Pond v. McNellis
| Decision Date | 13 April 2006 |
| Docket Number | No. 02A05-0506-CV-341.,02A05-0506-CV-341. |
| Citation | 845 N.E.2d 1043 |
| Parties | William W. POND, Appellant-Plaintiff, v. Paul B. McNELLIS and Linda Peters Chrzan, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Robert L. Nicholson, Beckman & Lawson, Fort Wayne, for Appellant.
Diana C. Bauer, Carson & Boxberger, Fort Wayne, Christine A. DeSanctis, Lafayette, for Appellee.
William Pond appeals the trial court's grant of summary judgment to Paul McNellis and Linda Chrzan and denial of his motion for summary judgment. Pond raises one issue, which we revise and restate as whether the trial court erred by granting McNellis and Chrzan's motion for summary judgment and denying Pond's motion for summary judgment concerning his request for restitution for attorney fees paid to McNellis and Chrzan, his ex-wife's attorneys. We affirm in part, reverse in part, and remand.
The relevant facts follow. This is the fourth appeal concerning the dissolution of marriage between Pond and Brenda Armentrout (formerly Pond). See Pond v. Pond, No. 02A03-9710-CV-379, 698 N.E.2d 886 (Ind. Ct.App. June 22, 1998), trans. denied; Pond v. Pond, 700 N.E.2d 1130 (Ind.1998); Armentrout v. Pond, No. 02A04-0008-CV-348, 747 N.E.2d 79 (Ind. Ct.App. April 19, 2001), trans. denied. On August 14, 1993, Pond and Brenda Armentrout entered into a postnuptial agreement, Paragraph 25 of which states:
In the event an attack by one party as to the validity of this agreement is unsuccessful, the party initiating such action shall be responsible for all attorney's fees and costs incurred by both parties in the prosecution or defense of such action.
Appellant's Appendix at 92. On November 17, 1993, Armentrout filed for dissolution. McNellis and Chrzan represented Armentrout in the dissolution proceedings, in which Armentrout challenged the validity of the postnuptial agreement.
On September 8, 1995, in the dissolution proceeding, the trial court approved the parties' postnuptial agreement and ordered the parties to perform its terms except for Paragraph 25, which the trial court held to be unconscionable. Pond v. Pond, 700 N.E.2d 1130, 1134 (Ind.1998). After rejecting Paragraph 25, the trial court ordered that Pond "should be responsible for the payment of attorney fees on behalf of [Armentrout] in the sum of $69,000.00 which is ordered paid in full by [Pond] sixty (60) days from the date hereof." Appellant's Appendix at 105.
Pond appealed the trial court's dissolution decree and raised the following issue, "whether the trial court erred by holding paragraph 25 of the postnuptial agreement, requiring the party unsuccessfully attacking the agreement to pay the attorney's fees incurred, unconscionable." In re Marriage of Pond, 676 N.E.2d 401, 405 (Ind.Ct.App.1997), affirmed in part and reversed in part, 700 N.E.2d 1130 (Ind. 1998).
While the appeal was pending, on October 16, 1995, McNellis and Chrzan filed a notice of intent to file and hold an attorney fee lien, which stated:
COMES NOW Paul B. McNellis and Linda Peters Chrzan, Attorneys for Respondent, [Armentrout], and pursuant to I.C. 33-1-3-1, file notice of their intent to hold a lien for their attorneys' fees due and owing on the judgment herein rendered in favor of [Armentrout], and in support of same states:
1. That the marriage between the parties was dissolved in this action on September 8, 1995.
2. That Paul B. McNellis and Linda Peters Chrzan were the attorneys for the Respondent, [Armentrout], who employed said attorneys to obtain a judgment and decree in her favor in said action.
3. That on September 8, 1995, as part of the judgment rendered, [Pond] was ordered to pay attorney fees on behalf of [Armentrout] in the sum of Sixty Nine Thousand Dollars ($69,000.00) within sixty (60) days.
4. That on September 8, 1995, the Court also ordered the marital residence listed for an additional period of One Hundred Eighty (180) days.
5. That Paul B. McNellis and Linda Peters Chrzan have billed [Armentrout] for their attorneys' fees plus advances for their representation in this matter and presently there is a sum of Sixty Nine Thousand Seven Hundred Forty Three Dollars and Eighty-Six Cents ($69,743.86) representing attorneys' fees and advances presently due and unpaid.
6. That Paul B. McNellis and Linda Peters Chrzan do hereby file their Notice of Intent to File and Hold Attorneys' Fee Lien within sixty (60) days from the date the judgment was rendered in favor of [Armentrout] to set forth their intention to hold a lien against the assets set off to [Armentrout], which said lien is in the sum of Sixty Nine Thousand Seven Hundred Forty Three Dollars and Eighty Six Cents ($69,743.86).
Appellant's Appendix at 120-121.
At some point, Pond and Armentrout received an offer to sell their real estate. Pond filed an emergency motion to escrow the proceeds of the sale of real estate and for a stay of the proceedings. On October 18, 1996, the trial court entered a ruling on Pond's motion, which stated:
Appellant's Supplemental Appendix at 123. Pond also filed with this court a petition for immediate temporary stay, which stated:
[Pond] is willing to post as security for payment of the $69,000 attorney fee judgment in favor of [Armentrout], and on which attorney McNellis has filed a notice of intent to hold attorney fee lien, the sum of $69,000 or such other amount in cash which the Court determines is necessary to protect payment of the judgment in the event it is upheld on appeal.
Appellant's Appendix at 161. Pond's petition was denied. At the closing, the gross amount due to the Ponds was reduced by $69,000.00 for the release of the attorney lien to Paul McNellis.
This court handed down its opinion regarding Pond's appeal on February 24, 1997 and affirmed the trial court's decision regarding Paragraph 25. In re Marriage of Pond, 676 N.E.2d at 401. The Indiana Supreme Court granted transfer and addressed the enforceability of Paragraph 25, the provision shifting attorney fees. The Indiana Supreme Court held:
To the extent that the judgment of dissolution rejects and refuses to enforce Paragraph 25, we reverse. As previously noted, the trial court, intentionally disregarding Paragraph 25, determined that the husband should pay $69,000.00 of the $89,262.25 attorney fees claimed by the wife. On remand, the trial court shall give full force and effect to this provision by determining the amount of reasonable attorney fees and costs that the parties incurred directly from the challenge to the validity of the parties' settlement agreement, and shall reduce its prior award of attorney fees accordingly.
Pond, 700 N.E.2d at 1137 (footnote omitted).
On December 2, 1998, Pond filed a request for a pre-trial conference, which listed only Armentrout as the respondent, and argued:
* * * * *
2. The Supreme Court's ruling necessitates the consideration by this Court of the following issues:
2.1 Determining the fees incurred by [Pond] in defending [Armentrout]'s contest of validity of the parties post-nuptial agreement;
2.2 Determining the extent to which the attorney's fees previously awarded to [Armentrout] include an award for fees incurred by her in connection with contesting the validity of the parties' post-nuptial agreement;
2.3 Reversing this Court's prior award of spousal maintenance to [Armentrout]; and
2.4 Determining whether, to the extent this Court's prior award of attorney's fees to [Armentrout] was improper, any of the amounts paid by [Pond] may be recovered directly from attorneys McNellis and Chrzan.
Appellant's Appendix at 69-70.
On October 5, 1999, the trial court entered the following order:
FINDINGS AND ORDER ON ISSUE OF LIABILITY FOR RESTITUTION OF ATTORNEY FEE JUDGMENT
[Pond] having appeared with counsel and [Armentrout] having appeared with counsel, and the former attorneys of record for [Armentrout], Paul McNellis and Linda Chrzan, having appeared to dispute this court's personal jurisdiction over said counsel, and arguments having been heard and memorandum having been considered on the issue of liability for restitution for an attorney fee judgment; the COURT NOW FINDS, that:
1. In the decree of dissolution of marriage this court, former special judge Roger Hultquist then presiding, [sic] ordered [Pond] to pay [Armentrout]'s attorney fees in the sum of $69,000.00. Her total attorney fees at that time were in the sum of $89,262.25 (Footnote 10, In re: the Marriage of: William Pond v. Brenda Pond, 02S03-9707-CV-405) [02S03-9707-CV-418, 700 N.E.2d 1130 (Ind.1998)].
2. On October 18, 1996, and while the appeal on the decree was pending, this court, the undersigned special judge presiding, issued an order requiring the attorney fee lien on the marital residence in the sum of $69,000.00 be paid upon the sale of the marital residence. The payment of the fees from the marital residence sale proceeds was determined to be a ". . . partial satisfaction of the judgment for attorney fees in favor of the Respondent, [Armentrout], and against Petitioner, [Pond]," ("Ruling on Motion for Say of Proceedings and to Escrow Proceeds of Sale of Real Estate" dated October 18, 1996).
3. A temporary stay of the execution of the attorney fee lien against the sale proceeds of the marital residence was sought from the Indiana Court of Appeals and was denied.
4. Setting aside the attorney fee order, the Supreme Court ordered on remand "... the trial court shall...
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