MEMORANDUM DECISION                                                            FILED
                                                                          Apr 12 2017, 9:22 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                               CLERK
this Memorandum Decision shall not be                                      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
Zachary J. Stock                                         Michael Cheerva
Zachary J. Stock, Attorney at Law, P.C.                  Emswiller Williams Noland &
Carmel, Indiana                                          Clarke, PC
                                                         Indianapolis, Indiana
                                                         Brent C. Embrey
                                                         Embrey Law Office
                                                         Fishers, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bruce W. Shaw,                                           April 12, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         29A04-1607-DR-1556
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Sheri E. Shaw,                                           The Honorable J. Richard
Appellee-Petitioner.                                     Campbell, Judge
                                                         The Honorable William P.
                                                         Greenaway, Magistrate
                                                         Trial Court Cause No.
                                                         29D04-0611-DR-2120



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017              Page 1 of 11
                                       Statement of the Case
[1]   When the marriage of Bruce Shaw (“Father”) and Sherie Shaw (“Mother”) was

      dissolved in 2007, the parties agreed that they would keep their respective

      retirement accounts. In 2015, Father took a $177,000 early withdrawal from

      his retirement account. The trial court subsequently included this withdrawal

      in a supplemental child support calculation and ordered Father to pay Mother

      8% of the withdrawal. The trial court also ordered Father to pay $12,000 of

      Mother’s attorney fees. Father argues that the trial court erred in ordering him

      to pay Mother 8% of his retirement account withdrawal and $12,000 of her

      attorney fees. After reviewing the evidence, we conclude that the trial court did

      not abuse its discretion in ordering Father to pay $12,000 of Mother’s attorney

      fees. However, the trial court abused its discretion when it included Father’s

      early withdrawal from his retirement account in its supplemental child support

      calculation and ordered Father to pay Mother 8% of the withdrawal. We

      therefore affirm in part, reverse in part, and remand with instructions for the

      trial court to remove Father’s retirement account withdrawal from its

      supplemental child support calculation.


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


                                                     Issues
              1. Whether the trial court abused its discretion when it ordered
              Father to pay $12,000 of Mother’s attorney fees.




      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 2 of 11
                 2. Whether the trial court abused its discretion when it included
                 Father’s early withdrawal from his retirement account in its
                 supplemental child support calculation.


                                                          Facts
[3]   Mother and Father were married in August 1995. Their son, J.S. (“J.S.”), was

      born in May 1997, and their daughter, K.S. (“K.S.”), was born in June 1999.

      In November 2006, Mother filed a petition for dissolution of marriage. In 2007,

      Mother and Father entered into a settlement agreement that resolved all issues,

      including property division, child custody, child support, and parenting time.

      Specifically, Mother and Father agreed to joint legal and physical custody of

      their children and determined that neither parent would owe child support

      because the children were going to spend half of their time with each parent,

      and the parties’ incomes were similar. Mother and Father further agreed that

      Father would pay 48% and Mother would pay 52% of certain expenses incurred

      in the support of their children.1 Mother and Father also agreed that they

      would keep their respective retirement accounts, including “all IRA’s, 401(k)’s,

      or other retirement funds currently held in their own names.” (App. 42).


[4]   Eight years later, in 2014, Mother filed petitions to modify child custody and

      support and to show cause.2 Evidence presented at the January 2015 hearing




      1
       This included expenses for: (1) medical treatment; (2) medical insurance; (3) extra-curricular activities; (4)
      educational costs such as books, field trips, and school pictures; (5) clothing; and (6) work-related child care.
      2
          These petitions are not included in Mother’s Appendix.


      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017                Page 3 of 11
      on the petitions revealed that the parties’ custody and support agreement had

      worked until the fall of 2011, when Father had begun going out of town every

      weekend. Mother explained that during this time, “it was a lot of mental and

      emotional anguish with the kids regarding the absence and – and

      disengagement as they felt with their dad.” (Tr. 28).


[5]   Father remarried in 2012. Over the next two years, Father and J.S. maintained

      contact, but the relationship between K.S. and her father became more strained.

      At the time of the hearing, Father and K.S. had had almost no contact for ten

      months. K.S.’s therapist believed that some form of family counseling was

      necessary to get their relationship “on track.” (Mother’s Ex. 1). Mother asked

      the trial court to grant her both legal and physical custody of K.S. She also

      asked the trial court to order Father to pay both child support and her attorney

      fees.


[6]   Following the hearing, the trial court issued an order in February 2015 wherein

      it: (1) denied Mother’s request for legal custody of K.S.; (2) granted Mother’s

      request for physical custody of K.S.; (3) awarded Father parenting time with

      K.S. in accordance with the Indiana Parenting Time Guidelines; and (4)

      ordered Father to contact K.S.’s therapist within seven days of the date of the

      order to begin family counseling with K.S. The trial court also ordered Father

      to pay: (1) $77.00 per week in child support; and (2) 8% of his adjusted gross

      income in excess of $93,506.92 as supplemental child support. Lastly, the trial

      court held Father in contempt for failing to pay Mother $3,646.69 for his share



      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 4 of 11
      of the children’s expenses when he had the ability to do so and ordered Father

      to pay $5,000.00 of Mother’s attorney fees. Father did not appeal this order.


[7]   In August 2015, Mother filed petitions for modification of custody, visitation,

      and child support, as well as contempt. In the petitions, Mother explained that

      Father had relocated to Illinois in June 2015 without telling Mother. Mother

      further explained that K.S. was now with Mother “100% of the time.” (App.

      58). In addition, Mother advised the trial court that Father had not participated

      in family counseling with K.S. as previously ordered. Mother also requested

      legal custody of K.S.


[8]   Eight months later, in April 2016, Mother filed an amended motion for

      contempt wherein she explained that Father had had no contact with K.S. for

      the prior four months and had still failed to comply with the trial court’s order

      regarding family counseling with K.S. Mother further explained that Father

      had accumulated child support and uninsured medical expenses arrearages and

      had “unreasonably withheld his consent to extracurricular activities in order to

      avoid payment.” (App. 80). Mother also explained that Father had not paid

      supplemental child support. Mother asked the trial court to hold Father in

      contempt. She also asked the trial court to order Father to pay supplemental

      child support as well as extracurricular expenses, uninsured medical expenses,

      and child support arrearage. She further asked the trial court to order Father to

      participate in counseling with K.S. Lastly, Mother asked the trial court to order

      Father to pay for her attorney fees.



      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 5 of 11
[9]    From the time Mother filed the August 2015 petitions until the hearing on the

       petitions in May 2016, Father filed seven motions to continue the hearing.

       Testimony at the May 2016 hearing revealed that Father’s job in Indianapolis

       had ended in February 2015, and he had moved to Chicago in June 2015. He

       admitted that he was not current on his child support payments and had not

       paid anything for his children’s uninsured medical expenses or extracurricular

       activities since January 2015. Father also admitted that he had not participated

       in counseling with his daughter as previously ordered by the trial court.

       Father’s income tax return listed his total 2015 income as $335,755. Father,

       however, explained that $177,968 of that total was attributable to an early

       withdrawal from a 401(k) retirement account that he had been awarded in the

       parties’ 2007 dissolution. Father further explained that he had taken this

       withdrawal to pay off debt that he had accrued after the dissolution of his

       marriage to Mother and to cover the extraordinary medical expenses of his

       second wife, which were approximately $57,000. Father also testified that

       “caring for children is – is a financial burden . . . . That’s how I feel and that’s

       what it’s been since I’ve been divorced.” (Tr. 220). Mother testified that her

       children had been with her one hundred percent of the time since Father had

       moved to Chicago.


[10]   In June 2016, the trial court issued a sixteen-page order that awarded sole legal

       custody of K.S. to Mother. The trial court also ordered Father to pay $179.00

       per week in child support, retroactive to August 14, 2015. In addition, the trial

       court included Father’s $177,000 withdrawal from his retirement account in its


       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 6 of 11
       supplemental child support calculation and ordered Father to pay Mother eight

       percent of this withdrawal. Specifically, the trial court concluded that because

       the “$177,000 from the cashed-in annuity would have inured to the benefit of

       the Parties’ children had the marriage remained intact . . . the same is ‘income’

       within the meaning of the Guidelines.” (App. 29).


[11]   The trial court also explained that its previous order regarding father/daughter

       counseling remained in force notwithstanding the distance involved. The trial

       court ordered Father to comply with all terms of its prior order’s counseling

       requirements within thirty days. In addition, the trial court held Father in

       contempt for failing to pay child support, supplemental child support, and

       court-ordered expenses. The trial court also held Father in contempt for failing

       to comply with the counseling requirement set forth in its prior order. The trial

       court further noted that the parties had similar access to resources and had

       virtually identical earning abilities with respect to regular income. The trial

       court then concluded that Father’s misconduct in failing to pay child support, in

       conjunction with the delays in the proceedings caused by Father’s seven

       motions for continuances, justified an award of attorney fees to Mother.

       Accordingly, the trial court ordered Father to pay Mother $12,000 in attorney

       fees. Father now appeals.


                                                  Discussion
[12]   Father argues that the trial court abused its discretion in: (1) ordering him to

       pay $12,000 of Mother’s attorney fees; and (2) including Father’s early


       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 7 of 11
       distribution from his retirement account in its supplemental child support

       calculation. We address each of his contentions in turn.


       1. Attorney Fees

[13]   Father first argues that the trial court abused its discretion in ordering him to

       pay $12,000 of Mother’s attorney fees. In post-dissolution proceedings, the trial

       court may order a party to pay a reasonable amount for attorney fees. IND.

       CODE § 31-16-11-1. The trial court has broad discretion in awarding attorney

       fees. Gilbert v. Gilbert, 777 N.E.2d 785, 795 (Ind. Ct. App. 2002). We will

       reverse the trial court’s decision only when it is against the logic and effect of

       the facts and circumstances before the court. Id.


[14]   In assessing attorney fees, the court may consider such factors as the resources

       of the parties, the relative earning ability of the parties, and other factors that

       bear on the reasonableness of the award. Himes v. Himes, 57 N.E.3d 820, 830

       (Ind. Ct. App. 2016), trans. denied. In addition, any misconduct on the part of

       one of the parties that directly results in the other party incurring additional fees

       may be taken into consideration. Id. The court need not given reasons for its

       determination. Gilbert, 777 N.E.2d at 795.


[15]   Here, Father does not challenge the reasonableness of the attorney fees.

       Instead, he argues that the “trial court … neither properly consider[ed] these

       various factors nor found facts sufficient to support the award of fees.”

       (Father’s Br. 14). However, our review of the evidence reveals that the trial

       court considered both the resources of the parties and their relative earning


       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 8 of 11
       abilities. The trial court also concluded that Father’s misconduct in failing to

       pay child support, in conjunction with the delays in the proceedings caused by

       his seven motions for continuances, justified an award of attorney fees to

       Mother. These were proper considerations in the award of attorney fees, and

       Father’s misconduct supports the trial court’s attorney fee order. We find no

       abuse of the trial court’s discretion.


       2. Child Support

[16]   Father also argues that the trial court abused its discretion when it included

       Father’s early withdrawal from his 401(k) retirement account in its

       supplemental child support calculation. Decisions regarding child support rest

       within the sound discretion of the trial court. Taylor v. Taylor, 42 N.E.3d 981,

       986 (Ind. Ct. App. 2015), trans. denied. Thus, we reverse child support

       determinations where the trial court has abused its discretion. Id.


[17]   In support of his argument, Father directs us to Scoleri v. Scoleri, 766 N.E.2d

       1211 (Ind. Ct. App. 2002). There, the father filed a motion to modify child

       support after his job ended and he had to take a lower-paying job. The trial

       court denied the father’s motion, and the father appealed. Specifically, the

       father argued that the trial court had erred when it considered the early

       withdrawal from his retirement account as income that should be included in

       the father’s child support obligation calculation. After discussing the nature of

       a 401(k) plan, we determined that because the withdrawal was received by the

       father and was immediately available for use and reduced the father’s living

       expenses, the withdrawal constituted income within the meaning of the Indiana

       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 9 of 11
       Child Support Guidelines. Id. at 1217. However, because Father received his

       401(k) account as part of the marital property distribution, this Court concluded

       that “to utilize the return from Father’s early withdrawal from his 401(k) in the

       calculation of his weekly gross income would usurp the equitable split of the

       marital property in the summary dissolution decree.” Id. We further explained

       that the parties presumably “agreed that Father would retain his 401(k) in

       exchange for Mother retaining the marital home. . . . Without any evidence to

       the contrary, we deem it inequitable to utilize Father’s portion of the marital

       property, his 401(k) account, in the calculation of his weekly gross income.” Id.

       at 1218. Based on the facts and circumstances of the case, we held that the trial

       court had erred in using Father’s early withdrawal of his 401(k) account in

       calculating his child support obligation. Id.


[18]   Here, as in Scoleri, the trial court correctly concluded that Father’s withdrawal

       from his 401(k) was income. However, because Father retained the 401(k) as

       part of a marital property settlement agreement, the trial court erred when it

       included Father’s early withdrawal from the 401(k) in its supplemental child

       support calculation. See id. Here, as in Scoleri, the parties agreed that each

       would retain his or her respective retirement account, and it would be

       inequitable to use Father’s funds from the account in the calculation of his

       supplemental child support obligation. See id. We, therefore, reverse and

       remand with instructions for the trial court to remove Father’s retirement

       account withdrawal from its supplemental child support calculation.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 10 of 11
[19]   Affirmed in part, reversed in part, and remanded.


[20]   Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-DR-1556 | April 12, 2017   Page 11 of 11
