MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Jun 29 2018, 6:04 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 APPELLEE
Theodore J. Minch                                        Margaret M. Christensen
Sovich Minch, LLP                                        Bingham Greenebaum Doll LLP
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark A. Roesler,                                         June 29, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         73A01-1708-DR-1926
        v.                                               Appeal from the Shelby Circuit
                                                         Court
Amy S. (Roesler) Riesmeyer,                              The Honorable Jennifer K.
Appellee-Petitioner                                      Kinsley, Magistrate
                                                         The Honorable Charles D.
                                                         O’Connor, Judge
                                                         Trial Court Cause No.
                                                         73C01-9809-DR-71



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018           Page 1 of 8
[1]   Mark A. Roesler (“Father”) appeals the trial court’s denial of his verified

      petition for educational and other expenses. He argues the trial court erred

      when it determined it lacked authority pursuant to Indiana Code section 31-16-

      6-6 (2012) to issue an order for post-secondary educational expenses because

      Father’s petition was untimely. Amy S. (Roesler) Riesmeyer (“Mother”) argues

      the court did not err when it so decided, and she requests we award appellate

      attorney fees. We dismiss this appeal and remand for the court to calculate an

      award of appellate attorney fees for Mother.



                            Facts and Procedural History
[2]   Mother and Father married in 1986. Three children were born of the marriage.

      The marriage was dissolved in 2001 by agreement. The dissolution decree

      provided for support and custody of the three then-minor children, but was

      silent regarding post-secondary expenses for the children.


[3]   On October 29, 2012, Father filed a verified petition to recognize emancipation

      and to modify child support, which sought to emancipate their two older

      children and modify Father’s child support accordingly. On August 18, 2014,

      the parties filed an agreed entry emancipating their two older children and

      modifying Father’s child support to an amount solely for the support of the

      youngest child, J.R. The court approved that agreed entry and entered an order

      (hereinafter, “2014 Order”) that in relevant part provided:


              D. Mother and Father, by this Agreed Entry, agree to resolve all
              pending issues and issues discussed between the parties

      Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018   Page 2 of 8
              (excepting college expense allocation, which is expressly reserved
              for future review), including but not limited to past child support,
              payment of child support through the date of [J.R.’s]
              emancipation (May 30, 2016), private high school costs, and
              property settlement payments.


                                                   *****


              7. [J.R.’s] College Expenses. The parties defer addressing the
              issue of payment of [J.R.’s] college expenses to a later date.


      (Appellant’s App. Vol. II at 43 & 46.) 1


[4]   On June 9, 2016, Father filed a verified petition asking the court to recognize

      J.R.’s emancipation and terminate child support. Father’s request did not

      address J.R.’s post-secondary education expenses. The trial court granted

      Father’s petition the same day (“2016 Order”).


[5]   On November 19, 2016, Father filed a verified petition for educational and

      other related expenses. Father’s petition acknowledged the trial court’s 2016

      Order and stated J.R. was enrolled in post-secondary education at the

      University of Southern California and was participating in a study-abroad

      program as a full-time student effective Fall 2016. Father asked the trial court




      1
       The pages in Appellant’s Appendix are not numbered as required by Indiana Appellate Rule 51(C). This
      oversight has hampered our review of the facts of this case.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018         Page 3 of 8
      to determine Mother’s obligation for J.R.’s educational expenses and other

      special related expenses totaling at least $65,000.


[6]   On December 22, 2016, Mother filed a motion to dismiss Father’s petition

      pursuant to Indiana Trial Rule 12(H)(2). Mother argued the trial court lacked

      authority to issue an order for educational support. On the same day, Mother

      also filed a motion for attorney’s fees.


[7]   Mother filed a brief supporting her motion to dismiss on April 19, 2017. Father

      responded thereafter and the trial court held a hearing on Father’s petition on

      July 7, 2017. On July 28, 2017, the trial court denied Father’s petition, finding

      it lacked authority to issue an order allocating post-secondary educational

      expenses. The trial court’s order did not address Mother’s request for attorney’s

      fees.



                                 Discussion and Decision
                                                  Jurisdiction

[8]   Our authority to exercise appellate jurisdiction is generally limited to appeals

      from final judgments, certain interlocutory orders, and agency decisions. Ind.

      Appellate Rule 5. A judgment is final if:


              (1) it disposes of all claims as to all parties;


              (2) the trial court in writing expressly determines under Trial
              Rule 54(B) or Trial Rule 56(C) that there is no just reason for
              delay and in writing expressly directs the entry of judgment (i)

      Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018   Page 4 of 8
                under Trial Rule 54(B) as to fewer than all the claims or parties,
                or (ii) under Trial Rule 56(C) as to fewer than all the issues,
                claims or parties;


                (3) it is deemed final under Trial Rule 60(C);


                (4) it is a ruling on either a mandatory or permissive Motion to
                Correct Error which was timely filed under Trial Rule 59 or
                Criminal Rule 16; or


                (5) it is otherwise deemed final by law.


      Ind. App. R. 2(H). Whether an order is a final judgment governs our subject

      matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003), reh’g

      denied.


                Neither the parties nor the trial court can confer appellate
                jurisdiction over an order that is not appealable either as a final
                judgment or under Trial Rule 54(B). To the contrary, the lack of
                appellate jurisdiction can be raised at any time, and if the parties
                do not question subject matter jurisdiction, the appellate court
                may consider the issue sua sponte.


      Id.


[9]   Here, the trial court’s order denied Father’s petition for educational and other

      expenses but does not address Mother’s petition for attorney’s fees. Thus, it

      does not dispose of “all claims” between the parties as required by Indiana

      Appellate Rule 2(H)(1). See Clark v. Atkins, 489 N.E.2d 90, 99 (Ind. Ct. App.

      1986) (trial court’s order was not final order because it did not fully address


      Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018   Page 5 of 8
       issue of attorney’s fees), reh’g denied, trans. denied, overruled on other grounds by

       Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008). The order also does not

       contain language pursuant to Indiana Trial Rule 54(B) or Indiana Trial Rule

       56(C) directing the entry of judgment as to fewer than all the issues.

       Additionally, the order was not deemed final for the purposes of relief from the

       judgment pursuant to Indiana Trial Rule 60(C), it is not a ruling on a timely-

       filed mandatory or permissive motion to correct error under Indiana Trial Rule

       59, and has not been otherwise deemed final by law. Therefore, we lack subject

       matter jurisdiction and cannot entertain Father’s challenge of the trial court’s

       order.


                                          Appellate Attorney’s Fees

[10]   In her cross-appeal, Mother requests appellate attorney’s fees pursuant to

       Indiana Appellate Rule 66(E), which states in relevant part: “The Court may

       assess damages if an appeal, petition, or motion, or response, is frivolous or in

       bad faith. Damages shall be in the Court’s discretion and may include

       attorneys’ fees.” An award of appellate attorney’s fees pursuant to Indiana

       Appellate Rulle 66(E) is discretionary and may be ordered when an appeal is

       “replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or

       purpose of delay.” Trost–Steffan v. Steffan, 772 N.E.2d 500, 514 (Ind. Ct. App.

       2002), reh’g denied. In awarding these fees we must use extreme restraint

       because of the potential chilling effect on the exercise of the right to appeal. Id.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018   Page 6 of 8
[11]   There are two types of bad faith that permit appellate attorney fees -

       “substantive” and “procedural.” Wressell v. R.L. Turner Corp., 988 N.E.2d 289,

       299 (Ind. Ct. App. 2013), reh’g denied.


               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 facts appearing in the record, and files briefs
               written in a manner calculated to require the maximum
               expenditure of time both by the opposing party and the reviewing
               court. Even if the appellant’s conduct falls short of that which is
               “deliberate or by design,” procedural bad faith can still be found.


       Id. (quoting Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003))

       (citations omitted).


[12]   Here, Father filed an appeal from an order that was not a final judgment, which

       required us to dismiss the appeal without addressing the merits of his argument

       challenging the trial court’s decision, such that his arguments are devoid of

       plausibility due to our lack of jurisdiction. In addition, Father’s appendices

       have no page numbers, which makes review of and citation to the record

       difficult. While these substantive and procedural missteps do not rise to a level

       that would justify appellate sanctions, they are an unnecessary drain on not

       only our judicial resources, but also Mother’s resources. Therefore, we remand

       for the trial court to determine an appropriate award of appellate attorney’s fees

       to cover the costs Mother incurred defending this appeal. See In re Walter Penner


       Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018   Page 7 of 8
       Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014) (awarding appellee Trust

       appellate attorney’s fees based on appellant’s procedural violations), trans.

       denied.



                                               Conclusion
[13]   Because the trial court’s order denying Father’s petition for educational and

       other expenses is not a final appealable order, we dismiss. We remand to the

       trial court for determination of appropriate appellate attorney’s fees to be paid

       to Mother by Father.


[14]   Dismissed and remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018   Page 8 of 8
