MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Apr 29 2020, 11:06 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Jessica R. Merino                                         Leonard J. Gullotta, II
J.Merino Law                                              Walker and Gullotta Law Office
Granger, Indiana                                          Elkhart, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of E.G.C.,                            April 29, 2020
Minor Child,                                              Court of Appeals Case No.
                                                          19A-JP-1519
Lisa Jacobs (Click),
                                                          Appeal from the Elkhart Superior
Appellant,                                                Court
        v.                                                The Honorable David C.
                                                          Bonfiglio, Judge
Ryan Delagrange,                                          Trial Court Cause No.
                                                          20D06-1511-JP-425
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020                 Page 1 of 17
[1]   Lisa Jacobs (Click) (“Mother”) appeals the trial court’s legal custody and

      parenting time order. Ryan Delagrange (“Father”) requests appellate attorney

      fees. We affirm the court’s order and deny Father’s request for appellate

      attorney fees.


                                       Facts and Procedural History

[2]   E.G.C. was born on September 24, 2015. On January 27, 2016, the trial court

      issued an order establishing paternity. In February 2016, Father filed a petition

      to establish parenting time. On October 25, 2016, the court issued an agreed

      order that the parties have joint legal custody and Mother have primary

      physical custody subject to Father’s parenting time in accordance with the

      Indiana Parenting Time Guidelines. The court appointed a guardian ad litem

      (the “GAL”) in July 2017. Father filed a motion for rule to show cause in

      September 2017 alleging Mother changed her primary address and did not file a

      notice of intent to relocate. The GAL filed a report and supplemental report in

      October 2017.


[3]   On November 7, 2017, the court held a hearing at which the parties appeared in

      person and by counsel, the GAL appeared, and Father’s counsel recited an

      agreement into the record. According to the agreement, the paternal

      grandmother would provide daycare for the child, Mother would have custody

      until November 10, 2017, Father would then have custody until November 16,

      2017, the parties would conduct a settlement conference on November 16,

      2017, and if the parties could not reach an agreement at that time they would


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 2 of 17
      have joint legal and physical custody or a shared custody arrangement until a

      trial was held. The court approved the agreement of the parties, and Father’s

      counsel indicated he would submit an order for the court’s approval.


[4]   On December 22, 2017, Father filed a petition to modify custody requesting

      primary physical and sole legal custody of the parties’ child. In February 2018,

      the court scheduled an evidentiary hearing for May 31 and June 1, 2018. The

      GAL filed a report in May 2018. The court entered an Agreed Order on June

      4, 2018, which the parties signed, providing that Father was awarded primary

      physical custody of the parties’ child subject to Mother’s parenting time. It

      provided Mother would have parenting time on Tuesday after work and

      Thursday after work through Sunday every other week and on Wednesday after

      work through Friday morning on the alternating weeks. The Agreed Order

      further provided:

              [] Both parties[’] “evidence” which was available at the time of the trial on
              May 31, 2018 and June 1, 2018 shall be admissible at future hearings until a
              Final Order from an Evidentiary Hearing is entered by the Court.

              [] The parties agree the standard of review of the court relative to modifying
              custody of [the child] shall be the best interest of [the child] and not a
              continuing and substantial change of circumstances.

      Appellant’s Appendix Volume II at 65.


[5]   On August 31, 2018, Mother filed a motion to modify custody and parenting

      time and requested a hearing. On October 9, 2018, Father filed a motion for

      rule to show cause alleging Mother refused to comply with the court’s order

      relative to paternal grandmother providing work-related daycare, failed to
      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 3 of 17
      honor his designation as the child’s primary physical custodian, refused to

      comply with the child’s primary physician’s recommendations, and changed

      doctor appointments scheduled by Father. The same day, Father filed a

      petition to modify custody and parenting time requesting sole legal custody of

      the child and physical custody subject to Mother having parenting time

      pursuant to the Indiana Parenting Time Guidelines. The GAL filed a report in

      December 2018. On March 31, 2019, Mother filed an information for rule to

      show cause alleging Father did not request Medicaid information from her,

      refused to allow the child to receive dental care at the provider which had cared

      for child previously, and took the child to his dentist.


[6]   On April 11, 2019, the court entered a Nunc Pro Tunc Order stating that a

      hearing had been held on November 7, 2017, at which the parties appeared in

      person and by counsel, Father’s counsel recited an agreement into the record,

      and the parties agreed paternal grandmother would provide daycare and, if the

      parties were unable to reach an agreement, they would have joint legal and

      physical custody or a shared custody arrangement. The order indicated the

      court approved the agreement, both parents under oath stated they agreed to the

      court’s orders at the hearing, Father’s counsel indicated he would submit an

      order for the court’s approval, and the order was never filed.


[7]   On April 11 and 22, 2019, and May 24, 2019, the court held a hearing at which

      it heard testimony from the child’s physician, a nurse practitioner, the GAL,

      Mother’s mother, a former daycare provider, Father’s mother, Father’s wife,

      Mother, and Father. The parties presented numerous exhibits including

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 4 of 17
      photographs of the child, many text messages between the parents, and

      Department of Child Services (“DCS”), medical, and financial records.


[8]   On June 7, 2019, the trial court issued an order granting Father’s motion to

      modify custody and parenting time and denying Mother’s motion to modify

      custody and parenting time. The court found Mother in contempt based on

      Father’s October 9, 2018 allegations, found Father in contempt based on

      Mother’s March 31, 2019 allegations, and stated neither party was granted

      attorney fees and there were no sanctions. The order further provided:


              Custody and Parenting Time

              Some of the most compelling evidence in this case are the parents’
              unvarnished electronic communications with one another. At times the
              parents treated each other with mutual respect and even helpfulness
              demonstrating they are capable of mature behavior supportive of their
              child’s needs. They are both young struggling adults trying to navigate
              parenthood and relationships. Through miscommunication, dishonestly
              [sic], power struggles and outright animosity for one another those
              electronic communication[s] also reveal the very worst elements of the
              parents. It is unfortunate that the worst of those elements dominate the
              parents’ current high conflict relationship and adversely impact [the child].
              It is a sad state of affairs with [the child] caught in the middle of their
              struggles.

              Overall. Father has the more stable record of employment, housing,
              consistently taking the child for medical/dental care and he has a stable
              relationship with his spouse. He has two other children with his spouse,
              [M.]. In addition, [M.] appears to be the most stable and capable of three
              caregivers; that is, Mother, Father and [M.].

              Father is granted sole legal custody and primary physical custody subject to
              Mother’s parenting time pursuant to the Indiana Parenting Time
              Guidelines.


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 5 of 17
        Father has made some efforts to co-parent; mother sabotages those efforts
        by confrontation, video taping and defensiveness. Father has been sarcastic
        and disrespectful to Mother, but less so, than Mother. If only these parents
        would choose the high road of cooperation and concern for their child’s
        well-being, then [the child] would not be suffering in the manner she is
        today.

        This is a judgment call based on the evidence and the manner in which the
        parents testified before the Court over a period of three days, sixty plus
        exhibits comprising hundreds of pages that were submitted and examined,
        as well as, video.

        Mother is less stable as to employment, housing and she endangers the child
        by transporting her without proper child restraint devices on several
        occasions. She is also responsible for at least two years of the child being
        infested with lice. The child’s experience with rashes are exacerbated by
        Mother’s failure to observe proper hygiene and care. Mother has neglected
        the child’s health care and dental needs and she appears responsible for poor
        diet and eating habits leading to severe dental health issues.

        The parents unreasonably fight about such basic things as doctor
        appointments; therefore, placing one parent in charge of same, that being
        Father because he has a better track record of providing for her care and this
        order should reduce the chaos created over medical and dental care. To
        quote the GAL: “They can’t agree on the day of the week it is, let alone
        agree on a dentist.”

        Mother has exposed the child to at least one potentially dangerous people
        [sic]; that being, James Parkhurst, Robbery (Armed or Bodily Injury) in
        48D03[-]1010-FB-461.

        Mother is consistently defensive when discussing issues with Father.

        Mother falsely accused Father in [a DCS] referral of inflicting harm and
        neglecting [the child].

        Just as severe is the emotional damage Mother inflicts on the child by
        inciting the child when transitioning between parents. Mother utterly fails
        to properly support transition to Father’s care. Mother creates a hostile
        atmosphere between the parties by video recording exchanges. Mother

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 6 of 17
        completely failed to attempt to sooth[e] the child in [her] hysterical reaction
        to the exchange on the video admitted into evidence. Mother routinely
        strips the child and photographs every bump and bruise [she] may sustain.
        It is more important to Mother to gain evidence against Father to sustain
        and win litigation than to care for the needs of the child.

        Mother overplays and exaggerates the conditions in Father’s home.
        Father’s child, a two year [old] has had some “biting” issues. Father
        explains that [the parties’ child] teases him and takes away his toys. Those
        issues appear to have been addressed by Father and his wife and they are on
        guard and they are ordered to provide vigilant parental supervision. Both
        situations are resolved with constant supervision. When parents are on
        notice there is a problem, they have to be vigilant in their supervision.

        Father also avails himself of his camera to document lice at every turn, but
        not to the extent that Mother uses video to record crisis in [the child’s] life.

        All communication between the parents except for true emergency
        situations are ordered made through Our Family Wizard. Another
        exception is at child exchanges; the Court orders no video or other
        recording of the child exchanges. At the exchanges the parents are ordered
        to be pleasant with one another and they are ordered to exchange common
        pleasant greetings that their child is able to hear. Examples being: “Hello”
        “How Are You” “Nice to See You.” During such exchanges they should
        attempt to “smile” at one another so that [the child] can see the smile. Each
        parent [is] ordered to be verbally supportive of the child and encourage the
        child to engage with the other parent in a positive manner. Example:
        “[E.G.C.] have fun with daddy/mommy.” These orders are issued because
        the parents need such basic instruction.

        Parents ordered to not make negative or derogatory statement about the
        other parent or allow anyone else to make derogatory statements about the
        other parent within the hearing of [the child].

        Parents ordered to provide [the child] with therapeutic intervention with
        Jennifer Miller.

                                                    *****



Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 7 of 17
              They are ordered to make an appointment with her within seven days of this
              order. They are ordered to keep that appointment and all subsequent
              appointments. The Parents are ordered to cooperate with that treatment
              process and to participate in therapy with [the child] or individually or
              together without [the child] as the therapist directs. They are further
              ordered to be involved in any and all other therapeutic services directed by
              Jennifer Miller or any other therapists involved in her treatment or
              treatment they receive. GAL to contact therapist with background
              information needed for therapy. Mother reports self-harming, night terrors
              and tantrums. It is unknown after three days of courtroom evidence if these
              are induced, aided and directed by Mother in order to make Father look bad
              to win her case or systemic problems. On the other hand, the high conflict
              between the parents may be the root of the problem. In any regard, [the
              child] needs help and she needs peace in her life between her parents.

              The Court has fashioned these orders with the goal of minimizing the harm
              to [the child], provide her with coping skills and force the parents to change
              their ways. The court finds the modification is in [the child]’s best interest
              because they address her physical and emotional needs and although the
              parents[] agreed that substantial change in circumstance is not required
              there does exist substantial change in circumstance. [The child] has come
              into harms’ way both physically and emotionally in Mother’s care and that
              exposure must be limited for her wellbeing.

              Child Support issues referred to the Title IV-D court . . . .

      Id. at 39-42.


                                                   Discussion

                                                          I.


[9]   Mother claims the trial court abused its discretion in granting sole legal custody.

      Where a trial court enters findings of fact and conclusions, we first determine

      whether the evidence supports the findings and then determine whether the

      findings support the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 8 of 17
       App. 2011). A judgment is clearly erroneous when a review of the record

       leaves us with a firm conviction that a mistake has been made. Id.


[10]   Mother argues that, while the trial court based its decision on evidence

       presented over three days, the majority of the evidence related to matters prior

       to the last custody proceeding, that evidence of the child’s rashes is the only

       evidence qualifying as harm arising after the last proceeding, and “[t]he

       discourse around [the child’s] rashes amounts to nothing more than lack of

       cooperation between the parties due to strong opinions.” Appellant’s Brief at

       20.


[11]   Father responds that the court acted within its discretion in awarding him sole

       legal custody and points to the court’s findings related to the parties’ electronic

       communications and inability to agree on anything, Mother’s actions to

       sabotage Father’s efforts to co-parent, and the parents’ unreasonable fights

       about doctor appointments. He argues the court considered three days of

       testimony, the manner in which the parties testified, and the GAL’s testimony

       and recommendation that he be awarded sole legal custody. He also argues

       that the parties entered into an agreed order expressly providing that evidence

       available for the hearing scheduled for May 31 and June 1, 2018 would be

       admissible at later hearings, there was no custody proceeding heard by the court

       on May 31 or June 1, 2018, and Mother did not object to the admission of his

       evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 9 of 17
[12]   We generally review custody modifications for an abuse of discretion with a

       preference for granting latitude and deference to trial courts in family law

       matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002); Gonzalez v. Gonzalez, 893

       N.E.2d 333, 335 (Ind. Ct. App. 2008). We set aside the trial court’s ruling only

       if it is clearly erroneous and will not substitute our own judgment if any

       evidence or legitimate inferences support the court’s ruling. See Kirk, 770

       N.E.2d at 307. On appeal, it is not enough that the evidence might support

       some other conclusion, but it must positively require the conclusion asserted by

       the appellant before there is a basis for reversal. Id.


[13]   Ind. Code § 31-14-13-6 provides the court may not modify a child custody order

       unless modification is in the best interests of the child and there is a substantial

       change in one or more of the factors under Ind. Code § 31-14-13-2 and, if

       applicable, Ind. Code § 31-14-13-2.5. Ind. Code § 31-14-13-9 provides that, in a

       proceeding for a custody modification, the court may not hear evidence on a

       matter occurring before the last custody proceeding between the parties unless

       the matter relates to a change in the factors relating to the best interests of the

       child as described in Ind. Code §§ 31-14-13-2 and -2.5. The factors in Ind. Code

       § 31-14-13-2 include: (1) the age and sex of the child; (2) the wishes of the

       child’s parents; (3) the wishes of the child; (4) the interaction and

       interrelationship of the child with the child’s parents and siblings and any other

       person who may significantly affect the child’s best interest; (5) the child’s

       adjustment to home, school, and community; (6) the mental and physical

       health of all individuals involved; (7) evidence of a pattern of domestic or


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 10 of 17
       family violence by either parent; and (8) evidence the child has been cared for

       by a de facto custodian.


[14]   Ind. Code § 31-14-13-2.3(a) provides “the court may award legal custody of a

       child jointly if the court finds that an award of joint legal custody would be in

       the best interest of the child.” Ind. Code § 31-14-13-2.3(c) provides the court

       shall consider:

               (1) the fitness and suitability of each of the persons awarded joint legal
               custody;

               (2) whether the persons awarded joint legal custody are willing and able to
               communicate and cooperate in advancing the child’s welfare;

               (3) the wishes of the child, with more consideration given to the child’s
               wishes if the child is at least fourteen (14) years of age;

               (4) whether the child has established a close and beneficial relationship with
               both of the persons awarded joint legal custody;

               (5) whether the persons awarded joint legal custody:

                        (A) live in close proximity to each other; and
                        (B) plan to continue to do so;

               (6) the nature of the physical and emotional environment in the home of
               each of the persons awarded joint legal custody; and

               (7) whether there is a pattern of domestic or family violence.


       “‘Joint legal custody’, for purposes of IC 31-14-13 . . . means that the persons

       awarded joint custody will share authority and responsibility for the major

       decisions concerning the child’s upbringing, including the child’s education,

       health care, and religious training.” Ind. Code § 31-9-2-67.


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 11 of 17
[15]   The second factor above regarding willingness and ability to communicate and

       cooperate in advancing the child’s welfare is of particular importance in making

       legal custody determinations. See Milcherska v. Hoerstman, 56 N.E.3d 634, 641

       (Ind. Ct. App. 2016). Where the parties have made child-rearing a

       battleground, joint custody is not appropriate. Id. at 642. “Indeed, to award

       joint legal custody to individually capable parents who cannot work together is

       tantamount to the proverbial folly of cutting the baby in half in order to effect a

       fair distribution of the child to competing parents.” Id. (citation omitted). The

       primary concern of the courts with respect to legal custody is the welfare of the

       children and not the wishes of the parents. See Carmichael v. Siegel, 754 N.E.2d

       619, 635 (Ind. Ct. App. 2001).


[16]   To the extent Mother does not challenge the court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied. We

       observe the Agreed Order on June 4, 2018, was signed by the parties, addressed

       physical custody and Mother’s parenting time, and provided that evidence

       which was available at the time of the May 31 and June 1, 2018 hearings,

       which were cancelled, would be admissible at later hearings until a final order

       was entered.


[17]   The trial court found the most compelling evidence was the parents’ unvarnished

       electronic communications with each other, referenced their miscommunication,

       dishonesty, power struggles, and outright animosity for each other, and found the

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 12 of 17
       parents’ high-conflict relationship adversely impacted the child. The court found

       Father has a more stable record of employment, housing, and consistency in

       providing medical care and Mother is less stable as to employment and housing

       and exacerbated the child’s rashes by failing to observe proper hygiene. It further

       found Father has made some efforts to co-parent and Mother sabotages those

       efforts, Mother is consistently defensive when discussing issues with Father, and

       she fails to properly support the transitions to Father’s care and creates a hostile

       atmosphere. The court found the parents unreasonably fight about such basic

       things as doctor appointments and that its order should reduce the chaos created

       over medical and dental care. The court noted that its decision was based on the

       evidence and the manner in which the parents testified. The GAL recommended

       that Father be awarded sole legal custody of the child. Based on the record and

       in light of the parties’ history of non-cooperation and high level of

       contentiousness, we cannot say the court abused its discretion in granting

       Father sole legal custody of the parties’ child.


                                                          II.


[18]   Mother next asserts the trial court abused its discretion by reducing her

       parenting time and argues Father failed to show the parenting time schedule

       endangered the child’s physical health or was causing impairment to her

       emotional development. Father asserts the court made specific findings as to

       how the child came into harm’s way physically and emotionally while in

       Mother’s care, determined it was in the child’s best interest to limit her



       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 13 of 17
       exposure to Mother, and properly ordered that Mother exercise standard

       parenting time pursuant to the Indiana Parenting Time Guidelines.


[19]   The Indiana Supreme Court has expressed a “preference for granting latitude

       and deference to our trial judges in family law matters.” In re Marriage of

       Richardson, 622 N.E.2d 178, 178 (Ind. 1993). Appellate deference to the

       determinations of trial court judges, especially in domestic relations matters, is

       warranted because of their unique, direct interactions with the parties face-to-

       face, often over an extended period of time. Best v. Best, 941 N.E.2d 499, 502

       (Ind. 2011). When a trial court has made findings of fact, we determine

       whether the evidence supports the findings and whether the findings support the

       court’s conclusions. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). To

       determine that a finding or conclusion is clearly erroneous, our review of the

       evidence must leave us with the firm conviction a mistake has been made. Id.


[20]   Decisions involving parenting time rights under the paternity statutes are

       committed to the sound discretion of the trial court. In re Paternity of W.C., 952

       N.E.2d 810, 815 (Ind. Ct. App. 2011); see also Ind. Code § 31-14-14-1 (“A

       noncustodial parent is entitled to reasonable parenting time rights unless the

       court finds, after a hearing, that parenting time might: (1) endanger the child’s

       physical health and well-being; or (2) significantly impair the child’s emotional

       development.”). When reviewing the trial court’s decision, we neither reweigh

       the evidence nor reexamine the credibility of the witnesses. In re Paternity of

       W.C., 952 N.E.2d at 816.



       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 14 of 17
[21]   The trial court entered findings regarding the contentious history between the

       parents, Mother’s care for the child, and Mother sabotaging Father’s efforts to

       co-parent and failing to support transitions to Father’s care. The court found

       the modification was in the child’s best interest and awarded Mother parenting

       time pursuant to the Indiana Parenting Time Guidelines. Under these

       circumstances, and keeping in mind our deference to trial courts in family law

       matters, we cannot say we are left with a firm conviction a mistake has been

       made or the trial court’s decision is clearly erroneous.


                                                         III.


[22]   Mother also asserts that she was held in contempt of an order never placed on

       the record. Father argues the parties were present with counsel at the

       November 7, 2017 hearing at which Mother under oath confirmed the parties’

       agreement and the court subsequently issued a nunc pro tunc order to which

       Mother did not object.


[23]   It is soundly within the discretion of the trial court to determine whether a party

       is in contempt. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). We will

       reverse a trial court’s finding of contempt only if there is no evidence or

       inference therefrom to support the finding. Id. The trial court has the inherent

       power to maintain its dignity, secure obedience to its process and rules, rebuke

       interference with the conduct of business, and punish unseemly behavior. Id.


[24]   Indiana has codified the procedural requirements for finding indirect contempt

       at Ind. Code § 34-47-3-5, which provides in part that the person charged is

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 15 of 17
       entitled “to be served with a rule of the court against which the contempt was

       alleged to have been committed.” Reynolds, 64 N.E.3d at 832 (citing Ind. Code

       § 34-47-3-5(a)). Strict compliance with the statute may be excused if it is clear

       the alleged contemnor had clear notice of the accusations against her. See id. at

       833 (citations omitted).


[25]   Here, we are satisfied Mother’s rights were preserved. Father alleged in

       October 2019 that Mother had not complied with the court’s order that paternal

       grandmother provide work-related daycare, did not honor the order that he had

       primary physical custody, and changed doctor appointments scheduled by

       Father. The record reveals the parties appeared in person and with counsel at

       the November 7, 2017 hearing at which an agreement was recited into the

       record, and the court’s subsequent nunc pro tunc order indicated both parties had

       stated under oath they agreed to the court’s orders and had agreed that paternal

       grandmother would provide daycare and that, if they were unable to reach an

       agreement by November 16, 2017, they would have joint legal and physical

       custody until a hearing was held. The court’s June 4, 2018 order awarded

       Father primary physical custody. Mother does not demonstrate that she did not

       have notice of the rule of the court against which the contempt was alleged to

       have been committed. We also observe the trial court did not impose any

       sanction. We do not find an abuse of discretion.


                                                         IV.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 16 of 17
       Father requests appellate attorney fees, arguing Mother’s appeal is

       unreasonable. This Court is authorized to assess damages if an appeal “is

       frivolous or in bad faith,” and such damages “shall be in the Court’s discretion

       and may include attorneys’ fees.” Ind. Appellate Rule 66(E). A strong

       showing is required to justify an award of appellate damages, and the sanction

       is not imposed to punish mere lack of merit, but something more egregious.

       Bessolo v. Rosario, 966 N.E.2d 725, 734 (Ind. Ct. App. 2012), trans. denied. To

       prevail on his request, Father must show that Mother’s arguments on appeal are

       “utterly devoid of all plausibility.” See id. While we do not disturb the trial

       court’s order, we cannot say Mother’s arguments on appeal are utterly devoid

       of all plausibility or that an award of appellate attorney fees is appropriate.


[26]   For the foregoing reasons, we affirm the trial court’s order and deny Father’s

       request for appellate attorney fees.


[27]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020   Page 17 of 17
