MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Sep 25 2019, 6:10 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Nicholas J. Hursh                                       Michael A. Setlak
Shambaugh, Kast, Beck & Williams,                       Perry D. Shilts
LLP                                                     Shilts & Setlak, LLC
Fort Wayne, Indiana                                     Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gregory Rietdorf and                                    September 25, 2019
Brenda Rietdorf,                                        Court of Appeals Case No.
Appellants/Cross-Appellees - Petitioners,               19A-MI-695
                                                        Appeal from the Allen Superior
        v.                                              Court
                                                        The Honorable Charles F. Pratt,
Michelle Rietdorf,                                      Judge
Appellee/Cross Appellant - Respondent.                  The Honorable Sherry A. Hartzler,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        02D08-1801-MI-26



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019            Page 1 of 20
                                 Case Summary and Issues
[1]   Gregory and Brenda Rietdorf (collectively, “Grandparents”) filed a petition

      seeking grandparent visitation with their grandson, T.R. The trial court granted

      the petition but imposed certain conditions and restrictions on Grandparents’

      visitation. The trial court also ordered Grandparents to pay $10,000 of

      Mother’s attorney fees. Grandparents appeal the trial court’s order, raising the

      following consolidated issues for our review: 1) whether the trial court erred in

      placing conditions on Grandparents’ visitation with T.R., and 2) whether the

      trial court erred in awarding attorney fees to Mother. Mother cross-appeals,

      requesting attorney fees under Indiana Appellate Rule 66(E) for defending this

      appeal. With respect to Grandparents’ appeal, we conclude the trial court’s

      order granting Grandparents visitation with T.R. under certain conditions was

      not clearly erroneous, but there is no statutory authority for the trial court’s

      award of attorney fees to Mother. Therefore, the trial court’s order is affirmed

      with respect to visitation and reversed as to attorney fees. On Mother’s cross-

      appeal, we conclude appellate damages are appropriate in this case and remand

      to the trial court for a determination of the amount of appellate damages to

      which Mother is entitled.



                             Facts and Procedural History                                   1




      1
       Grandparents have not stated their facts in accordance with the standard of review, instead stating the facts
      so as to portray themselves in the best possible light. However, Mother has gone overboard in criticizing

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019                 Page 2 of 20
[2]   T.R. was born on January 23, 2016, during Mother’s marriage to Anthony

      Rietdorf (“Father”). Father is the son of Grandparents. During Mother and

      Father’s marriage, the parties enjoyed a close relationship that included

      frequent family dinners with Grandparents and extended Rietdorf family

      gatherings. After T.R.’s birth, this close relationship continued, and the parties

      would see each other two to three times per month. Sometimes, Mother and

      Father were present while Grandparents visited with T.R. and sometimes,

      Grandparents visited with T.R. alone. Mother knew Grandparents to be good

      caretakers at that time and thought the relationship “felt healthy.” Transcript,

      Volume 2 at 27.


[3]   On September 11, 2016, Father passed away from injuries sustained in an off-

      road utility vehicle accident. Mother was driving the vehicle at the time of the

      accident. After Father’s death, the relationship between Mother and

      Grandparents deteriorated rapidly, in part because Grandparents blamed

      Mother for Father’s death. When Father was alive, Grandmother regularly

      took T.R. from swim school to his babysitter because Mother had to work but

      after Father’s funeral, she told Mother she would no longer be able to do that.

      In October, Mother and Grandparents had a face-to-face meeting that lasted

      approximately three hours. Following the meeting, Mother sent Grandparents

      a letter because she was “very hurt by [the] 3 hour interrogation last week and




      Grandparents’ statement of facts when simply stating the facts appropriately in her own brief would have
      been sufficient.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019               Page 3 of 20
      must protect myself and [T.R.] from any toxic relationship[,]” Exhibits, Volume

      1 at 47, and felt that “we all needed to have a third-party interaction and

      counseling to come together to have a healthy relationship for the best interest

      of [T.R.].” Tr., Vol. 2 at 47. Mother’s letter stated that she would be unable

      “to continue further conversations . . . until [Grandparents] are ready to move

      forward to a healthy relationship with me.” Exhibits, Vol. 1 at 47. Mother

      asked Grandparents to “[p]lease contact me when you are ready to move

      forward” and suggested mediation or counseling in a neutral location. Id.

      Mother’s intention was not to quash the relationship between Grandparents

      and T.R. See Tr., Vol. 2 at 18-19.


[4]   Grandparents did not reach out to Mother after receiving her letter and by their

      own decision, have not seen T.R. since receiving Mother’s letter. After

      receiving the letter, Grandfather felt “it was very clear . . . that [Mother] cut off

      the relationship . . . with [T.R.] and any hope of meeting again to work out our

      differences.” Id. at 207. Grandmother indicated that at the time they received

      the letter, she did not want to work on having a healthy relationship with

      Mother. See id. at 136-37. In fact, she did not want any further relationship

      with Mother. See id. at 168-69. Instead, Grandparents called a family meeting

      and told Grandfather’s siblings that “either you’re on [our] side or you’re on

      [Mother’s] side[,]” id. at 103; passed out a “poison file” of information about

      Mother to the Rietdorf siblings at that meeting, id. at 198; refused to attend

      extended family gatherings because Mother was still invited to attend even after

      the family meeting; specifically declined to attend a gathering at which a group


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 4 of 20
      family photo was to be taken to celebrate the Rietdorf patriacrch’s ninetieth

      birthday but said “they were sure that [Mother] would immensely enjoy it and

      that [the family] would be honored by her presence[,]” id. at 195; and chided

      their daughter, Amber, for choosing to remain friends with Mother, began

      arranging to see Amber’s children during her ex-husband’s parenting time so

      they did not have to see Amber, and believe Amber has been “working against

      [them] in this grandparents[’] procedure[,]” id. at 160. Mother took T.R. to

      “every family gathering hoping that [Grandparents] would come[.]” Tr., Vol. 3

      at 51.


[5]   In January 2018, Grandparents filed a petition for grandparent visitation.

      Receiving this petition was the first time Mother had heard from Grandparents

      since October 2016. Mother acknowledges that she and Grandparents may

      never see eye to eye, but she is willing for them to see T.R. “[w]hen they are in

      a mentally healthy place[.]” Tr., Vol. 2 at 25. Currently, she does not believe

      they are in that place, because of “things that they have said directly to me and

      to family members and written that have tried to tarnish my reputation and they

      think I killed my husband [and] I do not want my child around that.” Id. at 31.

      Mother has “serious concerns that they will say something to [T.R.] and once

      something is said to him” it cannot be unsaid or unheard and “he could be

      damaged at any age from this.” Id. at 54. Mother is “not trying to withhold

      [T.R.] from them[,]” id. at 23, but she does not want Grandparents to have

      immediate unsupervised time with him. Instead, she would “like to see

      [Grandparents] have therapy grief counseling[;] let go of their accusations and


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 5 of 20
      blame[;] undergo psychological exams paid for by them[;] after a psychologist

      gives the okay[,] supervised visits[;] and after a psychologist deems that it is still

      okay they may have additional unsupervised visits.” Id. at 56-57.


[6]   Grandmother indicated that she would be willing to take a psychological

      evaluation and attend counseling if recommended by the evaluation. Id. at 153-

      54. She also indicated she thought gradually being reintroduced to T.R. over

      short periods of time would be appropriate. Grandfather also indicated he

      would be willing to take a psychological evaluation if required, id. at 222; tr.,

      vol. 3 at 19, but believes Mother’s request for supervised visitation is “totally

      ridiculous[,]” tr., vol. 2 at 216.


[7]   Following a hearing conducted over three days in August and September of

      2018, the trial court issued its Findings of Fact, Conclusions of Law and

      Judgment. In relevant part, the trial court found that “immediate and extended

      familial relations have suffered . . . due in large part to the actions of

      [Grandparents].” Appealed Order at 2, ¶ 16. The trial court also found that

      Grandparents “would have had an opportunity to visit with [T.R.] had they

      attended family functions for which they were welcome[; but] did not make a

      demand or request for contact with [T.R.] until the initiation of this action[.]”

      Id. at 2-3, ¶¶ 18, 22. The trial court concluded the Grandparents had “not

      established the heightened standard of proof by [which they] must rebut the

      presumption” that Mother is fit and acting in T.R.’s best interests. Id. at 5, ¶ 47.

      The trial court further concluded that subjecting T.R. to the “hostile

      environment” Grandparents’ feelings about Mother have created would not be

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 6 of 20
in his best interests. Id. at ¶¶ 42, 43. But giving “some weight” to the fact that

Mother had not denied Grandparents contact with T.R. but was in fact willing

to facilitate visitation if Grandparents participated in individual therapy and the

visits were, at least initially, therapeutically supervised, id. at ¶ 48, the court

granted the petition for grandparent visitation under the following conditions:


    • Grandparents obtain separate psychological evaluations at their expense

        and follow all recommendations as it relates to individual counseling,

        grief counseling, and therapeutic reunification counseling, id. at 6, ¶

        51(a);

    • Grandparents participate in individual counseling, id. at ¶ 51(c); and

    • Grandparents sign necessary HIPAA release forms allowing Mother to

        access the psychological evaluations and recommendations and to verify

        Grandparents’ participation in individual counseling, id. 6, ¶ 51(b), (c).


As for visitation, the trial court ordered that visitation be phased in as follows:


    • After beginning individual counseling, Grandparents would have at least

        four one-hour therapeutic supervised visits, occurring every other week at

        their cost at Family Connections, until their individual counselor gives

        permission to proceed, id. at ¶ 51(d);

    • Grandparents would then have four two-hour supervised visits, occurring

        every other week in a public location with Amber supervising, or, if

        Amber is unwilling or unable to supervise, at their cost at Family

        Connections, id. at ¶ 51(e); and

Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 7 of 20
          • Grandparents would then have unsupervised visits of increasing length as

              T.R. grows older, id. at ¶ 51(f)–(i).


      Finally, the trial court ordered that Grandparents not discuss details of Father’s

      passing with T.R. unless Mother specifically consented to such conversations

      and that all parties refrain from disparaging one another in T.R.’s presence. Id.

      at 7, ¶ 51(k)–(l).


[8]   Both Mother and Grandparents filed Motions for Attorney Fees. The trial

      court concluded that Mother had substantially prevailed in her defense against

      the Grandparents’ petition for grandparent visitation and ordered Grandparents

      to be responsible for $10,000 of Mother’s attorney fees. Grandparents now

      appeal the visitation order and the attorney fee order. Mother requests an

      award of appellate attorney fees for defending this appeal.



                                Discussion and Decision
                                  I. Grandparent Visitation
                                      A. Standard of Review
[9]   When ruling on a petition for grandparent visitation rights, the court must enter

      findings of fact and conclusions thereon in accordance with Trial Rule 52. See

      Ind. Code § 31-17-5-6; Ind. Trial Rule 52(A). We conduct a two-tiered review

      of those findings, first determining “whether the evidence supports the findings

      and then whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H.,

      903 N.E.2d 453, 457 (Ind. 2009). We do not reweigh the evidence, Stonger v.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 8 of 20
       Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give “due regard . . . to the

       opportunity of the trial court to judge the credibility of the witnesses[,]” T.R.

       52(A). We “shall not set aside the findings or judgment unless clearly

       erroneous[.]” T.R. 52(A). Findings are clearly erroneous when the record

       contains no facts to support them, either directly or by inference. Fischer v.

       Heymann, 12 N.E.3d 867, 870 (Ind. 2014). However, in this case, Grandparents

       have not challenged any of the factual findings, and we therefore accept them as

       proven. Coles v. McDaniel, 117 N.E.3d 573, 576 (Ind. Ct. App. 2018). “A

       judgment is clearly erroneous when there is no evidence supporting the findings

       or the findings fail to support the judgment.” K.I., 903 N.E.2d at 457. A

       judgment is also clearly erroneous when the court “applies the wrong legal

       standard to properly found facts.” Id. We give substantial deference to the trial

       court in a family law matter. Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560

       (Ind. Ct. App. 2012), trans. denied.


                                          B. Visitation Order
[10]   “Indiana has enacted legislation . . . recogniz[ing] that ‘a child’s best interest is

       often served by developing and maintaining contact with his or her

       grandparents.’” In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015)

       (quoting K.I., 903 N.E.2d at 462). Indiana Code section 31-17-5-1 gives

       grandparents the right to seek visitation, and a court may grant visitation if it

       “determines that visitation rights are in the best interests of the child.” Ind.

       Code § 31-17-5-2(a). Notably, however, natural parents have a “fundamental

       constitutional right to direct their children’s upbringing without undue

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 9 of 20
       governmental interference[.]” In re Visitation of M.L.B., 983 N.E.2d 583, 586

       (Ind. 2013). Thus, to “strik[e] a balance” between the interests of parents and

       children, visitation orders must address:


               (1) a presumption that a fit parent’s decision about grandparent
               visitation is in the child’s best interests (thus placing the burden
               of proof on the petitioning grandparents);


               (2) the “special weight” that must therefore be given to a fit
               parent’s decision regarding nonparental visitation (thus
               establishing a heightened standard of proof by which a
               grandparent must rebut the presumption);


               (3) “some weight” given to whether a parent has agreed to some
               visitation or denied it entirely (since a denial means the very
               existence of a child-grandparent relationship is at stake, while the
               question otherwise is merely how much visitation is appropriate);
               and


               (4) whether the petitioning grandparent has established that
               visitation is in the child’s best interests.


       Id. (emphasis omitted). The Grandparent Visitation Act (the “Act”)

       “contemplates only occasional, temporary visitation that does not substantially

       infringe on a parent’s right to control the upbringing, education, and religious

       training of their children.” K.I., 903 N.E.2d at 462 (internal quotations and

       citations omitted).


[11]   Grandparents are entitled to seek visitation rights because their son, T.R.’s

       father, is deceased. Ind. Code § 31-17-5-1(a)(1). They argue that the trial court


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 10 of 20
       erred in granting their petition but imposing conditions on their visitation with

       T.R., as the Act does not “address supervised or therapeutic, supervised

       visitation rights.” Brief of Appellants at 14. Instead, they assert the Act

       “generally references authority to grant visitation rights, and the intent and

       purpose with that authority is that those visitation rights [be] without

       restriction[.]” Id. Grandparents specifically challenge that the initial visits were

       to be therapeutic and supervised visits and that they were ordered to obtain

       psychological evaluations and participate in counseling.


[12]   Citing Indiana Code section 31-17-4-1(a), which concerns parenting time, and

       which states that “a parent not granted custody of the child is entitled to

       reasonable parenting time rights unless the court finds, after a hearing, that

       parenting time by the noncustodial parent might endanger the child’s physical

       health or significantly impair the child’s emotional development[,]”

       Grandparents argue that a court may not restrict grandparent visitation unless

       there is a showing that such visitation will endanger the child. They assert that

       the evidence does not support, and the trial court did not find, endangerment

       here. There is a fundamental difference between the rights of parents and the

       rights of grandparents: parents have a constitutionally recognized fundamental

       liberty interest in the upbringing of their children, but grandparents are not

       afforded the same legal rights or obligations as parents and do not have a

       constitutional liberty interest in visitation with their grandchildren. In re L-

       A.D.W., 38 N.E.3d at 998. Instead, a grandparent’s right to seek visitation is

       solely a product of legislation and “grandparent visitation is not to be confused


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 11 of 20
       with the rights of the custodial parent.” Id. Accordingly, section 31-17-4-1(a),

       which allows restriction of parenting time only in a case showing

       endangerment, has no application to this grandparent visitation case.


[13]   From our review of caselaw, it appears that ordering supervised visits for

       grandparents is a common practice. See, e.g., In re Guardianship of C.R., 22

       N.E.3d 657, 660 (Ind. Ct. App. 2014) (on remand from an appeal in which this

       court instructed the trial court to modify its order for grandparent visitation to

       provide, inter alia, that visitation will be supervised, trial court ordered that

       grandparents were entitled to exercise supervised visitation up to twelve hours

       per month); In re Visitation of C.S.N., 14 N.E.3d 753, 756 (Ind. Ct. App. 2014)

       (trial court ordered that grandparents and grandchild have a “six-week

       transition period of both supervised and unsupervised visits” before

       grandparents were entitled to a regular schedule of unsupervised visitation).

       “[I]n the case of grandparent visitation, the custodial parent’s right to direct the

       upbringing of the child remains paramount.” In re L-A.D.W., 38 N.E.3d at 998.

       Just as the amount of grandparent visitation is left to the sound discretion of the

       trial court, K.I., 903 N.E.2d at 462, the conditions under which visitations will

       occur should also be within the trial court’s discretion, as the paramount

       consideration is that the visitation be in the child’s best interests, Ind. Code §

       31-17-5-2(a). “[T]rial courts should be able to consider the various

       circumstances presented in each individual case to determine what is in the

       child’s best interest.” In re L-A.D.W., 38 N.E.3d at 1001. Based on the trial

       court’s findings, conclusions, and the applicable law, the trial court’s judgment


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 12 of 20
       imposing conditions on Grandparents’ visitation with T.R. is not clearly

       erroneous.2


[14]   We must also note that we agree with Mother that Grandparents’ assertion that

       the trial court does not have legal authority to place conditions on their

       visitation “implies that the trial court had only two options, either to deny the

       Grandparents’ Petition or to grant the Petition and identify a [visitation]

       schedule without restrictions.” Brief of Appellee at 20. And in this case, it is

       clear from the trial court’s findings that without the restrictions, it would have

       denied the petition. The trial court presumed that as a fit parent, Mother’s

       decision was in T.R.’s best interests and concluded that Grandparents had not

       rebutted that presumption because it was not persuaded that Grandparents

       could “keep their feelings about [Mother] separate and distinct from their time

       with [T.R.] given the campaign undertaken against [Mother.]” Appealed Order

       at 5, ¶ 43. The trial court took particular note that Grandparents had “chosen a

       course of action in which they have willingly not participated” in T.R.’s life

       until filing this action, id. at ¶ 48 (emphasis added), and concluded it would not

       be in T.R.’s best interests for Grandparents to have unfettered access to him

       unless and until they sought psychological intervention. Were it not for the trial




       2
         As for the condition that Grandparents obtain psychological evaluations and attend counseling,
       Grandparents indicated they would be willing to undergo such evaluations and to attend counseling if the
       evaluations recommended it. See Tr., Vol. 2 at 153-54, 222; Tr. Vol. 3 at 19. The trial court noted as much in
       its order. See Appealed Order at 4, ¶ 31. This is essentially invited error: Grandparents cannot claim the trial
       court erred when it ordered evaluations and counseling they agreed to undergo. Invited error is not subject to
       appellate review. Hickey v. Hickey, 111 N.E.3d 242, 246 (Ind. Ct. App. 2018).

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019                 Page 13 of 20
       court giving some weight to Mother’s recognition of the importance of

       Grandparents’ role in T.R.’s life and her willingness to allow visitation under

       certain conditions, the trial court’s other findings and conclusions would not

       have supported granting the petition for grandparent visitation. Thus,

       Grandparents have essentially looked a gift horse in the mouth by seeking to

       strike the very conditions that allow them to have visitation with T.R. at all.


                                          II. Attorney Fees
[15]   The trial court ordered Grandparents to pay $10,000 of Mother’s attorney fees.

       The order does not state the authority upon which the trial court relied to award

       attorney fees, but it makes findings about each party’s employment status and

       concludes that Mother “has substantially prevailed in her defense” against

       Grandparents’ petition. Appealed Order at 7, ¶ 54. “As such, and in

       consideration of the resources and income of the parties,” Grandparents were

       ordered to pay $10,000 of Mother’s attorney fees at a rate of $1,000 per month

       until paid in full. Id. at ¶¶ 54, 55. Grandparents contend the trial court lacked

       authority to award attorney fees.


[16]   Indiana follows the “American Rule” with respect to the payment of attorney

       fees, which requires each party to pay his or her own attorney fees in the

       absence of an agreement between the parties, statutory authority, or rule to the

       contrary. Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans.

       denied. Mother defends the trial court’s order by citing to Indiana Code sections

       31-17-7-1 and 34-52-1-1.


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 14 of 20
[17]   Indiana Code section 31-17-7-1(a) (the “Costs and Attorney’s Fees” section of

       the “Family Law: Custody and Visitation” article of the Indiana Code) allows

       a trial court to periodically order one party to pay the other’s attorney fees in

       proceedings under Indiana Code chapter 31-17-2 (actions for child custody and

       modification of child custody orders), chapter 31-17-4 (actions for parenting

       time), and chapter 31-17-6 (actions for appointment of guardians ad litem and

       court appointed special advocates). The language of the trial court’s order,

       including its consideration of the parties’ resources and the conclusion that

       Mother substantially prevailed, seems to indicate the order may have emanated

       from this provision and the authority it provides to award attorney fees in a

       parenting time action. See Ind. Code § 31-17-4-3(b) (stating that in determining

       whether to award reasonable attorney fees in an action to enforce or modify

       parenting time, the court may consider whether the party asking for fees

       “substantially prevailed”); In re B.J.N., 19 N.E.3d 765, 771 (Ind. Ct. App. 2014)

       (noting that in the context of a parenting time action, the trial court must

       consider, among other things, the resources of the parties in making an award

       of attorney fees). However, this section is inapplicable to this case for two

       reasons: one, this is not an action for parenting time, 3 and two, the Act is not

       included amongst the chapters to which section 31-17-7-1 applies. Section 31-




       3
         Despite there being a clear distinction between parenting time and grandparent visitation, Mother’s brief
       uses the term “parenting time” nearly twenty times in reference to Grandparents’ petition. See Br. of
       Appellee at 12 (“The trial court was given the unenviable task of crafting a parenting time arrangement for
       these grieving Grandparents . . . .”) (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019                Page 15 of 20
       17-7-1 does not provide authority to order a party to pay for the opposing

       party’s fees in a grandparent visitation action.


[18]   Indiana Code section 34-52-1-1(b) provides that the court in a civil action “may

       award attorney fees as part of the cost to the prevailing party” if it finds that

       either party brought an action or continued to litigate an action that is frivolous,

       unreasonable, or groundless or litigated the action in bad faith. With respect to

       an attorney fee award under section 34-52-1-1, we first review the trial court’s

       findings of fact under the clearly erroneous standard, and we then review de

       novo its legal conclusions. Knowledge A–Z, Inc. v. Sentry Ins., 857 N.E.2d 411,

       423 (Ind. Ct. App. 2006), trans. denied. We review the trial court’s decision to

       award attorney fees and the amount of fees under an abuse of discretion

       standard. Id. A claim is frivolous if it is made primarily to harass or

       maliciously injure another, if counsel is unable to make a good faith and

       rational argument on the merits of the claim, or if counsel is unable to support

       the action by a good faith and rational argument for extension, modification, or

       reversal of existing law. Id. at 424. A claim is unreasonable if, based upon the

       totality of the circumstances, including the law and facts known at the time of

       filing the claim, no reasonable attorney would consider the claim justified or

       worthy of litigation. Id. A claim is groundless if no facts exist which support

       the legal claim relied upon and presented by the losing party. Id. A claim is

       litigated in bad faith if the party presenting the claim is affirmatively operating

       with furtive design or ill will. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 16 of 20
[19]   Here, Mother made no claim to the trial court that Grandparents’ action was

       frivolous, unreasonable, groundless, or litigated in bad faith, and the trial court

       made no findings along those lines. Mother argues on appeal that

       Grandparents’ actions since receiving Mother’s October 2016 letter “support[] a

       conclusion that Grandparents are litigating in bad faith and are motivated by

       their ill will toward Mother.” Br. of Appellee at 28. We acknowledge that

       neither party might have incurred attorney fees if Grandparents had not

       withdrawn themselves from the family initially or filed suit for visitation

       without first initiating a conversation with Mother. However, Grandparents

       testified they thought Mother was cutting off their relationship with T.R. when

       she wrote them the October 2016 letter. Under these circumstances, we cannot

       say that Grandparents were acting in bad faith.


[20]   Moreover, section 34-52-1-1 applies only to the prevailing party. A “prevailing

       party” is one “who successfully prosecutes his claim or asserts his defense.”

       Allstate Ins. Co. v. Axsom, 696 N.E.2d 482, 486 (Ind. Ct. App. 1998), trans. denied.

       Grandparents sought an order granting them visitation with T.R.; the trial court

       granted their petition. Although the trial court also imposed conditions on the

       visitation in accordance with Mother’s wishes, we cannot say she was the

       prevailing party in this litigation. For these reasons, section 34-52-1-1 does not

       provide authority for an award of attorney fees in this case.


[21]   In the absence of any statutory authority supporting such an award at the trial

       court level, the trial court erred in ordering that Grandparents pay a portion of

       Mother’s attorney fees.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 17 of 20
                       III. Cross-Appeal: Appellate Damages
[22]   Mother requests appellate attorney fees be awarded to her pursuant to Indiana

       Appellate Rule 66(E), which provides for the assessment of damages “if an

       appeal . . . is frivolous or in bad faith. Damages shall be in the Court’s

       discretion and may include attorneys’ fees.” The discretion to award damages

       under this rule is limited to instances when an appeal is “permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay.” Poulard v. LaPorte Cty. Election Bd., 922 N.E.2d 734, 737 (Ind. Ct. App.

       2010). We use extreme restraint in exercising our power to award damages on

       appeal because of the potential chilling effect on the exercise of the right to

       appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010).

       Therefore, we require a “strong showing . . . to justify an award of appellate

       damages, and the sanction is not imposed to punish mere lack of merit, but

       something more egregious.” Id.


[23]   Mother argues that Rule 66(E) damages are warranted because “Grandparents

       continue to target Mother unfairly, unnecessarily and without justification,

       thereby causing her to incur needless attorney fees.” Br. of Appellee at 14.

       This is essentially a claim of substantive bad faith – “conscious wrongdoing

       because of dishonest purpose or moral obliquity.” Harness, 924 N.E.2d at 168

       (internal quotation omitted).          As noted above, Grandparents appealed the trial

       court’s order as improperly imposing conditions on their visitation with T.R.

       despite agreeing that they would undergo psychological evaluations and

       participate in counseling as ultimately ordered and despite the trial court clearly

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 18 of 20
       indicating that they had not proven visitation was in T.R.’s best interests

       without psychological intervention and supervision. The trial court’s order

       went in Grandparents’ favor only because of Mother’s position that a

       relationship between Grandparents and T.R. was important. By challenging

       terms to which they had previously agreed in hopes of overriding Mother’s very

       real concerns and gaining immediate unconditional access to T.R.,

       Grandparents not only demonstrated disregard for making decisions in T.R.’s

       best interests but also ran the very real risk of losing any access to him.

       Grandparents have frivolously and unreasonably prolonged this legal process

       for the prospect of little to no return.


[24]   As for the trial attorney fees issue, although we have concluded there was no

       legal basis to award the fees, we would be remiss not to note that both parties

       filed motions in the trial court seeking payment of their attorney fees by the

       other side. Despite their position now, after having been ordered to pay a

       portion of Mother’s attorney fees, Grandparents must have thought at some

       point that the trial court had authority to order fees in their favor and no doubt

       would have as vigorously defended that award as they now condemn it.


[25]   We are cognizant of the chilling effect that an award of appellate damages can

       have on litigants, but we believe that Mother has shown “something more”

       than a lack of merit in Grandparents pursuit of this appeal. See Harness, 924 at

       168. She has shown that Grandparents’ appeal is permeated with efforts to

       harass and vex her and shows disregard for the true best interests of their

       grandson. See Poulard, 922 N.E.2d at 737. Moreover, Grandparents are now

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 19 of 20
       contesting something they agreed to in the trial court. Therefore, an award of

       appellate damages in Mother’s favor is appropriate, and we remand to the trial

       court for a determination of appellate damages to which Mother may be

       entitled pursuant to Appellate Rule 66(E).



                                               Conclusion
[26]   The trial court did not abuse its discretion in crafting a grandparent visitation

       order appropriate to T.R.’s best interests. There is no authority supporting the

       trial court’s award of attorney fees to Mother, but we conclude an award of

       appellate damages is appropriate in this case. We therefore affirm the trial

       court’s order in part, reverse in part, and remand for the trial court to determine

       the appropriate amount of appellate damages, which award may include an

       appropriate amount of appellate attorney fees.


[27]   Affirmed in part, reversed in part, and remanded.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-695 | September 25, 2019   Page 20 of 20
