MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Jun 09 2015, 9:18 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu                                         Brian K. Zoeller
Alex Beeman                                               Julie Andrews
Indianapolis, Indiana                                     Maggie L. Sadler
                                                          Cohen & Malad, LLP
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Sheila R. (Naum) Porter,                                 June 9, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1409-DR-623
        v.                                               Appeal from the Marion Superior
                                                         Court.
Brett T. Naum,                                           The Honorable John F. Hanley,
                                                         Judge.
Appellee-Respondent.
                                                         The Honorable Christopher B. Haile,
                                                         Magistrate.
                                                         Cause No. 49D11-0401-DR-43




Riley, Judge




Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015     Page 1 of 20
                                     STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Sheila R. (Naum) Porter (Mother), appeals the trial

      court’s findings of fact and conclusions of law, and order on custody,

      emancipation and attorney’s fees, denying her motion for modification of

      custody of the minor child, L.N., and granting her motion for emancipation of

      the two older children.1


[2]   We affirm.


                                                       ISSUES

[3]   Mother raises three issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by quashing the subpoena ad

               testificandum to elicit testimony from the minor child;

          (2) Whether the trial court violated Mother’s due process rights by granting

               Father’s request for reimbursement of medical expenses; and

          (3) Whether the trial court abused its discretion when it ordered Mother to

               pay Father’s attorney’s fees in the amount of $15,000.


                            FACTS AND PROCEDURAL HISTORY2




      1
        The parties do not appeal the emancipation of Damon Naum, born in August 1993, and Sarah Naum, born
      in May 1995. Facts with respect to these young adults will only be included if relevant to the appealed issues.
      2
        Even though the notice of appeal and completion of transcript were filed prior to the new Administrative
      Rule 9(G) becoming effective, we applaud parties for attempting to comply with the provisions of the Rule to
      retain confidentiality of certain facts in this cause. As such, we have equally endeavored to maintain
      confidentiality on appeal and, thus, approach the inclusion of certain facts with the necessary caution. But

      Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015               Page 2 of 20
[4]   On August 18, 2000, after approximately nine years of marriage, a decree of

      dissolution of marriage was entered between Mother and Appellee-Respondent,

      Brett T. Naum (Father). During their marriage, three children were born:

      Damon Naum (Damon), born on August 11, 1993, Sarah Naum (Sarah), born

      on May 24, 1995, and L.N., born on April 10, 1997. Pursuant to the divorce

      decree, Father was awarded sole legal and physical custody of the parties’ three

      minor children, with Mother receiving supervised parenting time. Mother was

      ordered to pay weekly child support in the amount of $55. On November 19,

      2004, the trial court documented Mother’s child support arrearage to be

      $5,011.97 and entered a judgment of $1,800 in Father’s attorney’s fees against

      Mother. On April 7, 2005, Mother obtained unsupervised parenting time, with

      restrictions as to specific people who were not to be around the children. In the

      three years preceding the trial court’s final order in this cause, Mother had

      never exercised more than fifty overnights per year with the children.


[5]   On January 4, 2008, Mother filed a petition for contempt citation and petition

      for emergency hearing on modification of custody, parenting time, and child

      support. Three days later, Father filed his notice of respondent’s active duty




      an appellate opinion that both decides the case and articulates the law requires consideration of the
      underlying facts. Accordingly, we have included a number of facts derived from the confidential records in
      this cause because “we deem such information to be public as essential to the resolution of the litigation and
      appropriate to further the establishment of precedent and the development of the law.” Drake v. Dickey, 2
      N.E.3d 30, 32 n.1 (Ind. Ct. App. 2013), aff’d 12 N.E.3d 875 (Ind. 2014).

      Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015               Page 3 of 20
      military service and request for stay of proceedings pursuant to the service

      members’ civil relief act. On February 7, 2008, Mother withdrew her petitions.


[6]   On November 4, 2013, Mother filed a verified emergency motion for

      modification of custody and request for expedited hearing, as well as a verified

      petition for modification of custody, a verified motion to appoint a guardian ad

      litem, and a verified petition to terminate child support for Damon and Sarah

      due to their emancipation. In her emergency motion, Mother alleged that

      Father had become physical with L.N., slapping her across the face. Mother

      elaborated that on October 27, 2013, Father and Damon had entered L.N.’s

      bedroom. During the argument that ensued, Father instructed Damon to

      silence L.N. upon which Damon slapped his sister in the face. On November

      18, 2013, Mother filed her petition for order of protection and request for

      hearing, filed on behalf of L.N., asserting that Father had hit L.N. with his fist.

      L.N. was knocked to the floor, and “decided to lay there to avoid further abuse

      from” Father. (Appellant’s Conf. App. p. 39). 911 was called and L.N. was

      transported to the hospital.


[7]   On November 20, 2013, Father filed his verified response to Mother’s verified

      motion to appoint a guardian ad litem and her emergency motion for

      modification of custody, and request for expedited hearing. In his response,

      Father noted, in pertinent part, that

              5. [L.N.] is sixteen (16) years of age and is now, and has been, a
              troubled child. From a very early age, [L.N.] began exhibiting
              behavioral issues which continue to date. [L.N.] has a history of lying


      Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 4 of 20
              about her whereabouts, her activities, and her companions and wishes
              to move from Father’s home where there is structure and discipline.
              6. Because Father would not agree to allow [L.N.] to move from his
              home, in an attempt to force the issue, [L.N.] invented a story of
              neglect and abuse which was reported to the department of Child
              Services (DCS) by an anonymous caller.
              7. DCS investigated and found the allegations to be unsubstantiated.
              8. Father believes that Mother, who has not had custody of [L.N.] for
              thirteen (13) years, and whose own history of poor decisions in this
              matter resulted in her having supervised parenting time for several
              years, allows [L.N.] to have more freedom than is wise for a 16-year
              old child, especially one who is as confused as [L.N.] is at this time.
              9. Father believes it is in [L.N.’s] best interest for her to remain with
              him where he will continue to provide love, structure, discipline and
              counseling for [L.N.’s] behavioral issues. . . .
      (Appellant’s App. p. 46).


[8]   On December 2, 2013, Mother filed a motion to quash subpoena duces tecum,

      seeking to quash the notice of deposition served on her by Father. On

      December 4, 2013, the trial court issued its order on the motion to quash,

      advising the parties to agree on a date before December 20, 2013. On

      December 5, 2013, Mother filed a motion for appointment of a domestic

      relations counseling bureau (DRCB) investigation. On December 18, 2013,

      Mother filed a belated verified notice of relocation and a verified motion to

      offset child support overpayments against attorney’s fees, requesting that the

      child support she paid for Damon and Sarah during the time they should have

      been emancipated be credited against the amount she owed Father in

      previously awarded attorney’s fees. At the same time, she also filed an




      Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 5 of 20
       amended witness and exhibit list, naming, among others, L.N. as a potential

       witness.


[9]    On December 20, 2013, after a hearing, the trial court denied Mother’s

       emergency motion for modification of custody and appointment of a guardian

       ad litem, but granted her request for appointment of a DRCB investigation. On

       January 10, 2014, Mother filed an amended motion to credit her overpayment

       in child support towards the arrearage in Father’s attorney’s fees, which was

       subsequently denied by the trial court on February 12, 2014. Two days later,

       Mother filed a motion to correct error and/or to reconsider or, in the

       alternative, to rule on Mother’s emancipation petition.


[10]   On March 14, 2014, Mother filed a notice of appeal to the trial court’s denial of

       her amended motion to offset her child support overpayments, as well as a

       motion to remand pending the trial court’s ruling on her motion to correct

       error. The trial court denied Mother’s motion to correct error that same day.

       On March 28, 2014, this court declared Mother’s motion to remand to be moot.

       On April 1, 2014, Mother filed an amended notice of appeal to reinstate the

       appellate process. Two weeks later, Father filed a motion to dismiss the appeal

       as the appealed order was not a final order. We granted Father’s motion on

       May 16, 2014, and dismissed Mother’s appeal with prejudice.


[11]   On May 2, 2014, Father filed his praecipe for final hearing with the trial court,

       which the trial court set for July 8, 2014. On May 28, 2014, Mother filed a

       motion for an in camera hearing with counsel present so L.N. “can comfortably


       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 6 of 20
       express her desires and concerns as they relate to her current living arrangement

       with Father.” (Appellant’s App. p. 159). The trial court denied Mother’s

       request on May 30, 2014. On June 6, 2014, Mother filed her motion to

       reconsider the in camera hearing and to vacate the trial court’s May 30 order on

       the basis that “Father fears what [L.N.] may express to the [c]ourt and, as such,

       first attempted to discredit her as a child with ‘behavioral issues.’ However,

       now Father indicates that [L.N.] is a child suffering from ‘serious mental health

       issues.’” (Appellant’s App. p. 166) (internal references omitted). On June 10,

       2014, Mother’s motion to reconsider was denied by the trial court. On the

       same day, Father moved for attorney’s fees incurred in the dismissal of

       Mother’s appeal.


[12]   On July 7, 2014, the day before the final hearing, Mother filed a notice of intent

       to call L.N. as a witness at the final hearing and served Father with a copy of a

       subpoena ad testificandum issued to L.N. The following morning, Father filed

       his motion to quash subpoena ad testificandum, which was granted by the trial

       court. The trial court conducted its final hearing that same day.


[13]   On August 18, 2014, the trial court issued its findings of fact, conclusions of

       law, and order on custody, emancipation, and attorney’s fees, concluding, in

       pertinent part, that

               36. Mother failed to meet her burden of proof on all of the factors
               required for modification of custody. Beyond her own wishes, Mother
               was unable to prove that a substantial change in circumstances has
               occurred to support that a modification of custody is in the best
               interests of the child.

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 7 of 20
        37. Mother’s on-going denial of [L.N.’s] mental health issues places
        the child’s welfare at risk.
        38. [L.N.] has been displaying serious behavioral problems in school
        and at home. Father has addressed these problems in a timely and
        appropriate manner which has been in the child’s best interest.
        39. Father has concerns that Mother would fail to ensure that [L.N.’s]
        educational, social, and behavioral needs are not being met.
        40. Stability is in the child’s best interest and any transfer of custody to
        Mother could possibly disrupt the child’s treatment which would be
        detrimental to her recovery.
        41. Mother has failed to present evidence proving that there has been
        a substantial change in circumstances in one or more of the factors.
        42. It is in the best interest of the children that primary physical
        custody remains with Father. Mother shall be entitled to parenting
        time pursuant to the [Indiana Parenting Time Guidelines].
        43. Mother is ordered to fully cooperate in [L.N.’s] mental health
        treatment and counseling.
        ***
        45. The older children are emancipated by law. However, the
        emancipation does not date back to the date of emancipation due to
        the existence of an in gross order. The overpayment of child support
        only dates back to the date of filing for modification of child support.
        ***
        47. Father established that Mother had a past due uninsured medical
        expense arrearage for the children in the amount of $577.00. Mother
        is entitled to a credit of support overpayment as a result of the
        emancipation in the amount of $490.00 as established in Father’s
        Exhibit B. Offsetting Mother’s overpayment against her medical
        arrearage results in her owing Father $87.00 in past due medical bills.
        ***
        54. Between November of 2013 and the final hearing, Mother filed
        approximately eleven motions with the court, two notices of appeal
        and multiple motions with the Indiana Court of Appeals, served
        Father with two sets of interrogatories, three sets of requests for
        production, two sets of requests for admissions, and deposed Father.

Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 8 of 20
               55. Father was forced to respond to these motions. When Father
               attempted to refrain from responding to Mother’s motion for child
               support overpayments to offset attorney’s fees, Mother’s attorney went
               so far as to file a notice with the court that Father was non-responsive,
               forcing Father to incur further attorney fees.
               56. Furthermore, Mother’s notice of appeal was dismissed because
               this [c]ourt had simply not yet issued a final order. When it became
               apparent that Father needed to file a motion to dismiss and that the
               [c]ourt of [a]ppeals would not dismiss sua sponte, Father was again
               forced to incur unwarranted attorney fees.
               57. Furthermore, Mother has shown a complete disregard for the well-
               being of the mentally ill child in this case by exposing her to the
               proceedings by seating her at the counsel’s table and more egregiously
               by attempting to force her on the eve of trial to be transported from an
               inpatient mental health treatment facility in Columbus Indiana to
               testify at the hearing.
               58. Furthermore, Mother continued to pursue a modification of
               custody despite being told by the Department of Child Services
               caseworker who investigated this matter that the child’s allegations
               were unsubstantiated and indeed fabricated by the child.
               59. Mother’s flat fee representation has had the effect of allowing
               Mother to run up Father’s attorney fees.
               60. Many of Mother’s actions in this proceeding were without merit
               and not in the best interest of the child and she should contribute
               toward Father’s fees.
               61. That the [c]ourt finds Father’s fees of $20,000.00 are reasonable
               given the extensive filings and responses required by Father’s attorney,
               the complexity of the matter and the issues involved.
               62. [Mother] shall contribute $15,000.00 towards [Father’s] attorney
               fees incurred in this action. . . .
       (Appellant’s App. pp. 248-53).


[14]   Mother now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 9 of 20
                                        I. Subpoena Ad Testificandum


[15]   During these custody proceedings, Mother repeatedly attempted to elicit the

       testimony of the minor child in an effort to rebut Father’s allegations that L.N.

       is suffering from certain mental health issues. Ranging from an order of

       protection to listing L.N. as a potential witness and requesting an in camera

       interview, Mother’s filings culminated in a subpoena ad testificandum, served on

       the eve of the final hearing. On the morning of trial, Father filed a motion to

       quash the subpoena on the ground that L.N. was receiving inpatient mental

       health services and disrupting her treatment would not be beneficial for her

       care. The trial court quashed the subpoena ad testificandum. Mother now

       contends that the trial court abused its discretion when it quashed the subpoena

       as it deprived her of the opportunity to refute the allegations made by Father

       about L.N.’s behavior and to which Mother could not testify as she lacked

       personal knowledge.


[16]   As a general matter, the decision to admit or exclude evidence is within the trial

       court’s sound discretion and is afforded great deference on appeal. Southtown

       Props., Inc. v. City of Fort Wayne ex rel. Dep’t of Redev., 840 N.E.2d 393, 399 (Ind.

       Ct. App. 2006), trans. denied. A trial court’s decision to exclude evidence

       constitutes an abuse of discretion if it is clearly against the logic and effect of the

       facts and circumstances before the court or if it misinterprets the law. Id.

       Additionally, erroneously excluded evidence requires reversal only if it relates

       to a material matter or substantially affects the rights of the parties. Turner v.



       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 10 of 20
       Bd. of Aviation Comm’rs, 743 N.E.2d 1153, 1165 (Ind. Ct. App. 2001), trans.

       denied.


[17]   In Newton v. Yates, 353 N.E.2d 485 (Ind. Ct. App. 1976), reh’g denied, this court

       dealt with the question of the court’s authority to quash a subpoena ad

       testificandum for the first time. The Newton court noted that Indiana Trial Rule

       45(B), which provides a trial court with authority to quash a witness subpoena,

       only refers to “subpoena duces tecum and has no applicability to subpoenas ad

       testificandum.” Id. at 499. Applying the general rule of evidence that a witness

       must present relevant and admissible testimony, the court held that the

       quashing of a subpoena ad testificandum is improper where a witness potentially

       has some relevant and admissible evidence to offer at trial. Id. at 494; see also In

       re Adoption of L.C., 650 N.E.2d 726, 732 (Ind. Ct. App. 1995), reh’g denied, trans.

       denied. Accordingly, a trial court may properly quash a subpoena on

       immateriality, irrelevancy, or inadmissibility grounds. In re Adoption of L.C.,

       650 N.E.2d at 732. However, our court has previously warned that the

       “procedure for separating admissible from inadmissible testimony must not be

       the quashing of all testimony.” Newton, 353 N.E.2d 485, 494 (Ind. 1976).


[18]   Claiming that the minor child was competent to testify, Mother asserts that

       L.N. “had some pretty significant and important testimony for which [sic] the

       trial court should have heard which goes directly towards what is in her best

       interests and even to the protective order requested by Mother on behalf of

       [L.N.].” (Appellant’s Br. p. 23). As pointed out by Father, L.N. had been

       interviewed by the DRCB and had the opportunity to disclose her claimed
       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 11 of 20
       allegations of abuse, but did not do so. As such, Father maintains that L.N.’s

       testimony would have been irrelevant and cumulative. We agree.


[19]   During the DRCB investigation, the parents and the three children were

       interviewed separately and confidentiality. Mother and Father both presented

       their concerns and wishes to the investigator, including accounts on how the

       other parent treated the children. While talking with L.N., the investigator

       noted that she was guarded and reluctant to speak. Even though she was given

       the opportunity to divulge the details—or even the existence—of her

       allegations, she did not do so. The investigator also located collateral

       information from IMPD and DCS reports. The DRCB report concluded L.N.

       to be in need of additional support, extending beyond the basic, family

       intervention. The report also recognized that Father presented as an advocate

       for L.N. and showed willingness to give her the care she needed, while Mother

       was reluctant to accept that her daughter required mental health assistance or

       extra parenting supervision. Accordingly, as the trial court had ordered the

       DRCB investigation as part of the proceedings and L.N. had been interviewed

       and allowed to present her wishes and concerns, the trial court did not abuse its

       discretion by quashing the subpoena as L.N.’s testimony would have been

       cumulative to the DRCB’s proceedings.


[20]   After the trial court properly quashed the subpoena ad testificandum and during

       the hearing—at which L.N. was not present—Mother attempted to make an

       offer of proof by presenting the trial court with a proffer of L.N.’s testimony,

       filed with the court on the morning of the hearing and signed by Mother’s

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 12 of 20
       counsel. The trial court vociferously refused to let Mother make an offer of

       proof and ordered Mother’s filing of the proffered testimony stricken from the

       record.


[21]   Older case law suggests that when the objection “is to the right of the witness to

       testify at all, the party introducing that witness need not state what he expects to

       prove by him, as the question for the court to pass upon in such a case is not as

       to the competency of the [witness’] testimony, but as to the competency of the

       witness himself.” Sullivan v. Sullivan, 32 N.E. 1132, 1133 (Ind. 1893).

       However, more recent case law has held that an offer of proof is required even

       when the trial court has found a witness incompetent or when it has otherwise

       prevented a witness from giving any testimony. Bedree v. Bedree, 747 N.E.2d

       1192, 1196 (Ind. Ct. App. 2001), trans. denied. In Donaldson v. Indianapolis Pub.

       Transp. Corp., 632 N.E.2d 1167, 1170 (Ind. Ct. App. 1994) (internal reference

       omitted), we noted:

               During direct examination, when the trial court rules that a witness
               may not testify, the proponent of the excluded testimony must make
               an offer of proof to preserve the ruling for appellate review. An offer
               of proof provides the appellate court with the scope and effect of the
               area of inquiry and the proposed answers, in order that it may consider
               whether the trial court’s ruling excluding the evidence was proper.
       Thus, failure to make an offer of proof results in waiver of the evidentiary issue.

       Bedree, 747 N.E.2d at 1196.


[22]   Because an appellant may be subject to waiver if he or she fails to make an offer

       of proof, we believe that generally, the better course of action is for the trial

       court to allow an offer of proof so that a record can be made for this court on
       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 13 of 20
       appeal. See id. However, we do not believe that the trial court committed

       reversible error in this particular instance by disallowing Mother’s offer of proof

       of L.N.’s purported testimony. Indiana Evidence Rule 103(a)(2) states that

       error may not be predicated upon a ruling excluding evidence unless a

       substantial right of the party is affected and an offer of proof was made or “the

       substance of the evidence . . . was apparent from the context[.]” The substance

       of L.N’s proffered testimony was apparent from the context as both Father and

       Mother testified as to L.N.’s wish to live with Mother and to L.N.’s

       dysfunctional relationship with Father, which was well documented in the

       various reports properly before the trial court. Therefore, we conclude that the

       trial court properly quashed Mother’s subpoena ad testificandum and although

       the trial court abused its discretion when it rejected Mother’s offer of proof of

       L.N.’s anticipated testimony, this error was harmless and would not have

       affected the outcome of the modification proceeding.


                                   II. Reimbursement of Medical Expenses


[23]   Next, Mother contends that she was denied due process because Father had not

       provided her with notice that he intended to request the reimbursement of

       medical expenses during the final hearing. Relying on Trial Rule 15(B), Father

       replies that because Mother was ordered in the dissolution decree to pay a

       certain amount of the uninsured medical expenses, Mother was on notice that

       this issue could be brought before the trial court during the hearing.




       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 14 of 20
[24]   Due process requires notice, an opportunity to be heard, and an opportunity to

       confront witnesses. In re M.L.K., 751 N.E.2d 293, 295-96 (Ind. Ct. App. 2001).

       Before an action affecting a party’s interest in life, liberty, or property protected

       by the Due Process Clause of the Fourteenth Amendment proceeds, the State at

       a minimum, must provide “notice reasonably calculated, under all the

       circumstances, to apprise interested parties of the pendency of the action and

       afford them an opportunity to present their objections.” Id. (citing Yoder v.

       Elkhart Co. Auditor, 632 N.E.2d 369, 372 (Ind. Ct. App. 1994). Such notice

       must reasonably convey the required information to the affected party, must

       afford a reasonable time for that party to respond, and is constitutionally

       adequate when the practicalities and peculiarities of the case are reasonably

       met. In re M.L.K., 751 N.E.2d at 296.


[25]   While Indiana is a notice pleading state, issues may be tried without an overt

       pleading pursuant to Ind. Trial Rule 15(B). Baker v. Midland-Ross Corp. 508

       N.E.2d 32, 35 (Ind. Ct. App. 1987), trans. denied. Trial Rule 15(B) provides as

       follows:

               When issues not raised by the pleadings are tried by the express or
               implied consent of the parties, they shall be treated in all respects as if
               they had been raised in the pleadings. Such amendments of the
               pleadings as may be necessary to cause them to conform to the
               evidence and to raise these issues may be made upon motion of any
               party at any time, even after judgment, but failure so to amend does
               not affect the result of the trial of these issues. If evidence is objected
               to at the trial on the ground that it is not within the issues made by the
               pleadings, the court may allow the pleadings to be amended and shall
               do so freely when the preservation of the merits of the action will be
               subserved thereby and the objecting party fails to satisfy the court that

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 15 of 20
               the admission of such evidence would prejudice him in maintaining
               his action or defense upon the merits. The court may grant a
               continuance to enable the objecting party to meet such evidence.
       The purpose behind T.R. 15(B) is to provide the parties with some flexibility in

       litigating a case, and to promote justice by permitting evidence brought in at

       trial to determine the liability of the parties. Baker, 508 N.E.2d at 37. The

       function of the issues, whether formed by the pleadings, pre-trial orders, or

       contentions of the parties, is to provide a guide for the parties and the court as

       they proceed through trial. In re V.C., 867 N.E.2d 167, 178 (Ind. Ct. App.

       2007). Either party may demand strict adherence to the issues raised before the

       trial. Id. If the trial court allows introduction of an issue not raised before trial,

       an objecting party may seek a reasonable continuance in order to prepare to

       litigate the new issue. Id. However, where the trial ends without objecting to

       the new issue, the evidence actually presented at trial controls. Baker, 508

       N.E.2d at 35. Consequently, neither pleadings, pre-trial orders, nor theories

       proposed by the parties should frustrate the trier of fact from finding the facts

       that a preponderance of the evidence permits. Id.


[26]   Because fairness compels certain restraints, however, there are limits upon the

       principle of amending pleadings through implied consent. In re V.C., 867

       N.E.2d at 178. For example, a party is entitled to some form of notice that an

       issue that was not pleaded is before the court. Id. Notice can be overt, as where

       the unpleaded issue is expressly raised prior to or sometime during the trial but

       before the close of the evidence, or implied, as where the evidence presented at




       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 16 of 20
       trial is such that a reasonably competent attorney would have recognized that

       the unpleaded issue was being litigated. Baker, 508 N.E.2d at 35.


[27]   The record reveals that Father had sent Mother a request for reimbursement of

       medical expenses on January 1, 2008, without receiving any financial

       satisfaction from her. During the hearing, Father introduced the issue of these

       unreimbursed medical expenses in the framework of Mother’s motion to offset

       her child support overpayments due to the emancipation of the older children.

       Our review of proceedings reveals a plethora of evidence elicited without

       objection at trial that Mother had not received notice of Father’s intent to seek

       this reimbursement. Specifically, Father was allowed to testify—without

       objection—on his request for reimbursement, the amount of the medical

       expenses and Mother’s share thereof, and introduce his written request of 2008

       into evidence. Although in her appellate brief Mother claims to have objected

       to the admission of the itemized exhibit, no such objection appears on the

       record. Rather, the closest Mother came to raising an objection was during

       cross-examination, when she confirmed with Father that he had “nothing

       pending before [t]his [c]ourt to actually ask for these reimbursements from

       2008, do you?” (Tr. p. 145). However, no formal objection was ever lodged.


[28]   Accordingly, as Mother received overt notice by Father’s express request to

       reimburse Mother’s share of medical expenses during the hearing and prior to

       the close of the evidence, and she failed to insist on a strict adherence to the

       issues raised or ask for a reasonable continuance, the unreimbursed medical

       expenses were properly before the trial court. Mother’s due process rights were

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 17 of 20
       not violated. Therefore, we affirm the trial court’s grant of Father’s request for

       reimbursement of medical expenses.


                                          III. Father’s Attorney’s Fees


[29]   After receiving evidence on Father’s attorney’s fees incurred during these child

       custody modification proceedings, the trial court concluded that Father’s fees of

       $20,000 were reasonable and ordered Mother to contribute $15,000 towards

       these fees. Mother now disputes Father’s award of attorney’s fees.


[30]   Pursuant to Ind. Code § 31-17-7-1, the trial court may order a party to pay a

       reasonable amount for the cost of the other party maintaining an action for

       custody modification and for attorney’s fees and mediation services. The trial

       court had broad discretion in awarding attorney’s fees. Haley v. Haley, 771

       N.E.2d 743, 753 (Ind. Ct. App. 2002). We will reverse the trial court’s decision

       to award attorney’s fees only if the decision is clearly against the logic and effect

       of the facts and circumstances. Id. What constitutes a reasonable attorney’s fee

       “is not limited to an hourly rate, but includes such matters as the result

       achieved . . . and the difficulty of the issues.” Finley v. Finley, 422 N.E.2d 289,

       293 (Ind. Ct. App. 1981). When determining whether an award of attorney’s

       fees is appropriate, the court may also consider such factors as the resources of

       the parties, their relative earning abilities, and other factors which bear on the

       reasonableness of the award. Id. Any misconduct on the part of one party

       which causes the other party to directly incur additional fees may be taken into

       consideration. Id.


       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 18 of 20
[31]   The complexity of the case is evidenced by Mother’s filings of 26 motions,

       Father’s filing of 12 motions, numerous objections and responses, extensive

       discovery by Mother, as well as subsequent notices of appeal. The short time

       span in which all motions were made and the appeal was taken is indicative of

       the contentious nature of this modification. Mother pursued the modification,

       requesting the same result—a court-conducted interview of the minor child—

       several times and by varied legal avenues, regardless of the well-being of a

       mentally ill minor child and in spite of the unsubstantiated reports of child

       abuse. Even though Mother was successful in having the minor child

       interviewed by the DRCB, Mother persisted in filing repeated motions to have

       L.N. brought into court, even on the eve of the final hearing. Father was forced

       to respond to Mother’s motions; if Father attempted to refrain from responding,

       Mother filed a notice with the trial court that Father was unresponsive.


[32]   When Mother received a negative response to her motion to offset an

       overpayment in child support payments against an attorney fee judgment, she

       filed an appeal despite the fact that the issue was not ripe and no other record

       existed but the pleadings. We dismissed Mother’s appeal with prejudice but not

       before Father incurred fees to defend against an improper appeal.


[33]   Mindful of the trial court’s discretion in awarding attorney’s fees and Mother’s

       numerous filings which repeatedly sought the same result, we cannot say that

       the trial court improperly granted Father an award of attorney’s fees.


                                               CONCLUSION


       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 19 of 20
[34]   Based on the foregoing, we conclude that the trial court properly quashed the

       subpoena ad testificandum to elicit testimony from the minor child; Mother’s due

       process rights were not violated by addressing Father’s request for

       reimbursement of medical expenses; and the trial court did not abuse its

       discretion when it ordered Mother to pay Father’s attorney’s fees in the amount

       of $15,000.


[35]   Affirmed.


[36]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015   Page 20 of 20
