Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                    FILED
court except for the purpose of                            Oct 26 2012, 8:38 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

DAVINA L. CURRY                                 MICHAEL A. KSENAK
Indianapolis, Indiana                           Martinsville, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

MELISSA KRODEL,                                 )
                                                )
       Appellant-Respondent,                    )
                                                )
              vs.                               )       No. 55A01-1201-DR-34
                                                )
DOUGLAS KRODEL,                                 )
                                                )
       Appellee-Petitioner.                     )


                    APPEAL FROM THE MORGAN CIRCUIT COURT
                        The Honorable Matthew G. Hanson, Judge
                            Cause No. 55C01-1011-DR-1031


                                     October 26, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                  STATEMENT OF THE CASE

        Appellant-Respondent, Melissa Krodel (Mother), appeals the trial court’s award of

physical and legal custody of the minor children to Appellee-Petitioner, Douglas Krodel

(Father).

        We affirm.

                                               ISSUES

        Mother raises four issues on appeal, which we consolidate and restate as the

following two issues:

    (1) Whether the trial court abused its discretion when it applied Ind. Code § 31-17-2-8

        to determine the custody of the minor children; and

    (2) Whether the trial court abused its discretion when it awarded Father attorney fees

        after finding Mother in contempt for interfering with Father’s parenting time and

        right of first refusal.

        On Cross-Appeal, Father raises one issue, which we restate as: Whether Father

should be awarded appellate attorney fees pursuant to Ind. Appellate Rule 66(E).

                           FACTS AND PROCEDURAL HISTORY

        Father and Mother were married on January 8, 1994. Prior to the marriage,

Mother and Father became the parents of a daughter, M.N.K., born on October 13, 1992. 1

During the marriage, two more children were born: a daughter, M.D.K., born on October

22, 1997 and a son, M.C.K., born on September 8, 2000 (collectively, the minor

1
  The trial court’s Order emancipated M.N.K.. The parties do not appeal this emancipation determination;
they solely appeal the custody determination of the two minor children.


                                                   2
children). Mother and Father separated in October of 2008 and on January 13, 2009,

Father filed a verified petition for dissolution of marriage. On March 18, 2009, the trial

court issued its provisional order, awarding the parties joint legal custody of the children,

with Mother having sole physical custody and Father having parenting time pursuant to

the Indiana Parenting Time Guidelines.

       On December 20, 2010, the trial court entered the Decree of Dissolution of

Marriage, dissolving the marriage but keeping all provisional orders in effect pending a

hearing on remaining issues.       The trial court conducted hearings on the custody

determination and Father’s motion for contempt on August 4, 2011, September 12, 2011,

October 3 and 4, 2011, December 3 and 4, 2011 and January 3, 2012. On January 17,

2012, the trial court issued its Order, containing 200 findings detailed over nineteen

pages and providing, in pertinent part,

       10) The [M]other wants the children to live in her physical custody and
       have visitations with the [F]ather.
       11) The [F]ather wants the children to live in his physical custody and have
       visitations with the [M]other.
       12) Third, the court spoke with both of the children individually in
       chambers and their wishes shall be considered appropriate.
       ***
       14) Fourth is the interaction of the children with various persons in their
       lives.
       ***
       19) Since the very beginning of this case, the [M]other has taken every step
       conceivable to try and interfere with the [Father’s] rights to see the children
       and to affect how the children see their [F]ather and his new wife, thereby
       strongly affecting her interaction and interrelationship with the children.
       Those events affecting the relationship are detailed hereafter.
       ***
       22) That in April of 2010 the [M]other filed a Protective Order [PO] against
       the Father. After review of the file, there was no particular incident of
       importance wherein this order should have been granted in the first place


                                             3
and this court is aware that it is practice to grant PO’s immediately ex parte
and have a hearing thereafter when these are filed.
23) That on June 7, 2010, there was an incident at a Perry Meridian
basketball game wherein essentially the [M]other had the [F]ather arrested
in front of the children for violating the protective order.
24) That the maternal grandparents created a scene after [F]ather was
escorted out of the game as the maternal grandfather began telling others in
attendance what a good [M]other the children had, what a low life the
[F]ather was, how he never paid the bills and did not take care of the kids.
25) The maternal grandmother then came up, began reciting the same
information to the crowd and seemed “irritated that no one was listening to
him” and that “he was telling the truth.” As people in the crowd began
telling the grandparents this was not the time and place to be saying things,
the grandmother attempted to strike one of the patrons that was trying to get
the grandparents to stop saying what they were saying.
26) The [c]ourt believes the testimony of the third party witness that
described the scene in detail and it is noted that [M.D.K.] was present
during all of this altercation and began crying on the court.
27) That this entire event at the gym relates as to the relationship of the
[M]other with her children in that she had the [F]ather arrested in front of
her children and then did not try to stop her parents from making a
spectacle for at least one of the children to observe. For the record, this
event took place almost nine months after the parties separated and six
months after the divorce was filed.
***
30) That on June 18, 2010 there was a Temporary Agreement and Order
Awarding Father Make-Up Time stating that the [F]ather had not seen the
children since March 19, 2010.
***
32) That on August 9, 2010, an Amended Provisional Order was agreed to
by the parties, including language that the Indiana Parenting Time
Guidelines (IPTG) were to be followed and ordered the [M]other to remove
a block she had placed on [M.D.K.’s] phone.
***
34) That almost immediately a Motion to Modify Custody was filed setting
forth that the [M]other had been in a physical altercation with the oldest
child and that the younger children had missed between 22 and 30 days of
school.
***
42) The [M]other testified she “misread” the IPTG and essentially agreed
with the schedule that was proposed weeks before the hearing. The
[Mother] was threatened with jail time for a failure to follow the visitation



                                      4
dates set forth and was further ordered to follow the right of first refusal
and not let the children dictate visitation dates and times.
43) The evidence also made it clear the [Mother] was stating in texts and
emails that the children could decide when and if they wanted to visit their
[F]ather.
44) That on August 23, 2011, a Motion to Appear and Show Cause was
filed alleging that the [M]other had again denied and/or changed parenting
time.
45) That [M]other showed up early to pick up the children, after self-
modifying the parenting time of [F]ather, tracked the [F]ather to a local
Chuck E Cheese restaurant and called the police to intervene. Both
children were present to see the police arrive at the restaurant.
46) That again the maternal grandparents were present at this Chuck E
Cheese event.
***
49) The court held extensive discussions off and on the record with all of
the parties on how the [Right of First Refusal] [ROFR] was to be applied,
even citing the most recent case law and ensuring on the record that the
[M]other understood how the ROFR worked.
***
51) That through emails and texts, it was clear the [Mother] was purposely
and intentionally not permitting the ROFR and thereby not permitting her
children to have visits they should have had. This continued even after this
hearing.
52) That on October 7, 2011, the [c]ourt found the [Mother] in contempt of
missed/interference with visits and ordered her to serve time in jail.
53) That on December 29, 2011, the [F]ather filed another Motion for
Order to Appear and Show Cause, essentially alleging a violation of the
ROFR by the [M]other on the two (2) weekends she served in jail for the
previous contempt.
54) That at the January hearing, [Mother] testified that as SHE read the case
law the court had provided her at the prior hearing, she had the right to
leave the children with her boyfriend at her residence since he was an
“appropriate adult.”
55) That the previous discussion held with the attorneys and parties had
therefore been ignored because of her “new” reading of the law.
56) That [M]other’s arguments before the court in January 2012 were the
exact same ones made by her counsel BEFORE the court told her at the
previous hearing and ordered her in writing how the ROFR takes place.
***
59) That in addition to all of the violations of visitation orders in this case,
the [Mother] has also taken a course to poison her children against the



                                       5
[F]ather and his new wife, Carrie, thereby affecting her interrelationship
with the children.
***
62) That the [M]other has sent dozens of letters to the children in their
backpacks when they go to the [F]ather’s for visits.
63) That these letters are so obviously slanted at making jabs at [F]ather
and his new wife that it offends any logical sensibilities that they are for
any other purpose.
64) That the court reviewed all of the letters and finds that things such as “I
know how you feel about things there but there is nothing I can do about it
right now,” and “You’re gonna be 13 next week – so then you can decide,”
“I’m not writing a whole lot because of Carrie not keeping her nose out of
our business,” “when Carrie and Nathan get on your nerves – block them
out and think of me!” “remember what everyone has told you about Nathan
& Carrie,” “I know how this is hard on you, but you can call me,” “I miss
you so much,” “ignore Carrie. Hopefully he will keep her away and spend
time with just you guys!” along with dozens of other quotes that could be
included are simply wrong and almost criminal in how [M]other is
poisoning the children against their dad and his new wife.
***
69) In one particular letter, the [Mother] states “They will NEVER accept
Carrie and I will (and so will everyone else) constantly remind them WHY
you left us and who was behind your leaving!! . . . I HATE CARRIE AND
THE KIDS DO AND WILL TOO!! SHE BETTER NEVER SHOW HER
FACE AROUND ME – THAT’S ALL I GOT TO SAY!! SHE BETTER
NEVER SHOW UP AT A GAME OR ANY OF OUR KIDS
ACTIVITIES!! SHE [IS] NOT WELCOME AND NEVER WILL BE!! I
have already told the kids that you are to lie and weezle your way into
making them think she was not involved.”
70) These statements, along with others made throughout this case, make it
clear that the [M]other created and continues to foster a hostile and negative
impression of the [Father’s] new wife to the children both directly and
indirectly.
***
72) The children seem to have a sufficiently good relationship with their
[F]ather in this case.
***
76) That in fact, the relationship [between Mother and Father during the
marriage] was seemingly one where [F]ather brought home the money and
[M]other took care of the children.
***




                                      6
80) The court never really heard direct evidence about any toxic or
inappropriate relationship that the [F]ather had with the two children at
issue in this case.
***
85) There are several other persons that may significantly affect the best
interest of the children in this case.
86) That the [M]other’s parents have been negatively involved in several
aspects of this case as described above.
***
92) That during a June hearing in this case, the maternal grandmother was
heard making derogatory statements to the [F]ather and his new wife and
on the stand she admitted to stating “I always wanted to see what two
assholes looked like when they get married.”
93) That her saying something wrong was later verified on a Facebook page
where she realized that she said something wrong. Grandmother tried to
claim she did not recall making that statement on Facebook and further that
she did not even understand Facebook. This court finds this statement and
backing down from a statement she obviously made as another attempt to
cover up her negative actions in this case.
***
96) That at the same June hearing, the maternal grandfather apparently was
overheard calling the [F]ather and/or Carrie a “whore” and once on the
stand, he tried to downplay this statement and alleged he called the [F]ather
a “whore” and not Carrie.
97) That on the stand grandfather was asked if he called Carrie a “slut”
some time in the recent past. He denied calling her that but continued
testifying under his breath that “if the shoe fits.”
***
117) Also as discussed above under the [M]other’s interrelationship with
the children, the constant references to the “whore” and statements that
“Carrie will never be accepted by the children,” poison all of the negative
testimony offered about Carrie, by [M]other in this case.
118) Simply, [M]other’s hatred is so great that most of her stories and
statements regarding Carrie must be given little to no weight.
119) That there was no real evidence, other than the interference in
communications that the [F]ather claimed to have handled, that Carrie is a
bad influence on the children in this matter.
***
122) That the court must consider the children’s adjustment to whichever
home the children would be living in and examine the homes in question.
***
125) That [F]ather raised the issue of poor attendance that the children had
while they were under the care and custody of the [M]other.


                                     7
***
132) That the evidence is clear from 2008 through 2010 school years the
[M]other was neglectful in ensuring school attendance of her children.
133) That as this case got moving and issues regarding custody came into
light, [M]other apparently realized the issues of education were problematic
and their attendance improved.
***
137) That there was extensive testimony about animals and filth in the
marital residence after the [Father] left. That there apparently was one
animal that tore up one room and [an]other that may have relieved itself in
the home.
***
144) Next is the issue of the mental and physical health of all individuals
involved.
145) First, the [M]other went to great lengths to attack the [Father’s] mental
and emotional health.
146) It is apparent that during the marriage the [Father] cheated on the
[Mother], however this has little if anything to do with the children, and
only goes to show a lack of character and judgment.
147) Second, the [F]ather had an internet relationship with a woman that
turned out to be the [M]other’s cousin wherein [F]ather sent a naked picture
of himself to the cousin.
148) That [F]ather alleges this relationship was staged by the cousin to get
him in trouble and it would seem evidently clear that this claim has validity
in light of the fact that all of the messaging back and forth as well as the
picture were provided to the [M]other in this case.
***
150) Bad judgment is one thing. Bad judgment spurred on by a plan set in
motion by the [M]other is another. Still, it was bad judgment to send such
a photo and weighs in only a minor fashion when determining the
[F]ather’s mental and physical health.
***
154 [] the court must consider the former excessive drinking of the Father
in this case, albeit several years ago at a time when the parties were
married.
***
161) The [M]other simply will not and has not let go of her pain and has
persisted since the very first moment to poison her children against their
[F]ather and his new wife.
162) That the actions from the first six months to one year after the
separation might be somewhat excusable or even understandable, but after
so much time, it must be concluded that [M]other has a serious mental



                                      8
      inability to move on with her life and she is dragging anyone and everyone
      down around her.
      163) That [M]other had been held in contempt recently for her failures in
      following simple orders and then, while in jail, violates the exact same
      order that was just discussed extensively with her just a few short weeks
      before.
      164) That [M]other’s constant claims of “she didn’t read something
      correctly” or “didn’t understand” or that the way “she reads the law” is like
      the boy that keeps crying wolf. After a time her claims of ignorance or
      misunderstandings are simply seen as lies and she cannot be believed.
      ***
      171) In simple words, the [M]other along with help from her parents, have
      alienated the children in this case from their [F]ather at every opportunity
      they have been given.
      172) In all the years on the bench, the court has never seen such a
      systematic and intentional series of events to drive a wedge between
      children and the [F]ather and the court has been greatly disturbed by the
      actions of the [M]other throughout.
      ***
      176) However, if custody was granted today with the [M]other, there is
      little doubt any hope of a normal relationship with the [F]ather would be
      gone and the [M]other would continue to alienate the children from their
      [F]ather at every chance as she has done over the past two years.
      177) Weighing all of the factors as required by the statute, and giving
      particular weight to the interrelationship/interaction of the children with
      their [M]other and the [M]other’s mental health, there can be only one clear
      decision that is in the best interests of the children and that is that they are
      placed in the physical custody of their [F]ather.
      178) That further, since these parties cannot get along at all over the past
      two years, the [F]ather shall have full legal custody as well.
      179) That the [M]other shall have parenting time according to the Indiana
      Parenting Time Guidelines.
      180) That the Right of First Refusal will not apply.

(Appellant’s App. pp. 135-51).

      Mother now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                                         APPEAL

                                  I. Standard of Review


                                             9
      When the trial court enters findings sua sponte, the specific findings control only

as to the issues they cover, while a general judgment standard applies to any issue upon

which the court has not found. Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind. Ct.

App. 2002). The specific findings will not be set aside unless they are clearly erroneous,

and we will affirm the general judgment on any legal theory supported by the evidence.

Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind. Ct. App. 1997), trans. denied. A finding is

clearly erroneous when there are no facts or inferences drawn therefrom to support it. Id.

at 76-77. In reviewing the trial court’s findings, we neither reweigh the evidence nor

judge the credibility of the witnesses. Id. at 77. Rather, we consider only the evidence

and reasonable inferences drawn therefrom that support the findings. Id.

                              II. Determination of Custody

      Although this case has been ongoing for several years and resulted in numerous

hearings and countless provisional orders, we are asked to review the trial court’s first

determination of custody of the minor children and not, as mistakenly mentioned in

Mother’s brief, a modification of previously established custody. In an initial custody

determination, both parents are presumed equally entitled to custody. Kirk v. Kirk, 770

N.E.2d 304, 307 (Ind. 2002). In evaluating a parent’s capability to manage the children’s

custody, a trial court should be guided by Indiana Code section 31-17-2-8, which

provides:

      The court shall determine custody and enter a custody order in accordance
      with the best interests of the child. In determining the best interests of the
      child, there is no presumption favoring either parent. The court shall
      consider all relevant factors, including the following:



                                           10
       (1) The age and sex of the child.

       (2) The wishes of the child’s parent or parents.

       (3) The wishes of the child, with more consideration given to the child’s
       wishes if the child is at least fourteen (14) years of age.

       (4) The interaction and interrelationship of the child with:
              (A) the child’s parent or parents;
              (B) the child’s sibling; and
              (C) any other person who may significantly affect the child’s best
              interests.

       (5) The child’s adjustment to the child’s:
              (A) home;
              (B) school; and
              (C) community.

       (6) The mental and physical health of all individuals involved.

       (7) Evidence of a pattern of domestic or family violence by either parent.

       (8) Evidence that the child has been cared for by a de facto custodian, and if
       the evidence is sufficient, the court shall consider the factors described in
       section 8.5(c) of this chapter.

A trial court’s custody determination is afforded considerable deference as it is the trial

court that sees the parties, observes their conduct and demeanor, and hears their

testimony. Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002), trans.

denied. Thus, on review, we will not reweigh the evidence, judge the credibility of

witnesses, or substitute our judgment for that of the trial court. Id. We will reverse the

trial court’s custody determination only if it is clearly against the logic and effect of the

facts and the circumstances or the reasonable inferences drawn therefrom. Id.

       Mother now contests the trial court’s award of the minor children’s legal and

physical custody to Father. Without addressing any specific findings, Mother introduces


                                             11
very generalized statements to support her allegation that the statutory factors enumerated

in I.C. § 31-17-2-8 weigh in her favor and mandate a “change of custody” of the children

to her. (See Appellate Br. p. 13). In essence ignoring her own actions during the

dissolution proceedings, Mother focuses on Father’s activities during the marriage, the

actions of Mother’s parents during the dissolution proceedings, and Mother’s

relationship—or lack thereof—with Carrie and asserts that none of these interactions

affected the minor children’s wellbeing. Pointing to the minor children’s affection for

Father during their visits, she confidently alleges that “[a]lthough the dissolution has been

difficult, the minor children have a good relationship with Father, which has not suffered

as a result of Mother’s, or anyone else’s opinion or feelings about Father and Father’s

wife, Carrie.” (Appellant’s Br. p. 13). We are not persuaded.

       In two hundred separate findings, the trial court meticulously and thoughtfully

addressed the evidence presented during the hearing as it related to each statutory

element. The trial court took into account the statutory requirement of the children’s

interaction and interrelationship with their parents and “any other person who may

significantly affect the child’s best interest.” See I.C. § 31-17-2-8(4)(C). Pursuant to this

provision, the trial court appropriately evaluated the interaction of the parents, the

maternal grandparents, and Carrie with the minor children and the impact of these

individuals’ actions on the lives of M.D.K. and M.C.K.

       The hostility between the parents is plain, and even a cursory glance at the

voluminous record overwhelmingly supports the conclusion that the parents have made

child-rearing a recurring legal battle.    While we acknowledge that neither parent is


                                             12
without blame, the lack of cooperation and communication between these parents reaches

a level of distrust and vindictiveness that we have rarely encountered before. Under the

facts before it, the trial court was placed in the unenviable position of choosing one

parent over the other because of the parents’ inability to isolate their personal conflicts

from their role as a parent and to hide the resentment and rancor they harbor. In light of

this level of parental incapability to share authority and responsibility over the minor

children, we cannot say the trial court’s award of custody of the minor children to Father

was clearly erroneous. We conclude that the evidence amply supports the trial court’s

determination of custody.

                                  III. Award of Attorney Fees

       Mother contends that the trial court erred when it ordered her to pay a portion of

Father’s attorney fees because she did not knowingly, willfully, or intentionally disobey

the trial court’s orders on Father’s parenting time and the right of first refusal.2 Mother

appeals the imposition of two contempt findings, each ordering her to pay Father’s

attorney fees in the amount of $500. First, on June 14, 2011, after a hearing on Father’s

petition for contempt, the trial court established the parties’ summer visitation schedule

and found that Mother owed Father an attorney fee of $500 “for her position that the

children control visitations, for not allowing the visitations as set out, nor following the

dictates in setting up summer visits if she objects and for going through the hearing today

when she in fact agreed to the remedy [Father] was seeking.” (Appellant’s App. p. 102).


2
  Although the trial court imposed jail time as well as payment of attorney fees to punish Mother’s
contempt for the court, on appeal Mother only disputes the imposition of attorney fees.


                                                13
Second, on October 7, 2011, after an evidentiary hearing, the trial court held Mother in

contempt for her failure to comply with the right of first refusal and sentenced Mother to

four actual days of jail time and ordered her to pay Father $500 in attorney fees.

          The Indiana Appellate Rules require each party seeking an appeal to file its notice

of appeal within thirty days after the entry of a final judgment. See Ind. Appellate Rule

9(A). Failure to file an appeal in a timely manner is a jurisdictional failure requiring

dismissal of the appeal. Jennings v. Davis, 634 N.E.2d 810, 810 (Ind. Ct. App. 1994).

Under Indiana law, a contempt citation becomes a final appealable order when the court

attaches and punishes the defendant by fine or punishment. Bayless v. Bayless, 580

N.E.2d 962, 964 (Ind. Ct. App. 1991), trans. denied.           In addition, a party has an

automatic right to appeal an interlocutory order requiring the payment of money. See

Ind. Appellate Rule 14. Here, after the trial court awarded Father attorney fees for

Mother’s contempt, Mother failed to timely file a notice of appeal within thirty days of

the trial court’s order. Therefore, we cannot now consider the trial court’s contempt

orders.

                                      CROSS-APPEAL

          On cross-appeal, Father requests this court to award him appellate attorney fees

pursuant to Indiana Appellate Rule 66(E), claiming that Mother’s appeal was undertaken

in bad faith. Indiana Appellate Rule 66(E) provides, in pertinent part, that we “may

assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the

[c]ourt’s discretion and may include attorney’s fees.” Our discretion to award attorney

fees under this rule is limited, however, to instances when an appeal is permeated with


                                              14
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.

Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Additionally, while

Indiana Appellate Rule 66(E) provides this court with discretionary authority to award

damages on appeal, we must use extreme restraint when exercising this power because of

the potential chilling effect upon the exercise of the right to appeal. Id. A strong

showing is required to justify an award of appellate damages and the sanction is not

imposed to punish mere lack of merit but something more egregious. Harness v. Schmitt,

924 N.E.2d 162, 168 (Ind. Ct. App. 2010).

       Indiana appellate courts have formally categorized claims for appellate attorney

fees into substantive and procedural bad faith claims. Id. To prevail on a substantive bad

faith claim, the party must show that the appellant’s contentions and arguments are

utterly devoid of all plausibility. Id. Substantive bad faith implies the conscious doing of

a wrong because of dishonest purpose or moral obliquity. In Re Estate of Carnes, 866

N.E.2d 260, 269 (Ind. Ct. App. 2007). Procedural bad faith, on the other hand, occurs

when a party flagrantly disregards the form and content requirements of the rules of

appellate procedure, omits and misstates relevant facts appearing in the record, and files

briefs written in a manner calculated to require the maximum expenditure of time both by

the opposing party and the reviewing court. Harness, 924 N.E.2d at 168.

       In his request for appellate attorney fees, Father contends that Mother’s appellate

brief contains deficiencies with respect to both prongs of the bad faith requirement.

Claiming procedural bad faith, Father points to Mother’s Motion for Leave to Amend

[Appellate] Brief, which was granted by this court, as an admission of procedural


                                            15
violations of the Rules of Appellate Procedure. Additionally, Father asserts that Mother

failed to include a chronological case summary of the trial court where the divorce

proceeding was initially docketed, Mother included argumentative facts, and

misrepresented testimony.

       Mindful of our duty to use great restraint in determining the appropriateness of

appellate attorney fees and although it cannot be denied that Mother failed to comply

with our appellate rules of procedure, we cannot say that the procedural defects are so

egregious that they permeated her entire brief and precluded a review of her allegations.

       Turning to the substantive bad faith claim, Father focuses on Mother’s

mischaracterization of the trial court’s initial custody determination issued January 17,

2012 as an order to modify child custody. While this particular characterization is devoid

of plausibility, Mother also discussed the correct statutory requirements of I.C. § 31-17-

2-8 in her appellate brief.    Therefore, we conclude that Mother’s appeal possesses

sufficient merit to withstand an award of attorney fees.

                                     CONCLUSION

   Based on the foregoing, we hold that the trial court appropriately applied I.C. § 31-17-

2-8 in awarding custody of the minor children to Father. Because Mother failed to timely

appeal, we are without jurisdiction to review the trial court’s orders on contempt. On

Cross-Appeal, we deny Father’s request for appellate attorney fees pursuant to Ind.

Appellate Rule 66(E).

       Affirmed.

BAILEY, J. and CRONE, J. concur


                                            16
