      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                              Jun 09 2017, 8:53 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                    CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
      estoppel, or the law of the case.                                           and Tax Court




      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Christine A. Milcherska                                  Michael K. Wandling
      Brownwood, Texas                                         Anna D. Saar
                                                               Wandling & Associates
                                                               South Bend, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In re the Marriage of                                    June 9, 2017
      Christine A. Milcherska,                                 Court of Appeals Case No.
                                                               71A03-1605-DR-1203
      Appellant-Petitioner,
                                                               Appeal from the St. Joseph
              and                                              Superior Court
                                                               The Honorable Margot F. Reagan,
      Douglas R. Biggs,                                        Judge
                                                               Trial Court Cause No.
      Appellee-Respondent.
                                                               71D04-1408-DR-544



      Mathias, Judge.


[1]   Christine Milcherska (“Mother”) wanted to move her teenaged daughter G.B.

      from Mishawaka, Indiana, to Brownwood, Texas. Mother’s ex-husband and

      G.B.’s father, Douglas Biggs (“Father”), objected. After protracted litigation,

      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017            Page 1 of 25
      St. Joseph Superior Court entered a consent judgment keeping G.B. with Father

      in South Bend, Indiana. The court also ordered Mother to pay a part of Father’s

      attorneys’ fees and a part of the guardian ad litem’s (“GAL”) fees. From these

      orders and several antecedent rulings, Mother now appeals.

[2]   We affirm.


                                 Facts and Procedural Posture

[3]   G.B. was born to Mother and Father in 2000. Shortly after her birth, Mother

      and Father married. In 2003, they divorced. Mother and Father married again

      on July 21, 2013, and divorced again on October 8, 2014, under the instant

      cause number in St. Joseph Superior Court. Mother and Father were given

      shared legal custody, Mother was given primary physical custody, and Father

      was given parenting time and ordered to pay support.


[4]   In January 2015, Mother lost her job in Indiana and found a new one in Texas.

      Mother planned to move G.B. to Texas with her but did not notify Father or

      the court, as she was required to do. Around the same time, she began to deny

      Father parenting time with G.B., believing it not to be in G.B.’s best interests.

      On April 8, 2015, Father asked St. Joseph Superior Court for a rule to show

      cause why Mother should not be held in contempt for denying Father’s

      parenting time. On April 17, 2015, Father filed a second rule to show cause for

      Mother’s failure to serve notice of intent to relocate, as well as motions to give

      Father primary physical custody of G.B., appoint a GAL, and restrain and

      enjoin Mother from leaving the state with G.B. The rules issued.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 2 of 25
[5]   At a hearing on May 6, 2015, Father’s motion to modify custody, the pleading

      that drove this case, was set for a full evidentiary hearing. That hearing was

      continued repeatedly until March 1, 2016. In view of G.B.’s attachments in

      Indiana and the court’s desire to minimize any disruption to G.B.’s schooling,

      the court temporarily restrained Mother from moving G.B. to Texas until

      Father’s motion to modify custody could be heard and decided. Mother would

      move to Texas by herself, and the parents would alternate periods of parenting

      time in Texas and Indiana. Mark James (“James”), already the GAL for one of

      Mother’s daughters by a different father in a similar proceeding in St. Joseph

      Probate Court, was appointed GAL for G.B. over Mother’s objection. Because

      Mother raised concerns about Father’s alleged use of marijuana, cocaine, and

      alcohol, the court also prohibited both parties to use alcohol or illegal drugs

      within twenty-four hours of parenting time with G.B. Mother and Father were

      ordered to mediation, which proved unsuccessful.


[6]   On July 6, 2015, the GAL filed a report recommending that G.B. not move to

      Texas with Mother and that Father be given physical custody. On July 10,

      2015, Mother moved to strike the report, remove James as GAL, and appoint a

      new GAL, alleging that James “failed to conduct an objective investigation . . .

      [and] has become aligned with . . . Father in an attempt to undermine [G.B.’s]

      relationship with . . . Mother . . . .” Appellant’s App. p. 221. Moreover, James,

      having spoken twice with the parties’ mediator, summarized in his report a

      parenting-time plan to which the parties had “tentatively” agreed in mediation




      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 3 of 25
      and deemed it “reasonable.” Id. p. 238. The contents of the parties’ compromise

      discussions, Mother argued, were confidential and inadmissible.

[7]   At a hearing on July 15, 2015, after hearing from the parties and the GAL, the

      court denied Mother’s motions to strike the entire report and to replace James

      as GAL, but agreed that mediation discussions were confidential and

      inadmissible. The court therefore ordered James to strike the offending

      statement and resubmit his report.


[8]   On July 24, 2015, Mother moved to lift the temporary restraining order

      (“TRO”) against her moving G.B. to Texas, arguing that, now that the parties

      and the court knew where Mother would be moving, the grounds for issuing the

      restraining order in the first place had dissolved. Indeed, Mother had already

      taken matters into her own hands by disenrolling G.B. from her high school in

      Indiana and enrolling her at a high school in Texas, without Father’s

      knowledge or consent. Mother also moved for a change of judge “for the reason

      that the Judge ha[d] shown bias against [Mother]” by her rulings in Father’s

      favor. Id. p. 214. On July 30, 2015, Mother moved the trial court to certify for

      interlocutory appeal its rulings as to the GAL and the GAL’s report, and to stay

      proceedings while the appeal was pending.


[9]   At a hearing on August 4, 2015, Mother’s motion for change of judge was

      struck for failure to comply with the Trial Rules, and a ruling on her motion to

      lift the TRO was reserved until her motion to certify could be heard and

      decided. Frustrated with the course of proceedings, or unable to accommodate


      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 4 of 25
       the agreed parenting-time schedule, or both, Mother relinquished her last period

       of summer-vacation parenting time to Father. On August 6, 2015, Mother

       refiled her motion for change of judge.


[10]   At a hearing on August 17, 2015, Mother by counsel argued in support of her

       second motion for change of judge as follows:


               During [the July 15, 2015,] hearing, you [the court] stated on the
               record that you had already spoke[n] to [GAL] Mark James prior
               to the hearing. . . . [T]here was no indication what that
               conversation was about . . . .

               [At the August 4, 2015, hearing, after recessing for lunch,] I
               observed Mark James and yourself conversing off the record. . . .
               I heard a conversation about this case and then either yourself or
               Mr. James covered up the microphone . . . in an effort to
               presumably conceal your conversation from everyone . . . .

               Following the conclusion of the second part of that hearing,
               again, Mr. James waited in the courtroom for us to exit . . . .
               Again, the two of you began conversing off the record.

               As you know, an ex parte communication undermines the
               fairness of a judicial proceeding by introducing new information
               to the decision[-]maker, who is you . . . . [Under the relevant
               standard,] a judge should recuse herself when an objective person
               . . . would have a reasonable basis for doubting the judge’s
               impartiality.


       Tr. pp. 147–49. The judge, “not really understanding what [Mother’s]

       complaint [was],” id. p. 162, declined to recuse herself and denied Mother’s

       motion.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 5 of 25
[11]   The court further denied Mother’s motion to certify its rulings as to the GAL

       for interlocutory appeal, noting that “interlocutory appeals are strongly

       disfavored” and doubting that “terminating [the GAL’s] services and striking

       his report . . . [was] a substantial question of law” meriting interlocutory review.

       Id. p. 204. Apparently in the hope that Father’s underlying motion to modify

       custody could be heard and decided in the near future, and on the

       understanding that Mother’s motion to lift the TRO had been filed in

       contemplation of interlocutory review now denied, Mother’s motion to lift the

       TRO was not heard. Finally, Mother again raised concerns about Father’s use

       of marijuana and cocaine, and the court ordered both parties to submit to hair-

       follicle drug testing.

[12]   On August 24, 2015, Father’s hair-follicle test showed use of marijuana and

       cocaine within the last ninety days. On August 25, 2015, Mother filed an

       emergency motion to lift the TRO and to suspend Father’s parenting time. At a

       hearing on August 31, 2015, on Mother’s emergency motion, Mother adduced

       Father’s test results as well as exhibits showing that fifteen-year-old G.B.

       followed several risqué social media accounts online, faulting Father for not

       having “initiated counseling” and speculating that G.B. wanted to remain in

       Indiana because teenagers “turn to the parent who doesn’t care what they do.”

       Tr. p. 225. In response, Father submitted a urine test taken that morning

       showing no trace of drug use, and indelicately began to explore Mother’s

       history of personal relationships. The GAL testified he did not think G.B.’s

       social media use was seriously concerning, and reported that G.B. had been


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 6 of 25
       shocked and angry to learn of Father’s positive drug test, but had not been

       exposed to Father’s use and was not, in the GAL’s opinion, endangered by it.

[13]   The court, finding no emergency existed, reserved ruling on Mother’s motion

       until G.B. could be interviewed in camera and a psychologist whom G.B. had

       been seeing in Texas — at first without Father’s knowledge or consent — could

       be interviewed by telephone. On September 2, 2015, having spoken with G.B.

       and her psychologist, the court denied Mother’s motion to lift the TRO,

       weighing Father’s drug use, G.B.’s

               strong feelings about the significant others of her parents[,
               positive about Father’s live-in girlfriend, negative about Mother’s
               live-in fiancé]; her school friends and activities[, including
               theater, to which G.B. was very dedicated]; perceived changes in
               Mother; [the] conduct of each parent; the maturity of [G.B.];
               [and] exposure to cigarette smoke [in Mother’s home but not in
               Father’s] . . . .


       Appellant’s App. p. 174. Father was ordered to submit weekly urine screens.

[14]   On November 2, 2015, Father’s weekly urine screen showed use of cocaine. On

       November 12, 2015, Mother filed a second emergency motion to lift the TRO

       and to suspend Father’s parenting time, and motion for a rule to show cause

       why Father should not be held in contempt for failing to comply with the




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 7 of 25
       court’s order not to use drugs.1 At a hearing on November 20, 2015, the court

       heard from the technician responsible for evaluating Father’s drug screens, from

       Mother, and from the GAL. After extensive testimony and argument, the

       hearing was continued to allow the GAL to interview family members in and

       around South Bend with an eye to determining alternative placements for G.B.

       in Indiana. Father was ordered to submit another hair-follicle test, in addition

       to submitting weekly urine screens as before.


[15]   The parties agreed that G.B. would spend Thanksgiving weekend with Mother

       and G.B.’s half-sister in South Bend, and one week of Christmas break with

       them in Texas. After a status conference by telephone on December 18, 2015,

       in a summary of that conference, the trial court found that Mother


               subsequently did not exercise [the Thanksgiving] parenting time,
               without notice, leaving [G.B.] distraught . . . .

               [Then Mother] unilaterally . . . decided that [Christmas]
               visitation with each girl must be separate and apparently
               threatened that if [G.B.] didn’t agree, there would be no
               parenting time. . . .

               [On the same day as the status conference, Mother faxed] a letter
               . . . to Judge’s chambers. It purported to be ex-parte




       1
         Our review of the record did not reveal when or how the court’s order of May 6, 2015, not to use drugs or
       alcohol within twenty-four hours of parenting time with G.B. was converted into an order not to use drugs at
       all.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017             Page 8 of 25
                communication with the Court. The Judge did not read any of
                the letter and instructed staff not to read it.2 . . .

                [Mother’s] behavior towards [G.B.] amounts to “blackmailing”
                to get [Mother’s] way and amounts to emotional abuse. If this
                continues, parenting time will be terminated altogether.


       Id. pp. 140-42 (original emphasis). On December 30, 2015, Mother filed a

       second motion for change of judge.


[16]   On January 7, 2016, the hearing of November 20, 2015, was resumed. In

       support of her second motion for change of judge, Mother argued that the

       court’s characterization of her conduct in its December 18, 2015, summary of

       the parties’ status conference demonstrated incurable bias against her. The

       judge, noting the GAL’s report that Mother’s conduct had “devastated” G.B.,

       Tr. p. 478, concluded that she was not biased and had shown no bias, but that

       Mother’s conduct could give rise to “no other impression” than the one

       memorialized in the summary. Id. Mother’s motion for change of judge was

       denied.


[17]   On Mother’s still pending motion to lift the TRO and suspend Father’s

       parenting time, the court heard the GAL’s report on possible alternative




       2
         Mother has put her letter in the record. In it, she alleges that G.B. “calls me and screams at me, insults me,
       makes demands . . . . [G.B.] continues to be blatantly disrespectful toward me and yet her actions are being
       supported by the court? . . . I would appreciate it if you would consider for a moment that I am a good
       mother, and am doing what I know is best for my daughter. . . I cannot, as her Mother, allow her to come [to
       Texas] the first week after her disrespect, threatening and demanding that I do so. Doing so would only
       reinforce to her that those actions are appropriate ways to get what she wants. . . . I pray that you will allow
       me to do what I know what is best for my daughter.” Appellant’s App. pp. 145-46.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017                Page 9 of 25
       temporary placements for G.B. in Indiana. The GAL was extensively cross-

       examined by Mother on inter alia his continuing recommendation that G.B. be

       placed permanently with Father despite Father’s drug use: “[T]he drug use is

       one piece. When I look at everything else, the everything else outweighs the

       substance abuse.” Tr. p. 526. After the parties stipulated to a near-term

       parenting-time schedule, the hearing was again continued.

[18]   On January 15, 2016, the hearing of November 20, 2015, and January 7, 2016,

       was resumed and concluded. The GAL was again examined and cross-

       examined. The court and the parties agreed that no emergency existed, and thus

       there was no emergency basis for lifting the TRO, and that suspension of

       Father’s parenting time was a moot question after the parties stipulated to a

       near-term parenting-time schedule. Accordingly, Mother’s November 12, 2015,

       emergency motion to lift the TRO and suspend Father’s parenting time was

       denied or withdrawn.3 Father was held in contempt for his drug use, as prayed

       for in Mother’s November 12, 2015, motion for a rule to show cause. Father’s

       court-ordered drug tests were suspended in light of Father’s enrollment in a ten-

       week substance-abuse counseling program involving regular drug tests, with

       results to be forwarded to the court. Father’s underlying motion to modify

       custody received its final setting for a full evidentiary hearing on March 1, 2016.

       Finally, by agreement, the GAL offered one piece of testimony outside the




       3
        No entry in the chronological case summary notes the final disposition of Mother’s November 12, 2015,
       motion.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017         Page 10 of 25
       presence of the parties but in the presence of counsel: that Mother’s fiancé had

       offered G.B. $400 if she would tell the court and the parties that she wished to

       move to Texas.


[19]   On February 17, 2016, Mother notified her lawyer that she could no longer

       afford representation, instructed her lawyer to withdraw from the case, and

       announced her intention to proceed pro se at the evidentiary hearing. Counsel’s

       motion to withdraw was granted on February 22, 2016. At the opening of the

       evidentiary hearing on March 1, 2016, the court announced the parties had

       reached a partial settlement and had the following colloquy with Mother:


               [Court]:         [Y]ou wish to proceed today without counsel[,] is
                                that correct?

               [Mother]:        Yes, your Honor. . . .

               [Court]:         [Y]ou understand that [Father’s counsel] represents
                                [Father] and he wasn’t representing you in putting
                                this settlement together, but you knew that. Are you
                                agreeable?

               [Mother]:        Yes, your Honor.

               [Court]:         And your participated in every word of that
                                settlement, correct?

               [Mother]:        Yes, your Honor. . . .

               [Court]:         [T]here is more pressure . . . put on what we call a
                                pro se litigant. In every situation where you
                                represent yourself, you are by law held to the same
                                knowledge and experience of an attorney. . . . [Y]ou
                                act with the expectation by the Court that you know


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 11 of 25
                                the rules . . . . [Y]ou must understand that I can’t
                                help you. Okay?

               [Mother]:        Yes.

               [Court]:         And so you have chosen to go forward with that
                                knowledge, correct?

               [Mother]:        Yes.

               [Court]:         Okay. Then in that case, I find that you can
                                represent yourself with full knowledge as to the
                                consequences.


       Tr. pp. 648-49.


[20]   The court then recited the terms of the settlement and both parties consented to

       them. Along with disposing of various collateral issues, the settlement

       maintained shared legal custody but awarded primary physical custody to

       Father, keeping G.B. in South Bend. Mother would pay $199 per week to

       Father for G.B.’s support. A consent judgment reflecting the settlement’s terms

       was entered by the court on March 22, 2016, reserving a ruling on attorneys’

       fees and the GAL’s fees pending evidence and argument. The judgment order

       noted that “[a]ll other [motions] are deemed resolved, withdrawn, or vacated.”

       Appellant’s App. p. 30.


[21]   Throughout this litigation, Mother and Father disputed their relative incomes

       with respect to responsibility for attorneys’ fees and the GAL’s fees. The trial

       court heard extensive testimony on the parties’ incomes for most of the March

       1, 2016, hearing. Mother’s income was consistently found to be $120,000 per


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 12 of 25
       year, both at her old job in Indiana and at her new job in Texas. Father, a

       sometimes self-employed auto mechanic, was found to make from “$18,000 to

       around $30,000 . . . per year. At most, he earn[ed] one-fourth . . . of Mother’s

       income. Recently, he has earned closer to one-sixth . . . of Mother’s income.”

       Id. p. 22. This determination was based on Father’s tax returns from 2013 and

       2015, Mother’s testimony regarding Father’s earning potential, and Mother’s

       independent research into the median income for auto mechanics.


[22]   On March 29, 2016, the trial court ordered Mother to pay seventy-five percent

       of the GAL’s fees, $5,341.12, and, on April 25, 2015, seventy percent of

       Father’s attorneys’ fees, $13,151. In ordering Mother to pay Father’s attorneys’

       fees, the trial court noted,

               [T]he disparity in income [between Mother and Father] is very
               large. Mother chose to move to Texas without filing a notice [of
               intent to relocate]. . . . Mother continued to fight in spite of
               [G.B.]’s desires [to stay in Indiana, supported by the court, the
               GAL, and others]. [Mother] challenged the GAL and Judge with
               multiple filings. She knowingly pushed forward for months while
               [G.B.] was made miserable. She used methods which may be
               characterized as emotional blackmail. Several times when she
               was granted specific parenting time, she did not take it. . . .
               Mother’s argument regarding Father’s drug use was compelling
               on its face but her controlling, often hurtful behavior towards
               [G.B.] diminished her position given all the evidence . . . . Now
               she complains of the . . . fees in this case and in her other custody
               battle with a different father and child. Given the economic
               factors and Mother’s ongoing battle knowing [G.B.] (who is now
               sixteen) didn’t want to leave Indiana, convinces [sic] the Court
               that the hefty fee bills were in large part unnecessarily incurred by
               Mother’s unreasonable behavior.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 13 of 25
       Id. pp. 22-23.


[23]   On April 21, 2016, Mother moved to correct error in the consent judgment

       order of March 22, 2016. Mother claimed that, at the hearing, she told the court

       “she could not and was not prepared to represent herself in the matter.” Id. p.

       39. Further, Mother claimed to have been approached by her own, now

       estranged, mother in the courthouse hallway before the March 1, 2016, hearing,

       who told Mother that G.B. had threatened suicide, and then by Father’s

       counsel to discuss the settlement, in a concerted effort to take advantage of her

       impaired emotional state: “[D]espite Mother[’]s months of preparation for . . .

       trial, . . . such disingenuous tactics by [Father’s counsel] and [Mother’s] own

       Mother . . . , furthered by the court[’]s lack of response when [Mother] was

       requesting to seek legal advice, . . . [meant that Mother] was not in the right

       frame of mind to represent oneself in this hearing.” Id. p. 40.


[24]   On April 27, 2016, Mother moved to correct error in the trial court’s March 29,

       2016, order as to the GAL’s fees, complaining of the conduct of the March 1,

       2016, hearing, and of the trial court’s findings as to Mother’s and Father’s

       respective incomes. Mother concluded that, “during this hearing, Mother was

       visibly upset and shaken and crying and the court continued in course.” Id. p.

       34. The trial court ruled on neither of Mother’s motions and both were deemed

       denied.

[25]   Mother now appeals, raising the following restated issues. With respect to the

       validity of the consent judgment, Mother claims her uncounseled consent was


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 14 of 25
       the product of fraud, mistake, or duress. With respect to the consent judgment

       itself, Mother claims the trial court abused its discretion by ordering her to pay

       $199 per week for G.B.’s support. With respect to the trial court’s rulings prior

       to entry of the consent judgment, Mother claims the trial court abused its

       discretion by denying her motions as to the GAL and his reports; by denying

       her motion to certify the rulings as to the GAL and his reports for interlocutory

       appeal; by denying her motions for change of judge; by holding Father in

       contempt only once; by allowing the GAL to testify that her fiancé tried to bribe

       G.B. to move to Texas; and by issuing the TRO and denying her motions to lift

       or modify it. With respect to rulings after entry of the consent judgment,

       Mother claims the trial court abused its discretion by ordering her to pay

       seventy percent and seventy-five percent of Father’s attorneys’ fees and the

       GAL’s fees, respectively.

[26]   Father opposes Mother’s claims and seeks sanctions, urging us to find Mother’s

       appeal to be frivolous and in bad faith.


                                      Discussion and Decision

       I. Consent Judgment: Validity and Preclusive Effect

[27]   “[P]arties who are competent to contract and not standing in confidential

       relations to each other may agree to the rendition of a judgment or decree

       respecting any right which may be the subject of litigation.” Gallops v.

       Shambaugh Kast Beck & Williams, L.L.P., 56 N.E.3d 59, 62 (Ind. Ct. App. 2016)




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 15 of 25
       (quoting State v. Huebner, 230 Ind. 461, 104 N.E.2d 385, 387 (1952)). A consent

       judgment, or agreed judgment,

               has a dual aspect. It represents an agreement between the parties
               settling the underlying dispute and providing for the entry of
               judgment in a pending . . . action. It also represents the entry of
               such a judgment by a court—with all that this means in the way
               of committing the force of society to implement[ing] the
               judgment of its courts.


       Hanover Logansport, Inc. v. Robert C. Anderson, Inc., 512 N.E.2d 465, 470 (Ind. Ct.

       App. 1987). Construed like a contract, a consent judgment may be entered on

       fewer than all issues in a case if the intent of the parties to reserve the remaining

       issues is clear. Id. at 471.


[28]   Absent fraud or lack of consent, a trial court must approve and enter a consent

       judgment. City of New Haven v. Allen Cnty. Bd. of Zoning Appeals, 694 N.E.2d 306,

       310 (Ind. Ct. App. 1998) (citing Huebner, 104 N.E.2d at 387-88), trans. denied.

       “[F]raud is never presumed, but must be averred and proved as alleged in order

       to authorize relief because of fraud.” Guydon v. Taylor, 115 Ind. App. 685, 60

       N.E.2d 750, 752 (1945). Lack of consent to contract may be shown in the

       ordinary ways, for example, by mistake or duress. See Indianapolis, Decatur W.

       Ry. Co. v. Sands, 133 Ind. 433, 32 N.E. 722, 724 (1892) (“[N]o party [to a

       consent judgment] can . . . be permitted to have [it] modified . . . without

       showing some . . . mistake by which he was induced to enter into the agreement

       . . . or without showing some other valid reason why he should be released

       from it.”); Wagler v. W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 377-78 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 16 of 25
       App. 2012) (examining claim of duress in consent judgment through contract-

       law lens), trans. denied.


[29]   It is well settled that no appeal may be taken from a valid consent judgment.

       Pond v. McNellis, 845 N.E.2d 1043, 1061 (Ind. Ct. App. 2006) (citing Huebner,

       104 N.E.2d at 388), trans. denied. “[T]o say that parties may, by their . . .

       consent, induce the court to . . . enter a judgment in particular form and

       language, and then complain that the court erred in doing what they consented

       . . . it to do[,] . . . is at war with all the rules of practice in this state.” Sands, 32

       N.E. at 724. The preclusive effect on appeal of a consent judgment below

       reaches both the substance of the judgment itself and all prejudgment rulings in

       prior proceedings. McNellis v. Wheeler, 225 Ind. 148, 73 N.E.2d 339, 340 (1947)

       (following consent judgment, no appeal from prejudgment rulings on motions

       for change of venue and to strike counterclaim); Collins v. Rose, 59 Ind. 33, 35

       (1877) (“[Judgment by agreement] was a waiver of errors in the previous

       proceedings in the cause and of defects in the pleadings.”); Maiben v. Manlove,

       48 Ind. App. 617, 96 N.E. 501, 503 (1911) (“Where a judgment is entered by

       consent . . . and the court has jurisdiction of the subject-matter, the parties are

       estopped . . . from prosecuting an appeal on account of any errors in the

       proceedings or judgment.”).

[30]   Here, the consent judgment was valid on its face. The terms of the consent

       judgment were read in open court. Both parties stated their consent to them in

       open court. The terms of the judgment order reflected the terms openly recited.

       While expressly reserving the question of fees for later determination, the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 17 of 25
       judgment order disposed of all other issues in the case, and concluded by noting

       that “[a]ll other [motions] are deemed resolved, withdrawn, or vacated.”

       Appellant’s App. p. 30. We must therefore affirm the consent judgment unless

       it was vitiated by fraud, duress, or mistake. Because it was not, we affirm.4

[31]   Mother claims that the trial court failed to address her “serious allegations of

       fraud” in the inducement of the consent judgment. Appellant’s Br. at 41.

       However, nothing in either of her motions to correct error of April 21 and 27,

       2016, nor in the affidavits attached to them, alleged anything even resembling

       fraud, that is, a misrepresentation of material fact with knowledge or reckless

       ignorance of falsity causing injurious reliance. Siegel v. Williams, 818 N.E.2d

       510, 515 (Ind. Ct. App. 2004). Most obviously, Mother cannot point to any

       misrepresentation — or even simple mistake — of material fact. Mother has not

       shown fraud, and we will not presume it. Guydon, 60 N.E.2d at 752.




       4
         The unappealability of consent judgments has sometimes raised the question whether dismissal or
       affirmance is the proper disposition of the case on appeal. In Huebner, our supreme court said, “On appeal the
       action of a lower court is reviewed [for] error. If an appeal should be allowed from a consent decree, the
       appellate court would examine the record not to determine whether the lower court committed error, but to
       determine whether . . . the parties erred in making the[ir] stipulation or in giving their consent thereto.
       Appellate courts do not have such authority.” 104 N.E.2d at 469 (emphasis added). This language seems to
       require dismissal rather than affirmance in cases like that at bar (Huebner itself was a criminal case). However,
       it is uncontested that a consent judgment may be reviewed for validity and scope of consent. Thus, the
       distinction here seems more apparent than actual if valid consent is thought to waive claims of error on
       appeal. The older cases affirmed unless appellee moved to dismiss. See, e.g., Moore v. Am. Nat’l Bank at
       Indianapolis, 114 Ind. App. 551, 52 N.E.2d 513, 516 (1944) (granting appellee’s motion to dismiss); Maiben,
       96 N.E. at 503 (same). Here there is no motion to dismiss; we therefore follow the older cases and affirm. See,
       e.g., McNellis, 73 N.E.2d at 343; Sands, 32 N.E.2d at 725; Collins, 59 Ind. at 35; Guydon, 60 N.E.2d at 752;
       Hoosier Finance Co. v. Campbell, 86 Ind. App. 62, 155 N.E. 836, 838 (1927); Bd. of Comm’rs v. Scott, 19 Ind.
       App. 27, 49 N.E. 395, 399 (1898).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017                Page 18 of 25
[32]   In an action to void an enforceable agreement for duress, “the ultimate fact to

       be determined is whether . . . the purported victim was deprived of the free

       exercise of [her] own will.” Wagler, 980 N.E.2d at 378 (quotations and citation

       omitted). It used to be said that such deprivation must be accomplished by “an

       actual or threatened violence or restraint of a [wo]man’s person, contrary to

       law, to compel [her] to enter into [an agreement] or discharge one.” In re

       Paternity of K.R.H., 784 N.E.2d 985, 990 (Ind. Ct. App. 2003) (quotations and

       citation omitted). Our supreme court has observed that “the modern tendency .

       . . is to regard any transaction as voidable . . . which was coerced by fear of a

       wrongful act by the other party to the transaction.” Raymundo v. Hammond

       Clinic Ass’n, 449 N.E.2d 276, 283 (Ind. 1983) (quotations and citation omitted).

       We may thus allow for a somewhat broader conception of duress than used to

       be recognized. Still, a party seeking to void an agreement faces the heavy

       burden of showing a “subver[sion of] the will” or a “loss of volition” rather

       than a mere desire to avoid unpleasant consequences. Id. However “visibly

       upset” Mother was at the March 1, 2016, hearing, Appellant’s App. p. 34, she

       has not made the required showing — or even alleged — that her free will was

       subverted or lost.

[33]   In her April 21, 2016, motion to correct error, Mother did allege that, on March

       1, 2016, her own mother told her G.B. “said she would kill herself.” Id. p. 39.

       The result in this case would perhaps be different if Mother had proved that

       Father or his counsel approached Mother, or induced her own mother to do so,

       to threaten that G.B. would commit suicide unless Mother agreed not to move


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 19 of 25
       G.B. to Texas. However, Mother has not proved or even alleged such to be

       true. Mother has shown no connection other than temporal proximity between

       Father or his counsel and the statement allegedly made by her own mother.

       Mother has shown no connection other than temporal proximity between the

       statement allegedly made by her own mother and Mother’s consent to

       judgment. Mother had been told throughout this litigation that her conduct was

       making G.B. “miserable.” Appellant’s App. p. 23. To the extent that Mother

       consented to judgment from a desire to avoid hurting G.B. further, such a

       desire, while natural and commendable, is not duress legally sufficient to void

       an enforceable agreement.

[34]   Finally, Mother complains that she was unrepresented when the consent

       judgment was agreed to and entered. Of course, Mother had no right to counsel

       in this case. See In re Marriage of Stariha, 509 N.E.2d 1117, 1119-20 (Ind. Ct.

       App. 1987) (outlining limited contexts giving rise to right to counsel). It was

       Mother’s choice, and hers alone, after nearly a year of litigation to release her

       attorney less than two weeks before the case-dispositive hearing of March 1,

       2016. The trial court’s colloquy with Mother at the opening of that hearing

       clearly shows that Mother acted voluntarily with full knowledge of the

       consequences of her conduct. Mother cannot show fraud or mistake in

       connection with her decision to proceed pro se.


[35]   The consent judgment was valid. It therefore precluded any challenge to its

       substance, including Mother’s challenge to the child support order embodied in

       it. The consent judgment also precluded any challenge to prejudgment rulings,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 20 of 25
       including Mother’s challenges to the trial court’s rulings on the GAL and his

       report, certification for interlocutory review, recusal and change of judge,

       Father’s contempt of court, the GAL’s testimony of the bribe offered to G.B.,

       and the TRO.

[36]   We note that Mother’s challenges to the trial court’s prejudgment rulings

       amount to complaints about alleged procedural defects to which she did not

       object, or positively assented below, and complaints that the trial court did not

       weigh Mother’s evidence more favorably than Father’s. These are advanced

       without cogent argument setting out and applying the proper legal standard to

       each asserted claim to relief, tied together by Mother’s unshakeable but

       erroneous conviction that she alone may decide what is in G.B.’s best interests,

       and that Father’s handful of positive drug tests over a one-year period,

       irrespective of all other factors, mandated a result in her favor; the contrary

       result could have only been the product of bias and collusion. Preclusion by

       entry of consent judgment notwithstanding, none of Mother’s claims could

       afford a basis for reversal.


       II. Rulings on Attorneys’ and GAL’s Fees

[37]   Litigants in the courts of this state must pay their own attorneys’ fees unless a

       statute, agreement, or rule provides the contrary. Swartz v. Swartz, 720 N.E.2d

       1219, 1223 (Ind. Ct. App. 1999). By statute, in an action to modify custody, the

       court “may” order either party to pay a “reasonable amount” for the other

       party’s attorneys’ fees. Ind. Code § 31-17-7-1(a). Similarly, a court “may” order

       either or both parents of a child represented by a GAL to pay a “user fee.” Id. §
       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 21 of 25
       6-9(a); see also In re Paternity of N.L.P., 926 N.E.2d 20, 23 (2010) (analyzing GAL

       fee in paternity action as “cost” within meaning of paternity-action fee-shifting

       statute, I.C. § 31-14-18-2(a), materially identical to custody-action fee-shifting

       statute, I.C. § 31-17-7-1(a)).

[38]   Fee awards in family law matters are reviewed for abuse of the trial court’s

       discretion. Bean v. Bean, 902 N.E.2d 256, 266 (Ind. Ct. App. 2009). Reversal is

       proper only where the award is clearly against the logic and effect of the facts

       and circumstances before the court. Carrasco v. Grubb, 824 N.E.2d 705, 712 (Ind.

       Ct. App. 2012), trans. denied. In ruling on a request for fees, the court must

       consider “the parties’ resources, their economic condition, their ability to

       engage in gainful employment, and other factors that bear on the award’s

       reasonableness,” Bean, 902 N.E.2d at 266, including “whether fees and

       litigation expenses were incurred due to the adverse party’s misconduct.”

       Carrasco, 824 N.E.2d at 712.


[39]   As to the reasonableness of the fee requests, the court reviewed Father’s

       affidavit of attorneys’ fees and struck $1,480 from its consideration because they

       were solely occasioned by one of Father’s positive drug tests. The court

       otherwise found the work done and rates charged by Father’s counsel to be

       reasonable, and Mother does not challenge that finding. The court also

       reviewed the GAL’s fee affidavit and found “that the work performed by Mr.

       James[, a thirty-year family-law practitioner,] was very important and valuable,

       especially in combination with the Court’s in camera interview with [G.B.] and

       ongoing issues regarding drug testing, relocation of Mother, [G.B.]’s wishes,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 22 of 25
       Mother’s [fiancé] and situations with siblings.” Appellant’s App. p. 25. Mother

       is less sanguine about the value of the GAL’s performance, but the trial court

       had before it Mother’s multiple unsuccessful prejudgment motions challenging

       the GAL, as well as three of Mother’s post-judgment filings on the specific

       question of fees, before issuing its order as to the GAL’s fees on March 29,

       2016. We will not reweigh that material now.

[40]   As to the reasonableness of the apportionment of fees, the trial court set out the

       reasons for its apportionment most fully in its April 25, 2016, order on

       attorneys’ fees. That order considered the parties’ resources and relative

       incomes, Mother’s $120,000 per year compared to Father’s maximum of

       $30,000 per year. In establishing the latter figure, the court relied on Father’s

       tax returns from 2013 and 2015, Mother’s testimony regarding Father’s earning

       potential, and Mother’s independent research into the median income for auto

       mechanics. In addition to the “vast” income disparity, id. p. 22, the trial court

       also considered that “the hefty fee bills were in large part unnecessarily incurred

       by Mother’s unreasonable behavior.” Id. p. 23. Mother takes a different view of

       her conduct, but we defer to the trial court’s proximity to the facts and the

       parties.


[41]   The trial court based its fee rulings on a review of the record, the parties’

       submissions, and the factors it was bound by law to consider. These rulings

       were not clearly against the logic and effect of the facts before it. There was no

       abuse of discretion.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 23 of 25
       III. Father’s Request for Sanctions

[42]   We may award damages, including attorneys’ fees, to an adverse party to an

       appeal that is “frivolous or in bad faith.” Ind. Appellate Rule 66(E). To merit

       damages, an appeal must be “permeated with meritlessness, bad faith, frivolity,

       harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d

       342, 346 (Ind. Ct. App. 2003). Even so, we exercise “extreme restraint” in

       awarding damages lest the right to appeal be chilled. Id.


[43]   Our analysis divides


               claims for appellate attorney fees into “substantive” and
               “procedural” bad faith claims. To prevail on a substantive bad
               faith claim, the party must show that the appellant’s contentions
               and arguments are utterly devoid of all plausibility. Procedural
               bad faith, on the other hand, occurs when a party flagrantly
               disregards the form and content requirements of the rules of
               appellate procedure, omits and misstates facts appearing in the
               record, and files briefs written in a manner calculated to require
               the maximum expenditure of time both by the opposing party
               and the reviewing court.


       Id. at 346-47 (citations omitted).


[44]   Procedurally, Mother’s compliance with the Appellate Rules is imperfect,

       including, for example, argument in her fact statement. See App. R. 46(A)(6);

       Thacker, 797 N.E.2 at 347. Nevertheless, on the whole, we cannot say that

       Mother’s submissions, with regular citations to the record and a well-organized

       appendix, for example, were not in good faith or were “calculated to require the

       maximum expenditure of time” on our part or Father’s. Thacker, 797 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 24 of 25
       346. Indeed, in his brief, Father simply adopts Mother’s statement of the case

       and statement of facts. Appellee’s Br. at 6. Father will not be heard to complain

       of what he has incorporated into his own brief.


[45]   Substantively, Mother’s submissions approach being “utterly devoid of all

       plausibility,” id., but we note that Father has needlessly multiplied his expenses

       on appeal by failing to recognize the unappealibilty of a valid consent

       judgment, instead responding in detail to each of Mother’s garbled claims in a

       lengthy brief. Argument that is truly in bad faith does not invite or even permit

       such exhaustive counterargument. Mother will not be made to pay for it.


                                                 Conclusion

[46]   Mother’s consent to judgment was not the product of fraud, mistake, or duress.

       Her consent precluded her appellate challenges to the judgment itself and to the

       trial court’s rulings antecedent to it. The trial court did not abuse its discretion

       in ordering Mother to pay seventy percent of Father’s attorneys’ fees and

       seventy-five percent of the GAL’s fees. The judgment of the trial court is

       therefore affirmed. Father is not entitled to appellate sanctions.


[47]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-DR-1203 | June 9, 2017   Page 25 of 25
