MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Apr 18 2019, 8:45 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 APPELLANT                                   ATTORNEY FOR APPELLEE
Vincent M. Campiti                                       Robert J. Palmer
Nemeth, Feeney, Masters & Campiti, P.C.                  May Oberfell Lorber
South Bend, Indiana                                      Mishawaka, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick M. Dobson,                                       April 18, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-DR-1997
        v.                                               Appeal from the St. Joseph Circuit
                                                         Court
Bethany L. Dobson,                                       The Honorable William L. Wilson,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         71C01-1501-DR-52



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                 Page 1 of 23
                               Case Summary and Issues
[1]   Following the entry of a decree of dissolution between Patrick Dobson

      (“Husband”) and Bethany Dobson (“Wife”), Husband appeals and challenges

      the trial court’s division of property and judgment ordering him to pay Wife’s

      attorney fees. This case presents several issues for our review, which we restate

      as: (1) whether the trial court erred by including the full amount of Wife’s

      student loan debt in the marital estate; (2) whether the trial court abused its

      discretion in finding that Husband committed marital dissipation and ordering

      Husband to reimburse Wife for damage he caused to her vehicle; (3) whether

      the trial court’s judgment ordering Husband to reimburse Wife for unpaid

      temporary maintenance was clearly erroneous; (4) whether the trial court

      abused its discretion by awarding Wife attorney fees in the amount of $20,000;

      and (5) whether Wife is entitled to appellate attorney fees.


[2]   We conclude the trial court properly included Wife’s entire student loan debt in

      the marital estate pursuant to Indiana law and the trial court did not abuse its

      discretion with respect to finding Husband’s conduct constituted marital

      dissipation. However, because Husband agreed to pay the monthly mortgage

      payments in lieu of maintenance, the trial court’s judgment ordering Husband

      to pay Wife temporary maintenance is clearly erroneous as it fails to consider

      any payments Husband made during that time. With respect to attorney fees,

      the trial court did not abuse its discretion by ordering Husband to reimburse

      Wife for $20,000 in attorney fees. Finally, we decline to award appellate



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 2 of 23
      attorney fees to Wife. Accordingly, we affirm in part, reverse in part, and

      remand.



                              Facts and Procedural History
[3]   The parties were married on April 27, 2010 and have one child of the marriage,

      M.D., born September 2010. Husband learned of Wife’s extramarital affair in

      August 2014 and the parties separated in January 2015. Husband filed a

      Petition for Dissolution of Marriage on January 23 that same year. The parties

      entered into an “Agreed Temporary Order” on February 13, 2015, in which the

      parties agreed that Husband “shall pay the monthly mortgage payment in full

      on the marital residence in lieu of payment of maintenance to [Wife]. [Wife’s]

      waiver of maintenance shall constitute her contribution to the marital residence

      during the pendency of this action.”1 Appendix of Appellant, Volume 2 at 26.

      A bench trial was held on February 1, 2018, and the trial court took the matter

      under advisement. On March 19, 2018, the trial court entered its decree of

      dissolution with specific findings of facts and conclusions of law. The trial

      court determined the marital estate, divided it, and found in pertinent part:


               [Assets]


               Husbands 1st Source Account                                    1,082.80
               Wife’s 1st Source Account                                      688.62
               Wife’s TCU Account                                             581.78


      1
       The marital residence was later foreclosed upon in 2016. See Transcript, Volume II at 44, 77; see also
      Exhibits at 71-73.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                    Page 3 of 23
        Marital Residence (foreclosed upon)                         0.00
        Wife’s 401(k) account                                       344.42
        Husband’s Toyota Tacoma                                     14,000.00
        Wife’s Toyota 4Runner                                       22,800.00
        Firearms                                                    2,000.00
        Husband’s Tag Heuer watch                                   1,700.00
        Wife’s Tag Heuer watch                                      2,300.00
        Diamond earrings                                            1,500.00
        Wedding ring                                                5,500.00
        Marital residence bedroom furniture                         0.00
        Marital residence living room furniture                     0.00
        Total:                                                      $52,497.82

        ***

        [Debts]


        Husband’s vehicle loan                                      25,006.83
        Wife’s vehicle loan                                         26,756.90
        Wife’s student loans                                        48,416.64
        Husband’s TD Bank credit card                               1,155.63
        Husband’s Bank of America credit card                       1,460.75
        Sam’s Club credit card                                      980.09
        Pier 1 credit card                                          400.00
        Discover credit card                                        1,691.89
        Total:                                                      $105,868.73

        13. The net marital estate is -$53,370.91.


        14. Wife claims that the evidence presented to the Court rebuts
        the presumption that an equal division of the marital estate is fair
        and reasonable. Specifically, before the date of separation,
        Husband destroyed a substantial amount of Wife’s clothing and
        household furnishings. Wife contends this amounts to
        dissipation of marital assets. There is no dispute that Husband
        cut large holes into many items of Wife’s clothing, rendering it
        unwearable. There is no dispute that in a fit of rage, Husband
        wrecked many items of furniture. . . . In fact, Husband . . .
        shattered a window in Wife’s vehicle, causing the cost of repair
        in excess of $2,000.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019    Page 4 of 23
        15. . . . [T]he Court concludes that Husband’s actions of
        destruction constitute dissipation.


        16. Having found dissipation, the Court must next determine the
        amount or value of the assets that were destroyed. Wife claims
        that the replacement of the various items was over $13,000.
        Unfortunately for Wife, the law in Indiana does not permit the
        Court to use the replacement costs. The Court is not free to
        speculate as to the fair market value of used clothing and used
        furniture; to do so would be reversible error. Therefore, the
        Court must assess the value of the assets at zero dollars since
        there is no other evidence on which the Court can base a value.


        17. Indiana law requires the Court to divide the marital property
        in a just and reasonable manner. Indiana law also states that this
        Court is to presume that an equal division is just and reasonable,
        but that presumption can be rebutted with certain relevant
        evidence. In this case, the Court concludes that although she
        came close, Wife did not get over the bar and successfully rebut
        the presumption.


        18. To achieve a just a reasonable division of the marital estate,
        the Court divides the marital estate as follows:


                 To Wife:


        Wife’s 1st Source Account                                   688.62
        Wife’s TCU Account                                          581.78
        Wife’s 401(k) account                                       344.42
        Wife’s Toyota 4Runner                                       22,800.00
        Wife’s Tag Heuer watch                                      2,300.00
        Diamond earrings                                            1,500.00
        Wedding ring                                                5,500.00


        Wife’s vehicle loan                                         (26,756.90)
        Wife’s student loans                                        (48,416.64)
        Total:                                                      ([-]$41,458.72)



Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019        Page 5 of 23
                 To Husband:


        Husband’s 1st Source Account                                1,082.80
        Husband’s Toyota Tacoma                                     14,000.00
        Firearms                                                    2,000.00
        Husband’s Tag Heuer watch                                   1,700.00
        Husband’s vehicle loan                                      (25,006.83)
        Husband’s TD Bank credit card                               (1,155.63)
        Husband’s Bank of America credit card                       (1,460.75)
        Sam’s Club credit card                                      (980.09)
        Pier 1 credit card                                          (400.00)
        Discover credit card                                        (1,691.89)
        Total:                                                      (-11,913.39)

        To balance the division of the marital estate and arrive at an
        equal distribution, Husband shall be required to pay Wife the
        sum of $14,772.67.

        19. Each party shall be solely responsible for each debt assigned
        to him or her, and the responsible party shall fully indemnify and
        hold the other harmless against any damages and liability arising
        out of the assigned debt.

        20. In addition, Wife has persuaded the Court that Husband
        should be required to reimburse her for certain expenses (or to
        pay Wife outright if she has not yet paid the expenses) as follows:


                 Dental Bill                                        $180.29
                 Bank Overdraft                                     $900.56
                 Vehicle Damage                                     $5,187.86
                 Insurance Coverage                                 $1,269.00
                 Unpaid Temporary Maintenance                       $9,240.00
                 Total:                                             $16,777.71

        21. The total amounts to be paid to Wife, $31,550.38, shall be
        reduced to a judgment in favor of Wife and against Husband.
        The judgment shall accrue simple interest at the statutory rate of
        8% per year until it is paid in full.

        22. Wife has requested that the Court order Husband to pay
        some or all of her attorney’s fees as authorized by statute. The
        Court has considered the relative earning power of the parties,

Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019     Page 6 of 23
               the division of the marital estate, the conduct of the parties that
               affected the length of the case and the fees incurred as a result by
               both parties, along with the affidavit submitted by [Wife’s
               attorney]. According to the affidavit, Wife has incurred
               $24,247.62 in fees and expenses. Reviewing the hourly rates for
               the attorneys involved, the Court concludes that the rates are
               reasonable for the greater South Bend-Mishawaka market in
               cases of this nature and involving attorneys with their respective
               levels of experience. The Court also concludes that the number
               of hours spent by Wife’s attorneys in representing her are
               reasonable. After considering the relevant factors, the Court
               concludes that a reasonable fee award is $20,000. . . .


      Appealed Order at 3-8.


[4]   Nearly three months later, on June 11, 2018, Husband filed a Motion for Relief

      from Judgment based on excusable neglect due to an error in communication.

      In his motion, Husband alleged that his attorney “did not lay eyes” on the

      decree until on or about May 25 despite the trial court’s electronic filing of the

      order on March 19. Appellee’s Appendix, Volume 2 at 3. Husband’s counsel

      was unaware of the order until Husband contacted counsel’s office on May 23

      and advised that he had gone to the court house to obtain a copy of the decree.

      Counsel alleged this was the first time he learned a decree had been entered

      even though his office received the decree and electronically saved it on March

      21. Husband argued this constituted excusable neglect and asked the court to

      consider the issues raised in the motion on their merits.2 Substantively, he




      2
       Although we need not determine whether counsel’s actions constitute excusable neglect, we take this
      opportunity to comment on Husband’s trial counsel’s failure to timely discover the decree. Counsel’s office
      received the decree on March 21, and it was electronically saved to a folder at that time. Later, on April 2,


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                    Page 7 of 23
      maintained: (1) the trial court erred by entering findings on uncontested custody

      issues; (2) half of Wife’s student loans were acquired before the marriage and

      should not have been included in the marital estate; (3) the trial court erred by

      ordering Husband to reimburse Wife for unpaid temporary maintenance in light

      of the parties’ agreed temporary order; and (4) the trial court should reconsider

      the award of attorney fees to Wife. See id. at 4-9.


[5]   The trial held a hearing and court issued an order on July 23 characterizing

      Husband’s motion as a “motion to correct errors presented as a motion for

      relief from judgment.” Appealed Order at 9. The trial court granted the motion

      in part with respect to the child custody issues and denied the motion pertaining

      to the division of property issues. It stated:


               Although there is a question whether the Court can grant
               [Husband’s] requested relief due to the timing of his motion, the
               Court determines that even if the timing was not in issue the
               motion would be denied. Therefore, the timing question is moot.
               ([Husband’s] counsel filed the motion pursuant to Trial Rule




      Husband contacted his counsel and asked if the trial court had reached a decision. Even though the decree
      had been issued two weeks prior and electronically saved, counsel advised Husband that he was not aware of
      a result at that time. Instead, it was Husband who notified counsel of the result on May 23, over two months
      after the decree had been entered. In Husband’s 60(B) motion, counsel explained that he did not receive the
      decree “due to an apparent error in communication or transfer of the electronic receipt of the [d]ecree within
      his office[.]” App. of Appellee, Vol. 2 at 3-4. It is likely that had counsel made reasonable efforts to search
      the electronic folder, communicate with his assistant, or check the docket when Husband called on April 2,
      he would have discovered the decree and could have filed an appropriate and timely motion. However,
      counsel’s failure to discover the decree resulted in an untimely motion that the trial court addressed. To
      prevent similar instances in the future, we advise counsel to take reasonable efforts to keep abreast of his
      client’s cases and to immediately remedy any communication issues within his office.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                     Page 8 of 23
               60(B) because of an error in his office that precluded the timely
               filing of a motion to correct error.)


               [Husband’s] motion claims the Court committed errors in its
               division of the marital estate. The Court has reviewed the
               contents of [Husband’s] motion and determines that the
               arguments amount to a disagreement with the Court’s ruling
               rather than accurately pointing to an error in the Court’s
               decision. The Court declines [Husband’s] invitation to
               reconsider the evidence presented, and therefore this portion of
               the motion is denied.


      Id. at 10. The trial court issued an amended decree of dissolution on August 27,

      2018. Husband now appeals.3



                                   Discussion and Decision
                                      I. Wife’s Student Loans
[6]   Husband challenges the trial court’s judgment with respect to Wife’s student

      loans. A trial court has broad discretion in dividing the marital estate, and we

      will reverse a trial court’s decision only for an abuse of discretion. Goodman v.

      Goodman, 94 N.E.3d 733, 742 (Ind. Ct. App. 2018), trans. denied. “The party




      3
        In her brief, Wife argues Husband’s Motion for Relief from Judgment should have been denied by the trial
      court because he failed to submit evidence of excusable neglect. See Appellee’s Brief at 16. Wife does not,
      however, argue that Husband’s appeal is untimely. Because the trial court entertained Husband’s motion
      and ruled on the substantive issues raised by Husband, despite considerations of timeliness, we too entertain
      his appeal. See Ind. Appellate Rule 1 (“The Court may, upon the motion of a party or the Court’s own
      motion, permit deviation from these Rules.”); see also In re O.R., 16 N.E.3d 965, 971 (Ind. 2014) (failure to file
      a timely appeal “does not deprive the appellate courts of jurisdiction to entertain the appeal.”).

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                       Page 9 of 23
      challenging the trial court’s division of marital property must overcome a strong

      presumption that the trial court considered and complied with the applicable

      statute, and that presumption is one of the strongest presumptions applicable to

      our consideration on appeal.” Id. On review, we do not reweigh the evidence

      or assess the credibility of the witnesses. Id. Instead, we consider only the

      evidence most favorable to the trial court’s disposition of the marital property.

      Id.


[7]   The trial court must divide marital property in a “just and reasonable manner”

      in dissolution proceedings. Ind. Code § 31-15-7-4(b). The division of marital

      property is a two-step process. O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct.

      App. 2008). The trial court first ascertains what property must be included in

      the marital estate and then divides the estate in a just and reasonable manner.

      Id. Indiana employs a “one-pot” theory in which all property acquired before

      or during the marriage is included in the marital estate. Goodman, 94 N.E.3d at

      742. “While the trial court may ultimately determine that a particular asset

      should be awarded solely to one spouse, it must first include the asset in its

      consideration of the marital estate to be divided.” Id. With respect to the first

      step:


              (a) [T]he court shall divide the property of the parties, whether:


                       (1) owned by either spouse before the marriage;


                       (2) acquired by either spouse in his or her own right:



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 10 of 23
                                (A) after the marriage; and


                                (B) before final separation of the parties; or


                       (3) acquired by their joint efforts.


      Ind. Code § 31-15-7-4. Marital property includes both assets and liabilities.

      Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999), trans. denied.

      Although partially acquired before the marriage, the trial court properly

      included all of Wife’s student loan debt in the marital estate.


[8]   Although Husband frames the issue as whether the trial court erred by

      including Wife’s entire student loan debt in the “marital pot,” the substance of

      his argument leads us to believe that he challenges the trial court’s division of

      the property.4 In determining how to divide the marital estate, the trial court

      begins with the presumption that an equal division is just and reasonable. Ind.

      Code § 31-15-7-5. However, this presumption may be rebutted by a party who

      presents evidence that an equal division would not be just and reasonable. Id.

      A trial court may consider the following factors in determining whether to

      deviate from the presumption:




      4
       See Brief of Appellant at 11 (Husband argues “Wife began schooling before the marriage and incurred the
      debt to her benefit only. Husband made no contribution towards its acquisition. Further, Wife has not used
      her degree to obtain employment and it is a degree with only the benefit of increased knowledge solely to
      Wife while providing no positive economic impact on the marital finances.”).

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                Page 11 of 23
        (1) The contribution of each spouse to the acquisition of the
        property, regardless of whether the contribution was income
        producing.


        (2) The extent to which the property was acquired by each
        spouse:


                 (A) before the marriage; or


                 (B) through inheritance or gift.


        (3) The economic circumstances of each spouse at the time the
        disposition of the property is to become effective . . .


        (4) The conduct of the parties during the marriage as related to
        the disposition or dissipation of their property.


        (5) The earnings or earning ability of the parties as related to:


                 (A) a final division of property; and


                 (B) a final determination of the property rights of the
                 parties.


Id. In dividing the marital estate, the trial court assigned Wife’s entire student

loan debt to her. See Appealed Order at 6. With respect to the presumption,

the trial court determined that Wife came close to rebutting the presumption but

did not successfully rebut it. Here, the trial court properly included Wife’s

entire student loan debt in the marital pot pursuant to Indiana Code section 31-



Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 12 of 23
       15-7-4 and then assigned that debt to her. The trial court did not abuse its

       discretion with respect to Wife’s student loans.


                                        II. Marital Dissipation
[9]    Next, Husband argues the trial court erred by ordering him to reimburse Wife

       $5,187.86 for the damage he intentionally caused to Wife’s vehicle. We review

       a trial court’s findings of dissipation of marital assets under an abuse of

       discretion standard. In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind. Ct. App.

       1996). We will reverse only if the trial court’s judgment is clearly against the

       logic and effect of the facts and the reasonable inferences to be drawn from

       those facts. Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind. Ct. App. 2001).


[10]   In addition to the division of the marital estate, the trial court found that “Wife

       has persuaded the Court that Husband should be required to reimburse her for

       certain expenses[,]” including $5,187.86 in vehicle damage. Appealed Order at

       7. As best we can discern, Husband argues his conduct does not constitute

       marital dissipation because the damage occurred during the marriage, before a

       dissolution petition was filed, and the parties continued to cohabitate for

       months after the incident. 5 In addition, he asserts that because Wife paid for




       5
         In his brief, Husband cites to Walburn v. Walburn, 878 N.E.2d 544 (Ind. Ct. App. 2007), an unpublished
       memorandum decision. Although Walburn in turn cites to two published decisions, we remind counsel that
       citation to unpublished decisions is inappropriate and prohibited by our appellate rules. See Ind. Appellate
       Rule 65(D) (“Unless later designated for publication in the official reporter, a memorandum decision shall
       not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish
       res judicata, collateral estoppel, or law of the case.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                     Page 13 of 23
       the damage with marital funds, the amount is not subject to division.

       Husband’s argument is misplaced.


[11]   First, we note that this expense was not included in the marital estate. See

       Appealed Order at 3-4. It appears that the trial court ordered Husband to

       reimburse Wife for the vehicle damage due to his conduct, in which he

       intentionally damaged Wife’s car after learning of an affair. See Exhibits at 41-

       53. Thus, the trial court’s order in this respect is not a question of a division of

       assets.


[12]   In any event, even if this amount was included in the marital estate and

       assigned to Husband, the trial court found marital dissipation by Husband.

       Dissipation of marital assets involves the “frivolous, unjustified spending of

       marital assets.” Goodman, 754 N.E.2d at 598. “Waste and misuse are the

       hallmarks of dissipation.” Coyle, 671 N.E.2d at 943. To determine whether

       dissipation occurred, we consider the following factors: (1) whether the

       expenditure benefited the marriage or whether it was made for a purpose

       unrelated to the marriage; (2) the timing of the transaction; (3) whether the

       expenditure was excessive or de minimis; and (4) whether the dissipating party

       intended to hide, deplete, or divert the marital asset. Goodman, 754 N.E.2d at

       598. Dissolution courts may consider evidence of either pre- or post-separation

       dissipation. Hardebeck v. Hardebeck, 917 N.E.2d 694, 700 (Ind. Ct. App. 2009).

       In this case, the trial court found that Husband destroyed a “substantial amount

       of Wife’s clothing and household furnishings” and damaged her car “in a fit of



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 14 of 23
       rage,” all of which were depicted in photographs admitted into evidence.

       Appealed Order at 4; see also Exhibits at 27-45.


[13]   Husband is correct that money used to satisfy marital debts before dissolution is

       not marital property. Gard v. Gard, 825 N.E.2d 907, 910-11 (Ind. Ct. App.

       2005). However, absent proof of asset dissipation, the trial court should not divide

       assets used to satisfy marital debts before dissolution as marital property.

       Pitcavage v. Pitcavage, 11 N.E.3d 547, 569 (Ind. Ct. App. 2014). Because the trial

       court found that Husband’s “actions of destruction constitute dissipation[,]”

       any marital funds used to pay for the damage are not marital property.

       Appealed Order at 5. We cannot conclude the trial court abused its discretion

       in finding Husband’s actions constituted dissipation and ordering him to

       reimburse Wife for costs incurred as a result.


                                   III. Unpaid Maintenance
[14]   Husband also challenges the trial court’s order that he reimburse Wife for

       unpaid temporary maintenance. “On appeal of claims tried by the court

       without a jury . . . [we] shall not set aside the findings or judgment unless

       clearly erroneous, and due regard shall be given to the opportunity of the trial

       court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). When

       the trial court enters findings pursuant to Trial Rule 52, we apply a two-tiered

       standard of review. Blacklidge v. Blacklidge, 96 N.E.3d 108, 113 (Ind. Ct. App.

       2018). First, we determine whether the evidence support the findings and then,

       whether the findings support the judgment. Id. We will not set aside the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 15 of 23
       court’s findings and conclusions unless clearly erroneous, namely when the

       record contains no facts or inferences to support them leaving us firmly

       convinced a mistake has been made. Tompa v. Tompa, 867 N.E.2d 158, 163

       (Ind. Ct. App. 2007).


[15]   Additionally, “[a]ppellate deference to the determinations of our trial court

       judges, especially in domestic relations matters, is warranted because of their

       unique, direct interactions with the parties face-to-face, often over an extended

       period of time. Thus enabled to assess credibility and character through both

       factual testimony and intuitive discernment, our trial judges are in a superior

       position to ascertain information and apply common sense[.]” Best v. Best, 941

       N.E.2d 499, 502 (Ind. 2011).


[16]   Here, the trial court concluded Husband should reimburse Wife for $9,240.00

       in unpaid temporary maintenance. Husband does not argue Wife is not entitled

       to some temporary maintenance6 but claims that he did not pay Wife

       maintenance because she “waived its receipt in exchange for her relief from

       responsibility for marital residency costs during the proceedings.” Br. of

       Appellant at 13. The evidence reveals that an “Agreed Temporary Order” was

       entered on February 13, 2015, which provided in part:


                  [Husband] shall pay the monthly mortgage payment in full on
                  the marital residence in lieu of payment of maintenance to
                  [Wife]. [Wife’s] waiver of maintenance shall constitute her



       6
           Accordingly, we do not address whether Wife is entitled to temporary spousal maintenance.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019                  Page 16 of 23
               contribution to the marital residence during the pendency of this
               action.


       Appellant’s App., Vol. 2 at 26; see also Exhibits at 170-72. Wife offered the

       “Agreed Temporary Order” at trial and the trial court stated it was part of the

       record. See Transcript, Volume II at 80.


[17]   Although the trial court did not provide a calculation in its findings, it did state

       that it was persuaded by Wife to award her $9,240.00 in unpaid temporary

       maintenance. Based on the evidence in the record, it appears that the trial

       court’s finding in this respect is derived from “Wife’s Revised Contentions,

       Exhibits and Witness List” admitted into evidence. See Tr., Vol. II at 25, 27;

       Exhibits at 2-10. Specifically, Wife argued that per the Agreed Temporary

       Order, Husband agreed to pay the monthly mortgage payment in lieu of

       maintenance to Wife; however, he failed to pay the mortgage which resulted in

       foreclosure of the marital residence. Wife argues this warranted a deviation

       from the presumption of equal division:


               13. . . . Wife should receive set-off temporary maintenance she
               would have been awarded during the pendency of this
               dissolution of marriage action, in an amount equal to $60 per
               week, retroactive to the February 13, 2015 Order until entry of
               the Decree. As of the date of the final hearing, February 1, 2018,
               the total for 154 weeks is $9,240.00.


       Exhibits at 5.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 17 of 23
[18]   Husband testified that he made monthly mortgage payments through January

       2016 but was ultimately unable to keep up with the payments. See Tr. Vol. II at

       124-25. A judgment of foreclosure was entered on April 19, 2016. Although

       the trial court took judicial notice of the Agreed Temporary Order, the

       judgment for maintenance reflects nearly three years of maintenance owed

       dating back to February 13, 2015, and it appears the trial court failed to

       consider any mortgage payments Husband made during this time. Therefore,

       we conclude the evidence in the record does not support the findings and in

       turn, does not support the judgment of $9,240. We reverse the judgment with

       respect to the unpaid maintenance and remand to the trial court to determine

       the proper amount Husband owes Wife, taking into consideration the Agreed

       Temporary Order and any evidence of mortgage payments Husband made

       during this time.


                                          IV. Attorney Fees
                                           A. Award to Wife
[19]   Husband challenges the trial court’s order awarding Wife $20,000 in attorney

       fees. We review a trial court’s decision to award or deny attorney fees in

       connection with a dissolution decree using an abuse of discretion standard.

       Ahls v. Ahls, 52 N.E.3d 797, 802-03 (Ind. Ct. App. 2016). A trial court has

       broad discretion in assessing attorney fees and we will reverse only if its

       decision is “clearly against the logic and effect of the facts and circumstances

       before it or if it misapplies the law.” Id. at 803.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 18 of 23
[20]   Indiana Code section 31-15-10-1(a) authorizes the award of attorney fees in

       divorce proceedings:


               The court periodically may order a party to pay a reasonable
               amount for the cost to the other party of maintaining or
               defending any proceeding under this article and for attorney’s
               fees and mediation services, including amounts for legal services
               provided and costs incurred before the commencement of the
               proceedings or after entry of judgment.


[21]   In awarding attorney fees, a trial court must consider the resources of the

       parties, their economic condition, the ability of the parties to engage in gainful

       employment and to earn adequate income, and other factors that bear on the

       reasonableness of the award. Troyer v. Troyer, 987 N.E.2d 1130, 1142-43 (Ind.

       Ct. App. 2013), trans. denied. “Consideration of these factors promotes the

       legislative purpose behind the award of attorney fees, which is to [e]nsure that a

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

       attorney, is able to retain representation.” Id. at 1143. This court has held that

       when one party is in a superior position to pay the attorney fees over the other,

       an award of attorney fees is proper. Id. Additionally, misconduct that directly

       results in additional litigation expenses may properly be taken into account in

       the trial court’s decision to award attorney’s fees. Barton v. Barton, 47 N.E.3d

       368, 377 (Ind. Ct. App. 2015), trans. denied. The trial court need not give

       reasons for its determination. Goodman, 94 N.E.3d at 751.


[22]   Here, in awarding Wife $20,000 in attorney fees, the trial court “considered the

       relative earning power of the parties, the division of the marital estate, the

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 19 of 23
       conduct of the parties that affected the length of the case and the fees incurred

       as a result by both parties, along with the affidavit submitted by [Wife’s

       attorney].” Appealed Order at 8. Husband argues “[t]here is no significant

       disparity in income” between the parties. Br. of Appellant at 14. However, the

       evidence in the record reveals otherwise.


[23]   According to Husband’s verified personal financial statement admitted into

       evidence at trial, Husband’s yearly gross income was roughly $47,000 while

       Wife’s gross income was nearly $29,000. See Exhibits at 12-15, 97. This is a

       significant disparity in income. Husband also challenges the trial court’s

       finding that the conduct of the parties affected the length of the case and fees

       incurred. The Chronological Case Summary indicates that Wife filed motions

       for rule to show cause on February 24, 2016, March 24, 2016, and June 13,

       2016. Appellant’s App., Vol. 2 at 4-6. Wife also filed motions to compel on

       August 23, 2016, March 16, 2017, and September 11, 2017. Id. at 7-8, 11.

       Additionally, Husband filed motions to continue on March 20, 2017, March 31,

       2017, and September 12, 2017. Id. at 9, 11. Moreover, the trial court found

       that Husband’s actions constituted marital dissipation. Based on the evidence

       in the record, we cannot conclude the trial court abused its discretion by

       ordering Husband to pay Wife $20,000 in attorney fees.


                                   B. Appellate Attorney Fees
[24]   Wife asks this court to remand the case to the trial court for an assessment of

       appellate attorney fees and expenses. Indiana Appellate Rules 66(E) provides:


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 20 of 23
               The Court may assess damages if an appeal, petition, or motion,
               or response, is frivolous or in bad faith. Damages shall be in the
               Court’s discretion and may include attorneys’ fees. The Court
               shall remand the case for execution.


       Our discretion to award attorney fees under this rule is limited to instances

       when an appeal is permeated with meritlessness, bad faith, frivolity,

       harassment, vexatiousness, or purpose of delay. Townsend v. Townsend, 20

       N.E.3d 877, 880 (Ind. Ct. App. 2014), trans. denied. And although our authority

       to award damages on appeal is discretionary, “we must use extreme restraint

       when exercising this power because of the potential chilling effect upon the

       exercise of the right to appeal.” Id.


[25]   Although Wife explicitly states she does not request damages under this rule, it

       appears that Wife’s argument misunderstands the difference between a request

       for appellate attorney fees pursuant to Indiana Appellate Rule 66(E) and

       Indiana Code section 31-15-10-1. See id. at 881 (“[I]t is the legal basis for the

       request, not the forum, that determines which standard applies.”). Here, Wife

       argues appellate attorney fees are appropriate due to Husband’s “efforts to

       lengthen the process” and his frivolous argument with respect to her student

       loan debt. Appellee’s Br. at 23. Therefore, the underlying basis for Wife’s

       request for appellate attorney fees is Husband’s delay and frivolous argument,

       both of which provide a legal basis for damages pursuant to Indiana Appellate

       Rule 66(E).




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 21 of 23
[26]   “[I]f a request for appellate attorney fees is based on a frivolous appeal, then it

       may be made on appeal pursuant to Appellate Rule 66(E). If, on the other

       hand, a party seeks appellate attorney fees in a dissolution proceeding based on

       the parties’ economic circumstances pursuant to Indiana Code Section 31-15-

       10-1, then that request is properly made in the trial court without consideration

       of Appellate Rule 66(E).” Townsend, 20 N.E.3d at 881; see also Goodman, 754

       N.E.2d at 603 (explaining Indiana Code section 31-15-10-1(a) authorizes the

       trial court to award reasonable appellate attorney fees and jurisdiction rests with

       the trial court to determine if an award of appellate attorney fees is appropriate).

       In any event, although Husband did not file an appeal or motion within thirty

       days of the entry of the decree, he filed a motion based on excusable neglect

       and the trial court entertained the substance of his complaints, and he has been

       partially successful on appeal. We therefore decline to award damages

       pursuant to Indiana Appellate Rules 66(E).



                                               Conclusion
[27]   For the reasons set forth above, we conclude the trial court properly included

       Wife’s entire student loan debt in the marital estate and it did not abuse its

       discretion with respect to marital dissipation and the order for Husband to pay

       $20,000 of Wife’s attorney fees. However, the trial court’s judgment pertaining

       to unpaid temporary maintenance is clearly erroneous. We therefore affirm the

       trial court’s division of property and attorney fees but reverse the trial court’s

       judgment for unpaid temporary maintenance and remand the issue to the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 22 of 23
       court to determine the proper amount in light of any monthly mortgage

       payments made by Husband during the relevant time. We also conclude Wife

       is not entitled to appellate attorney fees.


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


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019   Page 23 of 23
