MEMORANDUM DECISION                                                           FILED
                                                                         Apr 06 2017, 9:50 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
regarded as precedent or cited before any                                      and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brad A. Catlin                                           Steven F. Fillenwarth
Price Waicukauski Joven & Catlin, LLC                    Christine M. Stolle
Indianapolis, Indiana                                    Fillenwarth & Associates
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Lehman,                                           April 6, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1512-DR-2225
        v.                                               Appeal from the Marion Superior
                                                         Court
Michele Lehman,                                          The Honorable Michael D. Keele,
Appellee-Respondent                                      Judge
                                                         The Honorable Victoria M.
                                                         Ransberger, Magistrate
                                                         Trial Court Cause No.
                                                         S784-1598



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017              Page 1 of 17
                                               Case Summary
[1]   In this consolidated appeal, we address the narrow issue of the appropriateness

      of attorney’s fee awards under the frivolous action statute and the marital

      dissolution statute. The parties, Robert Lehman (“Husband”) and Michele

      Lehman (“Wife”), divorced in 1985 and, since 2012, have been in and out of

      court numerous times on various motions, causes, and appeals. This time,

      Husband challenges (1) the denial of his request for attorney’s fees in defending

      Wife’s allegedly frivolous action seeking to vacate a twenty-seven-year-old

      dissolution decree; and (2) an order granting Wife’s motion for preliminary

      appellate attorney’s fees pursuant to the marital dissolution statute. We affirm.


                                 Facts and Procedural History
[2]   Husband and Wife married in 1981 and had one daughter during the marriage.

      In 1984, Husband filed a petition to dissolve the marriage. In 1985, the trial

      court issued a decree of dissolution and settlement agreement signed by both

      parties (collectively “the 1985 decree”). Wife was a homemaker, and at that

      time, Husband was an attorney.1 The couple continued to live together in their

      home for the next two decades, raised their daughter together, and held

      themselves out to the public as married. In 1995, Wife found some dissolution

      documents in their home.




      1
          Husband was subsequently disbarred. See In re Lehman, 901 N.E.2d 1097, 1098 (Ind. 2009).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017           Page 2 of 17
[3]   In 2012, Wife filed a motion under Indiana Trial Rule 60(B) to set aside the

      1985 decree, claiming that she never knew that she and Husband were

      divorced. She questioned the authenticity of her purported signatures on the

      dissolution documents and claimed that Husband had forced her to sign some

      documents under coercion. In her Trial Rule 60(B) motion, she specified the

      following grounds for relief: fraud on the court, rescission based on

      reconciliation of the parties, and lack of jurisdiction based on her assertion that

      she neither received a summons nor was ever served with the 1985 decree. In

      conjunction with her motion, she filed a new petition for dissolution of

      marriage. Husband filed a motion to dismiss Wife’s motion to set aside,

      claiming lack of jurisdiction and failure to state a claim upon which relief can

      be granted. The trial court denied the motion, finding that it had jurisdiction

      and that Wife had sufficiently stated a legal claim as required by Indiana Trial

      Rule 12(B)(6). Wife filed two requests to amend her motion to set aside. The

      trial court granted the first and denied the second, in which she sought to add a

      cohabitation claim.


[4]   The trial court held a hearing in September 2013, during which Husband

      claimed that Wife’s motion to set aside was not a domestic relations matter and

      that he therefore was not required to pay Wife’s attorney’s and expert witness

      fees. The trial court ordered him to pay the fees, and he appealed. He later

      moved to dismiss his appeal, and the motions panel of this Court dismissed the




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 3 of 17
      appeal with prejudice on January 27, 2014.2 Appellee’s Corrected App. Vol. II

      at 13.


[5]   In June 2014, the trial court heard Wife’s evidence on her motion to set aside

      the 1985 decree. At the end of her case-in-chief, Husband moved for

      involuntary dismissal pursuant to Indiana Trial Rule 41(B). The trial court took

      the matter under advisement and eventually granted Husband’s motion, finding

      Wife’s evidence insufficient to support her claims of lack of jurisdiction, fraud

      on the court, and rescission by reconciliation. Wife filed a motion to correct

      error, which was denied.


[6]   Also in 2014, Husband filed a motion for attorney’s fees pursuant to Indiana

      Code Section 34-52-1-1(b), claiming that Wife’s motion to set aside the 1985

      decree was a frivolous, unreasonable, or groundless action. Meanwhile, he

      filed an independent action against Wife for abuse of process and malicious

      prosecution. Citing his filing of the independent action, Husband subsequently

      requested dismissal without prejudice of his request for attorney’s fees in the

      original action pursuant to Indiana Trial Rule 41(C). The trial court granted his

      motion.


[7]   In September 2015, Husband moved to reinstate his request for attorney’s fees

      in the original action. The trial court denied his fee request, observing that “in

      filing the separate action for abuse of process [Husband] has deliberately created




      2
          There is nothing in the record to indicate that Husband did not pay those fees as ordered.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017             Page 4 of 17
      additional attorney[’s] fees for his former wife, while simultaneously seeking

      attorney[’s] fees and costs from her.” Appellant’s App. Vol. II at 177. Husband

      filed a motion to correct error, and Wife filed a motion to strike certain portions

      of Husband’s affidavit attached to his motion to correct error. The trial court

      granted Wife’s motion to strike and denied Husband’s motion to correct error.

      Husband requested leave to amend his motion to correct error. The trial court

      granted his request but ultimately denied his amended motion to correct error.

      Husband initiated an appeal.


[8]   Meanwhile, Wife filed a motion for preliminary appellate attorney’s fees

      pursuant to the dissolution statute. Husband sought a protective order to

      prevent Wife from accessing certain financial information for purposes of her

      petition for appellate attorney’s fees. The trial court conducted a hearing,

      during which Husband stipulated to the appropriateness of appellate fees on the

      condition that the trial court had the legal authority to impose appellate

      attorney’s fees. Wife’s counsel indicated that the reasonable fee amount would

      be $7500, and the trial court concluded that the revelation of this fee

      information rendered Husband’s requested protective order unnecessary. In

      December 2015, the trial court granted Wife’s motion for preliminary appellate

      attorney’s fees, and Husband now appeals, claiming that the trial court lacked

      the legal authority to impose appellate attorney’s fees. This appeal was

      consolidated with Husband’s appeal of the trial court’s denial of his motion to




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 5 of 17
       correct error on his own request for attorney’s fees.3 Additional facts will be

       provided as necessary.


                                     Discussion and Decision
[9]    Husband asserts that the trial court erred in denying his petition for attorney’s

       fees pursuant to the frivolous action statute and by granting Wife’s petition for

       preliminary appellate attorney’s fees under the marital dissolution statute. We

       review a trial court’s ruling on a petition for attorney’s fees for an abuse of

       discretion. R.L. Turner v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012).

       An abuse of discretion occurs if the trial court’s decision clearly contravenes the

       logic and effect of the facts and circumstances before it or it has misinterpreted

       the law. Id. Where, as here, the trial court enters special findings and

       conclusions thereon, we apply a two-tiered standard of review. Stonger v. Sorrell,

       776 N.E.2d 353, 358 (Ind. 2002). We determine first whether the evidence

       supports the findings and then whether the findings support the judgment. Id.

       When reviewing the findings, we neither reweigh evidence nor reassess witness

       credibility. Id. We reverse only on a showing of clear error. Id.


[10]   “The general rule regarding attorney fees – known as the American Rule – is

       that each party bears its own attorney fees.” Cavello v. Allied Physicians of

       Michiana, LLC, 42 N.E.3d 995, 1006 (Ind. Ct. App. 2015). Among the

       exceptions to the American Rule are attorney’s fee awards for frivolous,



       3
         Wife filed a motion to strike certain statements included in Husband’s reply brief, which we deny in an
       order to be issued contemporaneously with this decision.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017             Page 6 of 17
       unreasonable, or groundless actions and attorney’s fee awards in domestic

       relations matters. See Ind. Code §§ 34-52-1-1, 31-15-10-1.


          Section 1 – The trial court acted within its discretion in
       denying Husband’s petition for attorney’s fees pursuant to the
                         frivolous action statute.
[11]   Husband submits that the trial court abused its discretion in denying his petition

       for attorney’s fees based on what he characterizes as a frivolous, unreasonable,

       or groundless action filed by Wife to set aside the 1985 decree. Indiana Code

       Section 34-52-1-1 reads in pertinent part,

               (b) In any civil action, the court may award attorney’s fees as
               part of the cost to the prevailing party, if the court finds that
               either party:

               (1) brought the action or defense on a claim or defense that is
               frivolous, unreasonable, or groundless;

               (2) continued to litigate the action or defense after the party’s
               claim or defense clearly became frivolous, unreasonable, or
               groundless; or

               (3) litigated the action in bad faith.

               (c) The award of fees under subsection (b) does not prevent a
               prevailing party from bringing an action against another party for
               abuse of process arising in any part on the same facts. However,
               the prevailing party may not recover the same attorney’s fees
               twice.


[12]   Our supreme court has observed that the legal process “must invite, not inhibit,

       the presentation of new and creative argument” and, as such, statutes
       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 7 of 17
       authorizing the recovery of attorney’s fees “must leave breathing room for

       zealous advocacy and access to the courts to vindicate rights.” Mitchell v.

       Mitchell, 695 N.E.2d 920, 925 (Ind. 1998). Being sensitive to such

       considerations, a trial court must view “with suspicion” a party’s assertions that

       his opponent has raised a frivolous, unreasonable, or groundless claim or

       defense. Id. Broadly stated, the statute authorizing an award of attorney’s fees

       for frivolous lawsuits “strikes a balance between respect for an attorney’s duty

       of zealous advocacy and the important policy of discouraging unnecessary and

       unwarranted litigation.” Id. at 924 (citation and internal quotation marks

       omitted).

[13]           A claim or defense is “frivolous” if it is taken primarily for the
               purpose of harassment, if the attorney is unable to make a good
               faith and rational argument on the merits of the action, or if the
               lawyer is unable to support the action taken by a good faith and
               rational argument for an extension, modification, or reversal of
               existing law. A claim or defense is unreasonable if, based on the
               totality of the circumstances, including the law and the facts
               known at the time of filing, no reasonable attorney would
               consider that claim or defense was worthy of litigation. A claim
               or defense is “groundless” if no facts exist which support the legal
               claim presented by the losing party. A trial court is not required
               to find an improper motive to support an award of attorney fees;
               rather, an award may be based solely upon the lack of a good
               faith and rational argument in support of the claim.


       Waterfield v. Waterfield, 61 N.E.3d 314, 335-36 (Ind. Ct. App. 2016) (citations

       omitted), trans. denied (2017). “A claim or defense is not groundless or frivolous




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 8 of 17
       merely because the party loses on the merits.” Estate of Kappel v. Kappel, 979

       N.E.2d 642, 655 (Ind. Ct. App. 2012).


[14]   Here, Husband asserts that Wife’s motion to set aside a twenty-seven-year-old

       decree was frivolous, unreasonable, or groundless. Although the trial court

       eventually granted Husband’s motion for involuntary dismissal under Trial

       Rule 41(B), Husband first sought and was denied dismissal under Trial Rule

       12(B)(6) for failure to state a claim. While we acknowledge that the showing

       required to survive a Rule 12(B)(6) motion4 is less stringent than the showing

       required to survive dismissal under Rule 41(B),5 we believe that the trial court’s

       findings in its order denying dismissal under Rule 12(B)(6) are helpful in

       framing Wife’s counterarguments:

                3. Wife’s facts assert that Husband was formerly an attorney and
                Wife was a homemaker and primary caretaker of their minor
                child, at the time that Husband obtained a Decree of Dissolution
                on April 15, 1985, 27 years ago. Husband’s submission of a
                settlement agreement provided that Husband received the
                majority of the marital estate; Husband gave himself “complete
                ownership of all the marital real estate, whether individually or
                jointly owned”; Husband only assumed debt personally incurred



       4
         A motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency of the plaintiff’s
       complaint, and the trial court must consider the pleadings in the light most favorable to the plaintiff and draw
       every reasonable inference in favor of the nonmoving party, here Wife. Trail v. Boys & Girls Clubs of Nw. Ind.,
       845 N.E.2d 130, 134 (Ind. 2006)
       5
         After the plaintiff or party with the burden of proof has completed her presentation of evidence, the trial
       court may, on the opposing party’s motion, determine that upon the weight of the evidence and the law, the
       plaintiff has shown no right to relief and enter dismissal. Ind. Trial Rule 41(B). See also Barger v. Pate, 831
       N.E.2d 758, 761 (Ind. Ct. App. 2005) (under Rule 41(B)), trial court may weigh evidence, assess witness
       credibility, and determine whether party with burden of proof has established right to relief during case-in-
       chief).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017                Page 9 of 17
        in his name only and would “pay any other marital obligation
        but only up to a total amount of $1,500.00;” Wife was required
        to hold Husband harmless for any debts she was responsible for
        yet it had no similar clause for Husband to hold Wife harmless
        for payment of his outstanding obligations; Husband was to pay
        Wife $280 per month in child support, which was never paid for
        their only child; Husband also agreed to purchase and finance a
        condominium unit in Lakes at the Crossing in Indianapolis,
        however, he never purchased and/or financed said condominium
        on behalf of Wife.

        4. Wife has sufficiently stated a legal claim for relief against
        Petitioner for fraud upon the court. Wife’s complaint to set aside
        and vacate the final settlement agreement, decree of dissolution
        of marriage and wavier [sic] of final hearing (Motion) also sets
        forth facts to support her claim that Husband schemed to
        influence the Court to enter the Decree of Dissolution of
        Marriage and Final Settlement Agreement. Wife states that she
        did not sign the Waiver of Service and Consent to Jurisdiction[;]
        rather Husband fraudulently had this Waiver executed prior to
        submitting it to the Court. Wife also states that Husband
        physically threatened her to sign the settlement.

        5. Wife has sufficiently stated a claim that the parties intended to
        rescind the Final Settlement Agreement. Brinkmann v.
        Brinkmann, 772 N.E.2d 441, 448 (Ind. Ct. App. 2002)
        (underlining altered) requires clear proof that parties intend a
        property settlement agreement to be terminated where the parties
        later reconcile. Husband and Wife continually shared a marital
        residence together for the past twenty-seven (27) years; the parties
        held themselves out to the public as Husband and Wife for the
        past twenty-seven (27) years; the parties filed tax returns as
        married filing jointly. (Underlining altered.) Husband had
        previously represented to an Internal Revenue Service Auditor
        that Husband and Wife were legally married during questioning
        for a tax audit some years after the date of the Decree of
        Dissolution. After the date of the Decree of Dissolution,
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 10 of 17
               Husband did not follow the terms of the Final Settlement
               Agreement, failing to pay child support to Wife, failing to
               purchase and finance a condominium unit in Lakes at the
               Crossing in Indianapolis, Indiana, on behalf of Wife for which
               “he would not have consummated said purchase and major
               financial commitment” but for the Final Settlement Agreement.


       Appellee’s Corrected App. Vol. II at 10-11.


[15]   In its order granting Husband’s motion for involuntary dismissal of Wife’s

       claims pursuant to Rule 41(B), the trial court found that Wife waived her claim

       of lack of personal jurisdiction by submitting to the court’s jurisdiction and that,

       waiver notwithstanding, “The Court has carefully considered the testimony of

       Wife as well as Wife’s hand-writing expert. Wife does not remember signing

       the [waiver of service and consent to jurisdiction] and her expert’s testimony

       was not persuasive. The evidence, in the determination of the Court is simply

       deficient.” Appellant’s App. Vol. II at 125. As for Wife’s claim of fraud upon

       the court, the trial court found in pertinent part,

               22. Wife failed to present sufficient evidence to meet her burden
               of proof in demonstrating any of her allegations. The totality of
               Wife’s evidence does not support a finding of fraud. Even
               assuming arguendo, that Wife felt that she had to sign the
               documents that Husband placed before her, she had ample
               opportunity to show the documents to her friend … on the same
               night. She had time to destroy the documents. Wife is an
               educated person and could have checked the Court records at
               any time following the evening that she admittedly signed at least
               one of the documents.

               23. The Settlement Agreement contains numerous hand-written

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 11 of 17
        changes, initialed by the parties, which only served to benefit
        Wife. Those initialed changes demonstrate that Wife reviewed
        the terms of the Settlement Agreement and understood those
        terms well enough to make agreed changes to the document.

        24. Wife had been married and divorced prior to the marriage to
        [Husband]. She was represented by counsel in her prior divorce.
        Wife was certainly aware of her rights to follow up with
        contacting a lawyer.

        25. Wife’s claim that Husband concealed the dissolution action
        from her for over 27 years is simply not credible. The parties
        have filed separate tax returns (single, not married) since 1995;
        Wife filed for Social Security Benefits indicating she was
        divorced and was never married for more than 10 years; Wife
        testified, under oath, in a trial in Hamilton County that she was
        no longer married; and … Wife executed a promissory note to
        Husband indicating her understanding that the parties divorced
        in 1985. Wife has told a number of friends and family members
        about the divorce, including the parties’ daughter and [Wife’s]
        brother. Some of those friends were made aware of the divorce
        by Wife as early as 1995. Wife, by her own admission, found the
        signed and file-marked copies of the dissolution papers in 1995.
        She saw … a dissolution attorney, around the time she found
        those documents. Wife sat on any rights that she may have had
        by not acting upon the divorce for 18 years.

        26. Wife has failed to present sufficient evidence to meet her
        burden of proof in demonstrating Husband has committed fraud
        upon the Court. Husband’s Motion for Involuntary Dismissal of
        Respondent’s Motion to Set Aside on the basis of fraud upon the
        court is granted.


Id. at 126-27.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 12 of 17
[16]   With respect to Wife’s claim for rescission by reconciliation, the trial court

       found,


               30. While it is true that Husband did not provide a condo for
               Wife or pay the support figure detailed in their settlement, the
               parties clearly severed themselves financially at the time of the
               dissolution. The parties did not maintain joint bank accounts,
               debts or own property jointly. The fact that both parties
               “pretended” to be married for many years or chose to keep the
               details of their divorce private, simply does not prove rescission
               of the Settlement Agreement. Wife has failed to present
               sufficient evidence to meet her burden of proof in demonstrating
               that Husband has rescinded the Settlement Agreement.


       Id. at 128.


[17]   In short, the trial court initially found the Wife’s assertions sufficient to clear

       the hurdle of stating a claim upon which relief may be granted. The evidence

       that she and Husband continued to live together and held themselves out as a

       married couple to friends and even to the IRS, at least for the first decade,

       suggested that Wife, a homemaker, was not fully aware of the effect of the

       documents she had signed, potentially under duress. However, after affording

       Wife the opportunity to present her case fully and present witnesses on her own

       behalf, the trial court simply found that Wife’s claims lacked sufficient

       evidentiary support. In other words, Wife lost on the merits, but her loss did

       not render her claims frivolous, unreasonable, or groundless. See Estate of

       Kappel, 979 N.E.2d at 655. The trial court, having traversed the arduous maze

       of motions, amendments, and responses and managed the tensions and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 13 of 17
       conflicting stories of the parties, determined that Husband was not entitled to

       attorney’s fees under the frivolous action statute. We find no abuse of

       discretion here.


           Section 2 – The trial court acted within its discretion in
         granting Wife’s request for preliminary appellate attorney’s
                   fees pursuant to the dissolution statute.
[18]   Husband also maintains that the trial court lacked authority to award Wife

       preliminary appellate attorney’s fees and therefore abused its discretion in

       granting Wife’s petition. Indiana Code Section 31-15-10-1 allows a trial court

       to order a party to a marital dissolution to pay a reasonable amount for the cost

       to the other party of maintaining or defending any proceeding connected with

       the dissolution. Ehle v. Ehle, 737 N.E.2d 429, 437 (Ind. Ct. App. 2000). This

       includes amounts for legal services provided and costs incurred before the

       proceedings commenced or after entry of judgment. Ind. Code § 31-15-10-1(a).


[19]   The purpose of the award of attorney’s fees is to ensure legal representation for

       a party in a dissolution proceeding who might not otherwise be able to afford an

       attorney. Hartley v. Hartley, 862 N.E.2d 274, 286-87 (Ind. Ct. App. 2007). In

       contrast to the frivolous action statute, Indiana Code Section 31-15-10-1 is

       written more broadly. Among the factors that the trial court must consider

       when evaluating a request for attorney’s fees are the parties’ relative resources,

       economic condition, employability, and earning potential. Id. at 286. Where,

       as here, one party is “in a superior position to pay fees,” an award of attorney’s

       fees is proper. Id. at 287. See also Bertholet v. Bertholet, 725 N.E.2d 487, 501

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 14 of 17
       (Ind. Ct. App. 2000) (statute includes awards for reasonable appellate attorney’s

       fees where applicable).


[20]   Here, Husband was not present at the hearing on Wife’s request for preliminary

       appellate attorney’s fees. However, at the outset, his counsel stated,


               [Husband] is willing to stipulate or consent to an order finding
               that preliminary appellate attorney’s fees are appropriate in this
               case. Should this Court conclude that it has the authority to
               enter such an order …. so we’re not disputing the factual issue
               about that, we’re only disputing the legal issue.


       Tr. at 6. Later in the hearing, Husband’s counsel reiterated,


               I suppose my client would probably want me to do a response to
               the factual allegations, but frankly, like I said, we’re willing to
               stipulate this is an appropriate case for appellate attorney’s fees. What I
               don’t know from the facts or record that this Court has – is you
               know, what the expected fee – a reasonable fee would be in this
               case.


       Id. at 16 (emphasis added). Wife’s counsel submitted figures of twenty-five to

       thirty hours multiplied by an hourly rate of $275, for a reasonable appellate

       attorney’s fee of $7500. Id. at 21. He does not challenge the reasonableness of

       this amount on appeal.


[21]   Husband characterizes Wife’s action to set aside the 1985 decree as an

       independent action rather than a domestic relations matter and submits that the

       trial court therefore lacked authority to award her preliminary appellate

       attorney’s fees under the marital dissolution statute. We disagree. The trial

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 15 of 17
       court specifically found Husband’s claim for attorney’s fees to be “derivative”

       of Wife’s action to set aside a decree issued in a domestic relations matter.

       Appellee’s Corrected App. Vol. II at 18. The court also observed that the issue

       had already been addressed and decided:


                [Husband] raised this same issue (that [Wife’s] Motion to Set
                Aside is not a domestic relations matter) at the hearing in this
                Court on September 5, 2013. This Court disagreed with
                [Husband’s] argument then and ordered him to pay a portion of
                [Wife’s] attorney’s and expert’s fees. [Husband] initiated an
                appeal on this Court’s decision ordering him to pay [Wife’s] fees.
                [Husband] later moved to dismiss his own appeal and it was
                dismissed with prejudice.


       Id. at 18 n.1. Interestingly, while claiming that Wife’s Rule 60(B) motion was

       an independent cause and not a domestic relations matter, Husband made use

       of the domestic relations cause number to file his appeal as well as his own

       initial request for fees under the frivolous action statute.


[22]   The issue of whether Wife’s action is a domestic relations matter for purposes

       of attorney’s fees has been litigated, appealed, and dismissed with prejudice by

       this Court.6 In its order, the trial court considered the pleadings, affidavits, and

       exhibits filed since 2015 and reiterated its earlier finding that “there is no good

       cause shown to allow [Husband] to continue to use the Courts for his litigation




       6
         Even so, a party’s motion to set aside a divorce decree has been held to constitute a domestic relations
       matter. See Glover v. Torrence, 723 N.E.2d 924, 939-40 (Ind. Ct. App. 2000) (affirming award of attorney’s fee
       under marital dissolution statute in mother’s action to set aside three-year-old custody modification order on
       grounds of fraud).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017             Page 16 of 17
       agenda which appears to this Court to be solely for the purpose of causing

       [Wife] additional attorney’s fees.” Id. at 19.


[23]   In short, Wife’s action was a domestic relations matter, making her eligible for

       attorney’s fees under Indiana Code Section 31-15-10-1. Thus, the trial court

       had the authority to award her a reasonable preliminary appellate attorney’s

       fee. We find no abuse of discretion here. Accordingly, we affirm.


[24]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-DR-2225 | April 6, 2017   Page 17 of 17
