                                                                             Nov 26 2013, 5:28 am
FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                     ATTORNEY FOR APPELLEE:

TIMOTHY M. PAPE                              ROBERT W. EHERENMAN
JAMIE C. WOENKER                             Haller & Colvin, P.C.
Carson Boxberger LLP                         Fort Wayne, Indiana
Fort Wayne, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

KELLEY L. KELLY,                             )
                                             )
     Appellant-Respondent,                   )
                                             )
              vs.                            )       No. 02A05-1304-DR-158
                                             )
TIFFANY L. KRAVEC,                           )
                                             )
     Appellee-Petitioner.                    )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Charles F. Pratt, Judge
                            Cause No. 02D07-0509-DR-587


                                 November 26, 2013

                            OPINION – FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

        Kelley L. Kelly (“Father”) appeals the denial of his motion to correct error

following the entry of the trial court’s post-dissolution order awarding $5,000.00 in

attorney fees to his former wife, Tiffany Kravec (“Mother”) in a proceeding involving

parenting time.

        We affirm.

                                         ISSUE

        Whether the trial court abused its discretion by ordering Father to pay a
        portion of Mother’s attorney fees.

                                        FACTS

        During Father and Mother’s marriage, they had one child, T.K., who was born in

2003.    The parties dissolved their marriage in September 2006 and entered into a

settlement agreement regarding child custody, support, and visitation.     Under their

agreement, Father and Mother shared legal custody of T.K., with Father having primary

physical custody.

        Following their dissolution, both parties remarried. Father married Tammy Kelly

(“Stepmother”), who had two adult children from a previous marriage. Mother married

John Kravec (“Stepfather”), who had a child, N.K., who was close in age to T.K. Father,

Mother, and Stepfather were employed by or had served in the military.




                                           2
        In 2007, a petition to modify custody was filed.1                  As part of the custody

proceedings, Father, Mother, and their respective spouses underwent psychological

evaluations. The psychologist who conducted the evaluations questioned the validity of

Stepfather’s evaluation and the veracity of his responses. Given this questioned validity

and an allegation that Stepfather had used “abusive punishment” with his own child,

N.K., the psychologist recommended that T.K. have contact with Stepfather only when

supervised by Mother. (App. 81).2

        On August 11, 2009, the parties entered an Agreed Stipulation (“2009 Agreed

Stipulation”) to resolve all pending custody matters.3 In relevant part, paragraph 4(j)

provided:

        In the process of this custody action[,] both parties, as well as their spouses,
        underwent psychological testing. The psychological testing for the parties,
        as well as [Father’s] spouse [Stepmother], was valid. Due to [Mother’s]
        spouse, [Stepfather] having invalid psychological testing, it is agreed that
        until such time as he completes an independent evaluation by Dr. Stephen
        Ross, with the results to be shared with opposing counsel, that [T.K.] shall
        not be left alone with [Stepfather] without [Mother] being present. In the
        event the parties are unable to reach an agreement on this issue following
        Dr. Ross’s evaluation, said issue shall be submitted to the Court.

(App. 63). In the 2009 Agreed Stipulation, the parties also agreed that each party was

responsible for his or her own attorney fees. The trial court entered a nunc pro tunc order



1
  The chronological case summary indicates that Mother filed a motion to modify custody in February
2007, but an order from the trial court indicates that Father filed a motion to modify custody sometime
after April 2007.
2
  Both parties filed an appendix. We will refer to Father’s Appellant’s Appendix as “(App.)” and to
Mother’s Appellee’s Appendix as “(Appellee’s App.).”
3
  The parties also agreed that Father would have sole legal custody and primary physical custody of T.K.,
while Mother would have parenting time as set forth in the Indiana Parenting Time Guidelines with
certain modifications as set forth in the stipulation.

                                                   3
accepting the 2009 Agreed Stipulation, including the provision that Stepfather’s contact

with T.K. be supervised until he completed the additional psychological evaluation.

       Thereafter, on September 14, 2009, Stepfather completed a psychological

evaluation with clinical psychologist, Dr. Stephen Ross (“Dr. Ross”). Dr. Ross noted that

the allegation of abuse against Stepfather was determined to be unfounded. Dr. Ross

opined that Stepfather did “not pose a risk of abuse to either his own daughter [N.K.], or

his step-daughter [(T.K.].” (App. 83) (emphasis in original).

       Following Stepfather’s evaluation with Dr. Ross, Father and Mother were unable

to resolve the issue of removing the prohibition on Stepfather’s contact with T.K.

Therefore, on October 23, 2009, Mother filed a Petition to Modify Court Order, seeking

to remove the provision that Stepfather’s contact with T.K. be supervised. In her petition,

Mother asserted that Father was “unwilling to reach an agreement on this issue” and

requested that Father be ordered to pay her attorney fees incurred in relation to the matter.

(App. 85).    In February 2010, following a case management conference regarding

Mother’s petition, the trial court scheduled a trial on Mother’s petition for September 27,

2010 and appointed a guardian ad litem.

       Thereafter, in May 2010, Father issued non-party requests for documents and

subpoenas duces tecum, seeking to obtain Stepfather’s employment and health care

records as well as the health care records of Stepfather’s daughter. Mother then filed an

objection to Father’s non-party discovery requests. In her objection, Mother asserted that

Father’s non-party requests sent to Stepfather’s employers, Ball State University Army

ROTC and IPFW University Army ROTC, were a “witch hunt” and “could unnecessarily

                                             4
harm [Stepfather’s] military career.” (App. 98). Mother also sought to recover attorney

fees in connection with the matter. Additionally, the Army notified Father that it could

not release the requested information without a written release authorization or a court

order. Stepfather refused to sign a release for his and his daughter’s medical records.

       On September 9, 2010, Father filed a motion to continue the September 27, 2010

trial on Mother’s Petition to Modify Court Order. On September 24, 2010, after holding

a hearing, the trial court issued an order on Mother’s objection to Father’s non-party

discovery and on Father’s motion to continue the trial. The trial court ruled that Father’s

non-party requests for Stepfather’s employment and health care records were relevant to

the trial issue, which was “what restrictions, if any, should be placed on [Stepfather’s]

contact with [T.K.] during [Mother’s] parenting time.” (App. 118). The trial court,

however, ruled that Father’s request for Stepfather’s daughter’s health care records was

not relevant. The trial court also granted Father’s continuance motion and rescheduled

the trial to June 6 and 7, 2011.

       In May 2011, the parties filed a stipulation for a continuance of the June 2011 trial

due to the fact that Stepfather’s employment required him to be in Afghanistan from May

22, 2011 to August 31, 2011. The trial court granted the parties’ stipulated continuance

and reset the trial for February 24, 2012.

       In October 2011, the parties agreed to mediate, and the trial court entered an order

granting their stipulation for mediation. Prior to attending mediation, both parties filed a

motion to modify parenting time, with Mother filing her motion on November 3, 2011

and Father filing his motion on December 7, 2011. In Mother’s motion, she requested

                                             5
additional parenting time during the occasions when Father was out of town or needed

child care, and she requested that Father be responsible for her attorney fees. Father’s

motion generally requested “to have the parenting time Order modified.” (App. 135).

       On January 18, 2012, the parties filed an Agreed Stipulation (“2012 Agreed

Stipulation”). In relevant part, the parties agreed that “the requirement that [T.K.] not be

left alone with [Stepfather] without [Mother] being present, pursuant to the Court’s Order

of September 9, 2009, shall be terminated[.]” (App. 138). The 2012 Agreed Stipulation

did not contain any provisions regarding Mother’s request for attorney fees and noted that

a hearing was scheduled for all pending matters. That same day, trial court entered an

order granting the parties’ 2012 Agreed Stipulation.

       The trial court held hearings on the parties’ pending matters on February 24, 2012,

March 26, 2012, and July 12, 2012. At the beginning of the February hearing, Mother’s

counsel asked the trial court to award attorney fees to Mother for the fees she incurred to

resolve the issue regarding Stepfather’s contact with T.K. during Mother’s parenting

time. Father argued that the attorney fee issue was not preserved and had been resolved

by the 2012 Stipulated Agreement. Father also argued that the attorney fee issue was

barred by “res judicata as a result of the order adopting [the parties’] agreement.” (Tr.

14).

       On the day of the March 26, 2012 hearing, Father filed a memorandum in

opposition to Mother’s request for attorney fees. Specifically, Father argued that Mother

could not seek attorney fees because the 2012 Agreed Stipulation did not include any

provision regarding the recovery of attorney fees. Father alleged that Mother’s request

                                             6
for attorney fees was a request for the trial court to modify or set aside its order accepting

the 2012 Stipulated Agreement, and he argued that Mother had failed to allege any

grounds under Indiana Trial Rule 60(B) to set aside that order.

        On the day of the July 12, 2012 hearing, Mother filed a response to Father’s

objection and a memorandum in support of her attorney fee request.                               In her

memorandum, Mother argued that the omission of an attorney fee provision in the 2012

Agreed Stipulation neither resolved the attorney fee claim nor precluded her from raising

the issue. During the hearing, Mother offered into evidence Respondent’s Exhibit V,

which was an attorney fee affidavit with an itemization of fees attached that revealed that

Mother had incurred attorney fees totaling $49,020.34 from September 2009 to July

2012. Father specifically stated that he had “[n]o objection” to the admission of Mother’s

attorney fee affidavit, and he did not challenge the amount of fees. (Tr. 477).4 Father

also offered into evidence his attorney fee affidavit as Petitioner’s Exhibit 17, which

revealed that Father had incurred attorney fees totaling $38,329.32 from September 2009

to July 2012 and had estimated fees of $5,000.00 for the three hearing dates. Also during

that July hearing, the guardian ad litem testified that she had recommended to Father that

Stepfather be allowed to have unsupervised time with T.K. but that Father disagreed and

had persisted with the issue.

4
  The Transcript does not indicate that the trial court was able to make an official ruling that Mother’s
attorney fee exhibit was admitted into evidence. After Mother’s attorney offered the attorney fee exhibit
and Father’s attorney stated there was no objection to the exhibit, the two attorneys discussed witnesses
and then asked the trial court for a break. The trial court granted the request for a break but did not
specifically state that the exhibit was admitted. Nevertheless, it is clear from a review of the record on
appeal that the trial court and the parties intended for the exhibit to be admitted into evidence and are
operating under the presumption that the exhibit was properly admitted. Accordingly, we will operate
under that same presumption.

                                                    7
       On December 7, 2012, the trial court issued an order, which, in relevant part,

awarded $5,000 in attorney fees to Mother.5 The trial court issued the following findings

and conclusions regarding the attorney fee issue:

       [Findings]
                                        *****
       8.     On August 11, 2009, the parties’ mediated agreement was adopted
       (corrected by a nunc pro tunc order of September, 2009) . . . .

       9.      In addition, the above referenced order required that the Mother’s
       current spouse, [Stepfather], have no unsupervised contact with the child
       until (a) he completed a valid psychological evaluation; and (b) the parties
       agreed to lifting the restriction or further order of court. In 2009 he
       completed a second evaluation with psychologist Dr. Stephen Ross. Dr.
       Ross found that [there was] no basis to require the continuation of
       [Stepfather’s] supervised contact with [T.K.].

       10.     Notwithstanding a favorable report, the Father did not agree to lift
       the restriction. Accordingly, on October 23, 2009, the Respondent Mother
       filed her “Petition to Modify Court Order[”] and requested that the order
       restricting [Stepfather’s] contact with the child be vacated. A hearing on
       the petition was set for September 27, 2010. It was subsequently continued
       to June, 2011. It was again reset by agreement of the parties. The
       Guardian ad Litem confirmed in her testimony that the Father would not
       “drop the issue”.
                                          *****
       12.     On January 18, 2012, the parties filed an “Agreed Stipulation” in
       which the parties acknowledged that [Stepfather] was evaluated by
       psychologist Dr. Stephen Ross. The parties then agreed, and the court
       ordered, [Stepfather’s] contact restrictions vacated. The agreed order also
       provided at paragraph (4) that “A hearing is scheduled on all pending
       matters for February 24, 2012[.]”
                                          *****
       [Conclusions]
                                          *****
       9.      Indiana Code [§] 31-17-4-3 provides that the Court may consider an
       award of reasonable attorney fees for any action to modify a parenting time
       order. In making the determination the Court may consider, among other
       factors, whether a party substantially prevailed.
5
 The trial court also denied Father’s motion to modify parenting time and granted, in part, Mother’s
parenting time motion.
                                                 8
        10.    [Father’s] argument that [Mother’s] claim for fees arising over the
        order restricting [Stepfather’s] contact with the child is precluded[.]
        However, as noted in the above findings all issues other than the lifting of
        the restriction were preserved for trial. Thus the Court may reasonably
        conclude that attorney fees related to the parenting time issue and the
        [Stepfather] issue are matters for the Court to resolve in this order.

        11.    The Court finds and concludes that both parties have responsibility
        for the long standing parenting time dispute. However, the Court finds that
        the costs associated to [Father’s] delay in lifting the restriction on
        [Stepfather’s] contact with the child was unreasonable and an attorney fee
        award for [Mother] and against [Father] in the sum of Five Thousand
        Dollars ($5,000.00) is warranted.

(App. 33, 36-37). Aside from the award of $5,000.00 in attorney fees to Mother, the trial

court ordered that the parties were responsible for their own respective attorney fees.

        Father then filed a motion to correct error, arguing, in relevant part, that the trial

court had erred by ordering Father to pay Mother $5,000.00 for attorney fees that she

incurred regarding Father’s delay in removing the restriction on Stepfather’s contact with

T.K. Father alleged that Mother had resolved the issue of Stepfather’s contact in the

2012 Stipulated Agreement but had failed to obtain an agreement regarding attorney fees.

Father also alleged that Mother had failed to present evidence of the specific fees that she

would not have incurred but for Father’s delay. The trial court denied Father’s motion in

regard to the attorney fee issue, finding that Mother was not precluded from seeking

attorney fees by the parties’ 2012 Stipulated Agreement; that Mother submitted evidence

of her attorney fees via her attorney’s fee affidavit; and that award of attorney fees was

reasonable.6 Father now appeals.


6
  The trial court granted, in part, Father’s motion to correct error on a parenting time issue not related to
the attorney fee issue.
                                                     9
                                         DECISION

       The sole issue in this appeal is attorney fees. Father argues that the trial court

abused its discretion by ordering him to pay $5,000.00 of Mother’s attorney fees. We

have set forth our review of a trial court’s decision to award attorney fees as follows:

       In post-dissolution proceedings, the trial court may order a party to pay a
       reasonable amount for attorney’s fees. The trial court has broad discretion
       in awarding attorney’s fees. Reversal is proper only where the trial court’s
       award is clearly against the logic and effect of the facts and circumstances
       before the court. In assessing attorney’s fees, the trial court may consider
       such factors as the resources of the parties, the relative earning ability of the
       parties, and other factors bearing on the reasonableness of the award. In
       addition, any misconduct on the part of a party that directly results in the
       other party incurring additional fees may be taken into consideration.
       Further, the trial court need not give its reasons for its decision to award
       attorney’s fees.

Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012) (internal citations and

quotation marks omitted), trans. denied. Additionally, where, as here, the trial court

entered findings of fact and conclusions of law, we will not set aside the findings or

judgment unless clearly erroneous, and we will not reweigh the evidence or reconsider

the credibility of witnesses. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

       Generally, Indiana observes the American rule that a party must pay his or her

own attorney’s fees absent an agreement between the parties, a statute, or other rule to the

contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind. 2012).

Here, the trial court awarded attorney fees under Indiana Code § 31-17-4-3, which

provides:

       (a) In any action filed to enforce or modify an order granting or denying
       parenting time rights, a court may award:


                                              10
             (1) reasonable attorney’s fees;

             (2) court costs; and

             (3) other reasonable expenses of litigation.

       (b) In determining whether to award reasonable attorney’s fees, court costs,
       and other reasonable expenses of litigation, the court may consider among
       other factors:

             (1) whether the petitioner substantially prevailed and whether the
             court found that the respondent knowingly or intentionally violated
             an order granting or denying rights; and

             (2) whether the respondent substantially prevailed and the court
             found that the action was frivolous or vexatious.

       Father argues that the trial court’s award of attorney fees was erroneous because:

(a) Mother’s conduct was the cause of her attorney fees; (b) Mother’s attorney fee request

was barred by res judicata; and (c) the trial court did not hold a separate hearing on the

reasonableness of Mother’s attorney fees.

A.     Mother’s Conduct

       Father first argues that the trial court erred by awarding attorney fees to Mother

because her attorney fees were a result of her own misconduct and failure to cooperate,

not his.

       The record before us reveals that in August 2009, Father and Mother signed the

2009 Stipulated Agreement with a provision that Stepfather’s contact with T.K. would be

supervised by Mother during Mother’s parenting time until Stepfather was able to




                                            11
complete an evaluation with Dr. Ross.7 Stepfather immediately obtained the evaluation

with Dr. Ross, who opined that Stepfather posed no danger to T.K. Nevertheless, Father

refused to remove the restriction on Stepfather’s contact with T.K. In October 2009,

Mother filed a petition seeking removal of the restriction and requesting attorney fees in

relation to the matter, and the trial court set the matter for trial in September 2010.

Despite a recommendation from the guardian ad litem that Stepfather should have

unsupervised contact, Father continued to challenge whether the restriction on Stepfather

should remain. Father then issued non-party discovery requests, which resulted in a need

to continue the September 2010 trial.               Thereafter, the parties stipulated to another

continuance due to Stepfather’s overseas employment, and the trial court set the trial for

February 2012. Ultimately, in January 2012—more than two years after Mother filed her

petition to remove the restriction on Stepfather’s contact—Father agreed to remove the

restriction on Stepfather’s contact with T.K. The trial court acknowledged that both

Father and Mother had responsibility in the parenting time dispute, but the trial court

determined that Father’s “delay in lifting the restriction on [Stepfather’s] contact” with

T.K. was “unreasonable” and ordered Father to pay $5,000.00 of Mother’s $49,000.00

attorney fees incurred. (App. 37).

        Father’s argument that the trial court’s award of attorney fees was improper

because Mother’s misconduct was responsible for the delay in resolving the supervised

contact issue is nothing more than a request that we reweigh the evidence and witness


7
 In his appellate brief, Father erroneously refers to the restriction imposed as a restriction on Stepfather’s
parenting time with T.K. We would clarify, however, that it is Mother who has parenting time, not
Stepfather.
                                                     12
credibility, which we will not do. See Best, 941 N.E.2d at 502. Upon review of the

record, we conclude that the trial court did not abuse its discretion by ordering Father to

pay a portion of Mother’s attorney fees. See Hanson v. Spolnik, 685 N.E.2d 71, 80 (Ind.

Ct. App. 1997) (affirming the trial court’s award of attorney fees and explaining that

“misconduct that directly results in additional litigation expenses may be properly taken

into account in the trial court’s decision to award attorney’s fees”), trans. denied.

B.     Res Judicata

       Father also argues that Mother’s attorney fee request was barred by res judicata,

specifically by claim preclusion.        Father contends that the parties’ 2012 Agreed

Stipulation precluded Mother from seeking attorney fees during the parenting time

hearing because the stipulation did not address the attorney fee issue.

       “The doctrine of res judicata prevents the repetitious litigation of disputes that are

essentially the same.” Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct.

App. 2005), trans. denied. Claim preclusion applies when a “final judgment” on the

merits has been rendered in a prior action, and it acts to bar a subsequent action on the

same claim between the same parties. Id. A “final judgment” is one which “disposes of

all claims as to all parties[.]” App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d

910, 912–13 (Ind. Ct. App. 2002) (explaining that a final judgment is one that “disposes

of all issues as to all parties, to the full extent of the court to dispose of the same, and puts

an end to the particular case as to all of such parties and all of such issues” and “reserves

no further question or direction for future determination” (citations and internal

quotations omitted)).

                                               13
        Here, at the time the parties entered into the 2012 Agreed Stipulation to resolve

the Stepfather contact issue, they also each had a motion to modify parenting time

pending before the trial court.           The 2012 Agreed Stipulation did not contain any

provision regarding attorney fees but noted that all pending matters were scheduled for a

future hearing. The trial court entered an order approving the parties’ 2012 Agreed

Stipulation, but that order was not a final judgment because there were still matters

pending before the trial court and because it did not dispose of all issues. Accordingly,

claim preclusion does not apply because the 2012 Stipulated Agreement was not a final

judgment. See, e.g., Pond v. McNellis, 845 N.E.2d 1043, 1054 (Ind. Ct. App. 2006)

(holding that res judicata did not apply where a trial court’s order was not a final

judgment), trans. denied. Thus, the attorney fee issue was not barred by res judicata.8

C.      Hearing




8
  In his reply brief, Father alternatively argues that Mother was precluded from seeking attorney fees
because silence on the attorney fee issue in the 2012 Agreed Stipulation disposed of the claim. In support
of his argument, Father’s cites to Stenger v. LLC Corp., 819 N.E.2d 480 (Ind. Ct. App. 2004), trans.
denied and Reuille v. E.E. Brandenberger Const., Inc., 873 N.E.2d 116 (Ind. Ct. App. 2007), reh’g
denied, trans. granted and opinion vacated by Reuille v. E.E. Brandenberger Const., Inc., 888 N.E.2d 770
(Ind. 2008). However, this argument, which differs from his res judicata/claim preclusion argument, was
not raised in his initial brief. Thus, he has waived it on appeal. See Felsher v. Univ. of Evansville, 755
N.E.2d 589, 593 n. 6 (Ind. 2001); see also Ind. App. R. 46(C) (“No new issues shall be raised in the reply
brief.”).
          Waiver notwithstanding, we note that one of the cases upon which Father relies, Reuille, has been
vacated by our Indiana Supreme Court’s grant of transfer. Additionally, Father’s reliance on Stenger is
misplaced. In that case, we held that when an offer of judgment under Indiana Trial Rule 68, and
acceptance of that offer, and resulting judgment are “completely silent on the issue of attorney’s fees and
appear to otherwise settle all claims between the parties, the judgment cannot be interpreted to leave the
issue of attorney fees open.” Stenger, 819 N.E.2d at 484. Unlike Stenger, here, there was no offer of
judgment under Indiana Trial Rule 68 and the 2012 Agreed Stipulation did not settle all claims between
the parties.

                                                    14
        Lastly, Father argues that the trial court’s award of attorney fees to Mother was

erroneous because the trial court did not hold a separate evidentiary hearing on the

reasonableness of Mother’s attorney fees.

       Here, the record reveals that during the July parenting time modification hearing,

Mother submitted her attorney’s fee affidavit to show the amount of attorney fees that she

had incurred. The affidavit showed the hourly billing rates for the attorney and paralegal,

and attached to the affidavit was a detailed bill that explained the time spent, amount

charged, and the specific description of the work done.         Father, however, did not

challenge the reasonableness of the fees or request an evidentiary hearing relating to

attorney fees. Instead, Father specifically stated that he had no objection to Mother’s

attorney fee affidavit.

       “When a party fails to make an objection to the trial court, it cannot raise the

objection on appeal.” Wilcox Lumber Co., Inc. v. The Andersons, Inc., 848 N.E.2d 1169,

1171 (Ind. Ct. App. 2006). Because Father did not object to the admission of the fee

affidavit, the reasonableness of the fees, or the lack of a separate evidentiary hearing, he

has waived appellate review of any argument challenging the lack of separate hearing or

reasonableness of the fees.

       Affirmed.

BARNES, J., and CRONE, J., concur.




                                            15
