MEMORANDUM DECISION FILED
Apr 12 2017, 9:22 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Michael Cheerva
Zachary J. Stock, Attorney at Law, P.C. Emswiller Williams Noland &
Carmel, Indiana Clarke, PC
Indianapolis, Indiana
Brent C. Embrey
Embrey Law Office
Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bruce W. Shaw, April 12, 2017
Appellant-Respondent, Court of Appeals Case No.
29A04-1607-DR-1556
v. Appeal from the Hamilton
Superior Court
Sheri E. Shaw, The Honorable J. Richard
Appellee-Petitioner. Campbell, Judge
The Honorable William P.
Greenaway, Magistrate
Trial Court Cause No.
29D04-0611-DR-2120
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 1 of 11
Statement of the Case
[1] When the marriage of Bruce Shaw (“Father”) and Sherie Shaw (“Mother”) was
dissolved in 2007, the parties agreed that they would keep their respective
retirement accounts. In 2015, Father took a $177,000 early withdrawal from
his retirement account. The trial court subsequently included this withdrawal
in a supplemental child support calculation and ordered Father to pay Mother
8% of the withdrawal. The trial court also ordered Father to pay $12,000 of
Mother’s attorney fees. Father argues that the trial court erred in ordering him
to pay Mother 8% of his retirement account withdrawal and $12,000 of her
attorney fees. After reviewing the evidence, we conclude that the trial court did
not abuse its discretion in ordering Father to pay $12,000 of Mother’s attorney
fees. However, the trial court abused its discretion when it included Father’s
early withdrawal from his retirement account in its supplemental child support
calculation and ordered Father to pay Mother 8% of the withdrawal. We
therefore affirm in part, reverse in part, and remand with instructions for the
trial court to remove Father’s retirement account withdrawal from its
supplemental child support calculation.
[2] We affirm in part, reverse in part, and remand.
Issues
1. Whether the trial court abused its discretion when it ordered
Father to pay $12,000 of Mother’s attorney fees.
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 2 of 11
2. Whether the trial court abused its discretion when it included
Father’s early withdrawal from his retirement account in its
supplemental child support calculation.
Facts
[3] Mother and Father were married in August 1995. Their son, J.S. (“J.S.”), was
born in May 1997, and their daughter, K.S. (“K.S.”), was born in June 1999.
In November 2006, Mother filed a petition for dissolution of marriage. In 2007,
Mother and Father entered into a settlement agreement that resolved all issues,
including property division, child custody, child support, and parenting time.
Specifically, Mother and Father agreed to joint legal and physical custody of
their children and determined that neither parent would owe child support
because the children were going to spend half of their time with each parent,
and the parties’ incomes were similar. Mother and Father further agreed that
Father would pay 48% and Mother would pay 52% of certain expenses incurred
in the support of their children.1 Mother and Father also agreed that they
would keep their respective retirement accounts, including “all IRA’s, 401(k)’s,
or other retirement funds currently held in their own names.” (App. 42).
[4] Eight years later, in 2014, Mother filed petitions to modify child custody and
support and to show cause.2 Evidence presented at the January 2015 hearing
1
This included expenses for: (1) medical treatment; (2) medical insurance; (3) extra-curricular activities; (4)
educational costs such as books, field trips, and school pictures; (5) clothing; and (6) work-related child care.
2
These petitions are not included in Mother’s Appendix.
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 3 of 11
on the petitions revealed that the parties’ custody and support agreement had
worked until the fall of 2011, when Father had begun going out of town every
weekend. Mother explained that during this time, “it was a lot of mental and
emotional anguish with the kids regarding the absence and – and
disengagement as they felt with their dad.” (Tr. 28).
[5] Father remarried in 2012. Over the next two years, Father and J.S. maintained
contact, but the relationship between K.S. and her father became more strained.
At the time of the hearing, Father and K.S. had had almost no contact for ten
months. K.S.’s therapist believed that some form of family counseling was
necessary to get their relationship “on track.” (Mother’s Ex. 1). Mother asked
the trial court to grant her both legal and physical custody of K.S. She also
asked the trial court to order Father to pay both child support and her attorney
fees.
[6] Following the hearing, the trial court issued an order in February 2015 wherein
it: (1) denied Mother’s request for legal custody of K.S.; (2) granted Mother’s
request for physical custody of K.S.; (3) awarded Father parenting time with
K.S. in accordance with the Indiana Parenting Time Guidelines; and (4)
ordered Father to contact K.S.’s therapist within seven days of the date of the
order to begin family counseling with K.S. The trial court also ordered Father
to pay: (1) $77.00 per week in child support; and (2) 8% of his adjusted gross
income in excess of $93,506.92 as supplemental child support. Lastly, the trial
court held Father in contempt for failing to pay Mother $3,646.69 for his share
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 4 of 11
of the children’s expenses when he had the ability to do so and ordered Father
to pay $5,000.00 of Mother’s attorney fees. Father did not appeal this order.
[7] In August 2015, Mother filed petitions for modification of custody, visitation,
and child support, as well as contempt. In the petitions, Mother explained that
Father had relocated to Illinois in June 2015 without telling Mother. Mother
further explained that K.S. was now with Mother “100% of the time.” (App.
58). In addition, Mother advised the trial court that Father had not participated
in family counseling with K.S. as previously ordered. Mother also requested
legal custody of K.S.
[8] Eight months later, in April 2016, Mother filed an amended motion for
contempt wherein she explained that Father had had no contact with K.S. for
the prior four months and had still failed to comply with the trial court’s order
regarding family counseling with K.S. Mother further explained that Father
had accumulated child support and uninsured medical expenses arrearages and
had “unreasonably withheld his consent to extracurricular activities in order to
avoid payment.” (App. 80). Mother also explained that Father had not paid
supplemental child support. Mother asked the trial court to hold Father in
contempt. She also asked the trial court to order Father to pay supplemental
child support as well as extracurricular expenses, uninsured medical expenses,
and child support arrearage. She further asked the trial court to order Father to
participate in counseling with K.S. Lastly, Mother asked the trial court to order
Father to pay for her attorney fees.
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 5 of 11
[9] From the time Mother filed the August 2015 petitions until the hearing on the
petitions in May 2016, Father filed seven motions to continue the hearing.
Testimony at the May 2016 hearing revealed that Father’s job in Indianapolis
had ended in February 2015, and he had moved to Chicago in June 2015. He
admitted that he was not current on his child support payments and had not
paid anything for his children’s uninsured medical expenses or extracurricular
activities since January 2015. Father also admitted that he had not participated
in counseling with his daughter as previously ordered by the trial court.
Father’s income tax return listed his total 2015 income as $335,755. Father,
however, explained that $177,968 of that total was attributable to an early
withdrawal from a 401(k) retirement account that he had been awarded in the
parties’ 2007 dissolution. Father further explained that he had taken this
withdrawal to pay off debt that he had accrued after the dissolution of his
marriage to Mother and to cover the extraordinary medical expenses of his
second wife, which were approximately $57,000. Father also testified that
“caring for children is – is a financial burden . . . . That’s how I feel and that’s
what it’s been since I’ve been divorced.” (Tr. 220). Mother testified that her
children had been with her one hundred percent of the time since Father had
moved to Chicago.
[10] In June 2016, the trial court issued a sixteen-page order that awarded sole legal
custody of K.S. to Mother. The trial court also ordered Father to pay $179.00
per week in child support, retroactive to August 14, 2015. In addition, the trial
court included Father’s $177,000 withdrawal from his retirement account in its
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 6 of 11
supplemental child support calculation and ordered Father to pay Mother eight
percent of this withdrawal. Specifically, the trial court concluded that because
the “$177,000 from the cashed-in annuity would have inured to the benefit of
the Parties’ children had the marriage remained intact . . . the same is ‘income’
within the meaning of the Guidelines.” (App. 29).
[11] The trial court also explained that its previous order regarding father/daughter
counseling remained in force notwithstanding the distance involved. The trial
court ordered Father to comply with all terms of its prior order’s counseling
requirements within thirty days. In addition, the trial court held Father in
contempt for failing to pay child support, supplemental child support, and
court-ordered expenses. The trial court also held Father in contempt for failing
to comply with the counseling requirement set forth in its prior order. The trial
court further noted that the parties had similar access to resources and had
virtually identical earning abilities with respect to regular income. The trial
court then concluded that Father’s misconduct in failing to pay child support, in
conjunction with the delays in the proceedings caused by Father’s seven
motions for continuances, justified an award of attorney fees to Mother.
Accordingly, the trial court ordered Father to pay Mother $12,000 in attorney
fees. Father now appeals.
Discussion
[12] Father argues that the trial court abused its discretion in: (1) ordering him to
pay $12,000 of Mother’s attorney fees; and (2) including Father’s early
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 7 of 11
distribution from his retirement account in its supplemental child support
calculation. We address each of his contentions in turn.
1. Attorney Fees
[13] Father first argues that the trial court abused its discretion in ordering him to
pay $12,000 of Mother’s attorney fees. In post-dissolution proceedings, the trial
court may order a party to pay a reasonable amount for attorney fees. IND.
CODE § 31-16-11-1. The trial court has broad discretion in awarding attorney
fees. Gilbert v. Gilbert, 777 N.E.2d 785, 795 (Ind. Ct. App. 2002). We will
reverse the trial court’s decision only when it is against the logic and effect of
the facts and circumstances before the court. Id.
[14] 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. Himes v. Himes, 57 N.E.3d 820, 830
(Ind. Ct. App. 2016), trans. denied. 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. The court need not given reasons for its
determination. Gilbert, 777 N.E.2d at 795.
[15] Here, Father does not challenge the reasonableness of the attorney fees.
Instead, he argues that the “trial court … neither properly consider[ed] these
various factors nor found facts sufficient to support the award of fees.”
(Father’s Br. 14). However, our review of the evidence reveals that the trial
court considered both the resources of the parties and their relative earning
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 8 of 11
abilities. The trial court also concluded that Father’s misconduct in failing to
pay child support, in conjunction with the delays in the proceedings caused by
his seven motions for continuances, justified an award of attorney fees to
Mother. These were proper considerations in the award of attorney fees, and
Father’s misconduct supports the trial court’s attorney fee order. We find no
abuse of the trial court’s discretion.
2. Child Support
[16] Father also argues that the trial court abused its discretion when it included
Father’s early withdrawal from his 401(k) retirement account in its
supplemental child support calculation. Decisions regarding child support rest
within the sound discretion of the trial court. Taylor v. Taylor, 42 N.E.3d 981,
986 (Ind. Ct. App. 2015), trans. denied. Thus, we reverse child support
determinations where the trial court has abused its discretion. Id.
[17] In support of his argument, Father directs us to Scoleri v. Scoleri, 766 N.E.2d
1211 (Ind. Ct. App. 2002). There, the father filed a motion to modify child
support after his job ended and he had to take a lower-paying job. The trial
court denied the father’s motion, and the father appealed. Specifically, the
father argued that the trial court had erred when it considered the early
withdrawal from his retirement account as income that should be included in
the father’s child support obligation calculation. After discussing the nature of
a 401(k) plan, we determined that because the withdrawal was received by the
father and was immediately available for use and reduced the father’s living
expenses, the withdrawal constituted income within the meaning of the Indiana
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 9 of 11
Child Support Guidelines. Id. at 1217. However, because Father received his
401(k) account as part of the marital property distribution, this Court concluded
that “to utilize the return from Father’s early withdrawal from his 401(k) in the
calculation of his weekly gross income would usurp the equitable split of the
marital property in the summary dissolution decree.” Id. We further explained
that the parties presumably “agreed that Father would retain his 401(k) in
exchange for Mother retaining the marital home. . . . Without any evidence to
the contrary, we deem it inequitable to utilize Father’s portion of the marital
property, his 401(k) account, in the calculation of his weekly gross income.” Id.
at 1218. Based on the facts and circumstances of the case, we held that the trial
court had erred in using Father’s early withdrawal of his 401(k) account in
calculating his child support obligation. Id.
[18] Here, as in Scoleri, the trial court correctly concluded that Father’s withdrawal
from his 401(k) was income. However, because Father retained the 401(k) as
part of a marital property settlement agreement, the trial court erred when it
included Father’s early withdrawal from the 401(k) in its supplemental child
support calculation. See id. Here, as in Scoleri, the parties agreed that each
would retain his or her respective retirement account, and it would be
inequitable to use Father’s funds from the account in the calculation of his
supplemental child support obligation. See id. We, therefore, reverse and
remand with instructions for the trial court to remove Father’s retirement
account withdrawal from its supplemental child support calculation.
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 10 of 11
[19] Affirmed in part, reversed in part, and remanded.
[20] Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017 Page 11 of 11