                                                          Apr 30 2013, 9:20 am

FOR PUBLICATION


APPELLANT PRO SE:                              ATTORNEY FOR APPELLEE:

PHILLIP J. TROYER                              PERRY D. SHILTS
Fort Wayne, Indiana                            Fort Wayne, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

PHILLIP J. TROYER,                             )
                                               )
     Appellant/Cross-Appellee-Respondent,      )
                                               )
            vs.                                )      No. 02A03-1207-DR-319
                                               )
TRACY L. TROYER,                               )
                                               )
     Appellee/Cross-Appellant-Petitioner.      )



                   APPEAL FROM THE ALLEN SUPERIOR COURT
                    The Honorable Lori K. Morgan, Temporary Judge
                      The Honorable Thomas P. Boyer, Magistrate
                           Cause No. 02D07-1105-DR-365


                                     April 30, 2013


                           OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Phillip J. Troyer (“Husband”) and Tracy L. Troyer (“Wife”) were married in 1993 and

had one child, K.T., in 2000. In May 2010, Wife filed two petitions to dissolve the marriage,

which were later dismissed. The parties’ attempts at reconciliation were unsuccessful, and

Wife filed a third petition in May 2011. In July 2011, the trial court entered a Provisional

Order that awarded the parties joint legal custody and Wife primary physical custody of K.T.

The Provisional Order also addressed issues such as child support and K.T.’s healthcare

expenses. Between February and April of 2012, the trial court held four days of hearings on

the dissolution petition. Husband filed a petition for attorney fees. In April 2012, the court

issued a partial decree dissolving the marriage and holding the remaining issues under

advisement. In June 2012, the trial court issued a Final Decree containing extensive findings

of fact and conclusions thereon. In the Final Decree, the court valued the marital assets and

divided them equally between the parties. The court also awarded the parties joint legal

custody and Wife primary physical custody of K.T. Finally, the court denied Husband’s

petition for attorney fees.

       Husband appealed, and Wife cross-appealed. Husband contends that the trial court

abused its discretion in valuing and dividing the marital estate; exceeded its statutory

authority in retroactively increasing his child support and healthcare expenses; abused its

discretion in denying his petition for attorney fees; and failed to rule on two issues that he

raised below. Wife contends that the trial court abused its discretion in awarding the parties



                                              2
joint legal custody of K.T. She also asserts that Husband’s appeal is frivolous or in bad faith

such that she is entitled to attorney fees pursuant to Indiana Appellate Rule 66(E).

       We conclude as follows: (1) the trial court did not abuse its discretion in valuing and

dividing the marital estate; (2) the trial court exceeded its statutory authority in retroactively

increasing Husband’s child support and healthcare expenses; (3) the trial court did not abuse

its discretion in denying Husband’s petition for attorney fees; (4) the trial court did fail to

rule on Husband’s request for Wife to reimburse him for her share of K.T.’s private school

expenses; (5) the trial court did not abuse its discretion in awarding the parties joint legal

custody of K.T.; and (6) Husband’s appeal is neither frivolous nor in bad faith, and therefore

Wife is not entitled to attorney fees pursuant to Appellate Rule 66(E). Consequently, we

affirm in part, reverse in part, and remand.

                               Facts and Procedural History

       Husband and Wife were married in January 1993 and had one child, K.T., who was

born in April 2000. On May 14, 2010, Wife filed a petition to dissolve the marriage, which

she dismissed less than two weeks later. Wife filed a second petition for dissolution on May

27, 2010. The parties continued to live together until they sold their home in early July 2010,

at which time Husband moved to an apartment. In December 2010, Wife asked Husband if

the two could reconcile; as such, Wife dismissed her second petition on February 22, 2011.

       The attempted reconciliation failed, and Wife filed a third petition for dissolution on

May 3, 2011, which was deemed to be “the legal date of the parties’ separation.” Appellant’s

App. at 37. On July 15, 2011, the trial court entered a Provisional Order, which provided in

                                                3
pertinent part as follows: (1) at K.T.’s request, Wife requested that Husband’s parenting time

with K.T. be limited, reduced, or restricted; however, there was no evidence that the exercise

of Husband’s parenting time would endanger the emotional or physical well-being of the

child; (2) the trial court took judicial notice that Indiana caselaw prevents a child from

dictating when, and in what fashion, a parent will exercise his or her parenting time; if the

child has emotional issues that are interfering with parenting time, the solution is not to bow

to the child, but instead to seek appropriate treatment for the child; (3) absent evidence to the

contrary, there is an established presumption that each parent is a fit and proper person to

have the care, custody, and control of K.T.; (4) the trial court recognized the sincerity of love

and devotion by both parents toward K.T., and awarded joint legal custody; however,

historical involvement with K.T. warranted Wife having primary physical custody and

Husband exercising parenting rights under the Indiana Supreme Court’s Parenting Time

Guidelines; (5) by agreement of the parties, Wife was ordered to maintain health insurance

for K.T., and Husband was ordered to pay $53 a week, effective May 3, 2011 (a $530

arrearage was to be satisfied with Husband making extra payments of $20 per week until the

arrearage was paid); (6) each parent was responsible for his or her respective indebtedness

incurred since the separation; and (7) each party was restrained from transferring,

encumbering, concealing, selling, or otherwise disposing of joint marital property.

       In September 2011, Husband asked Wife to reconcile, but Wife refused, stating that

the marriage had run its course. In April 2012, the trial court entered its “Partial Decree and

Dissolution of Marriage,” which in pertinent part stated that the “marriage being irretrievably

                                               4
broken, is hereby dissolved,” that all other issues remain under advisement, and that “costs of

this action are assessed to [Wife].” Appellant’s App. at 37.

       The Final Decree was fifteen pages long, identified eighty-three factual findings or

legal conclusions, and was entered following the final hearing, which took the better part of

four days and resulted in a transcript in excess of 800 pages. The Final Decree also: (1)

identified K.T.’s circumstances and health history, including that K.T. suffered from anorexia

nervosa and major depressive disorder; (2) identified the need for a Parenting Time

Coordinator; (3) analyzed five years of Husband’s income for child support purposes; (4)

dealt with health insurance, uninsured healthcare expenses, and tax exemption issues; and (5)

detailed the few agreements and the many disagreements of the parties, both prior to and

during the dissolution process. The Final Decree identified stipulated values for various

assets and then systematically resolved disputed property issues, including whether certain

assets or debts should be included in the marital estate, whether dissipation under the statute

had occurred from the actions of either party, and whether Wife’s sale of her interest in her

law practice eleven months prior to having filed the instant dissolution action was an arm’s-

length transaction. Ultimately, the trial court divided the marital estate equally and identified

a balancing equalization judgment.        Husband now appeals, and Wife cross-appeals.

Additional facts will be included below.

                                  Discussion and Decision

       After the final hearing, the trial court, on its own motion, entered findings of fact and

conclusions thereon regarding the parties’ dissolution proceedings. In reviewing an order in

                                               5
which the trial court makes findings of fact and conclusions thereon, our standard of review

is well-settled:

       First, we determine whether the evidence supports the findings and second,
       whether the findings support the judgment. In deference to the trial court’s
       proximity to the issues, we disturb the judgment only where there is no
       evidence supporting the findings or the findings fail to support the judgment.
       We do not reweigh the evidence, but consider only the evidence favorable to
       the trial court’s judgment. Challengers must establish that the trial court’s
       findings are clearly erroneous. Findings are clearly erroneous when a review
       of the record leaves us firmly convinced a mistake has been made. However,
       while we defer substantially to findings of fact, we do not do so to conclusions
       of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule
       52 if it relies on an incorrect legal standard. We evaluate questions of law de
       novo and owe no deference to a trial court’s determination of such questions.

Thalheimer v. Halum, 973 N.E.2d 1145, 1149-50 (Ind. Ct. App. 2012) (quoting McCauley v.

Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied (2011)). On appeal, we

“shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial

Rule 52(A).

                       I. Valuation and Division of Marital Property

       Husband contends that the trial court abused its discretion in valuing and dividing the

marital estate when it: (A) failed to include the value of Wife’s ongoing law practice in the

marital assets; (B) valued Wife’s jewelry at $1000; and (C) concluded that Husband had not

rebutted the presumption that an equal division of the marital property between the parties

was just and reasonable. The decision regarding the valuation and division of marital

property lies within the sound discretion of the trial court, and we will reverse only for an


                                                6
abuse of that discretion. Hartley v. Hartley, 862 N.E.2d 274, 285 (Ind. Ct. App. 2007). We

address each of Husband’s issues in turn.

                              A. Wife’s Ongoing Law Practice

       Husband first contends that the trial court “misconstrued both the facts of this case and

applicable law” when it failed to attribute goodwill to Wife’s “ongoing law practice as a

marital asset or assign any value to it.” Appellant’s Br. at 15. Specifically, Husband

maintains that Wife still retained goodwill in the law firm, Boeglin Troyer & Gerardot, P.C.,

and that the value of that goodwill should have been included in the marital assets.

       Wife’s “claimed one-half interest in Boeglin Troyer & Gerardot Sub S Corporation”

was listed as Item 17.2 on the Joint Marital Balance Sheet. Appellant’s App. at 92. Wife

attributed no value to this asset. Husband, however, valued this asset as being worth

$105,098. Id. at 93. Wife sold her shares in Boeglin Troyer & Gerardot, P.C. (“the Firm”),

on June 29, 2010. Id. at 68. The Joint Marital Balance Sheet was completed as of May 3,

2011—eleven months after Wife sold her share of the Firm. In its Final Decree, the trial

court made the following finding regarding this asset:

       59.    On or about June 29, 2010, [Wife] sold her fifty (50) shares of capital
              stock in Boeglin Troyer & Gerardot, P.C. to Jane M. Gerardot for
              Fifteen Thousand Three Hundred Eighty One Dollars and Twenty Five
              Cents ($15,381.25). This transaction took place approximately one (1)
              year prior to the filing of this case, and therefore the capital stock is not
              a marital asset.

Id. at 19. Thus the trial court did not abuse its discretion in finding that the capital stock of

the Firm was not a marital asset.


                                               7
       On appeal, however, Husband contends that Wife retains enterprise goodwill in her

ongoing law practice that should have been included in the marital assets. As background,

we add the following facts. Husband and Wife are both attorneys. In June 1999, Husband

became a partner in the Firm, which previously consisted of Wife and Jim Boeglin.1 In 2000,

Boeglin retired from the Firm, and pursuant to a stock purchase agreement, Husband and

Wife purchased Boeglin’s interest in the firm for $70,000. This price was based on

Boeglin’s goodwill contained in the extensive wills and trust files that he left with the Firm.

       In the summer of 2002, Husband left the Firm to return to an in-house counsel

position with an insurance company, and Jane Gerardot joined the Firm as a partner.

Thereafter, Wife and Gerardot each owned fifty percent of the Firm. Wife and Gerardot

entered into various agreements, including a stock purchase agreement (“Agreement I”),

dated September 15, 2006. Under Agreement I, Wife and Gerardot agreed that, in the event

one of the partners completely retired from the practice of law in Indiana and surrendered her

client files to the Firm, the retiring partner would be entitled to receive a “Goodwill

Reimbursement” based upon her “contribution toward the [F]irm’s goodwill.” Id. at 49.

This provision provided as follows:

       Goodwill Reimbursement. It is understood and agreed that, in addition to the
       Sale Price, upon the occurrence of any Triggering Event other than death, a
       departing Shareholder who is no longer engaged in the private practice of law
       in the State of Indiana and who leaves all of his or her client files, documents,
       and data with the firm, shall be entitled to receive additional consideration


       1
        Initially, the Firm was called Boeglin & Troyer, P.C. When Gerardot joined the Firm in 2002, the
name was changed to Boeglin Troyer & Gerardot, P.C.

                                                   8
       based upon his or her contribution toward the firm’s goodwill (“hereinafter
       referred to as the “Goodwill Reimbursement”).

Id. at 49 (emphasis added). Agreement I also included a formula for calculating the

Goodwill Reimbursement. Id. at 50.

       On June 29, 2010, Wife and Gerardot entered into a second stock purchase agreement

(“Agreement II”) that replaced Agreement I. Id. at 68. Under Agreement II, Gerardot paid

Wife $15,381.25 for her fifty-percent share of the Firm’s office contents, website domain,

and cash reserve. Agreement II contained no provisions for the payment of Goodwill

Reimbursement. Husband, however, contends that the value of the goodwill itself did not

disappear. As such, Husband maintains that Wife retained goodwill in her client files that

should have been considered an asset within the marital estate.

       The trial court addressed the issue of goodwill reimbursement as follows:

       68.    The “Goodwill Reimbursement” clause of the September 15, 2006
              Stock Purchase Agreement . . . was not applicable to the sale of
              [Wife]’s capital stock to Jane M. Gerardot. [Wife] continued to be
              engaged in the private practice of law as an employee of Boeglin
              Troyer & Gerardot, PC. As an employee of the law firm, [Wife]
              received fifty-four (54%) of the income from her client files.

Id. at 21. Although this finding was made in the context of whether Wife had dissipated the

value of the marital assets, it also sheds light on the trial court’s determination that Wife had

no goodwill invested in the Firm that should have been included as part of the couple’s

marital assets.

       In Yoon v. Yoon, 711 N.E.2d 1265 (Ind. 1999), our supreme court analyzed the issue

of goodwill as follows:

                                               9
             Goodwill has been described as the value of a business or practice that
      exceeds the combined value of the net assets used in the business. Goodwill in
      a professional practice may be attributable to the business enterprise itself by
      virtue of its existing arrangements with suppliers, customers or others, and its
      anticipated future customer base due to factors attributable to the business. It
      may also be attributable to the individual owner’s personal skill, training or
      reputation. This distinction is sometimes reflected in the use of the term
      “enterprise goodwill,” as opposed to “personal goodwill.”

               Enterprise goodwill “is based on the intangible, but generally
      marketable, existence in a business of established relations with employees,
      customers and suppliers.” Factors affecting this goodwill may include a
      business’s location, its name recognition, its business reputation, or a variety of
      other factors depending on the business. Ultimately these factors must, in one
      way or another, contribute to the anticipated future profitability of the
      business. Enterprise goodwill is an asset of the business and accordingly is
      property that is divisible in a dissolution to the extent that it inheres in the
      business, independent of any single individual’s personal efforts and will
      outlast any person’s involvement in the business. It is not necessarily
      marketable in the sense that there is a ready and easily priced market for it, but
      it is in general transferrable to others and has a value to others.

             ....

              In contrast, the goodwill that depends on the continued presence of a
      particular individual is a personal asset, and any value that attaches to a
      business as a result of this “personal goodwill” represents nothing more than
      the future earning capacity of the individual and is not divisible. Professional
      goodwill as a divisible marital asset has received a variety of treatments in
      different jurisdictions, some distinguishing divisible enterprise goodwill from
      nondivisible personal goodwill and some not.

              Indiana’s dissolution law opts for recognition of this distinction. The
      General Assembly has determined that the “relative earning power” of the
      parties is not a divisible asset because it is not property, but may be considered
      in determining the percentage of property to be given to each. Accordingly,
      we join the states that exclude goodwill based on the personal attributes of the
      individual from the marital estate.

Id. at 1268-69 (emphasis added) (citations omitted).


                                              10
        Wife and Gerardot, as sole shareholders of the Firm, included in Agreement I a

formula for placing value on goodwill. This value, however, applied only in the event that a

shareholder: (1) left the Firm; (2) no longer engaged in the private practice of law in Indiana;

and (3) left all of her client files, documents, and data with the Firm. Appellant’s App. at 49.

In such a case, the remaining partner would have been the sole beneficiary of “enterprise

goodwill”—the intangible, but generally marketable, existence in the Firm of established

relations with clients. Yoon, 711 N.E.2d at 1268.

        In June 2010, by means of Agreement II, Gerardot purchased Wife’s fifty-percent

share of the Firm’s office contents, website domain, and value of the Firm’s cash reserves.

Wife, however, retained her “personal goodwill,” i.e., the interest in the Firm that depended

on her continued presence in the practice of law. This was a personal asset that represented

“nothing more than the future earning capacity of [Wife] and [was] not divisible.”2 Id. at

1269.

        The trial court found that: (1) “goodwill reimbursement” did not apply to the sale of

Wife’s capital stock to Gerardot; (2) Wife continued to be engaged in the private practice of

law as an employee of the Firm; and (3) as an employee, Wife received fifty-four percent of



        2
          Husband contends that Wife could sell her client files at any time based on the expectation that the
attorney who purchases the records could use them to solicit more business. While these files would
presumably be valuable to an attorney who chose to purchase them, we are not convinced that the subsequent
sale would reflect “enterprise goodwill.” As the Yoon court explained, enterprise goodwill “is based on the
intangible, but generally marketable, existence in a business of established relations with employees, customers
and suppliers.” 711 N.E.2d at 1268. Here, a future sale of Wife’s client files will not convey to the buyer the
long-term business relationships that Wife has forged with her clients or any of the other trappings that bring
value to Wife’s files.


                                                      11
the income from her own clients. Appellant’s App. at 21. The trial court did not abuse its

discretion in finding that Wife had no “enterprise goodwill” in the Firm that could be

divisible as a marital asset.

                                  B. Valuation of Jewelry

       During the dissolution proceedings, the parties disagreed on the valuation of the

jewelry that Husband had given Wife during their marriage. Husband contends that the trial

court abused its discretion in finding that Wife’s jewelry was worth only $1000.

       “The trial court has broad discretion in ascertaining the value of property in a

dissolution action, and its valuation will only be disturbed for an abuse of that discretion.”

Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind. Ct. App. 2011), trans. denied. Here,

neither party offered receipts for the jewelry purchased or a professional appraisal of the

value of Wife’s jewelry. Instead, the parties provided the trial court with their own valuation

of the jewelry. In the Joint Marital Balance Sheet, Wife valued the jewelry at $1000, while

Husband valued it at $13,500. Appellant’s App. at 92.

       Wife was confident enough in her $1000 valuation that she was willing to let Husband

have the jewelry for a $1000 setoff. Tr. at 319. Husband, by contrast, was willing to take the

jewelry if it was valued at $1000 but would not take it if he would be charged a setoff of

$2000. Id. at 716. Furthermore, Husband stated, “I don’t know how much it’s worth, it’s in

her possession.” Id. When asked if he had ever asked to have the jewelry appraised,

Husband answered, “Not in this case.” Id. Husband agreed to let Wife have the jewelry only

if he was credited with a set off of $13,000. Id. at 717. When asked whether the $13,000

                                              12
was based upon his valuation, Husband responded that the estimate was “[j]ust a complete

guess.” Id. The trial court was within the bounds of the evidence presented and did not

abuse its discretion in determining that Wife’s jewelry was worth $1000 for purposes of

dividing the marital estate.3 See Trabucco, 944 N.E.2d at 558 (stating that trial court has

broad discretion in determining value of property in dissolution action, and its valuation will

not be disturbed absent abuse of discretion).

                                    C. Division of Marital Property

        Husband contends that the trial court abused its discretion in finding that he failed to

rebut the presumption of an equal distribution of the marital assets.4 Specifically, Husband

contends that the presumption was rebutted because Wife dissipated the marital estate by

selling her shares of the Firm for only $15,381.25 and because Husband received an

inheritance of $50,000, of which about $20,000 was held in his personal bank account when

Wife filed her final petition for dissolution. Our standard of review is well settled:

        The division of marital assets lies within the sound discretion of the trial court,
        and we will reverse only for an abuse of discretion. When a party challenges
        3
          During the final hearing, Wife admitted that Husband “may have spent $13,000.00 on Wife’s
jewelry.” Tr. at 319. On appeal, Husband cites to this admission and urges us to “take judicial notice that
prices for gold, diamonds, and other precious metals and stones have not depreciated in recent years.”
Appellant’s Br. at 22. “Indiana Evidence Rule 201(f) provides that ‘[j]udicial notice may be taken at any stage
of the proceeding,’ which includes appeals.” Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012).
However, we have held that “‘judicial notice may not be used on appeal to fill evidentiary gaps in the trial
record.’” Id. (quoting Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind. Ct. App. 1998), trans. denied).
Here, Husband essentially is asking us to fill the evidentiary gaps he created by failing to present this evidence,
or request judicial notice, at trial. This we will not do.
        4
          At the final hearing, Wife argued that Husband dissipated marital assets when he spent approximately
$25,000 in an unsuccessful run for the U.S. Congress. The trial court found that Husband did not dissipate the
marital assets because “[t]he expenditure was not excessive for a congressional campaign, and [Wife] was
supportive of Husband’s decision to run for Congress.” Appellant’s App. at 20. Wife does not appeal this
issue.

                                                       13
       the trial court’s division of marital property, he must overcome a strong
       presumption that the court considered and complied with the applicable statute,
       and that presumption is one of the strongest presumptions applicable to our
       consideration on appeal. We may not reweigh the evidence or assess the
       credibility of the witnesses, and we will consider only the evidence most
       favorable to the trial court’s disposition of the marital property. Although the
       facts and reasonable inferences might allow for a different conclusion, we will
       not substitute our judgment for that of the trial court.

Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006) (citations omitted).

       Indiana law presumes that an equal division of the marital property between the

parties is just and reasonable; however, that presumption may be rebutted by relevant

evidence that an equal division would not be just and reasonable. Ind. Code § 31-15-7-5.

The factors a court may consider include: the contribution of each spouse to the acquisition

of the property; the extent to which the property was acquired by each spouse before the

marriage or through inheritance or gifts; the economic circumstances of each spouse at the

time of disposition; the conduct of the parties as it relates to the disposition or dissipation of

their property; and the earnings or earning ability of each spouse. Id. “If the trial court

deviates from this presumption, it must state why it did so.” Galloway, 855 N.E.2d at 305;

Thompson v. Thompson, 811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004), trans. denied (2005).

       Husband contends, “if the record proved any of these factors were present during the

marriage, it would have rebutted the initial presumption that an equal distribution of the

marital estate was just and reasonable.” Appellant’s Br. at 23. We disagree. “Marital

property includes property owned by either spouse prior to the marriage, acquired by either

spouse after the marriage and prior to final separation, or acquired by their joint efforts.”


                                               14
Swadner v. Swadner, 897 N.E.2d 966, 977 (Ind. Ct. App. 2008). “The trial court’s

disposition of the marital estate is to be considered as a whole, not item by item.” Eye v. Eye,

849 N.E.2d 698, 701 (Ind. Ct. App. 2006).

                              1. Dissipation of Marital Assets

       We have said,

              Fault is not relevant in dissolution proceedings except as related to the
       disposition or dissipation of marital assets. One spouse’s claim of improvident
       spending by the other spouse can be a powerful weapon in an attempt to secure
       a larger share of the marital estate. However, a trial court presiding over a
       dissolution proceeding in which dissipation is an issue should not be required
       to perform an audit of expenditures made during the marriage in order to
       determine which spouse was the more prudent investor and spender.

In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind. Ct. App. 1996) (citations omitted).

       Husband contends that the trial court abused its discretion in finding that Wife did not

dissipate the marital assets. Specifically, Husband contends that Wife dissipated the value of

her shares of the Firm. Husband contends that Wife’s interest in the Firm was worth

$105,098, but that Wife sold her interest during the pendency of the marriage dissolution for

just $15,381.25. Appellant’s App. at 93. Generally, our court reviews findings of dissipation

under an abuse of discretion standard. Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind. Ct.

App. 2001). We will reverse only if the trial court’s judgment is clearly against the logic and

effect of the facts and the reasonable inferences to be drawn from those facts. Id.

       “Waste and misuse are the hallmarks of dissipation. Our legislature intended that the

term carry its common meaning denoting ‘foolish’ or ‘aimless’ spending. Dissipation has

also been described as the frivolous, unjustified spending of marital assets which includes the

                                              15
concealment and misuse of marital property.” Marriage of Coyle, 671 N.E.2d at 943.

Factors to consider in determining whether dissipation has occurred include: (1) whether the

expenditure benefited the marriage or was made for a purpose entirely unrelated to the

marriage; (2) the timing of the transaction; (3) whether the expenditure was excessive or de

minimis; and (4) whether the dissipating party intended to hide, deplete, or divert the marital

asset. Goodman, 754 N.E.2d at 598. Following the final hearing, the trial court made the

following findings that are pertinent to this issue on appeal:

       67.    The sale of the capital stock by [Wife] to Jane M. Gerardot on June 29,
              2010 for . . . $15,381.25 was an “arm[’]s length transaction.” Ms.
              Gerardot was willing to sell her interest in the law firm to [Wife] for the
              same amount.

       68.    The “Goodwill Reimbursement” clause of the September 15, 2006
              Stock Purchase Agreement is not evidence of a dissipation of assets by
              [Wife]. This clause was not applicable to the sale of [Wife]’s capital
              stock to Jane M. Gerardot. [Wife] continued to be engaged in the
              private practice of law as an employee of [the Firm]. As an employee
              of the law firm, [Wife] received fifty-four percent (54%) of the income
              from her client files.

Appellant’s App. at 21.

       Wife sold her portion of the Firm to Gerardot in an “arm’s length transaction,” and did

so almost a year before Husband placed a value on the Firm for purposes of inclusion in

marital assets. Id. at 21. Gerardot testified that the price, in part, was based on independent

appraisals of the Firm’s personal property and said that she was willing to sell her interest in

the law firm to Wife for the same amount that Wife sold it to her. Tr. at 221. Additionally,

Wife did not have a buyback option or any other arrangement to return to the Firm as a


                                              16
shareholder. Id. at 210-11. Wife knew that Gerardot was interested in retiring from the Firm

in the near future. Wife also knew that when Gerardot retired and left her client files with the

Firm, Wife would owe Gerardot a great deal of money under the terms of the “Goodwill

Reimbursement” clause of Agreement I. Furthermore, if Gerardot retired prior to the settling

of the marital estate, then the payment to Gerardot would have been a liability and could have

been cited as marital debt. Wife’s sale of her interest in the Firm prior to the settling of the

marital estate was neither wasteful nor foolish, but instead an arm’s-length business

transaction that created certainty in the marital estate. The trial court did not abuse its

discretion in finding that Wife did not dissipate marital assets.

                                 2. Husband’s Inheritance

       Husband next contends that approximately $20,000 of his inheritance remained in his

personal account on the date that Wife filed the instant petition for dissolution. As such,

Husband argues that the trial court abused its discretion in determining that this personal

bank account was marital property and that he had not rebutted the presumption that the

marital property should be evenly divided.

       Husband was left an inheritance of $50,000 by Grace and Ira Leer, a couple who

treated Husband like a grandson. At the final hearing, the trial court learned the following

about the inheritance. Husband testified that he had known about the inheritance since

around 1995, two years after Husband and Wife married and almost sixteen years before they

separated. In 1995, at the Leers’ request, Wife drafted the trust document that provided for

Husband’s inheritance. Mrs. Leer died soon thereafter, and Mr. Leer died in late 2008.

                                              17
Husband received the inheritance in the spring of 2009, and on July 3, 2009, deposited the

whole amount into Husband and Wife’s joint bank account (“joint account”).

       On July 8, 2009, Husband withdrew $5000 from the joint account and, at Wife’s

request, deposited that amount into K.T.’s college savings account. Four months later, on

November 4, 2009, Husband withdrew $30,000 from the joint account and deposited that

money into his personal bank account. With Wife’s consent, Husband used $25,000 of that

$30,000 as a contribution toward his own congressional campaign. On December 28, 2009,

Husband withdrew an additional $15,000 from the joint account and deposited that money

into his personal bank account. During the almost six months that Husband held some of his

inheritance in the joint account, Husband and Wife deposited their respective salaries and

paid their joint bills from that joint account. Although Wife filed various petitions for

dissolution prior to filing the petition at issue, the couple did not officially separate until May

3, 2011, about two years after Husband received his inheritance.

       In findings 55 through 78, the trial court specifically identified the assets and debts of

the parties and the proposed distribution thereof consistent with the statutory presumption

identified in Indiana Code Section 31-15-7-5. The parties had been married for eighteen

years. Neither party claimed to have brought assets to the marriage. During their marriage,

Husband and Wife were both practicing attorneys who made significant amounts of money.

Husband spent $25,000 of his inheritance on a failed run for political office and deposited

another $5000 into K.T.’s college fund. The remaining $20,000, which Husband received

about two years before the Final Decree, was commingled in the joint account for six

                                                18
months—an account into which the parties deposited their salaries and from which they paid

their joint bills. Viewing the evidence as a whole, we cannot say that the trial court abused

its discretion in finding that nothing in the record had rebutted the presumption that an equal

distribution of the marital estate was appropriate.

        II. Retroactive Modification of Child Support and Healthcare Expenses

       In its July 2011 Provisional Order, the trial court ordered Husband to pay $53 per

week in child support and ordered Wife to maintain health insurance coverage for K.T. Wife

did not petition to modify those provisions before the Final Decree was issued in June 2012.

In finding 46 of the Final Decree, the trial court ordered Husband to pay $155 per week in

child support, “with the first payment due and payable on January 6, 2012”—more than six

months before the Final Decree was issued. Appellant’s App. at 16. In finding 50, the trial

court also ordered that as of January 1, 2012—again, more than six months before the Final

Decree was issued—Wife was to be responsible for the payment of the first $1089

       of uninsured medical, dental, optical, pharmaceutical, orthodontia, counseling
       and therapy expense for [K.T.] each year, and thereafter, [Wife] shall be
       responsible for the payment of fifty-nine percent (59%) and [Husband] shall be
       responsible for the payment of forty-one percent (41%) of the aforesaid
       uninsured health care expenses for [K.T.] each year.

Id. at 17.

       Husband argues that the trial court exceeded its statutory authority by ordering a

retroactive increase in his child support obligation and contribution toward uninsured




                                              19
healthcare expenses.5 Husband contends that, because the Provisional Order addressed both

child support and healthcare expenses, and Wife never petitioned to modify those expenses

before the Final Decree, the trial court’s authority in the Final Decree was limited to setting

Husband’s obligations as to those expenses from the date of the Final Decree and beyond.

We agree.

        Indiana Code Section 31-15-4-14 states, “A provisional order terminates when: (1)

the final decree is entered subject to right of appeal; or (2) the petition for dissolution or legal

separation is dismissed.”          Indiana Code Section 31-15-4-15 states, “The terms of a

provisional order may be revoked or modified before the final decree on a showing of the

facts appropriate to revocation or modification.” It logically follows, then, that the terms of a

provisional order may not be revoked or modified before the final decree unless such a

showing is made. Here, the practical effect of findings 46 and 50 of the Final Decree was to

modify the terms of the Provisional Order as to child support and healthcare expenses, even

though Wife made no request for such, much less a showing of the facts appropriate to such

modifications before the hearing on the Final Decree.6 As such, we conclude that the trial

court exceeded its statutory authority in ordering a retroactive increase of Husband’s child




        5
         We note that Husband does not claim that the trial court abused its discretion in calculating his child
support obligation.
        6
           We note that “court ordered modifications normally speak only prospectively.” Talarico v.
Smithson, 579 N.E.2d 671, 673 (Ind. Ct. App. 1991). “The modification of a support obligation may only
relate back to the date the petition to modify was filed, and not an earlier date, subject to two exceptions not
applicable here.” Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009). Again, Wife filed no petition to modify
here.

                                                      20
support and healthcare expenses in the Final Decree. Therefore, we reverse and remand with

instructions to amend the Final Decree accordingly.

                                III. Husband’s Attorney Fees

       Husband also contends that the trial court abused its discretion in denying his petition

for attorney fees. We review a trial court’s decision on attorney fees in connection with a

dissolution decree for an abuse of discretion. Hartley, 862 N.E.2d at 286.

       Pursuant to Indiana Code Section 31-15-10-1, a trial court may order a party in a

marriage dissolution proceeding to pay a reasonable amount of the attorney fees of the other

party. “When making such an award, the court must consider the resources of the parties,

their economic condition, the ability of the parties to engage in gainful employment and to

earn adequate income and other factors that bear on the reasonableness of the award.”

Hendricks v. Hendricks, 784 N.E.2d 1024, 1028 (Ind. Ct. App. 2003). “Consideration of

these factors promotes the legislative purpose behind the award of attorney fees, which is to

insure that a party in a dissolution proceeding, who would not otherwise be able to afford an

attorney, is able to retain representation. Hartley, 862 N.E.2d at 286-87. “‘When one party

is in a superior position to pay fees over the other party, an award of attorney fees is proper.’”

Id. at 287 (quoting Ratliff v. Ratliff, 804 N.E.2d 237, 249 (Ind. Ct. App. 2004)). Here, the

trial court identified the parties’ incomes as an aspect of its Final Decree—Husband’s weekly

gross income was $1715, and Wife’s was $2510. Appellant’s App. at 25. The trial court

divided the marital estate equally. Because the parties’ resources are relatively on par with

each other, the only basis for an award of attorney fees would have been the improper actions

                                               21
of one party necessitating the incurrence of attorney fees by the other party. See Hendricks,

784 N.E.2d at 1028 (stating that misconduct that directly results in additional litigation

expenses may be properly taken into account in trial court’s decision to award attorney fees).

        Husband contends that Wife engaged in the following misconduct: (1) selling her

fifty-percent share in the Firm in direct violation of a temporary restraining order; (2) cashing

out her Scottrade IRA in the amount of $53,486; and (3) refusing to let Husband have any

involvement in her “initial response to Anthem’s coverage denial or her decision to issue a

check for $46,200.00 to pre-pay for K.T.’s treatment.”7 Appellant’s Br. at 37. As such,

Husband argues that the trial court abused its discretion when it denied his request for

attorney fees.

        We disagree. First, the trial court found that Wife’s sale of her interest in the Firm

was an arm’s-length business transaction, which occurred eleven months before the instant

filing and did not result in dissipation of marital assets. Second, Husband was not affected

by Wife cashing out the Scottrade IRA account because the parties agreed that the account

was worth $53,486, and the trial court granted that asset to Wife as part of her share of the

marital estate. Finally, the trial court ordered Wife to “provide health insurance for the

parties’ minor child through employment.” Appellant’s App. at 18. Wife was not engaging

in misconduct when she dealt with her own health insurance company. The issues raised by



        7
           Husband also cites to Wife’s misconduct in claiming that she has a right to some of his inheritance
when that claim “contradict[s] the expressed intent of her former clients,” the Leers. Appellant’s Br. at 37-38.
 In light of our finding that the inheritance was properly deemed to be a divisible marital asset, we find this
argument unpersuasive.

                                                      22
Husband are not examples of Wife engaging in misconduct. The trial court did not abuse its

discretion when it denied Husband’s petition for attorney fees.

                           IV. Issues Without Trial Court Ruling

       Finally, Husband contends that the trial court failed to rule upon two issues. First, he

claims that the trial court erred when it did not order Wife to reimburse him for her share of

K.T.’s private school expenses—an obligation that was included in the Provisional Order.

The Provisional Order provided in pertinent part as follows:

       12.     …. The parties are ordered to continue sharing equal responsibility for
               payment of their child’s attendance at [the private school], the same to
               include tuition, books, fees, extra-curricular activities, and other
               reasonable and related school expenses.

Id. at 42-43. Wife admits that the trial court did not address Husband’s request in its Final

Decree. Appellee’s Br. at 28.

       “The duration of provisional support orders is committed to the sound discretion of

the trial court.” Moore v. Moore, 695 N.E.2d 1004, 1009 (Ind. Ct. App. 1998). However,

there is no indication in the record that the trial court in this instance intended anything other

than that its Provisional Order should terminate upon entry of the final decree. As such, we

remand to the trial court so that it may amend its Final Decree to include an order directing

Wife to pay Husband that amount, which, together with her prior payments, results in the

parties having shared “equal responsibility” for the payment of K.T.’s private school.

       Second, Husband contends that the trial court did not address two healthcare issues:

whether Husband should be allowed to intervene in Wife’s appeal of Anthem’s denial of


                                               23
coverage for residential treatment of K.T.’s eating disorder; and the allocation between

Husband and Wife of any non-reimbursed healthcare expenses. As to Husband’s first

concern, the Anthem coverage belonged to Wife. Wife testified that she intended to process

the administrative appeal of the Anthem denial and to hire an attorney to pursue the claim.

Because Husband did not have a right to pursue the claim, the trial court did not abuse its

discretion in failing to rule on this issue, which left the administrative appeal in the hands of

Wife. Because Wife is responsible for the first $1089 of annual uninsured health care and for

59.4% of all uninsured expenses that rise about that amount, Wife has as much incentive as

Husband, if not more, to successfully appeal the Anthem denial.

       Husband also contends that, notwithstanding extensive arguments on the issue, the

trial court failed to rule on each party’s obligation regarding the healthcare expenses that

Anthem denied. We find that the trial court adequately addressed the payment of these

expenses in finding 50 of the Final Decree, which is quoted in section II of this opinion, as

well as in the following finding:

       80.    The order entered at Paragraph 50 herein includes [K.T.]’s treatment at
              the Eating Recovery Center and travel expenses (airline and lodging)
              for [K.T., Wife, and Husband] with respect to K.T.’s treatment. As
              noted at Paragraph 50, this is a family problem and requires a family
              resolution. The attendance and participation by [Wife] and [Husband]
              at the Eating Recovery Center along with the education and information
              provided to [Wife] and [Husband] are important components to
              [K.T.]’s recovery.

Appellant’s App. at 23-24.




                                               24
                                   V. Joint Legal Custody

       On cross-appeal, Wife asserts that the trial court erred in awarding the parties joint

legal custody of K.T. “‘Joint legal custody’ … 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. “In an initial custody determination there is no presumption favoring either

parent.” Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008) (citing Ind. Code §

31-17-2-8).

       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 § 31-17-2-13. And an award of joint legal custody does not require an
       equal division of physical custody of the child. Ind. Code § 31-17-2-14.

Id. (emphasis added).

       Child custody determinations fall squarely within the discretion of the dissolution

court and will not be disturbed except for an abuse of discretion. Blasius v. Wilhoff, 863

N.E.2d 1223, 1229 (Ind. Ct. App. 2007), trans. denied. “The trial court is in a position to see

the parties, observe their conduct and demeanor, and hear their testimony; therefore, its

decision receives considerable deference in an appellate court.” Trost-Steffen v. Steffen, 772

N.E.2d 500, 509 (Ind. Ct. App. 2002), trans. denied. We will not reverse the trial court’s

decision unless it is against the logic and effect of the facts and circumstances before it or the

reasonable inferences drawn therefrom. Id. “On review, we will not reweigh evidence,




                                               25
judge the credibility of the witnesses, or substitute our judgment for that of the trial court.”

Farag v. DeLawter, 743 N.E.2d 366, 368 (Ind. Ct. App. 2001).

       Indiana Code Section 31-17-2-15 addresses the matters a court must consider in

determining whether to award the parties joint legal custody:

              In determining whether an award of joint legal custody … would be in
       the best interest of the child, the court shall consider it a matter of primary, but
       not determinative, importance that the persons awarded joint custody have
       agreed to an award of joint legal custody. The court shall also consider:

              (1) the fitness and suitability of each of the persons awarded joint
              custody;
              (2) whether the persons awarded joint 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 custody;
              (5) whether the persons awarded joint custody:
                      (A) live in close proximity to each other; and
                      (B) plan to continue to do so; and
              (6) the nature of the physical and emotional environment in the home of
              each of the persons awarded joint custody.

“Therefore, trial courts must consider ‘whether the parents have the ability to work together

for the best interests of their children.’” Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct.

App. 2008) (quoting Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004)).

       After presiding over a four-day hearing, which was transcribed in an eight-hundred-

eleven-page transcript, the trial court made the following pertinent findings:

       5.     [K.T.] received treatment at the Eating Recovery Center … from
              January 18, 2012 to March 21, 2012.



                                               26
6.    [K.T.] suffers from anorexia nervosa and major depressive disorder
      (Exhibit 38).

7.    [K.T.] has been involved in counseling since age seven (7) for
      behavioral issues.

8.    [K.T.] has been diagnosed in the past with oppositional defiance
      disorder. It has also been suggested that [K.T.] may have some form of
      sensory integration disorder (Exhibit L).

9.    [K.T.]’s behaviors include violent outbursts and tantrums, panic
      attacks, self-mutilation, binging and purging.

10.   [K.T.]’s violent outbursts include attempts to assault [Wife] and
      [Husband]. There have been no reports that [K.T.] has attempted to
      assault anyone other than her parents.

11.   [K.T.] is an intelligent child, but [K.T.]’s intelligence does not
      necessarily correlate with rational thinking and emotional maturity.

12.   The divorce process for [Wife] and [Husband] began in May of 2010,
      and has taken a toll on [Wife], [Husband], and [K.T.].

13.   [Wife] and [Husband] have different parenting styles. [Wife] tends to
      be lenient and [Husband] tends to be a disciplinarian. [K.T.] needs
      structure and consistency from her parents.

14.   There have been times when [Wife] and [Husband] have been able to
      cooperate and work together for the benefit of [K.T.]. Examples
      include cooperation and assistance following [Wife]’s automobile
      accident, the selection of Brooke Farrington as a therapist for [K.T.],
      the selection of the Eating Recovery Center for [K.T.]’s treatment, and
      agreement by [Wife] and [Husband] regarding extra-curricular
      activities for [K.T.].

15.   There have been times when [Wife] and [Husband] have not cooperated
      and communicated effectively for the benefit of [K.T.] (Exhibits 5, 7, 8,
      13, 25, 26, G, H and R).




                                     27
16.   [Wife] has provided [K.T.] with too much information regarding the
      parties’ divorce and allowing [sic] [K.T.] to have too much
      involvement (Exhibit 18).

17.   [Husband’s] communication with [K.T.] regarding parenting time and
      her cat have caused [K.T.] emotional distress (Exhibits 7, 10, 11, 13
      and 39).

18.   The entire process of her parents’ divorce has been very stressful for
      [K.T.], and stress is frequently a trigger for someone with an eating
      disorder.

19.   [Wife] and [Husband] both love [K.T.] and want what is best for her.
      Unfortunately, for a multitude of reasons, [Wife] and [Husband] have
      not always acted in [K.T.]’s best interest, individually and collectively.

20.   [K.T.] is twelve (12) years old and [Wife] and [Husband] will be
      parenting [K.T.] for many more years. [K.T.]’s physical and mental
      health issues are very serious and potentially life threatening.

21.   Granting [Wife] or [Husband] sole legal custody of [K.T.] is not in her
      best interest. What is in [K.T.]’s best interest is two (2) parents
      working together in a consistent and unified manner. This requires a
      sharing of information and joint decisions regarding [K.T.]’s care,
      treatment and overall upbringing.

22.   Despite their differences, [Wife] and [Husband] share a common goal
      of helping [K.T.] mature and grow into a functioning, happy, and
      responsible person.

23.   [Wife] and [Husband] are granted joint legal custody of [K.T.].

24.   [Wife] is granted primary physical custody of [K.T.].

25.   At this time parenting time between [Husband] and [K.T.] will
      endanger her physical health or significantly impair her emotional
      development.

26.   [Husband] has acknowledged that parenting time with [K.T.] is not in
      her best interest at this time. [Husband] is prepared and willing to work


                                      28
             with mental health professionals to facilitate parenting time and his
             relationship with [K.T.].

      27.    [Husband] is granted parenting time with [K.T.] consistent with the
             recommendations of her treating therapists and psychiatrist. [Wife] is
             ordered to be cooperative and supportive of [Husband]’s parenting time
             with [K.T.].

      28.    Either party may request a Status Hearing regarding parenting time.

      29.    The Court has seriously considered ordering [Wife] and [Husband] to
             participate in classes for high conflict parents at Family Connections or
             Right Relations. The Court has also given serious consideration to
             ordering [Wife] and [Husband] to participate in individual and joint
             counseling along with therapeutic parenting time for [Husband] and
             [K.T.].

      30.    [Wife] and [Husband] need support, assistance and guidance in their
             co-parenting of [K.T.].

      31.    The Court finds that it is necessary and appropriate to appoint a
             Parenting Coordinator to provide support, assistance, and guidance for
             [Wife] and [Husband] in co-parenting [K.T.]. The Court further finds
             that the appointment of a Parenting Coordinator is in [K.T.]’s best
             interest. In Re: the Paternity of C.H., 936 N.E.2d 1270 (Ind. App.
             2010)[, trans. denied (2011)].

Appellant’s App. at 11-18.

      Notably, Wife does not challenge the factual correctness of any of the trial court’s

findings. Rather, she contends that they militate toward the conclusion that she should be

awarded sole legal custody of K.T. We have said that

      [o]rders of joint custody will not be reversed unless the court is attempting to
      impose an intolerable situation upon the parties. If the parties demonstrate a
      willingness and ability to communicate concerning the child, then joint custody
      is appropriate even against the wishes of one parent. However, if the parties
      have made child-rearing a battleground, then joint custody is not appropriate.


                                            29
Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995) (citations omitted),

trans. denied (1996).

       Although Husband and Wife’s relationship is currently strained and K.T.’s

psychological condition is currently precarious, we do not believe that the trial court is

attempting to impose an “intolerable situation upon the parties” in awarding joint legal

custody here. The trial court found that Husband and Wife have occasionally been able to

cooperate for K.T.’s benefit, such as in making joint decisions regarding K.T.’s therapy and

treatment and extracurricular activities. Moreover, Husband asserts, and Wife does not

dispute, that he had never “unreasonably refused to consent to: 1) a health care provider for

their daughter; 2) a change in her schooling; or 3) change in her religious upbringing.”

Appellant’s Reply Br. at 34. Some of these decisions may have been reached only after tense

exchanges or extended negotiations between the parties, but such may be the case even in

intact family situations. Wife highlights the areas and instances of conflict between the

parties, but the fact remains that the trial court had some evidentiary basis for concluding that

they could cooperate in making major decisions concerning K.T.’s upbringing, such that

awarding joint legal custody would be in her best interest.

       Wife also emphasizes that she currently has primary physical custody of K.T. and that

the trial court found that parenting time between Husband and K.T. “will endanger her health

or significantly impair her emotional development.” We note, however, that Husband has

acknowledged this and that the trial court has prescribed certain measures for monitoring and



                                               30
remedying this situation, which may ultimately lead to Husband’s reconciliation with K.T.8

Also, we reiterate that an award of joint legal custody does not require an equal division of

physical custody. Ind. Code § 31-17-2-14. Wife does not challenge the trial court’s finding

that she and Husband “share a common goal of helping [K.T.] mature and grow into a

functioning, happy, and responsible person.” The trial court was in the best position to assess

whether awarding the parties joint legal custody is in K.T.’s best interest, and we will not

second-guess that determination on appeal.

                                       VI. Wife’s Attorney Fees

        Finally, Wife contends that the “complete absence of merit to each and every aspect of

[Husband’s] appellate effort” warrants the assessment of appellate attorney fees pursuant to

Indiana Appellate Rule 66(E).9 Appellee’s Br. at 40.

                Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he Court
        may assess damages if an appeal … is frivolous or in bad faith. Damages shall
        be in the Court’s discretion and may include attorney fees.” Our discretion to
        award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to
        instances when an appeal is permeated with meritlessness, bad faith, frivolity,
        harassment, vexatiousness, or purpose of delay. Additionally, while Indiana
        Appellate Rule 66(E) provides this Court with discretionary authority to award
        damages on appeal, we must use extreme restraint when exercising this power
        because of the potential chilling effect upon the exercise of the right to appeal.



        8
          Wife does not dispute the trial court’s finding that she provided K.T. with too much information
regarding the divorce and allowed her to have too much involvement. We remind Wife that “[a] parent may
not sow seeds of discord and reap improved custody rights.” Pierce v. Pierce, 620 N.E.2d 726, 731 (Ind. Ct.
App. 1993), trans. denied (1994).
        9
          In the alternative, Wife asks us to remand this issue to the trial court for an award of appellate
attorney fees under Indiana Code Section 31-15-10-1. Following the same reasoning used in section III above
to deny Husband’s request for attorney fees, we deny Wife’s request for attorney fees pursuant to Indiana Code
Section 31-15-10-1.

                                                     31
Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003) (citations omitted). “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.” Ballaban v. Bloomington

Jewish Cmty., Inc., 982 N.E.2d 329, 340 (Ind. Ct. App. 2013).

       Wife contends that Husband’s pro se appeal required that she either represent herself

or retain counsel and incur attorney fees. Wife also contends that Husband has failed to

identify any legal support for his contentions, has repeatedly asked this court to reweigh the

evidence, and has shown complete disregard for the trial court’s specific findings on the

relevant issues as well as the testimony from the final hearings as a whole. Appellee’s Br. at

40. Contrary to Wife’s assertion, Husband has provided ample legal support for his

arguments and in fact has prevailed on two of them. Husband’s remaining arguments may

lack legal merit, but we cannot say that they are frivolous or made in bad faith. Accordingly,

we deny Wife’s request for attorney fees.

                                        Conclusion

       We reverse the trial court’s retroactive modification of Husband’s child support and

healthcare expenses and remand with instructions to amend the Final Decree accordingly.

On remand, the trial court shall also amend the Final Decree to include an order directing

Wife to reimburse Husband for her share of K.T.’s private school expenses pursuant to the

Provisional Order. In all other respects, we affirm the trial court.




                                             32
      Affirmed in part, reversed in part, and remanded.

BROWN, J., concurs.

KIRSCH, J., concurs in part and dissents in part with separate opinion.




                                            33
                              IN THE
                    COURT OF APPEALS OF INDIANA

PHILLIP J. TROYER,                                 )
                                                   )
       Appellant/Cross-Appellee-Respondent,        )
                                                   )
              vs.                                  )     No. 02A03-1207-DR-319
                                                   )
TRACY L. TROYER,                                   )
                                                   )
       Appellee/Cross-Appellant-Petitioner.        )


KIRSCH, Judge, concurring in part and dissenting in part.

       I concur with my colleagues in Parts I, II, III, IV, and VI of the majority opinion. I

respectfully dissent, however, from Part V regarding the order for joint custody.

       The trial court, here, was correct that the best interest of K.T. would be served by “two

parents working together in a consistent and unified manner.” Appellant’s App. at 13.

Indeed, a similar statement could be made in every marital dissolution case involving

children. There is nothing in the record before us, however, that reveals that the trial court’s

statement was supported by the evidence or was a realistic expectation. Rather, the record

repeatedly demonstrates that these parents cannot currently work together in such a manner.

       Putting a child in jeopardy based only on the hope that her parents can work together

is not in the child’s best interest and, indeed, could lead to significant harm.




                                              34
       Here, the trial court: determined, and Husband agreed, that no parenting time should

be currently allocated to Husband because that would “endanger” K.T.’s physical health or

significantly impair her emotional development; “seriously considered” ordering parents to

participate in classes for “high conflict parents” and in individual and joint counseling;

considered therapeutic parenting time; and appointed a Parenting Coordinator to provide

support, assistance, and guidance. Given these very real and very serious concerns, it was

error to order joint custody.

       Moreover, following the dissolution, Husband filed a grievance with the Indiana

Supreme Court Disciplinary Commission against Wife ensuring that the adversarial nature of

his relationship with the Wife will be continued.

       Appellate courts are reluctant to reverse a trial court’s grant of joint legal custody. We

will do so, however, when “‘the joint custody award constitutes an imposition of an

intolerable situation upon two persons who have made child rearing a battleground.’”

Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008) (quoting Aylward v.

Aylward, 592 N.E.2d 1247, 1251 (Ind. Ct. App. 1992)). Nothing in the record before us and

none of the trial court’s findings support the conclusion that, at the present time, these two

parents can work together in a consistent and unified manner. I would reverse the trial

court’s decision to grant parents joint legal custody, and I respectfully dissent from Part V of

the majority opinion.




                                              35
