MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                              May 09 2018, 7:01 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          CLERK
                                                                               Indiana Supreme Court
court except for the purpose of establishing                                      Court of Appeals
                                                                                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Curtis E. Shirley                                        J. Lamont Harris
Indianapolis, Indiana                                    Henthorn, Harris, Weliever &
                                                         Petrie
                                                         Crawfordsville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Kliman,                                           May 9, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         54A01-1710-TR-2272
        v.                                               Appeal from the Montgomery
                                                         Superior Court
Mutual Wealth Management                                 The Honorable Heather L. Barajas,
Group, Trustee; Marjorie L.                              Judge
Kliman; Christine E. Kliman;                             Trial Court Cause No.
and Carol L. Kliman,                                     54D01-1512-TR-58
Appellees-Respondents.



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018               Page 1 of 20
                                        Statement of the Case
[1]   Andrew Kliman appeals the trial court’s denial of his petition to compel trust

      distributions from the Stephen H. Kliman Irrevocable Trust (“the Trust”),

      which is managed by Mutual Wealth Management Group (“the Trustee”). 1

      Andrew raises the following four issues for our review, which we restate as the

      following three issues:


              1.    Whether the trial court erred when it approved the
              Trustee’s accounting.


              2.     Whether the trial court erred when it rejected Andrew’s
              numerous requests to compel the distribution of funds from the
              Trust’s principal.


              3.    Whether the trial court erred when it concluded that
              Andrew’s petition to compel trust distributions was frivolous,
              unreasonable, or groundless.


      The Trust raises the following additional issue for our review:


              4.       Whether the Trust is entitled to appellate attorney’s fees.


[2]   We affirm the trial court’s judgment, and we decline to award appellate

      attorney’s fees to the Trust.




      1
        Marjorie L. Kliman, Christine E. Kliman, and Carol L. Kliman, other beneficiaries of the Trust and named
      respondents, do not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018            Page 2 of 20
                                  Facts and Procedural History2
[3]   In January of 2002, Dr. Stephen H. Kliman (“Dr. Kliman” or “Settlor”)

      established the Trust with the Trustee. According to the relevant language of

      the Trust Agreement:


                                                  ARTICLE V


                                                 Marital Trust


              Section 5.1. If the Settlor’s Spouse Survives. If the Settlor’s
              spouse, Marjorie L. Kliman, survives the Settlor, the Trustee
              shall hold the Trust Property as follows:


                      Clause 5.1(a). The Trustee shall invest and reinvest the
              Trust property and shall collect the income therefrom and shall
              pay the entire net income therefrom the Settlor’s spouse during
              her lifetime in convenient period installments, not less frequently
              than quarterly.


                      Clause 5.1(b). In addition, whenever the Trustee determines
              that the income of the Settlor’s spouse from all sources known to the
              Trustee is not sufficient for her reasonable support, maintenance, health
              and education . . . or the reasonable support, maintenance, health and
              education . . . of the Settlor’s descendants, then the Trustee in its
              discretion may pay or use for the benefit of the Settlor’s spouse or one or
              more of the Settlor’s descendants so much of the principal of the Trust as
              the Trustee determines to be required for those purposes. In determining
              the amount of income or principal to be so disbursed, the Trustee shall




      2
       The Statement of Facts in Andrew’s brief on appeal is not consistent with our standard of review. See Ind.
      Appellate Rule 46(A)(6)(b).

      Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018              Page 3 of 20
        take into consideration any other income or property which the
        beneficiary may have from any other source; and the Trustee’s decision
        shall be conclusive as to the advisability of any such disbursements. For
        all sums so disbursed, the Trustee shall have full acquittance.


                                               ***


              Clause 5.1(e). Upon the death of the Settlor’s spouse, the
        balance of the Trust Property shall be held and administered
        pursuant to the terms of the Family Trust.


                                               ***


                                         ARTICLE VI


                                         Family Trust


        Upon the death of the survivor of the Settlor and the Settlor’s
        spouse, the Trustee shall divide the Trust Property into separate
        equal shares, with one share for the benefit of each of the
        Settlor’s three (3) children, namely, Andrew S. Kliman, Christine
        E. Kliman and Carol Lynn Kliman, hereinafter referred to as
        “Settlor’s child(ren).” Should any of the Settlor’s children die
        prior to the creation of the Family Trust, leaving surviving
        descendants, that child’s separate share of the Family Trust shall
        be held for the collective benefit of that child’s descendants . . . .
        The Trustee shall invest and reinvest each separate share and
        collect income therefrom which total amount shall be
        administered in accordance with the following terms and
        conditions.


        Section 6.1. Shares Created for Children of the Settlor. The
        Trustee shall invest and reinvest each separate share created for
        the benefit of the children of the Settlor and collect income

Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 4 of 20
        therefrom which total amount shall be administered with the
        following terms and conditions:


               Clause 6.1(a). Health, Education, Maintenance and
        Support. Until the Settlor’s child attains the age of twenty-five
        (25) years, the Trustee shall distribute for the benefit of the
        Settlor’s child so much of the principal and income of her
        separate share as the Trustee determines to be necessary or
        convenient for the child’s health, education . . . , maintenance
        and support, after taking into consideration the child’s means
        from other sources, adding any excess income to the principal.


                Clause 6.1(b). Income Distributions. After the child
        attains the age of twenty-five (25) and for the remaining term of
        this Trust, the Trustee shall invest and reinvest that child’s
        remaining share and shall collect the income therefrom and pay
        the entire net income of that child’s share of the trust to her not
        less frequently than annually.


                                               ***


               Clause 6.1(d). First Wedding. When and if the Settlor’s
        child becomes engaged to be married for the first time, the
        Trustee shall distribute the sum of [$10,000] . . . in order to pay
        the expenses of the child’s first wedding.


                                               ***


               Clause 6.1(f). Mandatory Principal Distributions. The
        Trustee shall distribute, outright, in fee, to Settlor’s child their
        share of the Trust Property as follows:




Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 5 of 20
                1.       One-third (1/3) of the child’s share of the Trust
                         Property after the child attains the age of forty (40)
                         years.


                2.       One-half (1/2) of the child’s share of the Trust
                         Property after the child attains the age of forty-five
                         (45) years.


                3.       The entire remainder of the child’s share of the
                         Trust Property after the child attains the age of fifty-
                         five (55) years.


                                               ***


                                         ARTICLE IX


                                  Administration of Trust


        Section 9.1. Intent of Trusts. It is the Settlor’s intention that the
        Trustee attempt to act in the manner that the Settlor would in
        determining whether or not to make distributions under the
        provisions of this Trust. It is the Settlor’s intention that the
        beneficiaries of these trusts not depend on any distributions to defray his
        or her normal living expenses. Therefore, it is Settlor’s wish (but not
        direction) that the Trustee limit distributions to a particular
        beneficiary unless such beneficiary is (1) pursuing a course of
        study which should lead to gainful employment; (2) gainfully
        employed or actively seeking gainful employment; (3) not
        employed to care for a child; (4) otherwise managing to support
        herself or himself in a legal manner without reliance on this
        Trust; or (5) unable because of particular circumstances, such as
        age or physical or mental impairment or incapacity to support
        herself or himself. . . .



Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 6 of 20
                                               ARTICLE XI


                                       Miscellaneous Provisions


                                                     ***


              Section 11.2. Construction. The primary purpose of this
              instrument is to provide for the income beneficiary(ies) and the
              rights and interest of remaindermen are subordinate to that
              purpose. The provisions of this instrument shall be construed
              liberally in the interests of and for the benefit of the income
              beneficiaries.


      Appellant’s App. Vol. 2 at 78-81, 86, 92 (italics added; bold and underlines in

      original).


[4]   Andrew is Dr. Kliman’s oldest child and is the only child of Dr. Kliman’s first

      marriage, which was to a woman other than Marjorie. Andrew has attended

      several post-secondary schools, but he has no degree. He attended and

      completed a culinary program and worked as a sous chef for a few months, but

      he then abandoned that career path. Andrew’s employment has not been stable

      during his adulthood, and he currently stays at home with his two children

      because he does not believe he can obtain employment that will justify the cost

      of daycare. Andrew has been twice convicted of operating a vehicle while

      intoxicated.




      Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 7 of 20
[5]   Dr. Kliman died in late 2010 and was survived by Marjorie, Andrew, and

      Andrew’s two half-sisters, Christine and Carol. Between May of 20113 and

      September of 2016 the Trustee made at least twenty-eight discretionary

      distributions to Andrew from the Trust’s principal pursuant to Clause 5.1(b) of

      the Trust Agreement. One of those distributions was $15,000 for the purchase

      of a Jeep Cherokee, which Andrew purchased but then sold a few months later

      for $10,000. In addition to those twenty-eight distributions, the Trustee made

      regular distributions to Andrew to assist him with shortfalls in his budgeted

      monthly living expenses. In total, the Trustee’s discretionary distributions to

      Andrew exceeded $168,000.


[6]   Nonetheless, in December of 2015 Andrew filed a petition to compel Trust

      distributions with the trial court. According to Andrew, the Trustee abused its

      discretion when it declined fifty-five additional distribution requests in a total

      amount of about $92,000. Andrew further sought to have the court compel the

      Trustee to pay him $3,500 per month for his rent and other bills. Andrew’s

      fifty-five challenges included disbursement requests for which he had no

      supporting documentation, requests that he had not previously submitted to the

      Trustee, requests to be reimbursed for expenses he later admitted he had never

      incurred, requests for disbursements that the Trustee had in fact already paid to

      him, and a request for $10,000 for his first marriage pursuant to Clause 6.1(d) of




      3
        Andrew turned twenty-five in 2007 and will turn forty in 2022, at which time the Trust’s mandatory
      distributions will begin.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018             Page 8 of 20
      the Trust Agreement, even though in his subsequent testimony Andrew

      acknowledged that that provision is not in effect during Marjorie’s lifetime. Tr.

      at 69-70.


[7]   The trial court held an evidentiary hearing in October of 2016 on Andrew’s

      motion to compel. Shortly before that hearing, the Trustee filed an accounting

      with the court, and the court directed Andrew to file any objections to the

      accounting, aside from those that formed the basis of his motion to compel,

      within thirty days. Thereafter, Andrew filed a statement with the court in

      which he conceded that he had no objection to the Trustee’s accounting aside

      from those heard at the October 2016 evidentiary hearing.


[8]   In September of 2017, the trial court entered judgment for the Trust on

      Andrew’s motion to compel. The trial court’s judgment addressed and rejected

      Andrew’s numerous requests to compel distributions out of the Trust’s

      principal. Specifically, the trial court found that the vast majority of Andrew’s

      requests were never formally made to the Trustee or had already been paid by

      the Trustee.4 The court also found that several of Andrew’s requests to the

      Trustee were not supported by invoices or other evidence to show that Andrew

      had actually incurred or was going to incur the costs for which he had sought a

      distribution.5 The court also agreed with the Trustee that the Trustee’s




      4
        Twenty-nine of the trial court’s findings reference at least one of these two grounds, though those twenty-
      nine findings cover substantially more than twenty-nine of Andrew’s requests.
      5
          Six of the trial court’s findings reference this basis for denying Andrew’s requests.


      Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018                Page 9 of 20
      distribution decisions were supported by the plain language of Clause 5.1(b) of

      the Trust Agreement.6 Following its assessment of Andrew’s requests, the court

      found that Andrew’s motion to compel was frivolous, unreasonable, or

      groundless, and the court ordered Andrew to pay the Trust’s attorney’s fees.

      The court then approved the Trustee’s accounting. This appeal ensued.


                                       Discussion and Decision
                                               Standard of Review

[9]   Andrew appeals the trial court’s judgment in which the court entered findings

      of fact and conclusions thereon after an evidentiary hearing. We review such

      judgments under our clearly erroneous standard. Findings are clearly erroneous

      if there are no facts to support them; a judgment is clearly erroneous if it is not

      supported by the findings. E.g., E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018).

      We will not reweigh the evidence or assess the credibility of witnesses on

      appeal. Id. Rather, we will examine only the evidence in the light most

      favorable to the trial court’s decision. Id. Insofar as this appeal requires the

      interpretation of a written trust agreement, we review such documents de novo

      and interpret them in accordance with the Settlor’s intent. Fulp v. Gilliland, 988

      N.E.2d 204, 207 (Ind. 2013).




      6
        Several of the court’s findings against Andrew stated multiple reasons in support of the Trustee’s
      distribution decisions. For example, Finding 39(A) states that Andrew failed to formally request from the
      Trustee a distribution to cover certain legal expenses but that, even if Andrew had made such a request, “[a]
      bill for legal services . . . would not have been an item of support, maintenance, health or education for
      Andrew within the meaning of Clause 5.1(b) . . . .” Appellant’s App. Vol. 2 at 15.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018               Page 10 of 20
[10]   Further, at least with respect to the trial court’s denial of Andrew’s motion to

       compel, Andrew appeals from a negative judgment. As our Supreme Court has

       stated:


                 We will reverse a negative judgment only if it is contrary to
                 law—meaning the evidence leads to but one conclusion and the
                 trial court reached an opposite conclusion. We consider the
                 evidence in the light most favorable to the prevailing party and
                 do not reweigh the evidence or judge witness credibility. A party
                 appealing from a negative judgment has a heavy burden to
                 establish there was no basis in fact for the judgment rendered.


       Hurley v. State, 75 N.E.3d 1074, 1077 (Ind. 2017) (citations, omission, and

       quotation marks omitted).


                          Issue One: Approval of the Trustee’s Accounting

[11]   In his brief’s Statement of the Issues, Summary of the Argument, and

       Conclusion, Andrew asserts that the trial court erred when it approved the

       Trustee’s accounting because, in doing so, the court stated that “no beneficiary

       has filed any objections” to the accounting. See Appellant’s App. Vol. 2 at 7.

       But Andrew makes no argument on this issue in the argument section of his

       brief. Thus, he has not preserved this issue for our review. See Ind. Appellate

       Rule 46(A)(8).


[12]   Andrew’s waiver notwithstanding, Andrew made clear to the trial court that he

       had no objections to the Trustee’s accounting aside from the distribution issues

       he had raised at the October 2016 hearing. See Appellant’s App. Vol. 3 at 103.

       And the court entered a thorough, fifteen-page judgment supported by findings

       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 11 of 20
       and conclusions on each of Andrew’s challenges presented at that hearing,

       which the court entered on the same day it approved the Trustee’s accounting.

       There is no error on this purported issue.


                                       Issue Two: Trust Distributions

[13]   Andrew next asserts that the trial court erred when it entered judgment for the

       Trust on his numerous challenges to the Trustee’s distribution decisions. “The

       words ‘support’ and ‘maintenance’ are synonymous and their meaning is not

       limited to the bare necessities of life.” Carlson v. Sweeney, Dabagia, Donoghue,

       Thorne, Janes & Pagos, 868 N.E.2d 4, 12 (Ind. Ct. App. 2007) (quotation marks

       and alteration omitted) (quoting 26 C.F.R. 20.2041-1(c)(2)), summarily aff’d on

       this issue, 895 N.E.2d 1191, 1196 (Ind. 2008).7 According to Clause 5.1(b) of the

       Trust Agreement, during Marjorie’s lifetime,


               whenever the Trustee determines that the income of the Settlor’s
               spouse from all sources known to the Trustee is not sufficient
               for . . . the reasonable support, maintenance, health and
               education (including trade or technical school, college,
               professional and graduate education) of the Settlor’s descendants,
               then the Trustee in its discretion may pay or use for the benefit of
               the Settlor’s spouse or one or more of the Settlor’s descendants so
               much of the principal of the Trust as the Trustee determines to be
               required for those purposes. In determining the amount of
               income or principal to be so disbursed, the Trustee shall take into
               consideration any other income or property which the beneficiary
               may have from any other source; and the Trustee’s decision shall



       7
        Both parties mistakenly assert that our Court’s opinion in Carlson was wholly vacated by our Supreme
       Court’s grant of transfer.

       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018           Page 12 of 20
               be conclusive as to the advisability of any such disbursements.
               For all sums so disbursed, the Trustee shall have full acquittance.


       Appellant’s App. Vol. 2 at 78-79.


[14]   Andrew’s arguments on appeal are not well taken. He first baldly asserts that

       “[a]ll of [his] requests fall under the definition of support, maintenance, health,

       and education” and, as such, “[t]he trial court clearly erred in finding the

       Trustee did not abuse its discretion.” Appellant’s Br. at 27. Andrew’s assertion

       is not an argument supported by cogent reasoning. See App. R. 46(A)(8)(a).


[15]   Similarly, Andrew asserts that “[s]ometimes the Trustee would make the

       distributions, sometimes not,” and that the Trustee’s insistence on formal

       requests and receipts was a “smoke screen” because such formality “was no

       longer an issue” after he had “filed his petition with the trial court” and

       discovery had occurred. Appellant’s Br. at 27-28. Andrew’s assessment that

       the Trustee would sometimes not require a formal request appears to be based

       on the Trustee’s distributions to him to assist with budget shortfalls, but those

       distributions were based on projected budgets for which the Trustee had

       documentation. Andrew’s further argument that it is proper for him to make an

       initial distribution request by way of a motion to compel in the trial court is not

       supported by citation to authority or cogent reasoning. See App. R. 46(A)(8)(a).


[16]   Andrew asserts that his testimony with respect to what the Settlor would have

       wanted should control over the language of the Trust Agreement. Appellant’s




       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 13 of 20
       Br. at 28. Andrew’s position is not supported by citation to authority or cogent

       reasoning. See App. R. 46(A)(8)(a).


[17]   Andrew argues that the Trustee abused its discretion by not equalizing

       payments between the beneficiaries. But Andrew does not demonstrate where

       he made that argument to the trial court. See id. Further, Andrew’s argument

       does not address the Trust’s plain language under Article V, which is the Article

       in effect during Marjorie’s lifetime. In other words, Andrew’s argument is not

       supported by citations or cogent reasoning. See id.


[18]   Andrew next asserts that Section 9.1 permits the Trustee to make distributions

       to him if he is unemployed in order to care for a child. But at no point did the

       Trustee testify that it had declined a distribution request under this provision,

       and neither did the trial court rely on that language in entering judgment for the

       Trust. Andrew’s argument under Section 9.1 is not supported by cogent

       reasoning. See id.


[19]   Following the above litany of meritless assertions, Andrew turns to what he

       later describes as the core of his argument on appeal, namely, the trial court’s

       denial of his motion with respect to his request for CPR training, a headboard,

       and a footboard. Although Andrew seems to suggest that he is challenging the

       standard used by the trial court in determining these issues and not the facts

       themselves, the substance of Andrew’s actual argument here is less clear.

       Insofar as Andrew is challenging the evidence underlying the trial court’s

       judgment with respect to the CPR training, we note that Andrew wholly omits


       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 14 of 20
       the trial court’s finding that Andrew never actually incurred nor was going to

       incur any costs for CPR training and, as such, there was nothing to reimburse.

       We affirm the trial court’s judgment with respect to the denial of a distribution

       for CPR training.


[20]   With respect to the headboard and footboard, the trial court found as follows:

       “On July 19, 2011, Andrew requested $1,749.45 for a mattress, box springs,

       headboard and footboard. The Trustee approved only the mattress and box

       springs for $1,199.95 as a support and maintenance item, and [it] considered the

       headboard and footboard to be excessive.” Appellant’s App. Vol. 2 at 17.

       According to Andrew:


               This item illustrates what Andrew has had to deal with since
               2010. . . . Picture a room with a mattress and box springs only.
               No headboard and no footboard. Looks like a dorm room for a
               single 19-year old college student. Not many married couples
               with three children live like this. Trustees should not have
               discretion to require it.


       Appellant’s Br. at 32. Andrew’s argument with respect to the headboard and

       footboard in no way addresses our standard of review, the evidence in support

       of the trial court’s judgment, or the plain language of the Trust Agreement. As

       such, we do not consider it further. See App. R. 46(A)(8)(a).


[21]   Andrew next asserts that he is entitled to a $10,000 distribution for his first

       marriage pursuant to Clause 6.1(d). But Andrew ignores both his own

       testimony in the trial court that Clause 6.1 is not currently in effect and the

       plain language of the Trust Agreement that demonstrates that Article VI is not
       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 15 of 20
       in effect during Marjorie’s lifetime. Rather, on appeal Andrew insists that,

       because he testified that his father would have paid for the marriage if he were

       still alive, the plain language of Articles V and VI should be disregarded.

       Andrew’s argument again disregards our standard of review and the plain

       language of the Trust Agreement. See id.


[22]   After taking a piecemeal approach to the trial court’s judgment, at the end of his

       brief Andrew states that he “does not assert that the trial court made 55

       mistakes in resolving the evidence.” Appellant’s Br. at 42. Rather, he

       continues, the trial court applied an “erroneous legal standard,” and in support

       of that argument Andrew suggests that the trial court’s judgment on his requests

       for CPR training, the headboard, and the footboard are representative examples

       of the court’s error. Id. at 42-43. Insofar as Andrew’s argument is that his own

       understanding of appropriate support, maintenance, health, and education costs

       should be controlling over the Trustee’s discretion, Andrew’s argument does

       not consider the plain language of the Trust Agreement, is not consistent with

       our standard of review, and is not supported by citations to relevant authority

       or cogent reasoning. See App. R. 46(A)(8)(a).


[23]   Moreover, Andrew’s apparent attempt to parlay his piecemeal arguments into a

       broader attack on the standard used by the trial court disregards the fact that the

       vast majority of the trial court’s findings against Andrew were not based on

       whether a particular request could have qualified for a distribution under

       Clause 5.1(b). Rather, the vast majority of the court’s findings were based on

       Andrew not having made a request for a distribution from the Trustee in the

       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 16 of 20
       first instance, Andrew having already been paid for a requested distribution, or

       Andrew not having incurred an expense to which a distribution might be

       applied. In other words, Andrew has wholly misunderstood the trial court’s

       judgment, and we reject his argument.


[24]   In sum, we affirm the trial court’s denial of Andrew’s motion to compel.


                     Issue Three: The Trial Court’s Award of Attorney’s Fees

[25]   Andrew next asserts not only that the trial court erred when it ordered him to

       pay the Trust’s attorney’s fees but that, in fact, he is the party to whom the trial

       court should have awarded attorney’s fees. Under the Indiana Code, a trial

       court may award attorney’s fees in a civil action if the court finds that a party

       brought the action on a claim that is frivolous, unreasonable, or groundless.

       Ind. Code § 34-52-1-1(b) (2017). As we have explained:


               A claim is frivolous


                       (a) if it is taken primarily for the purpose of
                       harassing or maliciously injuring a person, or (b) if
                       the lawyer is unable to make a good faith and
                       rational argument on the merits of the action, or (c)
                       if the lawyer is unable to support the action taken by
                       a good faith and rational argument for the
                       extension, modification, or reversal of existing law.


               Kopka, Landau & Pinkus v. Hansen, 874 N.E.2d 1065, 1074 (Ind.
               Ct. App. 2007) (quoting Kahn v. Cundiff, 533 N.E.2d 164, 170
               (Ind. Ct. App. 1989), summarily aff’d by 543 N.E.2d 627 (Ind.
               1989)). A claim is unreasonable if, based on a totality of the
               circumstances, including the law and facts known at the time of

       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 17 of 20
               the filing, no reasonable attorney would consider that the claim
               or defense was worthy of litigation or justified. Kopka at 1075
               (citing Kahn at 170-71). A claim is groundless if no facts exist
               which support the legal claim relied on and presented by the
               losing party. Kopka at 1075 (citing Kahn at 171). A claim or
               defense is not, however, groundless or frivolous merely because
               the party loses on the merits. Northern Elec. Co., Inc. v. Torma, 819
               N.E.2d 417, 431 (Ind. Ct. App. 2004) (citing Kahn, 533 N.E.2d at
               171), trans. denied.


       Smyth v. Hester, 901 N.E.2d 25, 33 (Ind. Ct. App. 2009) (emphasis in original),

       trans. denied.


[26]   Andrew first asserts that the trial court erred in ordering him to pay the Trust’s

       attorney’s fees because the court did not provide Andrew an opportunity to

       demonstrate an inability to pay those fees. This argument is not supported by

       citation to authority; indeed, the case law is clear that a trial court may order an

       award of attorney’s fees sua sponte and, thus, without inquiring into a party’s

       ability to pay. E.g., Davidson v. Boone Cty., 745 N.E.2d 895, 900 (Ind. Ct. App.

       2001). Andrew also asserts that his distribution requests were “the culmination

       of reasonable, prudent, conservative, and ordinary expenses every child would

       hope a parent pays for.” Appellant’s Br. at 39. This argument is not consistent

       with our standard of review and is not supported by cogent reasoning. See App.

       R. 46(A)(8)(a).


[27]   Andrew next asserts that the Trust should pay his attorney’s fees. We reject this

       argument without further discussion. We affirm the trial court’s award of

       attorney’s fees to the Trust.

       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 18 of 20
                                 Issue Four: Appellate Attorney’s Fees

[28]   Last, the Trust requests on appeal that we order an award of appellate

       attorney’s fees pursuant to Indiana Appellate Rule 66(E). As we have

       explained:


               Our discretion to award attorney fees under Indiana Appellate
               Rule 66(E) is limited . . . to instances when an appeal is
               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). While Indiana Appellate
               Rule 66(E) provides this court with the discretionary authority to
               award damages on appeal, we must use extreme restraint when
               exercising this power because of the potential chilling effect on
               the exercise of the right to appeal. Id. 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. In re Estate of Carnes, 866 N.E.2d 260,
               267 (Ind. Ct. App. 2007).


       Lamey v. Ziemer, Stayman, Weitzel & Shoulders, LLP (In re Lamey), 87 N.E.3d 512,

       527 (Ind. Ct. App. 2017). Further:


               Indiana appellate courts have formally categorized 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 relevant fact 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. Even if the appellant’s conduct falls short of

       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 19 of 20
               that which is “deliberate by design,” procedural bad faith can still
               be found.


       Landmark Legacy, LP v. Runkle, 81 N.E.3d 1107, 1119-20 (Ind. Ct. App 2017)

       (citations omitted).


[29]   While the Trust’s request for appellate attorney’s fees is reasonable, again, we

       consider such claims with “extreme restraint” so as to not create a “chilling

       effect on the exercise of the right to appeal.” Id. And we cannot say that

       Andrew’s arguments on appeal were “something more egregious” than “mere

       lack of merit,” or that they were otherwise utterly devoid of plausibility and the

       product of substantive bad faith. Id. As such, we decline to award the Trust

       appellate attorney’s fees under Appellate Rule 66(E).


                                                   Conclusion

[30]   In sum, we affirm the trial court’s approval of the Trustee’s accounting and the

       trial court’s denial of Andrew’s motion to compel. We decline to award

       appellate attorney’s fees to the Trust.


[31]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1710-TR-2272 | May 9, 2018   Page 20 of 20
