Kelly v. Kravec

Decision Date26 November 2013
Docket NumberNo. 02A05–1304–DR–158.,02A05–1304–DR–158.
Citation999 N.E.2d 433
PartiesKelley L. KELLY, Appellant–Respondent, v. Tiffany L. KRAVEC, Appellee–Petitioner.
CourtIndiana Appellate Court

Timothy M. Pape, Jamie C. Woenker, Carson Boxberger LLP, Fort Wayne, IN, Attorneys for Appellant.

Robert W. Eherenman, Haller & Colvin, P.C., Fort Wayne, IN, Attorney for Appellee.

OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Kelley L. Kelly (Father) appeals the denial of his motion to correct error following the entry of the trial court's post-dissolution order awarding $5,000.00 in attorney fees to his former wife, Tiffany Kravec (Mother) in a proceeding involving parenting time.

We affirm.

ISSUE
Whether the trial court abused its discretion by ordering Father to pay a portion of Mother's attorney fees.
FACTS

During Father and Mother's marriage, they had one child, T.K., who was born in 2003. The parties dissolved their marriage in September 2006 and entered into a settlement agreement regarding child custody, support, and visitation. Under their agreement, Father and Mother shared legal custody of T.K., with Father having primary physical custody.

Following their dissolution, both parties remarried. Father married Tammy Kelly (Stepmother), who had two adult children from a previous marriage. Mother married John Kravec (Stepfather), who had a child, N.K., who was close in age to T.K. Father, Mother, and Stepfather were employed by or had served in the military.

In 2007, a petition to modify custody was filed.1 As part of the custody proceedings, Father, Mother, and their respective spouses underwent psychological evaluations. The psychologist who conducted the evaluations questioned the validity of Stepfather's evaluation and the veracity of his responses. Given this questioned validity and an allegation that Stepfather had used “abusive punishment” with his own child, N.K., the psychologist recommended that T.K. have contact with Stepfather only when supervised by Mother. (App. 81).2

On August 11, 2009, the parties entered an Agreed Stipulation (2009 Agreed Stipulation”) to resolve all pending custody matters.3 In relevant part, paragraph 4(j) provided:

In the process of this custody action[,] both parties, as well as their spouses, underwent psychological testing. The psychological testing for the parties, as well as [Father's] spouse [Stepmother], was valid. Due to [Mother's] spouse, [Stepfather] having invalid psychological testing, it is agreed that until such time as he completes an independent evaluation by Dr. Stephen Ross, with the results to be shared with opposing counsel, that [T.K.] shall not be left alone with [Stepfather] without [Mother] being present. In the event the parties are unable to reach an agreement on this issue following Dr. Ross's evaluation, said issue shall be submitted to the Court.
(App. 63). In the 2009 Agreed Stipulation, the parties also agreed that each party was responsible for his or her own attorney fees. The trial court entered a nunc pro tunc order accepting the 2009 Agreed Stipulation, including the provision that Stepfather's contact with T.K. be supervised until he completed the additional psychological evaluation.

Thereafter, on September 14, 2009, Stepfather completed a psychological evaluation with clinical psychologist, Dr. Stephen Ross (“Dr. Ross”). Dr. Ross noted that the allegation of abuse against Stepfather was determined to be unfounded. Dr. Ross opined that Stepfather did not pose a risk of abuse to either his own daughter [N.K.], or his step-daughter [ (T.K.) ].” (App. 83) (emphasis in original).

Following Stepfather's evaluation with Dr. Ross, Father and Mother were unable to resolve the issue of removing the prohibition on Stepfather's contact with T.K. Therefore, on October 23, 2009, Mother filed a Petition to Modify Court Order, seeking to remove the provision that Stepfather's contact with T.K. be supervised. In her petition, Mother asserted that Father was “unwilling to reach an agreement on this issue” and requested that Father be ordered to pay her attorney fees incurred in relation to the matter. (App. 85). In February 2010, following a case management conference regarding Mother's petition, the trial court scheduled a trial on Mother's petition for September 27, 2010 and appointed a guardian ad litem.

Thereafter, in May 2010, Father issued non-party requests for documents and subpoenas duces tecum, seeking to obtain Stepfather's employment and health care records as well as the health care records of Stepfather's daughter. Mother then filed an objection to Father's non-party discovery requests. In her objection, Mother asserted that Father's non-party requests sent to Stepfather's employers, Ball State University Army ROTC and IPFW University Army ROTC, were a “witch hunt” and “could unnecessarily harm [Stepfather's] military career.” (App. 98). Mother also sought to recover attorney fees in connection with the matter. Additionally, the Army notified Father that it could not release the requested information without a written release authorization or a court order. Stepfather refused to sign a release for his and his daughter's medical records.

On September 9, 2010, Father filed a motion to continue the September 27, 2010 trial on Mother's Petition to Modify Court Order. On September 24, 2010, after holding a hearing, the trial court issued an order on Mother's objection to Father's non-party discovery and on Father's motion to continue the trial. The trial court ruled that Father's non-party requests for Stepfather's employment and health care records were relevant to the trial issue, which was “what restrictions, if any, should be placed on [Stepfather's] contact with [T.K.] during [Mother's] parenting time.” (App. 118). The trial court, however, ruled that Father's request for Stepfather's daughter's health care records was not relevant. The trial court also granted Father's continuance motion and rescheduled the trial to June 6 and 7, 2011.

In May 2011, the parties filed a stipulation for a continuance of the June 2011 trial due to the fact that Stepfather's employment required him to be in Afghanistan from May 22, 2011 to August 31, 2011. The trial court granted the parties' stipulated continuance and reset the trial for February 24, 2012.

In October 2011, the parties agreed to mediate, and the trial court entered an order granting their stipulation for mediation. Prior to attending mediation, both parties filed a motion to modify parenting time, with Mother filing her motion on November 3, 2011 and Father filing his motion on December 7, 2011. In Mother's motion, she requested additional parenting time during the occasions when Father was out of town or needed child care, and she requested that Father be responsible for her attorney fees. Father's motion generally requested “to have the parenting time Order modified.” (App. 135).

On January 18, 2012, the parties filed an Agreed Stipulation (2012 Agreed Stipulation”). In relevant part, the parties agreed that “the requirement that [T.K.] not be left alone with [Stepfather] without [Mother] being present, pursuant to the Court's Order of September 9, 2009, shall be terminated[.] (App. 138). The 2012 Agreed Stipulation did not contain any provisions regarding Mother's request for attorney fees and noted that a hearing was scheduled for all pending matters. That same day, trial court entered an order granting the parties' 2012 Agreed Stipulation.

The trial court held hearings on the parties' pending matters on February 24, 2012, March 26, 2012, and July 12, 2012. At the beginning of the February hearing, Mother's counsel asked the trial court to award attorney fees to Mother for the fees she incurred to resolve the issue regarding Stepfather's contact with T.K. during Mother's parenting time. Father argued that the attorney fee issue was not preserved and had been resolved by the 2012 Stipulated Agreement. Father also argued that the attorney fee issue was barred by res judicata as a result of the order adopting [the parties'] agreement.” (Tr. 14 ).

On the day of the March 26, 2012 hearing, Father filed a memorandum in opposition to Mother's request for attorney fees. Specifically, Father argued that Mother could not seek attorney fees because the 2012 Agreed Stipulation did not include any provision regarding the recovery of attorney fees. Father alleged that Mother's request for attorney fees was a request for the trial court to modify or set aside its order accepting the 2012 Stipulated Agreement, and he argued that Mother had failed to allege any grounds under Indiana Trial Rule 60(B) to set aside that order.

On the day of the July 12, 2012 hearing, Mother filed a response to Father's objection and a memorandum in support of her attorney fee request. In her memorandum, Mother argued that the omission of an attorney fee provision in the 2012 Agreed Stipulation neither resolved the attorney fee claim nor precluded her from raising the issue. During the hearing, Mother offered into evidence Respondent's Exhibit V, which was an attorney fee affidavit with an itemization of fees attached that revealed that Mother had incurred attorney fees totaling $49,020.34 from September 2009 to July 2012. Father specifically stated that he had [n]o objection” to the admission of Mother's attorney fee affidavit, and he did not challenge the amount of fees. (Tr. 477).4 Father also offered into evidence his attorney fee affidavit as Petitioner's Exhibit 17, which revealed that Father had incurred attorney fees totaling $38,329.32 from September 2009 to July 2012 and had estimated fees of $5,000.00 for the three hearing dates. Also during that July hearing, the guardian ad litem testified that she had recommended to Father that Stepfather be allowedto have unsupervised time with T.K. but that Father disagreed and had persisted with the issue.

On December 7, 2012, the trial court issued an order, which, in relevant part, awarded $5,000 in attorney fees to Mother...

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