MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D), this                                    Jun 06 2019, 8:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                                 CLERK
                                                                               Indiana Supreme Court
purpose of establishing the defense of res judicata,                              Court of Appeals
                                                                                    and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
J. Kevin King                                             Julie A. Camden
Cline King & King, PC                                     Camden & Meridew, PC
Columbus, Indiana                                         Fishers, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Anthony C. Jennings,                                     June 6, 2019

Appellant-Respondent,                                    Court of Appeals Cause No.
                                                         18A-DC-2289
        v.                                               Appeal from the Hamilton Superior
                                                         Court

Tanya D. Gomez,                                          The Honorable Jonathan M. Brown,
                                                         Judge
Appellee-Petitioner.                                     The Honorable William Greenaway,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         29D02-0501-DR-77

Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019                    Page 1 of 25
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Anthony Jennings (Father), appeals the trial court’s Order

      in favor of the Appellee-Respondent, Tanya Gomez (Mother), on child support,

      post-secondary education expenses, attorney’s fees, and a finding of contempt

      against him.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                   ISSUES
[3]   Father presents four issues on appeal, which we restate as follows:


          (1) Whether the trial court abused its discretion by failing to consider a full

               or partial abatement for Father’s child support obligation when he was

               ordered to pay college expenses;


          (2) Whether the trial court erred by ordering Father to pay one-third of post-

               secondary education;


          (3) Whether the trial court erred by finding Father in contempt; and


          (4) Whether the trial court erred by ordering Father to pay Mother’s

               attorney’s fees and contempt fees.


                      FACTS AND PROCEDURAL HISTORY
[4]   Father and Mother married on August 10, 1997, and had two children together,

      A.J., born April 14, 1998, and E.J., born July 27, 2000, (collectively Children).

      On May 19, 2005, the parties entered into an Agreement of Settlement

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 2 of 25
      (Agreement) dissolving their marriage. The trial court adopted the agreement

      in its ensuing Decree of Dissolution.


[5]   Pursuant to the Agreement, Mother had legal and primary physical custody of

      the Children, and Father was afforded parenting time pursuant to the Indiana

      Child Support Guidelines (Guidelines). The child support obligation worksheet

      attached to the Agreement provided that Father’s and Mother’s weekly gross

      income was $630 and $794.75, respectively; Father was required to pay $226.45

      per week, less a $54.67 credit for parenting time for 98 overnights, for a total of

      $171.78 per week. Mother was required to pay the ﬁrst 6%, or $942, of

      uninsured medical costs incurred for the Children’s benefit every year. Any

      amounts in excess were to be shared between Father and Mother at respectively

      44%/56%, and Father was required to settle his portion of uninsured medical

      costs within seven days after Mother provided him with a bill and proof of

      insurance payment. In addition, the Agreement provided that the uninsured

      medical expenses would not carry over to the following year.


[6]   On April 29, 2016, Mother filed a petition to modify child support, arguing that

      “the current child support order is in an amount of child support that differs by

      more than twenty percent (20%) from the amount that would be ordered by

      applying the child support guidelines.” (Appellant’s App. Vol. II, p. 27). While

      the Agreement was silent as to the parties’ contribution to the Children’s post-

      secondary education expenses, Mother sought to establish an order for post-

      secondary education support for the Children’s benefit.



      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 3 of 25
[7]   On May 10, 2016, Mother sent an email to Father informing him that A.J.’s

      and E.J.’s braces had “been paid off.” (Appellant’s App. Vol. II, p. 55).

      Mother noted that she had paid $2,550 in 2014, $2,459.68 in 2015, and $2,305

      in 2016. Mother calculated that after taking out the initial 6% she was

      answerable for, Father owed her 44%, or $1,975.02. Father did not reimburse

      Mother that amount within seven days as directed by the Agreement.


[8]   On July 26, 2016, Father’s counsel wrote to Mother’s counsel, acknowledging

      Mother’s demand for the uninsured orthodontia costs. While Father’s counsel

      agreed with the quoted orthodontia expenses for 2014 and 2015, Father

      disputed the 2016 expenses, claiming that the correct amount due was

      $1,491.02 instead of $1,975.02. Father’s counsel then wrote


              [g]iven the fact [Mother] was able to make payments over the
              course of 2013, 2014, 2015, and 2016, [Father] desires to receive
              a similar payment plan for a shorter period of time. Again, had
              [Mother] informed [Father] of the expenses on a yearly basis, he
              could have made payment arrangements with the provider
              similar to those of [Mother]. Accordingly, [Father] proposes an
              initial payment of $51.02 (payable in August) followed by 24
              monthly payments of $60. Please advise if this is acceptable to
              [Mother].


      (Appellant’s App. Vol. II, p. 62). Although Mother did not respond to Father’s

      request, in August 2016, Father sent $51.02 to Mother, and thereafter he sent

      regular monthly money orders of $60. Father made a total 19 monthly

      payments to Mother from August 2016 through February 2018 amounting to

      $1,131.02. Mother cashed all payments.

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 4 of 25
[9]    On May 31, 2017, Mother filed a verified motion for contempt against Father,

       arguing that Father had violated the Agreement by not paying his share of

       uninsured orthodontia expenses. On July 18, 2017, Father filed a responsive

       brief arguing that Mother’s demand for reimbursement of the orthodontia

       expenses from 2014 through 2016 was untimely considering that the Agreement

       had provided that uninsured expenses should not carry over to the following

       year.


[10]   This matter was originally set for hearing on August 5, 2016; however, the

       parties appeared in person and by counsel and informed the trial court that the

       matter would take longer than the allocated fifteen minutes. Subsequently, the

       matter was heard on four separate dates: March 16, 2017, August 10, 2017,

       November 2, 2017, and March 8, 2018.


[11]   On June 27, 2018, the trial court issued an Order, modifying the child support

       order and reducing Father’s obligation to $135. Also, concluding that Father

       had the ability to contribute toward the Children’s college expenses, the trial

       court ordered Father to retroactively pay one-third of A.J.’s college expenses.

       Also, the trial court ordered Father to pay one-third of E.J.’s college expenses

       beginning Fall of 2018. The trial court then found Father in contempt for not

       paying his share of uninsured orthodontia expenses. Finally, the trial court

       ordered Father to pay $7,000 of Mother’s attorney’s fees and an additional

       $3,000 due to the contempt finding. Father later filed a motion to correct error,

       which was denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 5 of 25
[12]   Father now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                        I. Abatement of Child Support

[13]   Indiana Code section 31-16-6-2(b), the educational support statute, provides:


               If the court orders support for a child’s educational expenses at a
               postsecondary educational institution under subsection (a), the
               court shall reduce other child support for that child that: (1) is
               duplicated by the educational support order; and (2) would
               otherwise be paid to the custodial parent.


       We have held that requiring a trial court to consider full or partial abatement of

       a parent’s basic child support obligation when the parent is also obligated to pay

       college expenses, “avoids the duplication of payment for a single expense,

       resulting in a windfall to the custodial parent.” Borth v. Borth, 806 N.E.2d 866,

       871 (Ind. Ct. App. 2004). Failing to consider a full or partial abatement

       constitutes an abuse of discretion. In re Marriage of Tearman, 617 N.E.2d 974,

       977 (Ind. Ct. App. 1993).


[14]   The parties’ Agreement was silent as to the parties’ contribution to the

       Children’s post-secondary educational expenses. In 2016, Mother filed a

       petition to require Father to pay a portion of A.J.’s college expenses. Evidence

       was presented that in the Fall of 2016, A.J. enrolled in a nursing program at

       Purdue University and lived on campus during the school year. Mother

       submitted evidence that A.J.’s annual educational expenses, which includes

       tuition, books, room and board, amounted to $23,000. Mother and A.J.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 6 of 25
       testified that they each contributed about one-third toward those expenses.

       Father had never paid any of A.J.’s post-secondary expenses.


[15]   The 2018 Order directed Father to retroactively pay one-third of A.J.’s college

       expenses for her freshman and sophomore years. Father was to either obtain a

       loan and reimburse one-third to Mother, or in the alternative, Father would be

       liable for two-thirds of A.J.’s junior and senior college expenses. On appeal, it

       appears that Father has elected the first option, and he contends that when the

       trial court ordered him “to pay both support and retroactive post-secondary

       educational expenses relative to [A.J.], the [trial] court should have considered

       full or partial abatement” since he was also paying child support. (Appellant’s

       Br. p. 18).


[16]   We agree with Father that the trial court’s 2018 Order did not address the issue

       of full or partial abatement of Father’s child support obligation during A.J.’s on-

       campus residence during her first two years of college. This was error. See In re

       Marriage of Tearman, 617 N.E.2d at 977. Thus, we remand this case to the trial

       court and instruct the court to recompute Father’s child support obligation for

       the time when A.J. was actually away attending college on campus, and to

       include either a full or partial abatement of child support during such times.


                                           II. E.J.’s College Expenses

[17]   Father argues that the trial court erred in ordering him to pay one-third of E.J.’s

       college expenses for a four-year undergraduate engineering program at Purdue

       University.


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 7 of 25
[18]   Indiana Code section 31-16-6-2 establishes the trial court’s authority to enter an

       educational support order for the payment of a child’s college expenses. In so

       doing, the trial court must consider the child’s aptitude and ability, the child’s

       ability to contribute to the educational expenses, and the ability of each parent

       to meet these expenses. Id. Even where the parents’ statutory duty to support

       their child has ceased, an educational support order may extend past or be

       imposed after the child reaches the age of nineteen. I.C. § 31-16-6-6(a).


[19]   Indiana Child Support Guideline 8(b) provides in relevant part that the trial

       court “should consider post-secondary education to be a group effort and weigh

       the ability of each parent to contribute to payment of the expense, as well as the

       ability of the student to pay a portion of the expense.” Further, absent an

       evidentiary justification in the record and a finding by the trial court that a

       proportional obligation would be unfair, the apportionment of educational

       expenses between the parents should be roughly proportional to their share of

       income. See In re Paternity of Pickett, 44 N.E.3d 756, 765 (Ind. Ct. App. 2015).


[20]   When reviewing an order for the apportionment of college expenses, we do not

       reweigh the evidence or determine the credibility of witnesses. Winslow v. Fifer,

       969 N.E.2d 1087, 1092 (Ind. Ct. App. 2012), trans. denied. We consider only

       the evidence most favorable to the judgment and will affirm unless the trial

       court's order is clearly erroneous. Id. A decision is clearly erroneous if it is

       clearly against the logic and effect of the facts and circumstances before the trial

       court. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 8 of 25
[21]   The 2018 Order directed Father to “timely pay [one-third] of [E.J.’s] college

       education beginning this fall for up to four years.” (Appellant’s App. Vol. II, p.

       12). The bulk of Father’s argument on appeal is that there “was no evidence

       submitted regarding the costs of [E.J.] attending college, what percentage of

       costs should be borne by [E.J.], and what type of financial aid he could be

       expected to receive.” (Appellant’s Br. p. 14). In response, Mother argues, in

       part, that


               [t]he record contained extensive evidence as to the costs of
               attending Purdue University. There is nothing in the record to
               suggest that the cost for E.J. to attend Purdue would be
               materially different than A.J.’s costs. A.J. and E.J. have the
               same parents and the same parental resources. They are
               attending the same college at substantially similar times, and that
               college was in the midst of a years-long tuition freeze. It was
               reasonable for the trial court to conclude, based on the evidence
               in the record, that E.J.’s costs and expenses will be substantially
               the same as his sister’s.


       (Appellee’s Br. p. 10).


[22]   Turning to the record, while Mother sought an order to set up post-secondary

       education costs for the Children’s benefit, it appears that the focus at the

       evidentiary hearing was A.J.’s college expenses, A.J.’s ability to contribute

       toward her own college costs, as well as Father’s ability to contribute toward

       those expenses. For instance, Mother presented several exhibits showing that

       the annual educational cost for an undergraduate degree at Purdue University is

       $23,032 per year. Additional evidence was presented that A.J. contributes to

       about one-third of her college expenses through employment and student loans.
       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 9 of 25
       Father then testified that he had never paid for A.J.’s college costs, but he was

       comfortable contributing about $3,300 toward A.J.’s yearly college costs.


[23]   Mother testified that while E.J. was not enrolled in college, he would be starting

       Purdue University in the Fall of 2018 for engineering. Arguing that there was

       sufficient evidence relating to the cost of E.J.’s tuition costs and other related

       educational expenses, Mother relies on Exhibit 15, which showed that the

       average cost for any undergraduate degree at Purdue is $23,032. The exhibit

       also showed that some programs, including engineering, had an additional fee

       of $2,050. Based on that exhibit, E.J.’s annual college cost is $25,082. Mother

       also relies on her testimony that she was willing to contribute one-third of E.J.’s

       college expenses. There was no testimony as to how much Father was prepared

       to pay toward E.J.’s college costs.


[24]   In Knisely v. Forte, 875 N.E.2d 335 (Ind. Ct. App. 2007), we found that the trial

       court had erred by apportioning the payment of college expenses solely between

       the parents absent any findings or conclusions on the child’s obligation or

       ability to obtain student loans. Although there are findings in the record

       regarding the estimated cost of attending an engineering program at Purdue

       University, and that Mother was willing to contribute one third of E.J.’s

       educational costs, similar to Knisely, the record and the 2018 Order fail to

       indicate what percentage of the cost should be borne by E.J. through

       scholarships, grants, student loans, summer and school year employment, and

       other cost-reducing programs available to E.J. That fact alone makes the trial

       court’s current Order inadequate. See Carr v. Carr, 600 N.E.2d 943, 946 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 10 of 25
       1992) (reversing trial court’s post-secondary education expense order where it

       did not place any responsibility on the student to actually seek grants, loans, or

       employment). See also Quinn v. Threlkel, 858 N.E.2d 665, 671-72 (Ind. Ct. App.

       2006) (where we held that a trial court’s order for payment of college expenses

       was inadequate where it placed no requirement on the child to apply for

       financial aid of any kind).


[25]   With these observations, we reverse that part of the 2018 Order requiring

       Father to pay one-third of E.J.’s college costs and according to Knisely, remand

       is necessary for clarification and further consideration of E.J.’s post-secondary

       education expenses.


                                                  III. Contempt

[26]   Father argues that the trial court erred by finding him in contempt for failing to

       pay his share of uninsured orthodontia expenses within seven days. In the

       instant case, Father and Mother voluntarily entered into a settlement

       agreement, which the trial court approved and incorporated into the dissolution

       decree that included the following language:


               [Mother] shall be responsible for the first $942 of uninsured
               medical, [expenses] incurred each year. These expenses shall not
               carry over to the next year. In the event such uninsured medical
               expenses exceed $942 per year, the parties shall pay the
               remaining uninsured on a 44%/56% ([Father/Mother]) basis.
               Father shall pay his share of uninsured medical expenses within
               [seven] days after a copy of the bill and proof of insurance
               payment is provided to him.



       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 11 of 25
       (Appellant’s App. Vol. II, p. 33). In its Order finding Father in contempt, the

       trial court found that Father had willfully disobeyed the Agreement when he

       failed to pay his share of uninsured orthodontia expenses within 7 days when

       Mother presented him with the bill in May 2016. On appeal, Father contends

       that the above provision was ambiguous and, therefore, he could not be held in

       contempt for not abiding by it.


[27]   Whether a person is in contempt of a court order is a matter left to the trial

       court’s discretion. Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App.

       1999), trans. denied. When reviewing a contempt order, we will neither reweigh

       the evidence nor judge the credibility of witnesses, and unless after a review of

       the entire record we have a firm and definite belief a mistake has been made by

       the trial court, the trial court’s judgment will be affirmed. Piercey v. Piercey, 727

       N.E.2d 26, 31-32 (Ind. Ct. App. 2000). “In order to be punished for contempt

       of a court’s order, there must be an order commanding the accused to do or

       refrain from doing something.” Id. at 32 (citing Adler v. Adler, 713 N.E.2d 348,

       354 (Ind. Ct. App. 1999)). To hold a party in contempt for a violation of a

       court order, the trial court must find that the party acted with “willful

       disobedience.” Id.


[28]   All orders contained within a dissolution of marriage decree may be enforced

       by contempt. Ind. Code § 31-15-7-10. When dissolving a marriage, parties are

       free to negotiate their own settlement agreements and may incorporate those

       into a dissolution decree. I.C. § 31-15-2-17. Such agreements are contractual in

       nature, and once incorporated into a trial court’s final order, the agreements

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 12 of 25
       become binding on both parties. Whittaker v. Whittaker, 44 N.E.3d 716, 719

       (Ind. Ct. App. 2015). Thus, the terms of a settlement agreement will be given

       their plain and ordinary meaning unless they are ambiguous. Id. Where the

       terms are clear and unambiguous, we do not construe the agreement or look to

       extrinsic evidence. Id. Terms are ambiguous “only when reasonably intelligent

       persons would honestly differ as to the meaning of those terms.” Schmidt v.

       Schmidt, 812 N.E.2d 1074, 1080 (Ind. Ct. App. 2004) (citation omitted). When

       interpreting a settlement agreement, our goal is to determine the intent of the

       parties when they entered into it. In re the Paternity of G.G.B.W., 80 N.E.3d 264,

       270 (Ind. Ct. App. 2017), trans. denied. As with any other contract, interpreting

       a settlement agreement presents a question of law that we will review de novo.

       Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008).


[29]   As stated, the Agreement provided that Mother was responsible for the first

       $942 of uninsured medical expenses incurred each year. The Agreement also

       provided that the expenses shall not carry over to the succeeding year, and in

       the event the uninsured medical expenses exceed $942 per year, Father and

       Mother were to split the balance on a 44%/56% basis. Father was to pay his

       44% share of uninsured medical expenses within seven days after Mother

       presented him a bill. The provision was silent as to whether Mother should

       present to Father a paid or unpaid medical bill.


[30]   The record shows that on May 10, 2016, Mother sent an email to Father

       informing him that A.J.’s and E.J.’s braces had “been paid off.” (Appellant’s

       App. Vol. II, p. 55). Mother noted that she had paid $2,550 in 2014, $2,459.68

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 13 of 25
       in 2015, and $2,305 in 2016. Mother added that after subtracting the first 6%,

       or $942, she was answerable for, Father owed her 44%, or $1,975.02. Father

       did not pay Mother within seven days. Instead, Father enlisted the help of his

       lawyer, and he corresponded with Mother and her attorney about a payment

       plan. Father proposed a first payment of $51.02 in August 2016, and later

       payments of $60 from September 2016. Although Mother did not acquiesce to

       Father’s proposal, Mother did not reject the payments either and Mother

       cashed them. In May 2017, Mother filed a contempt petition against Father for

       failing to pay the orthodontia expenses. Although Mother acknowledged that

       Father had been making regular $60 payments for several months, Mother

       argued that she had never agreed to the Father’s proposal and Father’s

       payments were contrary to the Agreement. We note that before the entry of the

       2018 Order, Father had made nineteen payments toward his orthodontia

       arrearage totaling $1,131.02.


[31]   At the contempt hearing, Mother testified that she did not believe that she was

       required to give Father an accrued medical bill every calendar year, rather, she

       understood the proviso meant that she had to “pay the balance . . . in full,” and

       then request reimbursement from Father within seven days. (Tr. Vol. II, p.

       107). Contrary to Mother’s assertion, Father opined that Mother was required

       to present uninsured medical bills sustained every year. Thus, relying on the

       requirement that uninsured medical expenses incurred for the benefit of the

       Children shall not carry over to the following year, Father posited that he could

       not be held in contempt for not refunding the orthodontia expenses incurred


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 14 of 25
       from 2014 through 2016 within seven days since Mother’s demand in May 2016

       was belated.


[32]   Notwithstanding the diverse views that the parties hold regarding whether

       Mother should have presented a paid medical bill before seeking reimbursement

       from Father or whether Mother was required to present accrued bills every year

       to Father, we emphasize that our focus on an appeal to a contempt order is

       whether a party willfully disobeyed an order of the court. With that said, we

       find that the stipulation directing Father to pay uninsured medical bills in seven

       days was straightforward. Mother’s failure to provide Father with a paid or an

       accrued bill every year, did not create an ambiguity; instead, it invited Father to

       file a cross-motion for contempt or seek clarification of the Agreement.

       Ignoring the provision of the settlement agreement was not an acceptable

       substitute. See City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005) (holding

       that a party acts at their peril in applying their subjective interpretation to the

       order of the court); see also, Carson v. Ross, 509 N.E.2d 239, 243 (Ind. Ct. App.

       1987), trans. denied.


[33]   We add that “[c]rucial to the determination of contempt is the evaluation of a

       person’s state of mind, that is, whether the alleged contemptuous conduct was

       done willfully. The determination of whether to find a party in contempt

       permits the trial court to consider matters which may not, or in fact cannot, be

       reflected in the written record. The trial court possesses unique knowledge of

       the parties before it and is in the best position to determine how to maintain its

       ‘authority, justice, and dignity’ and whether a party’s disobedience of the order

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 15 of 25
       was done willfully.” Witt v. Jay Petroleum, 964 N.E.2d 198, 202-03 (Ind. 2012)

       (quotations omitted).


[34]   The intent of the parties at the time the 2005 Agreement was entered into was

       to have Father pay a portion of the Children’s uninsured medical expenses

       within seven days when Mother presented him with a bill. Father was aware of

       his court-ordered obligation, instead, Father unilaterally decided to make

       monthly payments of $60 to Mother, which Mother cashed. Father argues that

       he could not have afforded to settle the whole medical bill within seven days.

       Although it is facially appealing that Father made regular payments to Mother,

       it was not consistent with the Agreement. In fact, Father admitted at trial that

       he could have applied for a loan to pay for his share of orthodontia expenses

       but did not try to do so. In the Order finding Father in contempt, the trial court

       determined that Father had the ability to pay for his share of uninsured medical

       bills but noted that Father had willfully decided to spend his money on his dogs

       by putting them in daycare and going to TopGolf.


[35]   Here, we conclude that the provision as to the parties’ obligation to pay a share

       of uninsured medical expenses unambiguously required Father to settle the bills

       within seven days. Thus, we conclude that his failure to do so warranted the

       trial court’s contempt determination.


                                               IV. Attorney’s Fees

[36]   Father argues that he was not in contempt of court for not reimbursing Mother

       his percentage of uninsured medical expenses, therefore, he concludes the


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 16 of 25
       $3,000 attorney’s fee award was unjustified. Once a party is found in contempt,

       the trial court has “the inherent authority to compensate the aggrieved party for

       losses and damages resulting from another’s contemptuous actions.” Adler v.

       Adler, 713 N.E.2d 348, 355 (Ind. Ct. App. 1999) (citing Crowl v. Berryhill, 678

       N.E.2d 828, 832 (Ind. Ct. App. 1997)). Because we affirmed the trial court’s

       contempt finding against Father, we conclude that the trial court did not err in

       awarding attorney fees in favor of Mother.


[37]   Next, Father argues that the trial court erred by ordering him to pay an

       additional $7,000 toward Mother’s attorney’s fees, and he additionally contends

       that Mother “failed to put forth any evidence” to support that award.

       (Appellant’s Br. p. 29). In the Order directing Father to pay Mother’s

       attorney’s fees, the trial court determined as follows:


               59. Under Indiana Code [section] 31-15-10-1, a court may order
               a party to pay the other party’s fees for maintaining or defending
               a proceeding, and may order those fees directly payable to the
               attorney.


               60. Father sent out four (4) sets of requests for production, and
               more than ten (10) non-party requests for production, and
               interrogatories.


               61. Mother was required to respond or seek a protective order,
               both of which increased fees.


               62. This was not necessary for a rather simple matter.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 17 of 25
               63. There have also been numerous/hours of litigation over this
               simple matter, primarily spent with Father asking the same
               questions numerous times.


               64. Mother has incurred legal fees as a result of Father’s
               litigation tactics.


               65. As a coercive measure to ensure that Father is encouraged to
               follow the Orders of this [c]ourt, the [c]ourt orders Father to pay
               $7,000.00 of Mother’s attorney[] fees in addition to the $3,000 of
               attorney’s fees for Father’s contemptuous behavior.


       (Appellant’s App. Vol. II, pp. 23-24). The trial court heard testimony of

       Father’s litigation tactics which were aggressive and costly to defend against.

       Thus, the trial court’s award of attorney’s fees is not clearly against the facts

       and circumstances that were before it and is therefore not an abuse of

       discretion.


[38]   Father then argues that the trial court erred by awarding the $7,000 attorney’s

       fees to Mother. The trial court has broad discretion in assessing attorney’s fees

       in dissolution cases. In re Marriage of Lewis, 638 N.E.2d 859, 861 (Ind. Ct. App.

       1994). When making an award of attorney’s fees in a marriage dissolution

       case, the trial 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 such other factors that bear on the reasonableness of the

       award. Id. Misconduct that directly results in additional litigation expenses

       may properly be taken into account in the trial court’s decision to award

       attorney’s fees in the context of a dissolution proceeding. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 18 of 25
[39]   In the instant case, the record reveals that Father’s and Mother’s income was

       relatively similar. However, the parties’ financial condition is only one factor to

       be considered by the trial court when considering an award of attorney’s fees.

       As noted above, the court may also consider a party’s misconduct which results

       in additional litigation expenses for the other. Here, the record is replete with

       evidence that Father created significantly more discovery and litigation than

       was necessary to resolve a simple matter. Mother was required to respond or

       seek protective orders for each of these excessive discovery requests. As a result

       of Father’s tactics, Mother incurred unnecessary attorney’s fees. Given the fact

       that the trial court was in the best position to judge Father’s demeanor, the

       veracity of his claims and his financial resources, we cannot conclude that the

       trial court abused its discretion in awarding Mother’s attorney’s fees.


[40]   To the extent that Father argues that the record had insufficient evidence for the

       trial court to award Mother her attorney’s fees, we find this argument

       unavailing. Mother’s attorney testified she has been practicing approximately

       eleven years; her fee for Mother’s case was $250.00 per hour and that fee was

       usual and customary; and that her total fee in Mother’s case was approximately

       $10,000. Father’s counsel had the opportunity to cross-examine her as to those

       fees and did so at great length. Considering the nature and time involved with

       the litigation in this case, evidence that Mother’s attorney’s fees were usual and

       customary, and Mother’s attorney’s description of the work performed, the trial

       court had enough evidence in the record to base its award of attorney fees.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 19 of 25
[41]   In light of the foregoing, we hold that the trial court did not abuse its discretion

       when it ordered Father to pay Mother’s attorney’s fees.


                                             CONCLUSION
[42]   In light of the foregoing, we conclude the trial court did not abuse its discretion

       in finding Father in contempt for failing to timely pay his share of orthodontia

       expenses. Also, we hold that the trial court did not abuse its discretion by

       ordering Father to pay $7,000 of Mother’s attorney’s fees and an additional

       $3,000 due to the contempt finding. However, we reverse the part of the 2018

       Order requiring Father to pay one-third of E.J.’s college costs and remand for

       further proceedings. Also, we are further remanding this cause to the trial court

       to recompute Father’s child support obligation for the time when A.J. was away

       attending college on campus, and to include either a full or partial abatement of

       child support during such times.


[43]   Affirmed in part, reversed in part, and remanded with instructions.


[44]   Bailey, J. concurs in part and dissents in part with separate opinion


[45]   Pyle, J. concurs in part and dissents in part with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 20 of 25
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Anthony C. Jennings,                                     Court of Appeals Case No.
                                                                18A-DC-2289
       Appellant-Respondent,

               v.

       Tanya D. Gomez,
       Appellee-Petitioner.




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


[46]   I respectfully dissent from the affirmance, in part, of the trial court’s order. I

       agree with the majority that we should remand for further proceedings

       regarding college costs and child support abatement. However, I respectfully

       dissent from affirming the finding of contempt because the record does not

       disclose Father’s willful non-compliance with a court order. Also, the award of

       the entirety of Mother’s attorney’s fees – on grounds of contempt and causing

       needless discovery – is excessive. Father, who earns less than Mother and had

       lesser access to the children’s financial information, presented several

       meritorious claims. He should have been able to do so without paying all his

       and Mother’s attorney’s fees.


[47]   Our Indiana Supreme Court has described the limited circumstances in which a

       party may be found in civil contempt:


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019         Page 21 of 25
               In order to be held in contempt for failure to follow the court’s
               order, a party must have willfully disobeyed the court order. Ind.
               High School Athletic Ass’n v. Martin, 765 N.E.2d 1238, 1241 (Ind.
               2002). The order must have been so clear and certain that there
               could be no question as to what the party must do, or not do, and
               so there could be no question regarding whether the order is
               violated. Id. A party may not be held in contempt for failing to
               comply with an ambiguous or indefinite order. Otherwise, a
               party could be held in contempt for obeying an ambiguous order
               in good faith.


       City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005).


[48]   Here, when the dissolution court adopted the parties’ agreement, Father was

       ordered to comply with the following provision:


               [Mother] shall be responsible for the first $942 of uninsured
               medical [expenses] incurred each year. These expenses shall not
               carry over to the next year. In the event such uninsured medical
               expenses exceed $942 per year, the parties shall pay the
               remaining uninsured [expenses] on a 44%/56%
               ([Father/Mother]) basis. Father shall pay his share of uninsured
               medical expenses within [seven] days after a copy of the bill and
               proof of insurance payment is provided to him.


       (Appellant’s App. Vol. II, pg. 33).


[49]   I fully agree with the majority opinion, which cites Whittaker v. Whittaker, 44

       N.E.3d 716, 719 (Ind. Ct. App. 2015), that terms of a settlement agreement will

       be given their plain and ordinary meaning unless they are ambiguous. I do not

       find ambiguity here. Plainly, stale claims were excluded, as “expenses shall not

       carry over to the next year” and Father’s obligation to pay current expenses is

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 22 of 25
       triggered only when “a copy of the bill and proof of insurance payment is

       provided to him.” (Appellant’s App. Vol. II, pg. 33). By no stretch of the

       imagination does a personal e-mail summarizing past payments over several

       years (apparently with no documentation of the stale claims) comply with the

       medical expenses order, thereby triggering Father’s obligation to pay within

       seven days. Even so, he made nineteen payments which Mother accepted

       without complaint before alleging contempt. I discern absolutely no basis upon

       which the trial court could have found that Father “willfully disobeyed the

       court order.” See City of Gary, 822 N.E.2d at 170.


[50]   As for attorney’s fees, I also fully agree with the majority that a trial court has

       wide discretion and may consider such things as respective earnings and

       contumacious behavior. And I do not wholly disagree with the premise that

       “Father created significantly more discovery and litigation than was necessary

       to solve a simple matter.” Slip op. at 19. That said, an award of total

       attorney’s fees is excessive here, when Father has lesser earnings than Mother

       and there were legitimate controversies to be resolved. Indeed, I can conclude

       from the fact that the case is being remanded for further proceedings that Father

       did not engage in wholly frivolous discovery and litigation. Yet the trial court

       imposed upon him the entire burden of Mother’s attorney’s fees. Father may

       have requested unnecessary discovery, but this conduct does not support the

       totality of attorney’s fees awarded.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 23 of 25
[51]   In sum, I conclude that the challenged portions of the appealed order should be

       reversed not in part, but in whole, and I agree that the matter should be

       remanded for further proceedings.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019   Page 24 of 25
                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony C. Jennings,                                     Court of Appeals Case No.
                                                         18A-DC-2289
Appellant-Respondent,

        v.

Tanya D. Gomez,
Appellee-Petitioner.




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


I concur in the affirmance of the trial court’s decision regarding contempt. I

also concur that the case should be remanded to consider college costs and child

support abatement. However, I respectfully dissent regarding the amount of

attorney fees awarded; in my view, the award is excessive and the matter

should be remanded on that issue as well.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-2289 | June 6, 2019         Page 25 of 25
