Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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.



ATTORNEY FOR APPELLANT:                                              Sep 25 2013, 9:15 am


NANCY A. McCASLIN
McCaslin & McCaslin
Elkhart, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE THE MARRIAGE OF:                             )
                                                   )
DAVID L. FENDLEY,                                  )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )        No. 20A05-1212-DR-662
                                                   )
MISTY L. CONVERSE,                                 )
f/k/a MISTY L. FENDLEY,                            )
                                                   )
       Appellee-Petitioner.                        )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                        The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-9209-DR-257



                                       September 25, 2013


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                          CASE SUMMARY

        Appellant-Respondent David L. Fendley (“Former Husband”) and Appellee-Petitioner

Misty L. Fendley-Converse (“Former Wife”) were married on March 31, 1990. The

dissolution court issued an order dissolving the parties’ marriage on April 5, 1993. One child

was born during the course of the parties’ marriage. On September 6, 1994, the parties filed

a stipulation by which they agreed, among other things, that Former Husband’s obligation to

pay child support would be abated and he would not be held responsible for any medical

insurance for or medical bills of the parties’ child in exchange for Former Husband’s

agreement that he would forfeit his right to exercise visitation with the child and would

consent to Former Wife’s desire to change the child’s last name. This stipulation was

approved by the dissolution court, which, on September 6, 1994, issued an order stating that

Father’s obligation to pay child support was abated.

        On January 12, 2012, Former Wife filed a minute entry in the trial court1 requesting a

child support hearing. In requesting this hearing, Former Wife asserted that Former Husband

had not paid child support for the child for approximately eighteen years. Following a

hearing, the trial court entered judgment against Former Husband in the sum of $128,104.00.

Former Husband filed a motion to reconsider. The trial court issued an order denying

Former Husband’s request to set aside the $128,104.00 judgment against him, but altered its

order to provide that the judgment was awarded in favor of the parties’ now-adult child


        1
          We note that both the dissolution court and the trial court are Elkhart Superior Court 3. However,
we use these distinguishing terms to aid the reader in differentiating between the orders issued by the trial
judge before whom the proceedings were conducted in 1992 through 1994 and the orders issued by the trial
judge before whom the proceedings were conducted in 2012 to the present.

                                                     2
instead of Former Wife. Former Husband then filed a Trial Rule 60(B)(8) Motion to Set

Aside the Judgment. This motion was subsequently denied by the trial court.

       On appeal, Former Husband contends that the trial court erred in denying his request

to set aside the $128,104.00 judgment against him in light of the dissolution court’s

September 6, 1994 order which abated his obligation to pay child support. Former Husband

also contends that he is entitled to an award of appellate attorney’s fees because this appeal

resulted from a frivolous action that was brought in bad faith by Former Wife. Concluding

that the trial court erred in denying Former Husband’s motion to set aside the judgment, and

that Former Husband is not entitled to an award of appellate attorney’s fees, we reverse the

judgment of the trial court with respect to the $128,104.00 judgment against Former Husband

and reject Former Husband’s request for appellate attorney’s fees.

                        FACTS AND PROCEDUAL HISTORY

       Former Husband and Former Wife were married on March 31, 1990. The parties

separated on August 21, 1992. Former Wife filed a petition for the dissolution of the parties’

marriage on September 9, 1992. The dissolution court entered an order dissolving the

parties’ marriage on April 5, 1993. One child was born during the parties’ marriage.

       On September 6, 1994, the parties, by counsel, filed a stipulation that was signed by

both parties and their counsel. This stipulation provided that: (1) Former Husband shall

withdraw his motion for relief from the dissolution decree, (2) Former Husband’s child

support obligation shall be abated; (3) Former Husband shall not exercise visitation; (4)

Former Husband shall not be held responsible for any medical insurance or medical bills; (5)



                                              3
Former Husband shall consent to Former Wife’s desire to change the child’s last name; and

(6) Former Husband shall pay the remaining arrearage of $3636.00 at the rate of $108.00 per

week. That same day, the dissolution court issued an order which read as follows:

       Pursuant to [the] stipulation filed by the parties on September 6, 1994, this
       Court Orders that
       1.    Respondent’s Motion for Relief from Dissolution Decree is dismissed,
       2.    Respondent’s child support shall be abated effective August 12, 1994,
       and Respondent shall pay the remaining arrearage at the rate of $108.[00] per
       week, said abatement to be without prejudice.
       3.    Respondent shall not be responsible for any medical insurance or
       medical bills of the child of the marriage, pending further order of the court.

Appellant’s App. p. 28 (brackets added). Neither party appealed from or challenged this

order at any time.

       On January 12, 2012, Former Wife filed a minute entry in the trial court requesting a

child support hearing. In making this request, Former Wife asserted that Former Husband

had not paid child support for the child for approximately eighteen years. Following a

hearing on Mother’s minute entry, the trial court determined that Former Husband had failed

to pay child support and entered judgment against him in the sum of $128,104.00.

       Soon thereafter, Former Husband filed a motion to reconsider. Following a hearing,

the trial court issued an order denying Former Husband’s request to set aside the $128,104.00

judgment against him, but altered the order of judgment to provide that the judgment was

awarded in favor of the parties’ now-adult child instead of Former Wife. On November 5,

2012, Former Husband, by counsel, filed a Trial Rule 60(B)(8) Motion to Set Aside the

Judgment. This motion was subsequently denied by the trial court.

                            DISCUSSION AND DECISION


                                             4
                          I. Motion to Set Aside the Judgment

       Initially, we note that Former Wife did not file an appellee’s brief.

       When an appellee fails to file a brief, we apply a less stringent standard of
       review. McKinney v. McKinney, 820 N.E.2d 682, 685 (Ind. Ct. App. 2005).
       We are under no obligation to undertake the burden of developing an argument
       for the appellee. Id. We may, therefore, reverse the trial court if the appellant
       establishes prima facie error. Id. “Prima facie” is defined as “at first sight, on
       first appearance, or on the face of it.” Id.

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006).

       In denying Former Husband’s motion to reconsider and motion to set aside the

judgment, the trial court noted that relevant precedent indicates that an individual cannot

contract away his or her obligation to support their children, and stated that as a result, it

believed the parties’ 1994 stipulation to be contrary to public policy. Generally, we agree

that an individual cannot contract away his or her obligation to support their children. See

Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997) (providing that any agreement

which purports to contract away a child’s right to support is unenforceable as directly

contrary to the public policy of protecting the welfare of children), trans. denied. We also

note that had the parties’ stipulation come before us in 1994, we, like the trial court, might

also have rejected it as contrary to public policy. However, the dissolution court, which

considered the parties’ stipulation when it was presented in September of 1994, did approve

the stipulation and entered a court order abating Former Husband’s child support obligation

effective August 12, 1994.

       The trial court appears to have considered Former Wife’s claim that Former Husband

failed to pay child support as a claim that the dissolution court’s September 6, 1994 order


                                               5
was void as against public policy. If Former Wife believed the dissolution court’s September

6, 1994 order was void as against public policy, she should have sought relief under Trial

Rule 60(B) or appealed the order to this court. Former Wife did neither and now,

approximately eighteen years later, seems to be attempting to circumvent the dissolution

court’s order by claiming that Former Husband failed to pay child support.

       Trial Rule 60(B) states that a party may motion the trial court for relief if the judgment

is void. Any request for relief from a void judgment must be filed “within a reasonable

time.” Tr. R. 60(B). Here, Former Wife waited approximately eighteen years and until after

the parties’ child had reached the age of majority to challenge the dissolution court’s

September 6, 1994 order. We cannot say that this challenge was brought “within a

reasonable time.” Even assuming that Former Wife’s challenge could be construed as a

claim that the dissolution court’s September 6, 1994 order was void, we must conclude that

Former Wife has waived any challenge to the dissolution court’s September 6, 1994 order

because she did not challenge the order “within a reasonable time.”

       Moreover, a valid appeal from a trial court order shall be filed within thirty days of the

final judgment or the interlocutory order. Indiana Appellate Rule 9, 14. Here, Former Wife

did not appeal the dissolution court’s September 6, 1994 order within thirty days. Again, she

waited approximately eighteen years and until after the parties’ child had reached the age of

majority to challenge the order. As such, we must conclude that Former Wife has waived

any appellate challenge to the dissolution court’s September 6, 1994 order.




                                               6
        Because Former Wife has waived any challenge to the validity of the dissolution

court’s September 6, 1994 order, we conclude that the trial court erred in considering the

validity of the order and in determining that the dissolution court’s September 6, 1994 order

was void as against public policy and could not be enforced. As such, on appeal, we will not

review the validity of this nearly twenty-year-old unchallenged order of the dissolution court.

Rather, we will consider only whether the trial court erred in denying Former Husband’s

motion to set aside the judgment in light of the dissolution court’s September 6, 1994 order.

        To abate means to eliminate or nullify. See BLACK’S LAW DICTIONARY 3 (8th ed.

2004). The dissolution court’s September 26, 1994 order explicitly stated that Former

Husband’s obligation to pay child support was abated effective August 12, 1994.

Accordingly, Former Husband did not have any obligation to pay child support at any time

after August 12, 1994. Because Former Husband had no obligation to pay child support at

any time after August 12, 1994, we conclude that the trial court erred in entering a

$128,104.00 judgment against Former Husband as a result of his alleged failure to pay child

support.2

                          II. Request for Appellate Attorney’s Fees

        We next turn to Former Husband’s request for appellate attorney’s fees. In pertinent

part, Indiana Appellate Rule 66(E) provides that a court on review “may assess damages if an

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


        2
           Having concluded that the trial court erred in entering the $128,104.00 judgment against Former
Husband in light of the dissolution court’s September 6, 1994 order, we need not consider whether it was
proper to enter judgment in favor of the parties’ now-adult child instead of Former Wife.


                                                    7
include attorney’s fees.” In Orr v. Turnco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987), the

Indiana Supreme Court noted, that an appellate court “must use extreme restraint” in

exercising its discretionary power to award damages on appeal. “Hence, the discretion to

award attorney fees under App. R. 66(C) is limited to instances when an appeal is permeated

with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.”

Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001) (internal quotation

omitted).

       Here, we cannot say that the instant appeal was permeated with meritlessness, bad

faith, frivolity, harassment, or vexatiosness or was made for the purpose of delay. The

instant appeal was brought by Former Husband, not Former Wife, and was necessary to

overturn the trial court’s erroneous judgment against Former Husband. As such, we deny

Former Husband’s request for appellate attorney’s fees.

       The judgment of the trial court is reversed and Appellant’s request for appellate

attorney’s fees is denied.

BAILEY, J., MAY, J., concur.




                                            8
