                                                                                      FILED
                                                                                 Feb 21 2019, 9:09 am

                                                                                      CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Katherine A. Harmon                                         Christine Douglas
      Jared S. Sunday                                             Harden Jackson LLC
      Mallor Grodner LLP                                          Carmel, Indiana
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Ryan A. Benefiel,                                           February 21, 2019
      Appellant-Petitioner,                                       Court of Appeals Case No.
                                                                  18A-JP-2078
              v.                                                  Appeal from the Hamilton Circuit
                                                                  Court
      Junko M. Stalker,                                           The Honorable Paul A. Felix,
      Appellee-Respondent                                         Judge
                                                                  Trial Court Cause No.
                                                                  29C01-1703-JP-375



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Ryan A. Benefiel (“Father”) appeals the trial court’s order that he pay $20,000

      of the nearly $40,000 in attorney’s fees incurred by Junko Makiah Stalker

      (“Mother”) in this paternity action. We affirm.


      Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019                              Page 1 of 8
                             Facts and Procedural History
[2]   In August 2016, E.B. was born out of wedlock to Mother and Father. Mother

      and Father lived together from E.B.’s birth until the end of February 2017,

      when Mother and E.B. moved out. Thereafter, Father filed a petition to

      establish paternity, custody, parenting time, and child support and requested an

      expedited hearing. After several continuances and other motions, the trial court

      ordered the parties to participate in mediation, which was unsuccessful. A

      preliminary hearing was held in October 2017, during which the trial court

      heard “evidence and argument on issues of parenting time only.” Appellant’s

      App. Vol. II p. 40. Following the hearing, the trial court ordered as follows:


              3. The Court finds that Father’s request for additional parenting
              time above what is permitted in the Indiana Parenting Time
              Guidelines is unreasonable considering that for the first month
              after the parties separated, Father had no desire to provide care
              for or have any custody or control of [E.B.], and considering the
              multiple parenting time opportunities Father missed.


      Id. at 41. Accordingly, the court awarded Father parenting time consistent with

      the guidelines, which, based on E.B.’s age, was one overnight per week. Id.


[3]   Following the trial court’s order, the parties had many disputes about parenting

      time. In February 2018, Mother requested a parenting coordinator “to help

      improve the parties’ ability to communicate and to do so more effectively.” Id.

      at 48. Thereafter, the trial court appointed a parenting coordinator.




      Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019       Page 2 of 8
[4]   A final hearing was held in June 2018. Although the parties had stipulated to

      some of the issues, there were still many issues to be addressed at the hearing,

      including whether Father should receive additional parenting time, where the

      parties should meet to exchange E.B. for parenting time, the amount of Father’s

      child-support arrearage, and how much Father should pay toward Mother’s

      attorney’s fees. Ex. A. The parenting coordinator testified about the difficulties

      she had encountered with Father. She described an incident during one of the

      parenting-time exchanges where Father called Mother a racial epithet in the

      presence of E.B. The parenting coordinator also testified about a joint phone

      call she had with the parties. Based on Father’s demeanor during that call, she

      believed he needed anger-management counseling. Finally, the parenting

      coordinator testified that none of the issues Father raised with her had any

      merit. Tr. p. 14.


[5]   Evidence was also presented about Father’s income. Father made $31,746.13

      in 2017. However, he took a new job in January 2018, which has an annual

      salary of $47,923.20. Father acknowledged that this was “quite an increase in

      pay.” Id. at 45. In addition to his increased salary, Father received a company

      car and is eligible for bonuses. In contrast, Mother’s annual salary as a waitress

      is approximately $15,000.


[6]   Finally, Mother’s attorney, a certified family-law specialist, testified about her

      work in this case. She submitted her thirty-page attorney-fee statement, which

      reflects fees from March 2017 to June 2018 of $35,936 and expenses of $114.49.

      Ex. G. She testified that this case was “the most expensive case I have ever

      Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019      Page 3 of 8
      done in 20 years.” Tr. p. 77. Mother’s attorney explained that the facts were

      not complicated and that it was the type of case that should have been resolved

      through the attorneys or mediation. However, neither worked in this case.

      Mother’s attorney explained that what “has made this case complicated is the

      overwhelming amount of requests for attorneys to get involved, specifically me,

      to work out issues with Father.” Id. She then highlighted some of Father’s

      behaviors that caused her to spend so much time on the case: (1) Father

      requested an expedited hearing and sought a preliminary injunction; (2) Father

      made allegations about Mother that involved the police; (2) Father alleged that

      Mother abused drugs; (3) Father did not cooperate in discovery; (4) Father

      alleged that Mother was physically and emotionally harming E.B., which got

      CPS involved; and (5) Mother twice sought a protective order. Id. at 77-83. In

      short, Mother’s attorney believed that her fees would have been “a lot less if

      there was some responsive cooperation from the other side.” Id. at 83. In

      contrast to Mother’s attorney’s fees of nearly $40,000, Father’s attorney’s fees

      for the same period were $11,960. Ex. 2.


[7]   At the end of the hearing, the trial court ordered, among other things, Father to

      have parenting time pursuant to the guidelines (but not any additional time),

      that the parties shall meet at a restaurant in Castleton to exchange E.B., that

      Father shall pay an extra $15 per week toward his child-support arrearage, and

      that Father must pay $20,000 of Mother’s attorney’s fees. As for attorney’s

      fees, the court explained:




      Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019     Page 4 of 8
               [It] is [Father’s] behavior that has caused [Mother] to incur a
               great deal of additional attorney fees than what would normally
               be appropriate. [Father] does earn a substantial amount more
               income than [Mother] does, nearly three times the amount of
               income as [Mother]. And will therefore find it appropriate based
               upon those things to require him to pay [$20,000] of her attorney
               fees.


       Tr. p. 97; id. at 90 (trial court to Father’s attorney: “[Mother’s attorney] has

       been asking for formal discovery for a long period of time and has been getting

       back essentially nothing from your client, and your client is going to have to

       pay for the obstreperous way that he has behaved towards the resolution of the

       discovery matters in this case.”); Appellant’s App. Vol. II p. 18 (written order).


[8]    Father now appeals.



                                   Discussion and Decision
[9]    Father contends that the trial court erred in ordering him to pay $20,000 of

       Mother’s attorney’s fees. We review a decision to award attorney’s fees and the

       amount of any award for an abuse of discretion. Allen v. Proksch, 832 N.E.2d

       1080, 1102 (Ind. Ct. App. 2005).


[10]   Pursuant to Indiana Code section 31-14-18-2(a)(2), the trial court in

       a paternity action may order a party to pay a reasonable amount for attorney’s

       fees incurred by the other party. See also Ind. Code § 31-16-11-1 (providing that

       a trial court may periodically order a party to a child-support proceeding to pay

       a reasonable amount for attorney’s fees); Ind. Code § 31-17-7-1 (same for

       Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019       Page 5 of 8
       proceedings for custody/custody modification and parenting time). In making

       such an award, the court must consider the parties’ resources, their economic

       conditions, their respective earning abilities, and other factors that bear on the

       reasonableness of the award. In re Paternity of S.A.M., 85 N.E.3d 879, 890 (Ind.

       Ct. App. 2017); G.G.B.W. v. S.W., 80 N.E.3d 264, 272 (Ind. Ct. App. 2017),

       trans. denied. The court may also consider any misconduct by one party that

       causes the other party to directly incur fees. S.A.M., 85 N.E.3d at 890;

       G.G.B.W., 80 N.E.3d at 272. Moreover, when one party is in a superior

       position to pay fees over the other party, an award of attorney’s fees is proper.

       G.G.B.W., 80 N.E.3d at 272.


[11]   Here, the trial court ordered Father to pay $20,000 of Mother’s attorney’s fees

       for two reasons: (1) Father earns a “substantial” amount more than Mother and

       (2) Father’s behavior caused Mother “to incur a great deal of additional

       attorney fees than what would normally be appropriate.” Father challenges

       each reason. First, Father argues that the trial court erred “by failing to receive

       or consider evidence of the parties’ respective economic conditions.”

       Appellant’s Br. p. 11. But the trial court did. Evidence was presented that

       Father earns $47,923.20 per year in his new job, has a company car, and has the

       potential to earn bonuses. At the hearing, Father even acknowledged that his

       $17,000 pay raise was “quite an increase.” Mother, in comparison, earns

       approximately $15,000 per year as a waitress. As the trial court found, Father

       earns three times more than Mother. In addition, the parties filed financial

       declarations, which set forth their incomes and expenses. See Appellant’s App.


       Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019      Page 6 of 8
       Vol. II p. 52 (Mother’s financial declaration dated May 2018); Appellee’s App.

       Vol. II p. 3 (Father’s financial declaration dated October 2017, which was not

       updated to reflect his new salary). Although Father speculates about the

       existence of other assets and liabilities the parties may have, he does not cite

       any evidence that such assets or liabilities actually exist. The parties’ economic

       conditions support an award of attorney’s fees in this case. Cf. Montgomery v.

       Montgomery, 59 N.E.3d 343, 355 (Ind. Ct. App. 2016) (in holding that the trial

       court abused its discretion in ordering Father to pay a portion of Mother’s

       attorney’s fees, we found that “[t]he only evidence presented [regarding the

       parties’ respective economic conditions] was that Mother earns $15 per hour at

       her job, while Father earns $17 per hour”), trans. denied.


[12]   Father next argues that the trial court erred “by awarding fees for Father’s

       misconduct without relating those fees to misconduct.” Appellant’s Br. p. 15.

       Father asserts that the trial court should have specifically identified what fees

       Mother incurred because of his misconduct. Mother’s attorney submitted a

       thirty-page attorney-fee statement, which sets forth her fees in detail. In

       addition, Mother’s attorney testified that this case was the most expensive case

       she had done in twenty years. She added that this case did not need to be so

       expensive and only was because of Father’s actions. She then testified in detail

       about Father’s actions that caused her to spend so much time on this case. See

       Tr. pp. 77-83. Although Mother’s attorney did not put a specific dollar amount

       on the attorney’s fees that were attributable to Father’s misconduct, the trial

       court, which was very familiar with this case, did not abuse its discretion in


       Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019         Page 7 of 8
       determining that Father’s behavior caused Mother to incur “a great deal” of

       additional attorney’s fees. This is supported by Mother’s attorney’s fees of

       nearly $40,000 when compared to Father’s attorney’s fees of $11,960.1 We

       therefore affirm the trial court.


[13]   Affirmed.


       Mathias, J., and Crone, J., concur.




       1
         Father notes that approximately $2200 of Mother’s attorney’s fees were attributable to her work in a small-
       claims matter involving Mother and Father’s parents—but not Father. Mother’s attorney testified about this
       part of her fees during the hearing. Father’s attorney cross-examined her but did not object or ask any
       questions about the small-claims matter. In addition, the trial court ordered Father to pay only half of
       Mother’s attorney’s fees, which could have excluded the $2200.

       Court of Appeals of Indiana | Opinion 18A-JP-2078 | February 21, 2019                              Page 8 of 8
