under Agreement II, Gerardot paid
Wife $15,381.25 for her fifty-percent share of the Firm’s office contents, website domain,
and cash reserve. Agreement II contained no provisions for the payment of Goodwill
Reimbursement. Husband, however, contends that the value of the goodwill itself did not
disappear. As such, Husband maintains that Wife retained goodwill in her client files that
should have been considered an asset within the marital estate.
The trial court addressed the issue of goodwill reimbursement as follows:
68. The “Goodwill Reimbursement” clause of the September 15, 2006
Stock Purchase Agreement . . . was not applicable to the sale of
[Wife]’s capital stock to Jane M. Gerardot. [Wife] continued to be
engaged in the private practice of law as an employee of Boeglin
Troyer & Gerardot, PC. As an employee of the law firm, [Wife]
received fifty-four (54%) of the income from her client files.
Id. at 21. Although this finding was made in the context of whether Wife had dissipated the
value of the marital assets, it also sheds light on the trial court’s determination that Wife had
no goodwill invested in the Firm that should have been included as part of the couple’s
marital assets.
In Yoon v. Yoon, 711 N.E.2d 1265 (Ind. 1999), our supreme court analyzed the issue
of goodwill as follows:
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Goodwill has been described as the value of a business or practice that
exceeds the combined value of the net assets used in the business. Goodwill in
a professional practice may be attributable to the business enterprise itself by
virtue of its existing arrangements with suppliers, customers or others, and its
anticipated future customer base due to factors attributable to the business. It
may also be attributable to the individual owner’s personal skill, training or
reputation. This distinction is sometimes reflected in the use of the term
“enterprise goodwill,” as opposed to “personal goodwill.”
Enterprise goodwill “is based on the intangible, but generally
marketable, existence in a business of established relations with employees,
customers and suppliers.” Factors affecting this goodwill may include a
business’s location, its name recognition, its business reputation, or a variety of
other factors depending on the business. Ultimately these factors must, in one
way or another, contribute to the anticipated future profitability of the
business. Enterprise goodwill is an asset of the business and accordingly is
property that is divisible in a dissolution to the extent that it inheres in the
business, independent of any single individual’s personal efforts and will
outlast any person’s involvement in the business. It is not necessarily
marketable in the sense that there is a ready and easily priced market for it, but
it is in general transferrable to others and has a value to others.
....
In contrast, the goodwill that depends on the continued presence of a
particular individual is a personal asset, and any value that attaches to a
business as a result of this “personal goodwill” represents nothing more than
the future earning capacity of the individual and is not divisible. Professional
goodwill as a divisible marital asset has received a variety of treatments in
different jurisdictions, some distinguishing divisible enterprise goodwill from
nondivisible personal goodwill and some not.
Indiana’s dissolution law opts for recognition of this distinction. The
General Assembly has determined that the “relative earning power” of the
parties is not a divisible asset because it is not property, but may be considered
in determining the percentage of property to be given to each. Accordingly,
we join the states that exclude goodwill based on the personal attributes of the
individual from the marital estate.
Id. at 1268-69 (emphasis added) (citations omitted).
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Wife and Gerardot, as sole shareholders of the Firm, included in Agreement I a
formula for placing value on goodwill. This value, however, applied only in the event that a
shareholder: (1) left the Firm; (2) no longer engaged in the private practice of law in Indiana;
and (3) left all of her client files, documents, and data with the Firm. Appellant’s App. at 49.
In such a case, the remaining partner would have been the sole beneficiary of “enterprise
goodwill”—the intangible, but generally marketable, existence in the Firm of established
relations with clients. Yoon, 711 N.E.2d at 1268.
In June 2010, by means of Agreement II, Gerardot purchased Wife’s fifty-percent
share of the Firm’s office contents, website domain, and value of the Firm’s cash reserves.
Wife, however, retained her “personal goodwill,” i.e., the interest in the Firm that depended
on her continued presence in the practice of law. This was a personal asset that represented
“nothing more than the future earning capacity of [Wife] and [was] not divisible.”2 Id. at
1269.
The trial court found that: (1) “goodwill reimbursement” did not apply to the sale of
Wife’s capital stock to Gerardot; (2) Wife continued to be engaged in the private practice of
law as an employee of the Firm; and (3) as an employee, Wife received fifty-four percent of
2
Husband contends that Wife could sell her client files at any time based on the expectation that the
attorney who purchases the records could use them to solicit more business. While these files would
presumably be valuable to an attorney who chose to purchase them, we are not convinced that the subsequent
sale would reflect “enterprise goodwill.” As the Yoon court explained, enterprise goodwill “is based on the
intangible, but generally marketable, existence in a business of established relations with employees, customers
and suppliers.” 711 N.E.2d at 1268. Here, a future sale of Wife’s client files will not convey to the buyer the
long-term business relationships that Wife has forged with her clients or any of the other trappings that bring
value to Wife’s files.
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the income from her own clients. Appellant’s App. at 21. The trial court did not abuse its
discretion in finding that Wife had no “enterprise goodwill” in the Firm that could be
divisible as a marital asset.
B. Valuation of Jewelry
During the dissolution proceedings, the parties disagreed on the valuation of the
jewelry that Husband had given Wife during their marriage. Husband contends that the trial
court abused its discretion in finding that Wife’s jewelry was worth only $1000.
“The trial court has broad discretion in ascertaining the value of property in a
dissolution action, and its valuation will only be disturbed for an abuse of that discretion.”
Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind. Ct. App. 2011), trans. denied. Here,
neither party offered receipts for the jewelry purchased or a professional appraisal of the
value of Wife’s jewelry. Instead, the parties provided the trial court with their own valuation
of the jewelry. In the Joint Marital Balance Sheet, Wife valued the jewelry at $1000, while
Husband valued it at $13,500. Appellant’s App. at 92.
Wife was confident enough in her $1000 valuation that she was willing to let Husband
have the jewelry for a $1000 setoff. Tr. at 319. Husband, by contrast, was willing to take the
jewelry if it was valued at $1000 but would not take it if he would be charged a setoff of
$2000. Id. at 716. Furthermore, Husband stated, “I don’t know how much it’s worth, it’s in
her possession.” Id. When asked if he had ever asked to have the jewelry appraised,
Husband answered, “Not in this case.” Id. Husband agreed to let Wife have the jewelry only
if he was credited with a set off of $13,000. Id. at 717. When asked whether the $13,000
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was based upon his valuation, Husband responded that the estimate was “[j]ust a complete
guess.” Id. The trial court was within the bounds of the evidence presented and did not
abuse its discretion in determining that Wife’s jewelry was worth $1000 for purposes of
dividing the marital estate.3 See Trabucco, 944 N.E.2d at 558 (stating that trial court has
broad discretion in determining value of property in dissolution action, and its valuation will
not be disturbed absent abuse of discretion).
C. Division of Marital Property
Husband contends that the trial court abused its discretion in finding that he failed to
rebut the presumption of an equal distribution of the marital assets.4 Specifically, Husband
contends that the presumption was rebutted because Wife dissipated the marital estate by
selling her shares of the Firm for only $15,381.25 and because Husband received an
inheritance of $50,000, of which about $20,000 was held in his personal bank account when
Wife filed her final petition for dissolution. Our standard of review is well settled:
The division of marital assets lies within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. When a party challenges
3
During the final hearing, Wife admitted that Husband “may have spent $13,000.00 on Wife’s
jewelry.” Tr. at 319. On appeal, Husband cites to this admission and urges us to “take judicial notice that
prices for gold, diamonds, and other precious metals and stones have not depreciated in recent years.”
Appellant’s Br. at 22. “Indiana Evidence Rule 201(f) provides that ‘[j]udicial notice may be taken at any stage
of the proceeding,’ which includes appeals.” Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012).
However, we have held that “‘judicial notice may not be used on appeal to fill evidentiary gaps in the trial
record.’” Id. (quoting Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind. Ct. App. 1998), trans. denied).
Here, Husband essentially is asking us to fill the evidentiary gaps he created by failing to present this evidence,
or request judicial notice, at trial. This we will not do.
4
At the final hearing, Wife argued that Husband dissipated marital assets when he spent approximately
$25,000 in an unsuccessful run for the U.S. Congress. The trial court found that Husband did not dissipate the
marital assets because “[t]he expenditure was not excessive for a congressional campaign, and [Wife] was
supportive of Husband’s decision to run for Congress.” Appellant’s App. at 20. Wife does not appeal this
issue.
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the trial court’s division of marital property, he must overcome a strong
presumption that the court considered and complied with the applicable statute,
and that presumption is one of the strongest presumptions applicable to our
consideration on appeal. We may not reweigh the evidence or assess the
credibility of the witnesses, and we will consider only the evidence most
favorable to the trial court’s disposition of the marital property. Although the
facts and reasonable inferences might allow for a different conclusion, we will
not substitute our judgment for that of the trial court.
Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006) (citations omitted).
Indiana law presumes that an equal division of the marital property between the
parties is just and reasonable; however, that presumption may be rebutted by relevant
evidence that an equal division would not be just and reasonable. Ind. Code § 31-15-7-5.
The factors a court may consider include: the contribution of each spouse to the acquisition
of the property; the extent to which the property was acquired by each spouse before the
marriage or through inheritance or gifts; the economic circumstances of each spouse at the
time of disposition; the conduct of the parties as it relates to the disposition or dissipation of
their property; and the earnings or earning ability of each spouse. Id. “If the trial court
deviates from this presumption, it must state why it did so.” Galloway, 855 N.E.2d at 305;
Thompson v. Thompson, 811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004), trans. denied (2005).
Husband contends, “if the record proved any of these factors were present during the
marriage, it would have rebutted the initial presumption that an equal distribution of the
marital estate was just and reasonable.” Appellant’s Br. at 23. We disagree. “Marital
property includes property owned by either spouse prior to the marriage, acquired by either
spouse after the marriage and prior to final separation, or acquired by their joint efforts.”
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Swadner v. Swadner, 897 N.E.2d 966, 977 (Ind. Ct. App. 2008). “The trial court’s
disposition of the marital estate is to be considered as a whole, not item by item.” Eye v. Eye,
849 N.E.2d 698, 701 (Ind. Ct. App. 2006).
1. Dissipation of Marital Assets
We have said,
Fault is not relevant in dissolution proceedings except as related to the
disposition or dissipation of marital assets. One spouse’s claim of improvident
spending by the other spouse can be a powerful weapon in an attempt to secure
a larger share of the marital estate. However, a trial court presiding over a
dissolution proceeding in which dissipation is an issue should not be required
to perform an audit of expenditures made during the marriage in order to
determine which spouse was the more prudent investor and spender.
In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind. Ct. App. 1996) (citations omitted).
Husband contends that the trial court abused its discretion in finding that Wife did not
dissipate the marital assets. Specifically, Husband contends that Wife dissipated the value of
her shares of the Firm. Husband contends that Wife’s interest in the Firm was worth
$105,098, but that Wife sold her interest during the pendency of the marriage dissolution for
just $15,381.25. Appellant’s App. at 93. Generally, our court reviews findings of dissipation
under an abuse of discretion standard. Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind. Ct.
App. 2001). We will reverse only if the trial court’s judgment is clearly against the logic and
effect of the facts and the reasonable inferences to be drawn from those facts. Id.
“Waste and misuse are the hallmarks of dissipation. Our legislature intended that the
term carry its common meaning denoting ‘foolish’ or ‘aimless’ spending. Dissipation has
also been described as the frivolous, unjustified spending of marital assets which includes the
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concealment and misuse of marital property.” Marriage of Coyle, 671 N.E.2d at 943.
Factors to consider in determining whether dissipation has occurred include: (1) whether the
expenditure benefited the marriage or was made for a purpose entirely unrelated to the
marriage; (2) the timing of the transaction; (3) whether the expenditure was excessive or de
minimis; and (4) whether the dissipating party intended to hide, deplete, or divert the marital
asset. Goodman, 754 N.E.2d at 598. Following the final hearing, the trial court made the
following findings that are pertinent to this issue on appeal:
67. The sale of the capital stock by [Wife] to Jane M. Gerardot on June 29,
2010 for . . . $15,381.25 was an “arm[’]s length transaction.” Ms.
Gerardot was willing to sell her interest in the law firm to [Wife] for the
same amount.
68. The “Goodwill Reimbursement” clause of the September 15, 2006
Stock Purchase Agreement is not evidence of a dissipation of assets by
[Wife]. This clause was not applicable to the sale of [Wife]’s capital
stock to Jane M. Gerardot. [Wife] continued to be engaged in the
private practice of law as an employee of [the Firm]. As an employee
of the law firm, [Wife] received fifty-four percent (54%) of the income
from her client files.
Appellant’s App. at 21.
Wife sold her portion of the Firm to Gerardot in an “arm’s length transaction,” and did
so almost a year before Husband placed a value on the Firm for purposes of inclusion in
marital assets. Id. at 21. Gerardot testified that the price, in part, was based on independent
appraisals of the Firm’s personal property and said that she was willing to sell her interest in
the law firm to Wife for the same amount that Wife sold it to her. Tr. at 221. Additionally,
Wife did not have a buyback option or any other arrangement to return to the Firm as a
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shareholder. Id. at 210-11. Wife knew that Gerardot was interested in retiring from the Firm
in the near future. Wife also knew that when Gerardot retired and left her client files with the
Firm, Wife would owe Gerardot a great deal of money under the terms of the “Goodwill
Reimbursement” clause of Agreement I. Furthermore, if Gerardot retired prior to the settling
of the marital estate, then the payment to Gerardot would have been a liability and could have
been cited as marital debt. Wife’s sale of her interest in the Firm prior to the settling of the
marital estate was neither wasteful nor foolish, but instead an arm’s-length business
transaction that created certainty in the marital estate. The trial court did not abuse its
discretion in finding that Wife did not dissipate marital assets.
2. Husband’s Inheritance
Husband next contends that approximately $20,000 of his inheritance remained in his
personal account on the date that Wife filed the instant petition for dissolution. As such,
Husband argues that the trial court abused its discretion in determining that this personal
bank account was marital property and that he had not rebutted the presumption that the
marital property should be evenly divided.
Husband was left an inheritance of $50,000 by Grace and Ira Leer, a couple who
treated Husband like a grandson. At the final hearing, the trial court learned the following
about the inheritance. Husband testified that he had known about the inheritance since
around 1995, two years after Husband and Wife married and almost sixteen years before they
separated. In 1995, at the Leers’ request, Wife drafted the trust document that provided for
Husband’s inheritance. Mrs. Leer died soon thereafter, and Mr. Leer died in late 2008.
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Husband received the inheritance in the spring of 2009, and on July 3, 2009, deposited the
whole amount into Husband and Wife’s joint bank account (“joint account”).
On July 8, 2009, Husband withdrew $5000 from the joint account and, at Wife’s
request, deposited that amount into K.T.’s college savings account. Four months later, on
November 4, 2009, Husband withdrew $30,000 from the joint account and deposited that
money into his personal bank account. With Wife’s consent, Husband used $25,000 of that
$30,000 as a contribution toward his own congressional campaign. On December 28, 2009,
Husband withdrew an additional $15,000 from the joint account and deposited that money
into his personal bank account. During the almost six months that Husband held some of his
inheritance in the joint account, Husband and Wife deposited their respective salaries and
paid their joint bills from that joint account. Although Wife filed various petitions for
dissolution prior to filing the petition at issue, the couple did not officially separate until May
3, 2011, about two years after Husband received his inheritance.
In findings 55 through 78, the trial court specifically identified the assets and debts of
the parties and the proposed distribution thereof consistent with the statutory presumption
identified in Indiana Code Section 31-15-7-5. The parties had been married for eighteen
years. Neither party claimed to have brought assets to the marriage. During their marriage,
Husband and Wife were both practicing attorneys who made significant amounts of money.
Husband spent $25,000 of his inheritance on a failed run for political office and deposited
another $5000 into K.T.’s college fund. The remaining $20,000, which Husband received
about two years before the Final Decree, was commingled in the joint account for six
18
months—an account into which the parties deposited their salaries and from which they paid
their joint bills. Viewing the evidence as a whole, we cannot say that the trial court abused
its discretion in finding that nothing in the record had rebutted the presumption that an equal
distribution of the marital estate was appropriate.
II. Retroactive Modification of Child Support and Healthcare Expenses
In its July 2011 Provisional Order, the trial court ordered Husband to pay $53 per
week in child support and ordered Wife to maintain health insurance coverage for K.T. Wife
did not petition to modify those provisions before the Final Decree was issued in June 2012.
In finding 46 of the Final Decree, the trial court ordered Husband to pay $155 per week in
child support, “with the first payment due and payable on January 6, 2012”—more than six
months before the Final Decree was issued. Appellant’s App. at 16. In finding 50, the trial
court also ordered that as of January 1, 2012—again, more than six months before the Final
Decree was issued—Wife was to be responsible for the payment of the first $1089
of uninsured medical, dental, optical, pharmaceutical, orthodontia, counseling
and therapy expense for [K.T.] each year, and thereafter, [Wife] shall be
responsible for the payment of fifty-nine percent (59%) and [Husband] shall be
responsible for the payment of forty-one percent (41%) of the aforesaid
uninsured health care expenses for [K.T.] each year.
Id. at 17.
Husband argues that the trial court exceeded its statutory authority by ordering a
retroactive increase in his child support obligation and contribution toward uninsured
19
healthcare expenses.5 Husband contends that, because the Provisional Order addressed both
child support and healthcare expenses, and Wife never petitioned to modify those expenses
before the Final Decree, the trial court’s authority in the Final Decree was limited to setting
Husband’s obligations as to those expenses from the date of the Final Decree and beyond.
We agree.
Indiana Code Section 31-15-4-14 states, “A provisional order terminates when: (1)
the final decree is entered subject to right of appeal; or (2) the petition for dissolution or legal
separation is dismissed.” Indiana Code Section 31-15-4-15 states, “The terms of a
provisional order may be revoked or modified before the final decree on a showing of the
facts appropriate to revocation or modification.” It logically follows, then, that the terms of a
provisional order may not be revoked or modified before the final decree unless such a
showing is made. Here, the practical effect of findings 46 and 50 of the Final Decree was to
modify the terms of the Provisional Order as to child support and healthcare expenses, even
though Wife made no request for such, much less a showing of the facts appropriate to such
modifications before the hearing on the Final Decree.6 As such, we conclude that the trial
court exceeded its statutory authority in ordering a retroactive increase of Husband’s child
5
We note that Husband does not claim that the trial court abused its discretion in calculating his child
support obligation.
6
We note that “court ordered modifications normally speak only prospectively.” Talarico v.
Smithson, 579 N.E.2d 671, 673 (Ind. Ct. App. 1991). “The modification of a support obligation may only
relate back to the date the petition to modify was filed, and not an earlier date, subject to two exceptions not
applicable here.” Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009). Again, Wife filed no petition to modify
here.
20
support and healthcare expenses in the Final Decree. Therefore, we reverse and remand with
instructions to amend the Final Decree accordingly.
III. Husband’s Attorney Fees
Husband also contends that the trial court abused its discretion in denying his petition
for attorney fees. We review a trial court’s decision on attorney fees in connection with a
dissolution decree for an abuse of discretion. Hartley, 862 N.E.2d at 286.
Pursuant to Indiana Code Section 31-15-10-1, a trial court may order a party in a
marriage dissolution proceeding to pay a reasonable amount of the attorney fees of the other
party. “When making such an award, the court must consider the resources of the parties,
their economic condition, the ability of the parties to engage in gainful employment and to
earn adequate income and other factors that bear on the reasonableness of the award.”
Hendricks v. Hendricks, 784 N.E.2d 1024, 1028 (Ind. Ct. App. 2003). “Consideration of
these factors promotes the legislative purpose behind the award of attorney fees, which is to
insure that a party in a dissolution proceeding, who would not otherwise be able to afford an
attorney, is able to retain representation. Hartley, 862 N.E.2d at 286-87. “‘When one party
is in a superior position to pay fees over the other party, an award of attorney fees is proper.’”
Id. at 287 (quoting Ratliff v. Ratliff, 804 N.E.2d 237, 249 (Ind. Ct. App. 2004)). Here, the
trial court identified the parties’ incomes as an aspect of its Final Decree—Husband’s weekly
gross income was $1715, and Wife’s was $2510. Appellant’s App. at 25. The trial court
divided the marital estate equally. Because the parties’ resources are relatively on par with
each other, the only basis for an award of attorney fees would have been the improper actions
21
of one party necessitating the incurrence of attorney fees by the other party. See Hendricks,
784 N.E.2d at 1028 (stating that misconduct that directly results in additional litigation
expenses may be properly taken into account in trial court’s decision to award attorney fees).
Husband contends that Wife engaged in the following misconduct: (1) selling her
fifty-percent share in the Firm in direct violation of a temporary restraining order; (2) cashing
out her Scottrade IRA in the amount of $53,486; and (3) refusing to let Husband have any
involvement in her “initial response to Anthem’s coverage denial or her decision to issue a
check for $46,200.00 to pre-pay for K.T.’s treatment.”7 Appellant’s Br. at 37. As such,
Husband argues that the trial court abused its discretion when it denied his request for
attorney fees.
We disagree. First, the trial court found that Wife’s sale of her interest in the Firm
was an arm’s-length business transaction, which occurred eleven months before the instant
filing and did not result in dissipation of marital assets. Second, Husband was not affected
by Wife cashing out the Scottrade IRA account because the parties agreed that the account
was worth $53,486, and the trial court granted that asset to Wife as part of her share of the
marital estate. Finally, the trial court ordered Wife to “provide health insurance for the
parties’ minor child through employment.” Appellant’s App. at 18. Wife was not engaging
in misconduct when she dealt with her own health insurance company. The issues raised by
7
Husband also cites to Wife’s misconduct in claiming that she has a right to some of his inheritance
when that claim “contradict[s] the expressed intent of her former clients,” the Leers. Appellant’s Br. at 37-38.
In light of our finding that the inheritance was properly deemed to be a divisible marital asset, we find this
argument unpersuasive.
22
Husband are not examples of Wife engaging in misconduct. The trial court did not abuse its
discretion when it denied Husband’s petition for attorney fees.
IV. Issues Without Trial Court Ruling
Finally, Husband contends that the trial court failed to rule upon two issues. First, he
claims that the trial court erred when it did not order Wife to reimburse him for her share of
K.T.’s private school expenses—an obligation that was included in the Provisional Order.
The Provisional Order provided in pertinent part as follows:
12. …. The parties are ordered to continue sharing equal responsibility for
payment of their child’s attendance at [the private school], the same to
include tuition, books, fees, extra-curricular activities, and other
reasonable and related school expenses.
Id. at 42-43. Wife admits that the trial court did not address Husband’s request in its Final
Decree. Appellee’s Br. at 28.
“The duration of provisional support orders is committed to the sound discretion of
the trial court.” Moore v. Moore, 695 N.E.2d 1004, 1009 (Ind. Ct. App. 1998). However,
there is no indication in the record that the trial court in this instance intended anything other
than that its Provisional Order should terminate upon entry of the final decree. As such, we
remand to the trial court so that it may amend its Final Decree to include an order directing
Wife to pay Husband that amount, which, together with her prior payments, results in the
parties having shared “equal responsibility” for the payment of K.T.’s private school.
Second, Husband contends that the trial court did not address two healthcare issues:
whether Husband should be allowed to intervene in Wife’s appeal of Anthem’s denial of
23
coverage for residential treatment of K.T.’s eating disorder; and the allocation between
Husband and Wife of any non-reimbursed healthcare expenses. As to Husband’s first
concern, the Anthem coverage belonged to Wife. Wife testified that she intended to process
the administrative appeal of the Anthem denial and to hire an attorney to pursue the claim.
Because Husband did not have a right to pursue the claim, the trial court did not abuse its
discretion in failing to rule on this issue, which left the administrative appeal in the hands of
Wife. Because Wife is responsible for the first $1089 of annual uninsured health care and for
59.4% of all uninsured expenses that rise about that amount, Wife has as much incentive as
Husband, if not more, to successfully appeal the Anthem denial.
Husband also contends that, notwithstanding extensive arguments on the issue, the
trial court failed to rule on each party’s obligation regarding the healthcare expenses that
Anthem denied. We find that the trial court adequately addressed the payment of these
expenses in finding 50 of the Final Decree, which is quoted in section II of this opinion, as
well as in the following finding:
80. The order entered at Paragraph 50 herein includes [K.T.]’s treatment at
the Eating Recovery Center and travel expenses (airline and lodging)
for [K.T., Wife, and Husband] with respect to K.T.’s treatment. As
noted at Paragraph 50, this is a family problem and requires a family
resolution. The attendance and participation by [Wife] and [Husband]
at the Eating Recovery Center along with the education and information
provided to [Wife] and [Husband] are important components to
[K.T.]’s recovery.
Appellant’s App. at 23-24.
24
V. Joint Legal Custody
On cross-appeal, Wife asserts that the trial court erred in awarding the parties joint
legal custody of K.T. “‘Joint legal custody’ … means that the persons awarded joint custody
will share authority and responsibility for the major decisions concerning the child’s
upbringing, including the child’s education, health care, and religious training.” Ind. Code §
31-9-2-67. “In an initial custody determination there is no presumption favoring either
parent.” Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008) (citing Ind. Code §
31-17-2-8).
The court may award legal custody of a child jointly if the court finds that an
award of joint legal custody would be in the best interest of the child. Ind.
Code § 31-17-2-13. And an award of joint legal custody does not require an
equal division of physical custody of the child. Ind. Code § 31-17-2-14.
Id. (emphasis added).
Child custody determinations fall squarely within the discretion of the dissolution
court and will not be disturbed except for an abuse of discretion. Blasius v. Wilhoff, 863
N.E.2d 1223, 1229 (Ind. Ct. App. 2007), trans. denied. “The trial court is in a position to see
the parties, observe their conduct and demeanor, and hear their testimony; therefore, its
decision receives considerable deference in an appellate court.” Trost-Steffen v. Steffen, 772
N.E.2d 500, 509 (Ind. Ct. App. 2002), trans. denied. We will not reverse the trial court’s
decision unless it is against the logic and effect of the facts and circumstances before it or the
reasonable inferences drawn therefrom. Id. “On review, we will not reweigh evidence,
25
judge the credibility of the witnesses, or substitute our judgment for that of the trial court.”
Farag v. DeLawter, 743 N.E.2d 366, 368 (Ind. Ct. App. 2001).
Indiana Code Section 31-17-2-15 addresses the matters a court must consider in
determining whether to award the parties joint legal custody:
In determining whether an award of joint legal custody … would be in
the best interest of the child, the court shall consider it a matter of primary, but
not determinative, importance that the persons awarded joint custody have
agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint
custody;
(2) whether the persons awarded joint custody are willing and able to
communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s
wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship
with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of
each of the persons awarded joint custody.
“Therefore, trial courts must consider ‘whether the parents have the ability to work together
for the best interests of their children.’” Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct.
App. 2008) (quoting Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004)).
After presiding over a four-day hearing, which was transcribed in an eight-hundred-
eleven-page transcript, the trial court made the following pertinent findings:
5. [K.T.] received treatment at the Eating Recovery Center … from
January 18, 2012 to March 21, 2012.
26
6. [K.T.] suffers from anorexia nervosa and major depressive disorder
(Exhibit 38).
7. [K.T.] has been involved in counseling since age seven (7) for
behavioral issues.
8. [K.T.] has been diagnosed in the past with oppositional defiance
disorder. It has also been suggested that [K.T.] may have some form of
sensory integration disorder (Exhibit L).
9. [K.T.]’s behaviors include violent outbursts and tantrums, panic
attacks, self-mutilation, binging and purging.
10. [K.T.]’s violent outbursts include attempts to assault [Wife] and
[Husband]. There have been no reports that [K.T.] has attempted to
assault anyone other than her parents.
11. [K.T.] is an intelligent child, but [K.T.]’s intelligence does not
necessarily correlate with rational thinking and emotional maturity.
12. The divorce process for [Wife] and [Husband] began in May of 2010,
and has taken a toll on [Wife], [Husband], and [K.T.].
13. [Wife] and [Husband] have different parenting styles. [Wife] tends to
be lenient and [Husband] tends to be a disciplinarian. [K.T.] needs
structure and consistency from her parents.
14. There have been times when [Wife] and [Husband] have been able to
cooperate and work together for the benefit of [K.T.]. Examples
include cooperation and assistance following [Wife]’s automobile
accident, the selection of Brooke Farrington as a therapist for [K.T.],
the selection of the Eating Recovery Center for [K.T.]’s treatment, and
agreement by [Wife] and [Husband] regarding extra-curricular
activities for [K.T.].
15. There have been times when [Wife] and [Husband] have not cooperated
and communicated effectively for the benefit of [K.T.] (Exhibits 5, 7, 8,
13, 25, 26, G, H and R).
27
16. [Wife] has provided [K.T.] with too much information regarding the
parties’ divorce and allowing [sic] [K.T.] to have too much
involvement (Exhibit 18).
17. [Husband’s] communication with [K.T.] regarding parenting time and
her cat have caused [K.T.] emotional distress (Exhibits 7, 10, 11, 13
and 39).
18. The entire process of her parents’ divorce has been very stressful for
[K.T.], and stress is frequently a trigger for someone with an eating
disorder.
19. [Wife] and [Husband] both love [K.T.] and want what is best for her.
Unfortunately, for a multitude of reasons, [Wife] and [Husband] have
not always acted in [K.T.]’s best interest, individually and collectively.
20. [K.T.] is twelve (12) years old and [Wife] and [Husband] will be
parenting [K.T.] for many more years. [K.T.]’s physical and mental
health issues are very serious and potentially life threatening.
21. Granting [Wife] or [Husband] sole legal custody of [K.T.] is not in her
best interest. What is in [K.T.]’s best interest is two (2) parents
working together in a consistent and unified manner. This requires a
sharing of information and joint decisions regarding [K.T.]’s care,
treatment and overall upbringing.
22. Despite their differences, [Wife] and [Husband] share a common goal
of helping [K.T.] mature and grow into a functioning, happy, and
responsible person.
23. [Wife] and [Husband] are granted joint legal custody of [K.T.].
24. [Wife] is granted primary physical custody of [K.T.].
25. At this time parenting time between [Husband] and [K.T.] will
endanger her physical health or significantly impair her emotional
development.
26. [Husband] has acknowledged that parenting time with [K.T.] is not in
her best interest at this time. [Husband] is prepared and willing to work
28
with mental health professionals to facilitate parenting time and his
relationship with [K.T.].
27. [Husband] is granted parenting time with [K.T.] consistent with the
recommendations of her treating therapists and psychiatrist. [Wife] is
ordered to be cooperative and supportive of [Husband]’s parenting time
with [K.T.].
28. Either party may request a Status Hearing regarding parenting time.
29. The Court has seriously considered ordering [Wife] and [Husband] to
participate in classes for high conflict parents at Family Connections or
Right Relations. The Court has also given serious consideration to
ordering [Wife] and [Husband] to participate in individual and joint
counseling along with therapeutic parenting time for [Husband] and
[K.T.].
30. [Wife] and [Husband] need support, assistance and guidance in their
co-parenting of [K.T.].
31. The Court finds that it is necessary and appropriate to appoint a
Parenting Coordinator to provide support, assistance, and guidance for
[Wife] and [Husband] in co-parenting [K.T.]. The Court further finds
that the appointment of a Parenting Coordinator is in [K.T.]’s best
interest. In Re: the Paternity of C.H., 936 N.E.2d 1270 (Ind. App.
2010)[, trans. denied (2011)].
Appellant’s App. at 11-18.
Notably, Wife does not challenge the factual correctness of any of the trial court’s
findings. Rather, she contends that they militate toward the conclusion that she should be
awarded sole legal custody of K.T. We have said that
[o]rders of joint custody will not be reversed unless the court is attempting to
impose an intolerable situation upon the parties. If the parties demonstrate a
willingness and ability to communicate concerning the child, then joint custody
is appropriate even against the wishes of one parent. However, if the parties
have made child-rearing a battleground, then joint custody is not appropriate.
29
Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995) (citations omitted),
trans. denied (1996).
Although Husband and Wife’s relationship is currently strained and K.T.’s
psychological condition is currently precarious, we do not believe that the trial court is
attempting to impose an “intolerable situation upon the parties” in awarding joint legal
custody here. The trial court found that Husband and Wife have occasionally been able to
cooperate for K.T.’s benefit, such as in making joint decisions regarding K.T.’s therapy and
treatment and extracurricular activities. Moreover, Husband asserts, and Wife does not
dispute, that he had never “unreasonably refused to consent to: 1) a health care provider for
their daughter; 2) a change in her schooling; or 3) change in her religious upbringing.”
Appellant’s Reply Br. at 34. Some of these decisions may have been reached only after tense
exchanges or extended negotiations between the parties, but such may be the case even in
intact family situations. Wife highlights the areas and instances of conflict between the
parties, but the fact remains that the trial court had some evidentiary basis for concluding that
they could cooperate in making major decisions concerning K.T.’s upbringing, such that
awarding joint legal custody would be in her best interest.
Wife also emphasizes that she currently has primary physical custody of K.T. and that
the trial court found that parenting time between Husband and K.T. “will endanger her health
or significantly impair her emotional development.” We note, however, that Husband has
acknowledged this and that the trial court has prescribed certain measures for monitoring and
30
remedying this situation, which may ultimately lead to Husband’s reconciliation with K.T.8
Also, we reiterate that an award of joint legal custody does not require an equal division of
physical custody. Ind. Code § 31-17-2-14. Wife does not challenge the trial court’s finding
that she and Husband “share a common goal of helping [K.T.] mature and grow into a
functioning, happy, and responsible person.” The trial court was in the best position to assess
whether awarding the parties joint legal custody is in K.T.’s best interest, and we will not
second-guess that determination on appeal.
VI. Wife’s Attorney Fees
Finally, Wife contends that the “complete absence of merit to each and every aspect of
[Husband’s] appellate effort” warrants the assessment of appellate attorney fees pursuant to
Indiana Appellate Rule 66(E).9 Appellee’s Br. at 40.
Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he Court
may assess damages if an appeal … is frivolous or in bad faith. Damages shall
be in the Court’s discretion and may include attorney fees.” Our discretion to
award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to
instances when an appeal is permeated with meritlessness, bad faith, frivolity,
harassment, vexatiousness, or purpose of delay. Additionally, while Indiana
Appellate Rule 66(E) provides this Court with discretionary authority to award
damages on appeal, we must use extreme restraint when exercising this power
because of the potential chilling effect upon the exercise of the right to appeal.
8
Wife does not dispute the trial court’s finding that she provided K.T. with too much information
regarding the divorce and allowed her to have too much involvement. We remind Wife that “[a] parent may
not sow seeds of discord and reap improved custody rights.” Pierce v. Pierce, 620 N.E.2d 726, 731 (Ind. Ct.
App. 1993), trans. denied (1994).
9
In the alternative, Wife asks us to remand this issue to the trial court for an award of appellate
attorney fees under Indiana Code Section 31-15-10-1. Following the same reasoning used in section III above
to deny Husband’s request for attorney fees, we deny Wife’s request for attorney fees pursuant to Indiana Code
Section 31-15-10-1.
31
Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003) (citations omitted). “A strong
showing is required to justify an award of appellate damages and the sanction is not imposed
to punish mere lack of merit but something more egregious.” Ballaban v. Bloomington
Jewish Cmty., Inc., 982 N.E.2d 329, 340 (Ind. Ct. App. 2013).
Wife contends that Husband’s pro se appeal required that she either represent herself
or retain counsel and incur attorney fees. Wife also contends that Husband has failed to
identify any legal support for his contentions, has repeatedly asked this court to reweigh the
evidence, and has shown complete disregard for the trial court’s specific findings on the
relevant issues as well as the testimony from the final hearings as a whole. Appellee’s Br. at
40. Contrary to Wife’s assertion, Husband has provided ample legal support for his
arguments and in fact has prevailed on two of them. Husband’s remaining arguments may
lack legal merit, but we cannot say that they are frivolous or made in bad faith. Accordingly,
we deny Wife’s request for attorney fees.
Conclusion
We reverse the trial court’s retroactive modification of Husband’s child support and
healthcare expenses and remand with instructions to amend the Final Decree accordingly.
On remand, the trial court shall also amend the Final Decree to include an order directing
Wife to reimburse Husband for her share of K.T.’s private school expenses pursuant to the
Provisional Order. In all other respects, we affirm the trial court.
32
Affirmed in part, reversed in part, and remanded.
BROWN, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion.
33
IN THE
COURT OF APPEALS OF INDIANA
PHILLIP J. TROYER, )
)
Appellant/Cross-Appellee-Respondent, )
)
vs. ) No. 02A03-1207-DR-319
)
TRACY L. TROYER, )
)
Appellee/Cross-Appellant-Petitioner. )
KIRSCH, Judge, concurring in part and dissenting in part.
I concur with my colleagues in Parts I, II, III, IV, and VI of the majority opinion. I
respectfully dissent, however, from Part V regarding the order for joint custody.
The trial court, here, was correct that the best interest of K.T. would be served by “two
parents working together in a consistent and unified manner.” Appellant’s App. at 13.
Indeed, a similar statement could be made in every marital dissolution case involving
children. There is nothing in the record before us, however, that reveals that the trial court’s
statement was supported by the evidence or was a realistic expectation. Rather, the record
repeatedly demonstrates that these parents cannot currently work together in such a manner.
Putting a child in jeopardy based only on the hope that her parents can work together
is not in the child’s best interest and, indeed, could lead to significant harm.
34
Here, the trial court: determined, and Husband agreed, that no parenting time should
be currently allocated to Husband because that would “endanger” K.T.’s physical health or
significantly impair her emotional development; “seriously considered” ordering parents to
participate in classes for “high conflict parents” and in individual and joint counseling;
considered therapeutic parenting time; and appointed a Parenting Coordinator to provide
support, assistance, and guidance. Given these very real and very serious concerns, it was
error to order joint custody.
Moreover, following the dissolution, Husband filed a grievance with the Indiana
Supreme Court Disciplinary Commission against Wife ensuring that the adversarial nature of
his relationship with the Wife will be continued.
Appellate courts are reluctant to reverse a trial court’s grant of joint legal custody. We
will do so, however, when “‘the joint custody award constitutes an imposition of an
intolerable situation upon two persons who have made child rearing a battleground.’”
Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008) (quoting Aylward v.
Aylward, 592 N.E.2d 1247, 1251 (Ind. Ct. App. 1992)). Nothing in the record before us and
none of the trial court’s findings support the conclusion that, at the present time, these two
parents can work together in a consistent and unified manner. I would reverse the trial
court’s decision to grant parents joint legal custody, and I respectfully dissent from Part V of
the majority opinion.
35
Phillip J. Troyer v. Tracy L. Troyer
Combined Opinion