MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Feb 04 2016, 6:06 am

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
Andrea L. Ciobanu
Alex Beeman
Ciobanu Law, P.C.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael C. Feldhake,                                     February 4, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1509-DR-1332
        v.                                               Appeal from the Marion Superior
                                                         Court
Meryle Lowe (Feldhake),                                  The Honorable Michael Keele,
Appellee-Petitioner                                      Judge
                                                         The Honorable Victoria M.
                                                         Ransberger, Magistrate
                                                         Trial Court Cause No.
                                                         49D07-1304-DR-15091



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016       Page 1 of 7
[1]   Michael Feldhake appeals the judgment of the trial court (1) finding that Meryle

      Lowe complied with the trial court’s previous order to pay Feldhake $1,200 and

      (2) ordering Feldhake to pay $750 in attorney fees. Acknowledging that the

      evidence presented by Lowe regarding her payment appears to be quite

      dubious, we are nevertheless compelled to affirm the trial court’s decision given

      our standard of review.


                                                     Facts
[2]   This is the second case before us arising from the dissolution of Feldhake and

      Lowe’s marriage. The facts relating to the dissolution are laid out in our

      previous memorandum decision and we will not recount them here. Feldhake v.

      Feldhake, No. 49A04-1405-DR-250 (Ind. Ct. App. Feb. 25, 2015). Our previous

      decision involved Feldhake’s challenge to various aspects of the trial court’s

      division of property. We largely affirmed the trial court, but remanded for the

      limited purpose of determining whether Lowe had complied with a provisional

      order, which required her to pay Feldhake $600 a month to cover mortgage

      payments for the months of December 2013 and January 2014. Id. at 6.


[3]   On March 6, 2015, the trial court issued an order on the remanded issues,

      ordering Lowe to either prove that she had already made the payments or pay

      Feldhake the $1,200 owed. The trial court gave Lowe forty-five days to comply

      with this order. On April 17, 2015, Lowe attempted to prove that she had made

      the payments by submitting a “Verified Notice of Partial Compliance with

      Order of Remanded Issues” to the trial court. Appellant’s App. p. 21-22.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016   Page 2 of 7
      Attached to the notice were copies of checks for $600 each, which purported to

      cover amounts due in November and December 2013. However, the

      November 2013 payment had never been at issue and the notice, quite

      inexplicably, contained no documentation of, or even reference to, the January

      2014 payment that was at issue. Feldhake was suspicious that the copies of the

      checks may have been forgeries, as he believed, mistakenly, that one of the

      checks had been cashed before it had been signed. He filed a response to

      Lowe’s notice on April 22, 2015, arguing that Lowe had not complied with the

      trial court’s order “and maybe committed fraud on the court.” Id. at 30. On

      May 11, 2015, he filed a motion for Lowe to show cause as to why she should

      not be held in contempt.


[4]   On July 23, 2015, the trial court held a summary hearing on all pending issues.

      As to whether Lowe had made the January payment, Lowe’s counsel presented

      the only evidence on the issue, stating that Lowe’s “testimony would be she

      made a cash payment around that time to [Feldhake’s] friend Ricky to provide

      to [Feldhake].” Tr. p. 8. On July 30, 2015, the trial court denied Feldhake’s

      contempt petition. The trial court held that Lowe had “demonstrated she

      satisfied her obligation to pay the mortgage payments” and that “the checks

      were not in fact fraudulent.” Appellant’s App. p. 56. It further found that

      Lowe “incurred attorney’s fees to address this wrongful allegation” and ordered

      Feldhake to pay Lowe $750. Id. at 57. Feldhake now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016   Page 3 of 7
                                   Discussion and Decision
[5]   Although neither party to this case requested that the trial court make findings

      of fact before rendering its judgment, the trial court did so sua sponte. When a

      trial court makes findings on its own motion, the general judgment will control

      as to the issues upon which the court has not found and the specific findings

      will control as to the issues they cover. In re Marriage of Snemis, 575 N.E.2d 650,

      653 (Ind. Ct. App. 1991). We will reverse the trial court’s findings only if they

      are clearly erroneous and the general judgment will be affirmed if it can be

      sustained upon any legal theory supported by the evidence produced at trial. Id.


[6]   The proceedings at issue here were conducted in summary fashion. Our

      Supreme Court has observed that


              [s]ummary proceedings function to efficiently resolve disputes by
              allowing parties and the court to forego the use of formal rules of
              procedure and evidence and instead allow the court to base its
              findings and conclusions upon the arguments of counsel and
              limited evidence. Summary proceedings commonly take place when
              parties are not disputing essential facts, but rather the legal outcome
              compelled by those facts.


      Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind. 2015) (emphasis added).


[7]   In this case, the hearing was held to determine essentially one disputed fact—

      whether Lowe had made the January payment. As such, summary proceedings

      were plainly not ideal. However, it appears from the record that both parties

      agreed to summary proceedings and raised no objection. See tr. p. 5, 11-12. As

      both parties chose to forego the possible advantages of an evidentiary hearing,
      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016   Page 4 of 7
       any challenge to the nature of these proceedings has been waived. Bogner, 29

       N.E.3d at 740.


[8]    Feldhake first argues that the trial court erred in finding that Lowe made the

       January payment. He argues that the November and December checks cannot

       possibly support an inference that a January payment was made. He further

       argues that counsel’s statement that Lowe’s “testimony would be she made a

       cash payment around that time to [Feldhake’s] friend Ricky to provide to

       [Feldhake],” was “dismissed” by the trial court. Tr. p. 8; Appellant’s Br. p. 15.


[9]    While we agree with Feldhake that the November and December checks cannot

       possibly be construed as evidence of a January payment, we cannot agree that

       Lowe’s testimony regarding payment she made to Ricky was dismissed by the

       trial court. See tr. p. 8. Our own skepticism aside, this statement, if believed,

       would have provided the trial court a basis for finding that the January payment

       had been made. Though the veracity of this statement could have been, and

       certainly should have been, challenged in an evidentiary hearing, Feldhake

       chose to forego this opportunity. This Court cannot entertain requests to

       reweigh evidence from a paper record.


[10]   Feldhake next argues that the trial court erred in awarding Lowe $750 in

       attorney fees. Indiana Code section 31-15-10-1(a) grants the trial court

       authority to order a party to pay another party’s reasonable attorney fees in a

       dissolution of marriage proceeding. The trial court has broad discretion in

       awarding attorney fees and we will reverse the award only upon an abuse of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016   Page 5 of 7
       discretion. Foley v. Mannor, 844 N.E.2d 494, 501-02 (Ind. Ct. App. 2006). “In

       assessing such fees, 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. at 502.


[11]   Here, the trial court found that

                [Feldhake] has indicated to the court that [Lowe] “perpetrated a
                fraud upon the court” by submitting fraudulent copies of checks
                to the court. As [Lowe] demonstrated, the checks were not in
                fact fraudulent.


                [Lowe] incurred attorney’s fees to address this wrongful
                allegation by [Feldhake], in addition to defending [Feldhake’s]
                unsuccessful contempt petition.


       Appellant’s App. p. 56-57.


[12]   Feldhake argues that the trial court misconstrued the nature of his contempt

       petition. He maintains that Lowe was in contempt for failing to comply with

       the trial court’s order to prove that she had paid Feldhake within forty-five days

       of the trial court’s order on remand. Feldhake acknowledges that he alleged

       that Lowe “maybe committed fraud on the court” by submitting fraudulent

       checks. Id. at 30. He contends, however, that the gravamen of his complaint

       was that Lowe had simply not abided by the court’s order by failing to even

       attempt to prove that the January payment had been made. Feldhake believes

       that his speculation as to possible fraudulent checks was not central to his

       claim.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016   Page 6 of 7
[13]   However, the trial court acknowledged that Feldhake’s allegation of check

       forgery was not central to his claim, but nevertheless noted that Lowe had

       incurred fees to address “this wrongful allegation” in addition to defending the

       contempt petition generally. Id. at 57. This is true, as Lowe had to take

       additional steps to prove that these checks were authentic. Consequently, the

       trial court was within its discretion to award Lowe attorney fees insofar as they

       related to defending this allegation. And Feldhake does not dispute the amount

       awarded.


[14]   We close by noting that we are sympathetic to Feldhake’s argument. Assuming

       Lowe was not intentionally trying to mislead the trial court, her attempt to

       prove compliance with its order by sending copies of checks for the incorrect

       months was still unacceptable by any measure. However, Feldhake’s decision

       to agree to summary proceedings invited the trial court to accept unchallenged

       evidence. While this evidence may appear slim to us, it is nevertheless

       sufficient if it is to be believed. As we have not had the benefit of observing the

       parties, we can form no opinion as to their credibility, and cannot conclude that

       the judgment was error.


[15]   The judgment of the trial court is affirmed.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-DR-1332 | February 4, 2016   Page 7 of 7
