MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Apr 05 2018, 8:51 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT
Lindsay D. Solon
Andrew P. Simmons
Van Gilder & Trzynka, PC
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Olga L. Perkins,                                         April 5, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         02A04-1711-DR-2787
        v.                                               Appeal from the Allen Superior
                                                         Court
Robert E. Perkins,                                       The Honorable Charles F. Pratt,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No. 02D07-
                                                         1503-DR-374




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018             Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, Olga L. Perkins (Wife), appeals the trial court’s denial

      of her motion for attorney fees stemming from the dissolution of her marriage

      to Appellee-Petitioner, Robert E. Perkins (Husband).


[2]   We reverse and remand.


                                                    ISSUE
[3]   Wife raises one issue on appeal, which we restate as: Whether the trial court

      erred by denying Wife’s motion for attorney fees.


                      FACTS AND PROCEDURAL HISTORY
[4]   On March 13, 1999, Husband and Wife wed in Wife’s home country,

      Columbia. Thereafter, they moved to their marital home in Fort Wayne, Allen

      County, Indiana. No children were born during the marriage. In 2014, the

      parties separated.


[5]   On March 23, 2015, Husband filed a Petition for Annulment or in the

      Alternative, Petition for Dissolution. In seeking to have the sixteen-year

      marriage annulled, Husband claimed that he had been induced into the

      marriage by Wife’s false promise to undergo a surgical procedure for a medical

      condition that prevented her from engaging in sexual intercourse. On May 12,

      2015, Wife filed a Verified Counter Petition for Dissolution of Marriage. On

      August 26, 2015, the trial court issued Provisional Orders, granting Husband

      temporary possession of the marital residence and directing him to pay

      Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018   Page 2 of 7
      temporary spousal maintenance to Wife. The trial court also ordered Husband

      to pay $1,500.00 in preliminary attorney fees to Wife’s attorney.


[6]   On March 10, 2016, Wife filed a motion to dismiss Husband’s petition for

      annulment pursuant to Indiana Trial Rule 12(B)(6). Wife argued that

      Husband’s petition “fails to address any element of voidable marriage and

      annulment.” (Appellant’s App. Vol. II, p. 73). On July 21, 2016, following a

      hearing, the trial court denied Husband’s petition for an annulment.


[7]   On February 10, 2017, and July 6, 2017, the trial court conducted a final

      dissolution hearing, at the close of which, the trial court took the matter under

      advisement. On July 10, 2017, Wife filed a motion for attorney fees, requesting

      that Husband be required to pay $17,316.33 to Wife’s counsel. On November

      6, 2017, the trial court issued a Decree of Dissolution. The trial court granted

      the divorce and divided the marital property. As to attorney fees, the trial court

      found:


              [Wife] is requesting that the [c]ourt enter an order requiring
              [Husband] to pay additional attorney fees in the sum of
              Seventeen Thousand Three Hundred Sixteen Dollars and thirty-
              three cents ($17,316.33) for the costs of this action. This action
              has been litigated over the course of two and one-half years since
              the date of the filing of the Petition for Dissolution of Marriage.
              [Wife] received legal representation at no cost to her as her
              attorney represented her on a pro bono basis. As [Wife] did not
              incur attorney fees in this matter, the [c]ourt declines to enter an
              award of attorney fees.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018   Page 3 of 7
       (Appellant’s App. Vol. II, p. 26). On December 6, 2017, Husband filed a

       motion to correct error, which does not appear to ever have been ruled upon.


[8]    Wife now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[9]    Pursuant to Husband’s request, the trial court issued specific findings of fact

       and conclusions thereon in the Decree of Dissolution. Thus, pursuant to

       Indiana Trial Rule 52(A), “we first must determine whether the evidence

       supports the findings, and second, whether the findings support the judgment.”

       O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). “Findings of fact

       are clearly erroneous when the record lacks any evidence or reasonable

       inferences from the evidence to support them.” Id. A judgment will be reversed

       as being clearly erroneous if our “examination of the record leaves [us] with the

       firm conviction that a mistake has been made.” Id. A judgment is also clearly

       erroneous “if it applies the wrong legal standard to properly found facts.” Id.

       Our court only considers the evidence “favorable to the judgment and all

       reasonable inferences flowing therefrom.” Id. We do not reweigh evidence or

       judge the credibility of witnesses. Id.


[10]   Additionally, we note that Husband has not filed an appellate brief. “When an

       appellee fails to submit a brief, we do not undertake the burden of developing

       the appellee’s arguments, and we apply a less stringent standard of review.”

       Harris v. Harris, 922 N.E.2d 626, 632 (Ind. Ct. App. 2010). Accordingly, we

       Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018   Page 4 of 7
       may reverse if the appellant establishes prima facie error. Id. Prima facie error

       “means at first sight, on first appearance, or on the face of it.” Everette v.

       Everette, 841 N.E.2d 210, 212 (Ind. Ct. App. 2006). This less stringent standard

       relieves our court “of the burden of controverting the arguments advanced in

       favor of reversal where that burden properly rests with the appellee.” Harris,

       922 N.E.2d at 632. Notwithstanding an appellee’s failure to submit a brief, we

       review questions of law de novo. Id.


                                                II. Attorney Fees

[11]   Wife claims that she is entitled to an award of attorney fees. Indiana Code

       section 31-15-10-1 specifically authorizes a court to “order a party to pay a

       reasonable amount for the cost to the other party of maintaining or defending

       any proceeding under this article and for attorney’s fees . . . .” We review a

       trial court’s decision to award or deny a request for attorney fees in connection

       with a decree of dissolution under an abuse of discretion standard. Ahls v. Ahls,

       52 N.E.3d 797, 802-03 (Ind. Ct. App. 2016). The trial court has broad

       discretion in determining whether to award attorney fees, and our court will

       reverse only if the trial court’s decision “is clearly against the logic and effect of

       the facts and circumstances before it or if it misapplies the law.” Id. at 803.


[12]   When deciding whether to award attorney fees in the course of a dissolution,

       the trial 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.” Hartley v. Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018   Page 5 of 7
       “Consideration of these factors promotes the legislative purpose behind the

       award of attorney fees, which is to [e]nsure that a party in a dissolution

       proceeding, who would not otherwise be able to afford an attorney, is able to

       retain representation.” Id. 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.

       The trial court has no obligation to give reasons for its determination. Id.


[13]   At the time of the dissolution, Husband’s annual income was $54,756, whereas

       Wife’s annual earnings amounted to approximately $15,140. Furthermore, due

       to the trial court’s decision not to include a number of marital assets (for

       example, real properties in Michigan and Columbia) in the marital pot before

       effectuating a division, Husband received a substantially larger share of the

       marital assets than Wife, despite the trial court’s explicit finding “that neither

       party has rebutted the presumption that an equal division of the property is just

       and reasonable and that the marital estate should, therefore, be divided

       equally.” (Appellant’s App. Vol. II, p. 26). 1 Thus, it is clear that Husband was

       in a financially superior position, which certainly could have justified an award

       of attorney fees for Wife.


[14]   Here, the trial court denied Wife’s request for attorney fees solely because

       Wife’s attorney had agreed to pro bono representation. Our supreme court has

       previously stated that the public policy of ensuring equal access to the courts



       1
         Wife has raised no argument on appeal that the trial court improperly calculated and divided the marital
       estate; therefore, we may not do so on her behalf.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018              Page 6 of 7
       “would be undermined if we were to hold that a party must be personally

       obligated to pay attorney fees before the trial court could order the other party

       to pay those fees.” Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992). “Such

       a policy might, in some circumstances, effectively eliminate the right to appeal

       in dissolution proceedings. This [c]ourt will not force a party in a dissolution

       action to choose between foregoing legal action or obligating that party to a fee

       agreement which such party could not meet.” Id. Accordingly, we conclude

       that the trial court improperly relied on the pro bono status of Wife’s

       representation in denying her request for attorney fees. We reverse and remand

       with instructions for the trial court to consider the proper factors in assessing

       Wife’s claim for attorney fees. See Hartley, 862 N.E.2d at 286 (setting forth the

       factors to be considered). Furthermore, as Wife has also asserted a request for

       appellate attorney fees, on remand, the trial court should consider the

       aforementioned factors to determine whether such an award is appropriate

       pursuant to Indiana Code section 31-15-10-1. See Townsend v. Townsend, 20

       N.E.3d 877, 881 (Ind. Ct. App. 2014), trans. denied.


                                             CONCLUSION
[15]   Based on the foregoing, we conclude that the trial court erred by failing to

       consider the proper factors in determining whether Wife is entitled to an award

       of attorney fees.


[16]   Reversed and remanded.


[17]   May, J. and Mathias, J. concur

       Court of Appeals of Indiana | Memorandum Decision 02A04-1711-DR-2787 | April 5, 2018   Page 7 of 7
