MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jun 14 2016, 8:51 am
this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Michael F. Vertesch                                      Shana D. Tesnar
Greenwood, Indiana                                       Adler Tesnar & Whalin
                                                         Noblesville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Julie D. Himes,                                          June 14, 2016
Appellant/Petitioner,                                    Court of Appeals Case No.
                                                         16A01-1510-DR-1599
        v.                                               Appeal from the Decatur Circuit
                                                         Court
Todd A. Himes,                                           The Honorable Brian D. Hill,
Appellee/Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         16C01-9609-DR-206



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016          Page 1 of 19
                                       Statement of the Case
[1]   In this contentious post-secondary educational expense action, Julie Himes

      (“Mother”) argues that the trial court abused its discretion by: (1) granting the

      parties’ children, twenty-two-year-old Maggie (“Maggie”) and twenty-year-old

      Bryant (“Bryant”) leave to intervene as parties; (2) granting the children the

      exclusive right to pursue any arrearage; (3) terminating the educational

      expenses order; (4) concluding that Mother’s overpaid college expenses were

      gifts; (5) failing to find Todd Himes (“Father”) in contempt; and (6) failing to

      award her attorney fees. The trial court did not err in granting the children the

      exclusive right to pursue any arrearage and in concluding that Mother’s

      overpaid college expenses were gifts. However, because the trial court abused

      its discretion in all other aspects of the case, we affirm in part, reverse in part,

      and remand with instructions for the trial court to determine the amount of

      attorney fees Mother is to receive as compensation for her injuries incurred as a

      result of Father’s contempt. In addition, the sanction for contempt may exceed

      any award for attorney fees.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                    Issues
              1. Whether the trial court abused its discretion in granting the
              parties’ adult children leave to intervene as parties.

              2. Whether the trial court erred in granting the children the
              exclusive right to pursue any arrearage.

      Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 2 of 19
              3. Whether the trial court abused its discretion in terminating the
              educational expenses order.

              4. Whether the trial court abused its discretion in concluding
              that Mother’s overpaid college expenses were gifts.

              5. Whether the trial court abused its discretion in failing to find
              Father in contempt.

              6. Whether the trial court abused its discretion in failing to
              award Mother attorney fees.

                                                     Facts
[3]   Mother and Father have two children, daughter Maggie who was born in

      August 1992 and son Bryant who was born in December 1994. Mother and

      Father’s marriage was dissolved in February 1997; however, they have

      apparently spent years litigating issues regarding their children. In January

      2014, Mother and Father entered into the following Mediated Agreement to

      resolve pending issues:


              1.   Child support for both Maggie Himes . . . and Bryant
              Himes . . . shall terminate on November 20, 2013. . . .

                                       *       *        *       *        *

              4.     As of November 20, 2013, all child support owed has been
              paid in full and there are no overpayments.

              5.     As of November 20, 2013, there are no child-related
              uninsured medical, dental or any other medical related expenses
              due or overpayments by either party; and both parties stipulate
              that neither party was in contempt of any Court Order.

              6.    As of the end of the summer semester of 2013, all Court-
              Ordered payments for post-secondary education expenses for

      Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 3 of 19
        Maggie have been paid by all parties and there are no
        overpayments.

                                 *       *        *       *        *

        8.     The new post-secondary education expense order [has
        been] calculated . . . . Maggie shall contribute the sum of
        Thirteen Thousand Five Hundred Fifty One Dollars ($13,551.00)
        per school year in grants, cash and student loans as her share of
        her yearly post-secondary education expenses. Bryant shall
        contribute the sum of Fifteen Thousand Four Hundred Ninety
        Five Dollars ($15,495.00) per school year in grants, cash and
        student loans as his share of his yearly post-secondary education
        expenses.

        9.     Commencing July 22, 2013, in the event that Maggie
        Himes earns a 2.5 or better semester g.p.a. (out of a 4.00 scale),
        at the previous Fall or Spring semester’s conclusion, Father shall
        pay to Indiana University the sum of Five Thousand Three
        Hundred Dollars ($5,300.00) per semester on behalf of Maggie’s
        account as a reimbursement for his share of Maggie’s post-
        secondary education expenses in the previous Fall or Spring
        semester. Mother’s share shall be One Thousand Seven Hundred
        Seventy Three Dollars ($1,773.00) . . . .

               In the event that Maggie attends Summer semester classes
        and Maggie earns a 2.50 or better semester g.p.a. (out of a 4.0
        scale) at the conclusion of Summer semester, Father shall pay
        Seventy Five Percent (75%) of any of Maggie’s Summer semester
        tuition, books and fees and Mother shall pay Twenty Five
        Percent (25%) of such expenses.

        10. Commencing July 22, 2013, in the event Bryant Himes
        earns a 2.50 or better semester g.p.a. (out of a 4.0 scale), at the
        previous Fall or Spring semester’s conclusion, Father shall pay to
        Cincinnati University the sum of Six Thousand Two Hundred
        Dollars ($6,200.00) per semester on behalf of Bryant’s account as
        a reimbursement for his share of Bryant’s post-secondary

Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 4 of 19
              education expenses in the previous Fall or Spring semester.
              Under those same conditions, Mother’s share shall be Two
              Thousand Fifty Dollars ($2,050.00) per semester . . . .

              11. In the event that Bryant attends Summer semester classes
              and Bryant earns a 2.50 or greater g.p.a. (out of a 4.00 scale), at
              the conclusion of Summer semester, Father shall pay Seventy
              Five Percent (75%) of any of Bryant’s Summer semester tuition,
              books, fees, room and board and any other living expenses and
              Mother shall pay Twenty Five Percent (25%) of such expenses.

              12. All post-secondary education payments owed by Father
              shall be made within ten (10) days of written confirmation from
              the child that the child’s past semester grades were a 2.50 or
              better semester g.p.a. (out of a 4.00 scale). In the event that
              either university will not apply all or part of Father’s payment to
              the child’s bursar account, the money shall be paid directly to the
              child.

                                       *       *        *       *        *

              18. This Mediated Agreement was reached and signed during
              a Court-Ordered mediation session and both parties acknowledge
              that they enter this Mediation Agreement knowing that once signed, they
              have no right to revoke their signature or the effectiveness of this Mediated
              Agreement.


      (App. 13-16) (emphasis added).


[4]   In July 2014, Mother filed a petition for contempt, which she has failed to

      include in her appendix. Apparently, Mother claimed that Father had failed to

      pay the children’s post-secondary expenses as previously agreed and ordered

      pursuant to the Mediated Agreement. Following a hearing on Mother’s

      petition, the trial court concluded in an October 30, 2014 order (“Contempt


      Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 5 of 19
Order”) that Father had not paid his children’s post-secondary school expenses.

Specifically, the trial court concluded in relevant part as follows:


        (6) It is the Court’s finding that based upon the evidence
        presented, Todd A. Himes has not complied with the Mediated
        Agreement dated January 7, 2014 with respect to his obligation
        to pay college expenses for Maggie Himes for the fall 2013 and
        spring 2014 semesters and his obligation to pay college expenses
        for Bryant Himes[’] college education for the fall 2013 and spring
        2014 semesters. Todd A. Himes is obligated to comply
        specifically with the order and pay the total sum of Ten
        Thousand Six Hundred Dollars ($10,600.00) to the college which
        Maggie Himes attended for the fall 2013 semester and the spring
        2014 semester. In the event the college refuses such payment,
        then the payment shall be paid directly to Maggie Himes as
        ordered in the mediated agreement dated January 7, 2014. The
        Court will not accept evidence of payment testimony from Todd
        A. Himes that he paid cash directly to the child. He must pay the
        funds in a check or certified funds in order to receive credit for
        the payment due to his efforts to avoid payment by alleging he
        paid cash previously. Said payment shall be paid in full within
        sixty (60) days from the date thereof.


        (7) Todd A. Himes is also indebted in the sum of Twelve
        Thousand Four Hundred Dollars ($12,400.00) for college
        expenses owed for Bryant Himes[‘] college education for the fall
        2013 and spring 2014 semesters. Todd A. Himes shall pay said
        sum directly to the college attended by Bryant Himes during the
        fall 2013 and the spring 2014 semester. In the event the college
        refuses payment, he shall pay said amount directly to Bryant
        Himes as called for in the Mediated Agreement dated January 7,
        2014. The Court will not accept as evidence of payment
        testimony from Todd A. Himes that he paid cash directly to
        satisfy the obligation. He must satisfy the obligation by payment
        of check or certified funds. Said payment shall be paid in full
        within sixty (60) days from the date hereof.
Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 6 of 19
              (8) The Court finds that Todd A. Himes has made deliberate
              efforts to avoid payment of his share of college expenses as he
              agreed to and as he has been ordered to pay in the Court’s
              Mediated Agreement dated January 7, 2014. As a result, the
              Court finds Todd A. Himes in contempt of the Court’s order
              dated January 7, 2014. He shall be obligated to reimburse Julie
              D. Himes the sum of One Thousand Five Hundred Dollars
              ($1,500.00) in attorney fees incurred in bringing the contempt
              action before the court.


                                       *       *        *       *        *


              (10) The Court does not find Todd A. Himes in contempt for
              failure to pay summer 2014 expenses since those expenses are
              based on a percentage basis and he needs access to the children’s
              Bursar accounts to determine the dollar amount owed. The
              Court instructed Julie D. Himes to provide Todd A. Himes
              access to the children’s Bursar accounts and/or have the children
              provide him access to the Bursar accounts. On providing that
              access, Todd A. Himes owes seventy-five percent of each child’s
              summer 2014 college expenses as previously ordered.


      (App. 25-27).


[5]   In January 2015, more than sixty days after the trial court’s order, Father filed a

      petition to modify wherein he asked the trial court to grant “Maggie and Bryant

      leave to intervene as parties hereto and to thereafter terminate all Orders

      relating to educational expenses.” (App. 37). The petition further stated that

      Maggie and Bryant joined in and certified that “they ha[d] a good working

      relationship with their Father and no longer need[ed] or desired any

      intervention in their relationship with their Father . . . .” (App. 38). Father and


      Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 7 of 19
      both children signed the petition under penalties of perjury. Mother responded

      with an objection and a petition for contempt, which she failed to include in her

      appendix. In February 2015, Father filed a motion for change of venue from

      the judge, which resulted in the appointment of a special judge.


[6]   In March 2015, Father renewed his motion to terminate all support orders and

      to close the case. The trial court held a July 2015 hearing on Father’s petition

      to terminate the educational support order as well as Mother’s petition for

      contempt. The evidence revealed that Father had directly paid Maggie

      $1,795.00 of the $10,600.00 that the trial court ordered him to contribute to her

      fall 2013 and spring 2014 semesters, leaving an arrearage of $8,805.00. Father

      had also accrued a $1,892.27 arrearage for Maggie’s summer 2014 semester.

      Father’s total arrearage for Maggie was $10,697.27. In addition, Father had

      directly paid Bryant $880.00 of the $12,400.00 that the trial court ordered him

      to contribute to his son’s fall 2013 and spring 2014 semesters, leaving an

      arrearage of $11,520.00. Father’s total arrearage for the fall 2013, spring 2014,

      and summer 2016 semesters for both children was $22,217.27.


[7]   Father testified that he had not complied with the Contempt Order contending

      that it was unclear. Father explained that the order “didn’t really specify that I

      was supposed to do anything other than pay money and continue to help my

      kids . . . [which] I’ve been doing.” (Tr. 15-16). When confronted by Mother’s

      counsel, Father conceded that the order was not confusing. Instead, he

      explained that based on his counsel’s advice, he believed that his approximately

      $2,700.00 in payments had satisfied the almost $25,000.00 due pursuant to the

      Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 8 of 19
      Contempt Order. Specifically, he explained that he “had made payments,

      working with [his] kids as needed, to help with school, and personal expenses

      during school,” including rent and car repairs. (Tr. 9). Father further explained

      that he “[did not] need a court order to help [his kids].” (Tr. 10). When asked

      by Mother’s counsel if he owed money for Maggie’s educational expenses,

      Father responded that he did not believe that he did. Father explained, “I’ve

      been paying and . . . I’ve made payments to her and will continue to do so.”

      (Tr. 26). Father also testified that he had “paid everything [Bryant] asked for

      and more.” (Tr. 8). Father further testified that Maggie’s account had been

      overpaid and she had received a refund from the Bursar’s Office. In addition,

      she had finished the classroom portion of her college education and would

      graduate as soon as she had finished her internship in September 2015. Bryant

      was participating in a co-op engineering program that was part of his degree at

      the University of Cincinnati, and he was earning approximately $20,000 in the

      program. Lastly, Father testified that his annual income was approximately

      $110,000.


[8]   Although Mother acknowledged that Maggie had no more classes to attend or

      tuition due as of the date of the hearing, she pointed out that Maggie had

      $40,000 in student loans. She also pointed out that although Bryant was

      currently participating in a co-op program, he had two years of college to

      complete. Mother also testified that she had overpaid the educational expense

      order for Maggie by $92.63 and for Bryant by $7,109.25. Mother asked the trial

      court to enter a judgment in her name and to garnish Father’s wages. She


      Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 9 of 19
       requested reimbursement for her overpayments, but she asked the trial court to

       allow her to apply her overpayments to her future obligations. Last, Mother

       testified that her annual income was $38,000 and asked the trial court to award

       her attorney fees.


[9]    Although the children were subpoenaed, they did not appear in court or testify.

       The trial court sustained Mother’s objection to the admission of the children’s

       depositions into evidence.


[10]   In August 2015, the trial court issued an order that provides in relevant part as

       follows:

               1.     Due to the fact that this Court has previously made the
               adult children “third party” payees of funds to be made by
               Father, the Court grants their motion to intervene as parties in
               this matter. The Court finds, that on two occasions, both adult
               children have affirmed under the penalties of perjury their wish
               to have the previous education expense order terminated and that
               they have a good working relationship with their Father and are
               able to work out any of their educational needs with him. There
               was no evidence that these signatures were forged or made under
               duress.

               2.     The Court finds that the previous Order of Educational
               Expenses should be and is hereby terminated effective January
               26, 2015. The Court, however, does not vacate any previous
               order of expense allocation or specific amounts owed by Father.
               These amounts still may be owed by Father to children, and as
               parties, one or both may request that said expenses be reduced to
               judgment and/or proceed with collection measures under this
               cause.



       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 10 of 19
               3.     By her own testimony, Wife is not requesting
               reimbursement for any alleged overpayment of educational
               expenses that she has made. The Court finds that any potential
               overpayment should be considered a gift since the Court did not
               order Former Husband to reimburse Former Wife or make any
               future payments to her, she is not the appropriate party to enforce
               payment to payees who apparently have no interest in pursuing
               their claims at this time.

               4.     Former Wife has presented sufficient evidence to show
               that Former Husband has not been in strict compliance with the
               previous order of this Court requiring payments made to the
               individual children by certified check or money order, however,
               under the specific facts of this case, the Court finds that it would
               be manifestly unreasonable to find Former Husband in contempt
               for his actions due to the fact that payees have joined in his
               motion to terminate the Court order of educational expense
               allocation.

               5.     Therefore, Former Wife’s Petition for Contempt should be
               and is hereby denied along with her request for attorney fees.

       (Mother’s Br. 33-34). Mother appeals.


                                                   Decision
       1.      Granting Children Leave to Intervene as Parties

[11]   Mother first argues that the trial court erred in granting Maggie and Bryant

       leave to intervene as parties. We review the trial court’s ruling on a motion to

       intervene pursuant to Indiana Trial Rule 24 for an abuse of discretion and

       assume that all facts alleged in the motion are true. Citimortgage v. Barabas, 975

       N.E.2d 805, 812 (Ind. 2012). A motion to intervene must be timely filed.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 11 of 19
       White v. Vermillion County Bd. of Zoning Appeals, 568 N.E.2d 1106, 1107 (Ind. Ct.

       App. 1991).


[12]   Indiana Trial Rule 24(C) provides that a “person desiring to intervene shall

       serve a motion to intervene upon the parties as provided in Rule 5. The motion

       shall state the grounds therefor and set forth or include by reference the claim,

       defense or matter for which intervention is sought.” Here, the children did not

       comply with this rule. Specifically, they failed to file or serve their own motion

       to intervene. Rather, Father’s petition to modify includes a brief request that

       the trial court grant Maggie and Bryant leave to intervene.


[13]   Maggie and Bryant also failed to comply with Trial Rule 3.1(C) which provides

       that at the time the “matter is submitted to the court seeking to intervene in a

       proceeding, the attorney representing the intervening party or parties, or the

       intervening party or parties, if not represented by an attorney, shall file an

       appearance form . . . .” No appearance forms were filed.


[14]   Further, neither child appeared in court even though they had twice been

       subpoenaed by Father’s counsel. Under these circumstances, where the

       children failed to comply with the trial rules governing intervention and then

       failed to appear in court despite a subpoena, the trial court erred in granting

       them leave to intervene as parties.


       2.      Exclusive Right to Pursue any Arrearage

       Mother also argues that the trial court abused its discretion in awarding Maggie

       and Bryant the exclusive right to pursue any arrearage. Our review of the

       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 12 of 19
       record reveals that the trial court awarded the children the exclusive right to

       pursue any arrearage because they were already third-party payees of funds paid

       by Father. The children’s status as payees was reconfirmed in the trial court’s

       Contempt Order. Mother cannot now complain about the children’s status as

       payees where she agreed to this status in the January 2014 Mediated

       Agreement. Agreements such as this will be upheld absent evidence of

       unfairness, unreasonableness, or manifest inequity, or evidence that the

       agreement was procured through fraud or coercion, none of which has been

       alleged by Mother. See Reno v. Haler, 734 N.E.2d 1095, 1101 (Ind. Ct. App.

       2000) trans. denied. The trial court did not abuse its discretion in determining

       that those who had the exclusive right to be paid the money should also have

       the exclusive right to collect any arrearage.


       3.      Termination of Educational Expenses Order

[15]   Mother next argues that the trial court abused its discretion in terminating the

       educational expenses order. Educational expenses are in the nature of child

       support. Schacht v. Schacht, 892 N.E.2d 1271, 1275 (Ind. Ct. App. 2008). An

       agreement between parents regarding child support may subsequently be

       modified. In re Marriage of Kraft, 868 N.E.2d 1181, 1188 (Ind. Ct. App. 2007).

       A modification of child support in such cases is governed by INDIANA CODE §

       31-16-8-1, which provides that a child support order may be modified or

       revoked upon a showing of changed circumstances so substantial and

       continuing as to make the terms of the order unreasonable. See id. When

       confronted with a petition to modify a support order, the trial court must

       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 13 of 19
       consider the totality of the circumstances involved in order to ascertain whether

       the modification was warranted. Carter v. Dayhuff, 829 N.E.2d 560 (Ind. Ct.

       App. 2005). As the party seeking modification, Father had the burden of

       establishing that he was entitled to have the educational expenses order

       modified. See Cross v. Cross, 891 N.E.2d 635, 641 (Ind. Ct. App. 2008).


[16]   Modifications of child support are reviewed for an abuse of discretion. Miller v.

       Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). We grant latitude and

       deference to trial courts in family matters. Id. We neither we neither reweigh

       the evidence nor reassess witness credibility. Id. Rather, we consider only the

       evidence most favorable to the judgment and the inferences flowing therefrom.

       Id.


[17]   Here, the trial court terminated the educational expenses order effective

       January 25, 2015. Mother argues that “there was no evidence introduced at

       trial of this matter to support a finding of changed circumstances so substantial

       and continuing as to make the terms unreasonable . . . .” (Mother’s Br. 20).

       We agree.


[18]   Mother and Father entered into a Mediated Agreement for the payment of their

       children’s educational expenses in January 2014. The trial court’s order being

       appealed in this case terminated those educational expenses in January 2015.

       However, our review of the evidence reveals that the children’s educational

       expenses had not substantially changed as of January 2015. Specifically,

       Maggie and Bryant were both still students at their respective universities.


       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 14 of 19
       Bryant participated in an engineering co-op program and earned $20,000.00

       that year, which provided him with the funds to make his required $15,000.00

       contribution to his educational expenses. However, this was not a changed

       circumstance so substantial and continuing as to make Father’s agreed

       contribution unreasonable.


[19]   Further, to the extent that Father argues that Maggie’s refund from the Bursar’s

       Office was a substantial and continuing change of circumstances, we note that

       tuition payments are due at the beginning of the semester. Father is required to

       contribute to his children’s educational expenses at the end of the semester if

       the children achieve a certain G.P.A. Under these circumstances, it is

       reasonable to infer that Maggie borrowed money to pay her tuition at the

       beginning of the semester, and when Father went to the Bursar’s Office to pay

       Maggie’s tuition at the end of the semester, there was nothing due. Thus,

       although Maggie’s loan helped her to make her $13,551.00 required

       contribution to her educational expenses, it was not a changed circumstance as

       substantial and continuing as to make Father’s agreed contribution

       unreasonable.


[20]   Father has pointed to no additional evidence to show the required substantial

       and continuing changed circumstances, and we find none. Father has therefore




       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 15 of 19
       failed to meet his burden. Under these circumstances, the trial court abused its

       discretion in terminating the educational expenses order.1


       4.       Mother’s Overpaid Educational Expenses


[21]   Mother also argues that the trial court abused its discretion in finding that any

       educational expenses that she overpaid were gifts. She has waived appellate

       review of this issue because she has failed to support it with cogent argument

       and relevant authority. See Kentucky Nat’l. Ins. Co. v. Empire Fire and Marine Ins.

       Co., 919 N.E.2d 565, 598 (Ind. Ct. App. 2010) (holding that argument was

       waived for failure to cite authority or provided cogent argument).


[22]   Waiver notwithstanding, we find no error. Where Mother did not request

       reimbursement of the overpayments, the trial court did not abuse its discretion

       in finding that they were gifts. See Carpenter v. Carpenter, 891 N.E.2d 587, 591

       (Ind. Ct. App. 2008) (holding that voluntary overpayments of child support are

       properly treated as gratuities to the children).


       5.       Contempt




       1
         Indiana’s policy is to encourage parents to settle their own affairs. Reno v. Haler, 734 N.E.2d 1095, 1100
       (Ind. Ct. App. 2000), trans. denied. We have previously pointed out that a child support order and an
       educational support order are separate and distinct because an educational support order can be terminated if
       a child repudiates a parent. Lovold v. Ellis, 998 N.E.2d 1144, 1152 (Ind. Ct. App. 2013). We do not have that
       here. What we do have here are two parents that properly executed a mediated agreement, which stated that
       they both gave up any “right to revoke their signature or the effectiveness of this Mediated Agreement.”
       (App. 16). There is no evidence in the record of fraud, duress, misrepresentation, or manifest inequities. See
       Pond v. Pond, 700 N.E.2d 1130, 1136 (Ind. 1998). As a result, even if there was evidence to support a
       modification, it is likely that the trial court would still have been bound to enforce the terms of the parties’
       Mediated Agreement. However, we do not reach that conclusion today.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016              Page 16 of 19
[23]   Mother next argues that the trial court abused its discretion in failing to find

       Father in contempt for failing to comply with the Contempt Order. Whether a

       party is in contempt is a matter left to the sound discretion of the trial court.

       Sutton v. Sutton, 773 N.E.2d 289, 297 (Ind. Ct. App. 2002). We reverse the trial

       court’s finding in contempt matters only if it is against the logic and effect of the

       evidence before the trial court or is contrary to law. Id. When reviewing a

       contempt order, we will neither reweigh the evidence nor judge the credibility

       of witnesses. Id. We will affirm the trial court’s judgment unless a review of

       the entire record leaves us with a firm and definite belief that a mistake has been

       made. Id.


[24]   To hold a party in contempt for a violation of a court order, the trial court must

       find that the party acted with “willful disobedience.” Id. Simply establishing

       the existence and knowledge of an arrearage may not amount to a “willful

       disregard of a court order.” Id.


[25]   Here, our review of the evidence reveals that the Contempt Order found Father

       in contempt for making “deliberate efforts to avoid payments of his share of

       college expenses agreed to and as he ha[d] been ordered to pay in the Courts’

       Mediated Agreement dated Jan. 7, 2014.” (App. 24). The trial court ordered

       Father to make the payments in full within sixty days of the date of the order.

       However, almost a year later, Father, who had still not complied with this

       order, testified that the order was not clear because it did not tell him what to

       do. Later, he admitted that the order was clear and testified that he “[did not]

       need a court order to help his kids.” (Tr. 10). According to Father, he believed

       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 17 of 19
       that his payments of almost $2,700.00 had satisfied his $25,000.00 court-

       ordered contribution to his children’s educational expenses. Father’s failure to

       pay was clearly willfully deliberate. Because a review of the entire record leaves

       us with a firm and definite belief that a mistake has been made, we conclude

       that the trial court abused its discretion in failing to find Father in contempt.


       6.      Attorney Fees

[26]   Last, Mother argues that the trial court abused its discretion in failing to order

       Father to pay her attorney fees. The determination of the payment of attorney

       fees in proceedings to modify a child support award is within the sound

       discretion of the trial court and will be reversed only upon a showing of a clear

       abuse of that discretion. Id.


[27]   Mother first contends that the trial court abused its discretion in failing to award

       her attorney fees pursuant to INDIANA CODE § 31-16-11-1, which authorizes the

       award of attorney fees in post-dissolution proceedings. 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. Gilbert v. Gilbert, 777 N.E.2d 785, 795 (Ind. Ct.

       App. 2002). 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. Mother complains that the trial court in this case failed to

       consider Father’s superior financial situation and how he had “thwarted equal

       access to the courts for others in the difficult economic position such as that

       occupied by Mother.” (Mother’s Br. 31). However, the trial court reviewed the

       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 18 of 19
       parties’ economic circumstances at the hearing. We assume the trial court

       considered such information and determined that it did not mandate the award

       of attorney fees in this case. See id. (explaining that the trial court need not give

       reasons for its determination). We find no abuse of the trial court’s discretion.


[28]   Mother also contends that the trial court abused its discretion in failing to

       award her attorney fees as a sanction upon a finding of contempt. See Adler v.

       Adler, 713 N.E.2d 348, 355 (Ind. Ct. App. 1999) (explaining that the trial court

       has inherent authority to compensate the aggrieved party for losses and

       damages resulting from another’s contemptuous actions). Because the trial

       court did not find Father to be in contempt, the court did not consider ordering

       him to pay Mother’s attorney fees as a sanction. However, because we have

       found that the trial court erred in failing to find Father to be in contempt, we

       remand this case to the trial court with instructions to determine the amount of

       attorney fees Mother is to receive as compensation her for injuries incurred as a

       result of Father’s contempt. In addition, the sanction for contempt may exceed

       any award for attorney fees.


[29]   Affirmed in part, reversed in part, and remanded with instructions.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1510-DR-1599 | June 14, 2016   Page 19 of 19
