Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                         FILED
                                                               Jul 17 2012, 9:23 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                           CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

KATHERINE A. HARMON                               SHANNON D. LANDRETH
Mallor Grodner, LLP                               Bingham Greenebaum Doll LLP
Indianapolis, Indiana                             Indianapolis, Indiana




                                IN THE
                      COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF T.P.,                     )
                                                  )
                                                  )
R. L.,                                            )
                                                  )
         Respondent,                              )
                                                  )
                                                  )
                And                               )      No. 06A01-1202-JP-38
                                                  )
W. M.,                                            )
                                                  )
         Appellant-Intervenor,                    )
                                                  )
                vs.                               )
                                                  )
B. P.,                                            )
                                                  )
         Appellee-Petitioner.                     )


                       APPEAL FROM THE BOONE CIRCUIT COURT
                       The Honorable Matthew C. Kincaid, Special Judge
                                Cause No. 06C01-0002-JP-86
                                       July 17, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

         Appellant-Intervenor W.M. (Stepmother) appeals the trial court’s judgment in her

third-party custody action against appellee-petitioner B.P. (Father).           Specifically,

Stepmother argues that the trial court erred in 1) granting Father’s discovery protective

order; 2) finding she did not meet her burden to pursue third-party custody of her

stepdaughter (T.P.); and 3) ordering her to pay Father’s attorney $5,000. Concluding that

the trial court did not err in granting Father’s discovery protective order or in finding that

Stepmother did not meet her burden to pursue third-party custody of T.P., we affirm the

trial court in part. However, we reverse the award of attorney fees.

                                          FACTS

         Stepmother and Father met in May 1999. Father’s daughter, T.P., was born out of

wedlock in December 1999. Father established paternity of T.P. shortly after her birth

and began visitation with her in May 2000. The visits occurred at Stepmother’s house

where Father was living. Because T.P.’s biological mother abused alcohol, Father filed a

petition seeking custody of T.P. in October 2001. Father and Stepmother were married in

January 2002, and the trial court granted Father custody of T.P. in March 2003.

Biological mother’s parenting time was limited to two supervised visits per week for two

hours.

                                              2
       During the parties’ marriage, Father was a firefighter who worked a twenty-four

hour shift every third day. On the days that Father worked, Stepmother, who works at Eli

Lilly and Company, took care of T.P. Specifically, Stepmother woke T.P. up in the

morning, fed her breakfast, took her to day care or school, picked her up from day care or

school, helped her with her homework, and took her to her extracurricular activities,

which included dance and gymnastics classes as well as swimming lessons.

       Stepmother was also very active at T.P.’s school. Father told the school that

Stepmother functioned in the role of T.P.’s mother, and Stepmother participated in a

variety of parent volunteer activities.       She also attended annual parent-teacher

conferences.    T.P. and Stepmother spent weekends together going shopping, having

lunch, and going to Pilates. They played games, rode bicycles, and went to movies.

They also attended birthday parties, play dates, and dinners together.

       In addition, Stepmother contributed towards T.P.’s financial support. Stepmother,

Father, and T.P. lived in the home that Stepmother had purchased prior to the marriage.

T.P. was on Stepmother’s health insurance policy. Stepmother also paid for two years of

T.P.’s dance and gymnastics classes. In addition, Stepmother made a contribution to the

parish where T.P. attended school and purchased clothing for T.P.

       When T.P.’s biological mother died in August 2010, Stepmother asked Father if

she could adopt ten-year-old T.P. Father, however, refused to allow it. In March 2011,

Father took T.P. to see Cynthia Hunter, a licensed metal health counselor. Hunter met

individually with Stepmother, Father, and T.P.

                                             3
       Stepmother filed a dissolution petition in April 2011. Father and T.P. moved out

of Stepmother’s home in May 2011. Thereafter, Father refused to allow T.P. to see or

speak to Stepmother. Father also told the administration at T.P.’s school not to have any

further contact with Stepmother.

       On June 21, 2011, Stepmother filed a Motion to Intervene in the pending action in

the Boone Circuit Court, which had jurisdiction over T.P’s care, custody, and parenting

time. Stepmother also filed a Verified Petition for Stepparent Parenting Time and for a

Custody and Parenting Time Evaluation. On June 30, 2011, Father filed objections to

Stepmother’s motion and petition.         Following a hearing, the trial court granted

Stepmother’s motion to intervene.

       Father filed a Request for Determination of De Facto Custodian Status of

Intervenor and Request for Determination of Intervenor’s Right to Visitation with Non-

biological Child asking the trial court to conduct a bifurcated hearing on the issues of

Stepmother’s status and relief. Stepmother filed a response, and on August 30, 2011, the

trial court issued the following order setting the parameters for the first hearing:

       To be considered for custody, Stepmother must prove she is a de facto
       custodian of T.P. or that, as a third party who is not a de facto custodian,
       there is clear and convincing evidence to rebut the presumption that Father
       should have custody of T.P. If she can prove either of these things, a
       subsequent hearing would be set to determine who should have custody of
       T.P. To be considered for court ordered visitation, Stepmother will have to
       show she has a custodial and parental relationship and that, if she proves
       the same, a subsequent hearing will be set to determine whether visitation is
       in T.P.’s best interests.

Appellant’s App. p. 97-98.

                                              4
       On September 19, 2011, Stepmother served Father with fifty-two interrogatories,

fourteen requests for admissions, and nine requests for production of documents. In

response, Father filed a Request for a Discovery Protective Order wherein Father stated

that the interrogatories, requests for admissions, and requests for production of

documents were not important to the resolution of the status issues to be determined at

the upcoming hearing. Following a hearing on Father’s request, the trial court granted

the protective order in part and denied it in part. Specifically, the trial court explained as

follows:

       On October twenty-six, 2011 we’re trying two issues one is [Stepmother] a
       de facto custodian, two if she is not a de facto custodian, is there a parental
       bond which will support third party visitation. Those are the only two
       issues for trial on October twenty-six. So a large measure of discovery is
       unnecessary, not reasonably calculated to lead to admissible evidence and
       quite a large amount of it is going to be the subject of a protective order.
       So listen carefully as I announce the interrogatories, request for production
       and request for admissions that will be responded to.

Appellant’s App. p. 74. On October 17, 2011, Father filed a Request for In Camera

Interview asking the trial court to interview T.P. in chambers because T.P., a mature and

well-spoken twelve-year-old, had expressed her desire to speak to the court.

       On October 26, 2011, the trial court held the hearing on Stepmother’s status.

Testimony at the hearing revealed that Father has been a concerned and involved

presence in T.P.’s life since she was born. He established paternity of T.P. shortly after

her birth and visited her regularly when she was an infant. Father then obtained custody

of T.P. when she was three years old. He chose the parochial school that T.P. attends and


                                              5
pays for the tuition. Like Stepmother, Father has been actively involved in T.P’s school.

For example, he tutored second graders several times a week in math and spoke to the 5th

grade class at an awards ceremony. Father was one of the few parents in T.P.’s school

that previewed a sex education video before it was shown to the class.

       Further, in addition to paying for T.P.’s tuition, Father pays for her summer

camps, dance lessons, and swim team. Father takes T.P. to birthday parties and to and

from school on his days off. Father regularly helps T.P. with her homework and also

helped her to prepare her First Communion Reading. He takes her to both well and sick

child doctor appointments, routinely helps her pick out her Halloween costume, and

bought the computer, desk, and chair in her bedroom. In addition, Father and T.P. have a

good night ritual.

       Also at the hearing, therapist Cynthia Hunter testified that when she began seeing

T.P. in March 2011, before T.P. and Father moved out of Stepmother’s house, T.P. was

suffering from anxiety and depression. Seven months later, after T.P. and Father had

moved into their own house, T.P. presented herself as a relaxed and carefree child who

enjoys life. Hunter explained that Father told her that he wanted to do what was in T.P.’s

best interest regarding Stepmother, and would allow Stepmother visitation with T.P. if

that was best for T.P. According to Hunter, however, it would be harmful for T.P. to visit

with Stepmother because T.P. is afraid of Stepmother and does not want to have contact

with her.    Hunter further explained that T.P. and Father enjoy a close and loving

relationship, and that T.P. is flourishing in his care.

                                               6
       When the first day of the hearing ended, Father had not completed his presentation

of evidence. The trial court gave Father one and one-half hours at a later date to conclude

his evidence. The following day, October 27, 2011, the trial court interviewed T.P. in

chambers. During the interview, T.P. told the judge that she believed that Stepmother

attempted to buy her love. She explained that at the end of the parties’ marriage,

Stepmother called Father “the most vile disgusting person she had ever met.” Tr. p. 386.

T.P. was upset that Stepmother had insulted Father. The trial court asked T.P. several

times whether she wanted to see Stepmother and if she was trying to make Father happy

by saying that she did not want to see Stepmother. T.P. repeatedly responded that

although she had loved Stepmother in the past, she did not want to see her.

       On November 15, 2011, the trial court held an attorney conference and scheduled

the conclusion of the hearing for December 13, 2011, and January 23, 2012. Two days

later, on November 17, 2011, Father filed a motion for Judgment on the Evidence, which

essentially asked the trial court to rule on the evidence before it without holding the

already scheduled hearings in December 2011 and January 2012. In this motion, Father

stated that Stepmother had failed to overcome the presumption that Father should have

custody of his child and to establish that she was T.P.’s de facto custodian or that she had

a custodial and parental relationship with T.P.         Father asked the court to deny

Stepmother’s request to establish de facto or third-party custodian status and deny her

request for visitation.



                                             7
       Two weeks later, on December 1, 2011, the trial court entered an order finding

that Stepmother did not meet her burden to pursue third-party custody, but did meet the

burden of proving she had a custodial and parental relationship with T.P. Specifically,

the order provides in relevant part as follows:

                                     Custody – Denied

              The Court FINDS and CONCLUDES that [Stepmother] was never
       the de facto custodian . . . . She was a caregiver, but not “the primary
       caregiver.” There is, the Court FINDS and CONCLUDES no evidence,
       clear, convincing, or otherwise that [Father] is unfit to parent and that
       [Stepmother] as a third party ought to have custody. . . .
              The Court has enough evidence before it. A custodial evaluation
       would be unduly burdensome. Further presentation, litigation, hearing,
       witnesses would have no possibility of demonstrating otherwise. By
       permitting the same, this Court would be sanctioning a futile and expensive
       battle with no benefit to T.P. [Stepmother’s] request for custody lacks
       merit and should be denied.

Appellant’s App. pp. 22-23.

                                   Visitation – Granted

              There is no question that [Stepmother] played a major role in
       [T.P.’s] life. . . . The Court does not perceive a danger to [T.P.] in seeing
       [Stepmother] under some strict conditions initially, which may after some
       review merit loosening over time. (Or, at a review hearing the Court may
       conclude that visitation should be terminated.)
              Now, the Court sees more danger in the long-term if [T.P.] does not
       see [Stepmother] on a limited basis. The last year has been a transitional
       and difficult period for [T.P.] The Court is concerned about the long-term
       ramifications for suddenly breaking off this relationship with [Stepmother].
       The Court is concerned that the decision by [T.P.] not to want to see
       [Stepmother] is being made while the emotional pain of many factors
       remains.
              Since [Stepmother] had a substantial parental relationship with
       [T.P.] and . . . thus has standing to seek to visit with her, what the Court
       concludes would be in the best interest of [T.P.] would be for [T.P.] to

                                             8
      invest a little time with [Stepmother] now in the interest of not regretting a
      decision to become estranged from her in the future when the relationship
      could be irreparable. . . .
              If this Court were to sanction a “clean break,” it might deprive [T.P.]
      of some valuable emotional growth and good mental health. Absent a true
      danger to a person from continued contact, it isn’t healthy to break off
      familial relationships suddenly and with rigidity. . . . If a person habitually
      freezes out such people, it is ultimately an unhealthy and unhappy way of
      living. . . .
              But the contact is going to be limited, controlled, and specific. . . .
      The contact is going to be limited such that there be no interference with
      this good and competent father’s efforts to single-parent his daughter.
              With an eye towards the best long term interests of [T.P.] and with
      the concern about ongoing litigation cost, duration and the impact upon
      [T.P.], the Court FINDS that an order of some limited visitation is
      appropriate.

Appellant’s App. p. 22-26.

                                         Orders

              Judgment in favor of [Father] and against [Stepmother] on her claim
      for custody of [T.P.] is GRANTED. [Stepmother’s] petition for custody of
      [T.P.] is DENIED.
              [Stepmother] SHALL have supervised visitation with [T.P.]. It
      SHALL be supervised by the Boone County Guardian Ad Litem under
      supervision and direction of Kandi Killin or her designee. . . .
              [Stepmother] and [T.P.] SHALL meet in a public place. The GAL
      or designee SHALL observe the interaction and note anything significant.
      The GAL SHALL talk with [T.P.] after the visit and assess her views and
      outlook. . . .
              Unless the Court orders otherwise by some subsequent order, visits
      1-4 SHALL be thirty minutes in duration. Visits 5-8 SHALL be 45 minutes
      in duration. Visits 9-12 SHALL be one hour. . . .
              The visits SHALL occur one time per week Monday through
      Sunday. . . .
              A review hearing is set for March 6, 2012 at 9:00 a.m. Parties,
      counsel and the GAL SHALL attend. . . .
              At the review hearing, the Court will address whether further
      visitation should be afforded and under what circumstances and or
      conditions it should occur.

                                            9
                 Considering all equitable factor[s] in the allocation of attorney’s fees
         including but not limited to (1) the merits of the claims and defenses; (2)
         the necessity of assuring equivalent counsel considering the parties’
         differing means; (3) noting that at least ten hours have been spent in court
         by [Father] and his attorneys and a like number of hours, at least, must have
         reasonably been spent outside of court (4) that not less than $250.00 per
         hour is a reasonable hourly rate in this geographical locale the Court
         ORDERS that [Stepmother] SHALL PAY $5,000.00 to Father’s attorney. .
         ..
                 Further hearings on the issues raised in the pleadings and motions
         filed to date are MOOT and therefore are VACATED except insofar as the
         hearing on the same previously set March 6, 2012 at 9:00 a.m. is converted
         to a status on visitation as herein described.
                 This Judgment is FINAL. There is no just cause to delay its
         enforcement.

Appellant’s App. p. 26-28.

         On December 27, 2011, Father filed a Motion to Correct Errors wherein he

renewed his objection to [Stepmother] exercising visitation with [T.P.] Stepmother filed a

Motion to Correct Errors and Response to Father’s Motion to Correct Errors wherein she

argued that the trial court erred in granting Father’s discovery protective order, finding

she had not met her burden to pursue custody of T.P., and ordering her to pay Father’s

attorney $5,000. The trial court denied both motions and appointed a Guardian Ad

Litem.

         On February 1, 2012, Stepmother timely filed a Notice of Appeal. One week later,

the GAL filed a status report with the trial court explaining that during the first four

supervised visitations, T.P. refused to engage in conversation with Stepmother. Rather,

T.P. sat with her head down and eyes closed. T.P. told Stepmother that she did not want

to see her and wanted her out of T.P.’s life. According to the GAL, it appeared that T.P.

                                               10
had been coached and encouraged to be disrespectful to Stepmother. The GAL further

explained that Stepmother was very restrained and appropriate. Specifically, Stepmother

told T.P. that no matter how T.P. acted, Stepmother would always love her. After

receiving the GAL’s status report, on February 13, 2012, the trial court increased the

duration of the visits to three hours each and ordered T.P. to be polite. Father was

ordered not to coach T.P. The trial court also ordered the GAL to share the contents of

the order with T.P.

       On February 27, 2012, Father requested a stay of the trial court’s judgment

pending resolution of the appeal, which the trial court denied. On March 6, 2012, the

trial court held an evidentiary hearing to review the temporary visitation arrangement.

The trial court judge also met with T.P. The record of proceedings in the appeal before

us does not include transcripts of the March 6 hearing or of the trial court’s meeting with

T.P. Following the hearing, the trial court concluded that it was “in the best interest of

[T.P.] that the Court shall order no further visitation be required of [T.P.] with

[Stepmother].” Appellee’s App. p. 35. The order further stated that this was a final

judgment. Stepmother did not appeal this order.

       The appeal before us concerns the trial court’s December 1, 2011, order which

granted Stepmother visitation with T.P., found she had not met her burden to pursue

custody of T.P., and ordered Stepmother to pay Father’s attorney $5,000.




                                            11
                                DISCUSSION AND DECISION

       As a preliminary procedural matter, Father argues that this appeal should be

dismissed as moot because Stepmother did not appeal the trial court’s March 6, 2012,

order finding that it was not in T.P.’s best interests to have visitation with Stepmother.

Father has waived this issue because he had failed to provide adequate citation to

authority in his two-page argument. See Mallory v. State, 954 N.E.2d 933, 936 (Ind. Ct.

App. 2011) (stating that a party waives an issue where the party fails to develop a cogent

argument or provide adequate citation to authority and portions of the record).

       Waiver notwithstanding, we find no error.       This Court has jurisdiction in all

appeals from final judgments. In re Adoption of S.J., 967 N.E.2d 1063, 1064 (Ind. Ct.

App. 2012) (citing Ind. Appellate Rule 5(A)). Here, the trial court specifically stated that

the December 1 order was a final judgment. It was therefore appealable, and Stepmother

timely filed her Notice of Appeal. The trial court also stated that the March 6, 2012 order

was a final judgment. Stepmother could therefore have appealed that order as well but

she was not required to do so and chose not to. Mother’s appeal is not moot, and we

decline to dismiss it. We now turn to the merits of the appeal.

                              I. Discovery Protective Order

       Stepmother first argues that the trial court erred in granting Father’s Discovery

Protective order.   We accord great deference to the trial court’s discovery decisions and

will reverse only when the trial court has abused its discretion. Turner v. Boy Scouts of



                                            12
America, 856 N.E.2d 106, 112 (Ind. Ct. App. 2006).       Id. An abuse of discretion occurs

when the trial court’s decision is against the logic and circumstances of the case. Id.

       The purpose of discovery rules is to provide the parties with information essential

to the litigation of the issues and to promote settlements. M.S. ex rel. Newman v. K.R.,

871 N.E.2d 303, 311 (Ind. Ct. App. 2007). A party may obtain discovery regarding any

matter relevant to the subject matter of the case, or which appears reasonably calculated

to lead to the discovery of admissible evidence. Turner, 856 N.E.2d at 112.

       Here, Stepmother initially served Father with fifty-two interrogatories, fourteen

requests for admissions, and nine requests for production of documents. Stepmother

subsequently amended the interrogatories and reduced them to twenty-eight with

subparts. The trial court explained that the parties would be trying two issues. Those

issues were whether Stepmother was a de facto custodian and whether there was a

parental bond that would support third-party visitation. According to the trial court, a

large measure of Stepmother’s discovery was not reasonably calculated to lead to

admissible evidence and would therefore be the subject of a protective order.

       We have reviewed the interrogatories, requests for admissions, and requests for

production of documents. The trial court is correct that many of the requests, such as

questions regarding Father’s job, residence, communication with schools, counseling

sessions, and other decisions regarding T.P., simply were not calculated to lead to

admissible evidence as to whether Stepmother was a de facto custodian and whether she

had a parental and custodial relationship with T.P. Further, many of Stepmother’s other

                                             13
discovery requests, such as a description of her relationship with T.P., a list of times T.P.

was left in her care, and a list of her contributions towards T.P.’s care were merely

cumulative of evidence Stepmother presented at the hearing.

       Because many of Stepmother’s discovery requests were either not reasonably

calculated to lead to admissible evidence or cumulative of Stepmother’s testimony, the

trial court did not err in granting Father’s discovery protective order.

                                 II. Visitation and Custody

       At the outset, we note our preference for granting latitude and deference to trial

court judges in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). The

Indiana Supreme Court explained the reason for this deference in Kirk:

       While we are not able to say the trial judge could not have found otherwise
       than he did upon the evidence introduced below, this Court as a court of
       review has heretofore held by a long line of decisions that we are in a poor
       position to look at a cold transcript of the record, and conclude that the trial
       judge, who saw the witnesses, observed their demeanor, and scrutinized
       their testimony as it came from the witness stand, did not properly
       understand the significance of the evidence, or that he should have found its
       preponderance or the inferences therefrom to be different from what he did.

Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).

Therefore, on appeal it is not enough that the evidence might support some other

conclusion, but it must positively require the conclusion contended for by the appellant

before there is a basis for reversal. Id. We now turn to the issues in this case.

                                        A. Visitation




                                             14
        Before the October hearing, the trial court explained that to be considered for

court-ordered visitation, Stepmother would have to show she had a custodial and parental

relationship with T.P.1 If she proved that, the trial court explained that it would set a

subsequent hearing to determine whether visitation was in T.P.’s best interests.

Following the hearing, the trial court concluded that Stepmother met her burden of

showing she had a substantial parental relationship with T.P. Finding another hearing on

this issue unnecessary, the trial court also concluded that it would be in T.P.’s best

interests to visit with Stepmother. Specifically, the trial court explained that it was

concerned about the long-term ramifications of T.P. breaking off the relationship with

Stepmother even though T.P. told the court she did not want to visit Stepmother and the

therapist testified it would be harmful for T.P. to visit with Stepmother. With this

testimony in mind, the trial court scheduled supervised visitation in a public place.

Following a March 6, 2012 review hearing, the trial court, concluded that it was in the

best interests of T.P. to discontinue visitation.

        Stepmother now argues that the trial court “improperly addressed the best interests

of the child in violation of its own order.” Appellant’s Br. p. 22. She asks us to reverse

and remand this issue to the trial court for a hearing on what amount of visitation would

1
  To establish visitation, a third person must show that a custodial and parental relationship exists and that
visitation with the third person would be in the best interests of the child. Hughes v. Banning, 541 N.E.2d
283, 284 (Ind. Ct. App. 1989). The party seeking visitation rights bears the burden of establishing the
threshold requirement of the custodial and parental relationship. Id. The mere protest of a parent who
asserts that visitation by another person would somehow harm his or her child should not be enough to
deny visitation in all cases. Id. This is especially true where the third person has cared for the child as his
or her own. Id.

                                                     15
be in T.P.’s best interests. However the trial court awarded Stepmother the relief she is

now seeking in its December 1, 2012, order when it concluded that weekly supervised

visitation was in T.P.’s best interests. We further note that in its March 6, 2012, order,

the trial court concluded that it was in T.P.s best interests to discontinue visitation.

Stepmother did not appeal this order. Any visitation issue is therefore unavailable. See

McDillon v. N. Ind. Pub. Serv. Co., 812 N.E.2d 152, 157 (Ind. Ct. App. 2004), affirmed

in part and vacated in part on other grounds, McDillon v. N. Ind. Pub. Serv. Co., 841

N.E.2d 1148 (Ind. 2006) (stating that Court of Appeals would not consider argument

where NIPSCO failed to perfect an appeal pursuant to Indiana Appellate Rule 9).

                                 B. De Facto Custodian

       Stepmother also contends that the trial court erred in finding that she was not

T.P.’s de facto custodian. Before custody can be awarded to a third party, that third party

must demonstrate de facto custodian status by clear and convincing evidence. A.J.L. v.

D.A.L., 912 N.E.2d 866, 870 (Ind. Ct. App. 2009) (citing Ind. Code § 31-17-2-8.5). In

reviewing a judgment requiring proof by clear and convincing evidence, an appellate

court may not impose its own view as to whether the evidence is clear and convincing,

but must determine, by considering only the probative evidence and reasonable

inferences supporting the judgment and without weighing evidence or assessing witness

credibility, whether a reasonable trier of fact could conclude that the judgment was

established by clear and convincing evidence. Id.



                                            16
       Indiana Code section 31-9-2-35.5 (2007) defines de facto custodian in relevant

part as follows:

       De facto custodian . . . means a person who has been the primary caregiver
       for, and financial support of, a child who has resided with the person for at
       least … one (1) year if the child is at least three (3) years of age.

       Any period after a child custody proceeding has commenced may not be
       included in determining whether the child has resided with the person for
       the required minimum period.


       Here, our review of the evidence reveals that although Stepmother was clearly a

caregiver for T.P. and clearly provided financial support to T.P., Stepmother was not the

primary caregiver or provider of financial support. This is because Father has been a

concerned and involved presence in T.P.’s life since she was born. He established

paternity shortly after she was born and obtained custody of her when she was three years

old. He chose the parochial school that T.P. attends, pays for the tuition, and is an active

volunteer. Father also pays for T.P.’s summer camps, dance lessons, and swim team. He

takes her to birthday parties and to and from school on his days off. Father regularly

helps T.P. with her homework and also helped her prepare her First Communion reading.

He takes her to both well and sick child doctor appointments, routinely helps her pick out

her Halloween costume, and bought the computer, desk, and chair in T.P.’s bedroom.

This evidence supports the trial court’s conclusion that Stepmother was not a de facto

custodian, and we find no abuse of the trial court’s discretion.

                      C. Presumption in Favor of the Natural Parent


                                             17
       Stepmother further argues that the trial court erred in concluding that she did not

rebut the presumption that favors awarding custody of a child to the natural parents.

Before placing a child in the custody of a person other than the natural parent, a trial

court must be satisfied by clear and convincing evidence that the best interests of the

child require such a placement. Paternity of T.P., 920 N.E.2d 726, 731 (Ind. Ct. App.

2010), trans. denied. The presumption that favors awarding custody of a child to the

natural parents will not be overcome simply because a third party could provide the better

things in life for a child. Id.

       In a proceeding to determine whether to place a child with a person other than the

natural parent, the court may consider the natural parent’s (1) unfitness; (2) long

acquiescence in the third party’s custody of the child; or (3) voluntary relinquishment of

the child such that the affections of the child and third party have become so interwoven

that to sever them would seriously mar and endanger the future happiness of the child.

Id. However, the trial court is not limited to these criteria. Id. At issue is whether the

important and strong presumption that a child’s interests are best served by placement

with the natural parents is clearly and convincingly overcome by evidence proving that

the child’s best interests are substantially and significantly served by placement with

another person. Id. at 731-32. This determination rests within the sound discretion of

the trial court, and its judgment must be afforded deferential review. Id. at 732.

       Here, our review of the evidence reveals that when T.P. began seeing the therapist

in March 2011, before she and Father moved out of Stepmother’s house, T.P. was

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suffering from anxiety and depression. Seven months later, after Father and T.P. had

moved into their own house, T.P. presented herself as a relaxed and carefree child who

enjoys life. T.P. and Father enjoy a close and loving relationship, and T.P. is flourishing

in Father’s care. Recognizing our deferential review, this evidence supports the trial

court’s conclusion that Stepmother has not rebutted with clear and convincing evidence

the presumption that Father should have custody of T.P.

                                      III. Attorney Fees

       Lastly, Stepmother argues that the trial court erred in sua sponte ordering her to

pay Father’s attorney $5,000. The decision to award attorney fees and the amount of the

award are reviewed for an abuse of discretion. Allen v. Proksch, 832 N.E.2d 1080, 1102

(Ind. Ct. App. 2005). An abuse of discretion occurs when the trial court’s decision is

clearly against the logic and effect of the facts and circumstances before the court. Id.

Indiana follows the American Rule, which ordinarily requires each party to pay his or her

own attorney fees. Id. Generally, attorney fees are not recoverable from the opposing

party as costs, damages, or otherwise, in the absence of an agreement between the parties,

statutory authority, or rule to the contrary. Id.

       Indiana Code section 31-17-7-1 provides that a trial court “periodically may order

a party to pay a reasonable amount of the cost to the other party of maintaining or

defending [a custody proceeding] and for attorney’s fees . . . .” When determining

whether or not to award attorney fees, a trial court must consider the resources of the

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

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employment and to earn adequate income, and such other factors as bear on the

reasonableness of the award. Bertholet v. Bertholet, 725 N.E.2d 487, 501 (Ind. Ct. App.

2000).

         Here, Stepmother argues that the trial court abused its discretion in ordering her to

pay $5,000 to Father’s attorney because the trial court did not consider the resources of

the parties or the ability of the parties to pay attorney fees and did not set forth any basis

for the award of fees. Allen, 832 N.E.2d at 1080 and Bertholet, 725 N.E.2d at 487 are

both instructive.

         In Allen, the trial court ordered Grandmother to pay $4,500 of Father’s attorney

fees. During the custody hearing, Father testified that he made $12.50 per hour and spent

over $8,000 in attorney fees, and Grandmother testified that she worked part-time in her

husband’s business. However, the trial court did not hold an evidentiary hearing on the

attorney fee issue, and there is no indication that the court considered the parties’

resources, economic condition, or other factors that would bear on the reasonableness of

the award of attorney fees. We concluded that the trial court abused its discretion in

failing to hold an evidentiary hearing to consider these issues and reversed the award of

attorney fees. Id. at 1103.

         In Bertholet, Husband appealed the trial court’s sua sponte order that he pay

Wife’s appellate attorney fees following an appeal bond hearing. This Court explained

that when assessing attorney fees, the trial court must consider the resources of the

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

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employment and to earn adequate income, and such other factors as bear on the

reasonableness of the award. Id. at 501. Our review of the record reveals there was some

evidence before the trial court that suggested an award of fees to Wife may have been

reasonable because at the time of the appeal bond hearing wife was unemployed, had no

income, and was going to lose her car. Id. However, because the trial court failed to hold

an evidentiary hearing to consider these issues and there was no indication that the court

considered both Husband’s and Wife’s respective economic circumstances and each

person’s ability to pay his or her own appellate attorney fees, we concluded that the trial

court had abused its discretion. Id.

       Here, Father testified that he is a firefighter. Stepmother works at Eli Lilly and

Company. However, as in both Allen and Bertholet, the trial court did not hold an

evidentiary hearing to consider the resources of the parties, their economic condition,

their ability to engage in gainful employment and earn adequate income, or any other

factors that would bear on the reasonableness of the award. Under these circumstances,

the trial court erred in ordering Mother to pay Father’s attorney $5,000.

       The judgment of the trial court is affirmed in part and reversed in part.

KIRSCH, J., and BROWN, J., concur.




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