      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             Jun 22 2020, 9:22 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




      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Kenneth Sumner                                           Denise F. Hayden
      Avon, Indiana                                            Lacy Law Office
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kenneth Sumner,                                          June 22, 2020
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-DC-2443
              v.                                               Appeal from the Hendricks
                                                               Superior Court
      Loree Wheeler,                                           The Honorable Mark A. Smith,
      Appellee-Petitioner                                      Judge
                                                               Trial Court Cause No.
                                                               32D04-1812-DC-687



      May, Judge.

[1]   Kenneth Sumner (“Father”) appeals following the trial court’s September 29,

      2019, order that denied his motion to modify child support and required him to

      pay a portion of Loree Wheeler’s (“Mother”) attorney fees. Father raises two

      issues on appeal, which we revise and restate as:

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020                  Page 1 of 12
              (1) whether the trial court abused its discretion in denying
              Father’s motion to modify child support; and


              (2) whether the trial court abused its discretion in ordering Father
              to pay a portion of Mother’s attorney fees.


      We affirm.



                            Facts and Procedural History
[2]   Mother and Father married in 1999. They had two children together, Ha.S.

      and Hu.S. Mother and Father divorced in 2010. Both Mother and Father have

      since remarried. Father works part-time as a worship leader/music director at a

      church. He makes approximately $19,000 a year in that position. He also

      worked part-time as a relator from 2005 until 2018. In early 2018, Father sold

      four houses, but he did not earn a commission from three of those sales. One

      sale was his current wife’s former residence. The second sale was to his wife

      and is the house he and his wife presently live in. The third sale was for the

      estate of his wife’s ex-husband after her ex-husband died. The fourth sale was a

      house in Indianapolis, and Father received a commission from that sale. Father

      described it as “a legitimate real estate transaction[.]” (Tr. Vol. II at 180.)

      Father has not sold a house for a commission since February 2018. He spends

      a substantial amount of his time taking care of his wife’s house and

      stepchildren.


[3]   In April 2018, Mother petitioned the court to modify the custody arrangement

      and Father’s corresponding child support obligation because of a significant
      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 2 of 12
      deterioration in the parties’ commitment to coparenting. Sumner v. Wheeler, No.

      18A-DR-2070, 2019 WL 1984294 at *1 (Ind. Ct. App. May 6, 2019). On July

      31, 2018, the court granted Mother’s petition and ordered Father to pay

      $197/week in child support commencing August 10, 2018. 1 Id. at *3. Father

      appealed, arguing the trial court abused its discretion in modifying his child

      support obligation. Id. We affirmed the trial court in a memorandum opinion.

      Id. at *5. We noted Father did not object to Mother’s proposed child support

      worksheet, submit his own proposed child support worksheet, cross-examine

      Mother regarding her calculation of the values she entered into her worksheet,

      or present any evidence to contradict Mother’s valuations. Id. at *4.


[4]   While Father’s appeal of the 2018 order was pending, Father filed a motion to

      modify child support, in which he asserted a substantial change in

      circumstances made that 2018 order unreasonable. Mother filed a petition to

      hold Father in contempt on the basis that Father refused to pay child support

      following the 2018 order. Mother’s petition also alleged Father failed to pay his

      portion of the children’s uninsured medical expenses and interfered with the

      children’s participation in extracurricular activities. Mother also sought a

      modification of legal custody and parenting time. Father filed a petition to hold

      Mother in contempt. The court held a bifurcated hearing on all pending

      motions on August 22, 2019, and September 10, 2019.




      1
          The record is silent regarding Father’s child support obligation prior to the July 2018 order.


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020                        Page 3 of 12
[5]   The court issued an order on September 23, 2019. The 2019 order provided, in

      necessary part:


              6. Father’s request to modify child support is denied. Father’s
              verified petition to modify filed on February 8, 2019 alleges
              changes in circumstances so substantial and continuing as to
              make the current order unreasonable. However, [F]ather has not
              proven any changed circumstances since the July 31, 2018 Order.
              Father’s evidence related to child support was nothing more than
              a ‘super appeal’ of the last order.


              7. As witness Jennifer Bigelow [the court-appointed parenting
              coordinator] testified, ‘Words are daggers they have
              consequences. They say more about the person using them than
              anything else.’ In this instance, that is certainly true with father.
              Father’s behaviors have been obstinate and obstructionist. He
              has displayed thinking that is rigid. He has been defiant towards
              court orders and engaged in hyper technical interpretations of the
              same in ways that work to his advantage. During his testimony,
              [F]ather was at times arrogant and often comes across as a know
              it all. He routinely described everything as a ‘miscommunication
              or misunderstanding.’ He lacks insight into how his own
              behavior has contributed to the circumstances and instead
              blamed others like the parenting coordinator or his prior
              attorney. According to [F]ather, ‘we really haven’t had the need
              for her,’ referring to the parenting coordinator. Father admits he
              continues to be bitter over the events leading up [to] the July
              2018 Order, as well as the terms of the Order itself. Overall, the
              Court finds that [F]ather is simply not credible.


                                                   *****


              17. Mother requested an award of attorney fees. Both sides have
              incurred substantial attorney fees. Mother and her husband took
              out a home equity line of credit to help pay her attorney fees.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 4 of 12
              Father’s new spouse has paid $17,000 - $18,000 towards his fees.
              The Court finds that an award of attorney fees in [M]other’s
              favor is appropriate in this case. Mother requested fees of
              approximately $21,400.00. The Court orders [F]ather to pay
              [M]other $15,000.00 towards her attorney fees. The Court enters
              a judgment in favor of Loree Wheeler and against Kenneth
              Sumner in the amount of $15,000.00 which shall accrue interest
              at 8% until satisfied and paid in full.


      (App. Vol. II at 3.) 2



                                  Discussion and Decision
                             I. Motion to Modify Child Support
[6]   Father argues he cannot afford to pay his child support obligation because of a

      substantial change in circumstances. We review a motion to modify child

      support for an abuse of discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505

      (Ind. Ct. App. 2011). “An abuse of discretion occurs when the decision is

      clearly against the logic and effect of the facts and circumstances before the

      court, including any reasonable inferences therefrom.” Id. “In our review, we

      consider whether the evidence supports the [trial court’s] factual findings, and

      then we consider whether the findings support the judgment.” Marshall v.

      Marshall, 92 N.E.3d 1112, 1116 (Ind. Ct. App. 2018). “We consider the




      2
       The court granted Mother’s motion to modify legal custody and parenting time. The court also granted
      Mother’s contempt petition and denied Father’s contempt petition. Father does not appeal these rulings.
      Therefore, we will not discuss them further.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020                  Page 5 of 12
      evidence most favorable to the judgment and the reasonable inferences to be

      drawn therefrom. We do not reweigh evidence or reassess the credibility of

      witnesses.” In re Paternity of E.C., 896 N.E.2d 923, 925 (Ind. Ct. App. 2008)

      (internal citation omitted). Indiana Code section 31-16-8-1 allows the court to

      modify a child support order within twelve months of the date the court issued

      the order “upon a showing of changed circumstances so substantial and

      continuing as to make the terms unreasonable.” Voluntary underemployment

      or unemployment does not constitute a substantial and continuing change in

      circumstances. See Miller v. Sugden, 849 N.E.2d 758, 761 (Ind. Ct. App. 2006)

      (“The Indiana Child Support Guidelines provide that if a parent is voluntarily

      unemployed or underemployed, child support shall be determined based on

      potential income.”), reh’g denied, trans. denied.


[7]   Father asserts that his lack of success selling houses and his decision to abandon

      his real estate career amount to changes so substantial and continuing as to

      make the 2018 order unreasonable. However, Father’s own testimony

      contradicts his argument. The following exchange occurred when Mother’s

      counsel questioned Father at the hearing:


              Q: Uh, where were you working in July?


              A: Uh, well I was at the church.


              Q: Okay.


              A: And, uh, you know, still attempting real estate. I just haven’t
              been successful at it.
      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 6 of 12
        Q: Okay so that’s what you were doing July of 2018, correct?


        A: Yes.


        Q: All right, uh, what do you—currently you are doing real
        estate and working at the church, correct?


        A: Well the real estate is starting to fizzle just because it’s-I’ve
        not been successful with it, so—


        Q: You just said you weren’t successful in July of 2018 too,
        correct?


        A: And that was true.


        Q: Okay. So, you have the same job income as—as you have
        today as you did in July, correct?


        A: True, yes.


(Tr. Vol. II at 129.) Also, when questioned by Mother’s counsel, Father’s

current wife testified:


        Q: So, Ken had the same employment when you guys got
        married? Is that correct?


        A: Yes.


        Q: Same financial resources when you guys got married?


        A: Yes.


Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 7 of 12
              Q: His income hasn’t changed since you guys got married?


              A: I don’t—I don’t think so.


              Q: Okay when did you guys get married?


              A: We got married February 2018.


              Q: February 2018. So, prior to July 31, 2018, right?


              A: Yes.


      (Tr. Vol. III at 228.)


[8]   As the trial court found, Father’s petition to modify his child support obligation

      is simply an attempt to relitigate the petition that led to the 2018 order. Father’s

      statements and passive-aggressive behavior towards Mother after the 2018 order

      demonstrate his disagreement with the order and his desire to try to get around

      it. For example, in August 2018, Father texted Mother:


              I recommend backing down at least on the point of child support
              payments, as my taxable income was the exact same as yours,
              even if [Mother’s attorney] continues to try to strike it, I will
              eventually figure out how to supply to the court . . . even if we
              have to appeal, which would be expensive for both of us.


      (Pet.’s Exhibit 112.) Also, in the wake of the 2018 order, Father attempted to

      backtrack on sharing the cost for Hu.S.’s braces. Mother testified Father “was

      on board but once we had, uh, gone to court and things turned out the way they

      did he, you know, when I consulted him about the braces he said he can no
      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 8 of 12
       longer help if I wanted to have that done and it was a luxury.” (Tr. Vol. III at

       31.)


[9]    Father chose to represent himself at the 2018 hearing. While his representation

       proved deficient, a pro se party is held to the same standards as a licensed

       attorney, and Father must live with the consequences. See Martin v. Hunt, 130

       N.E.3d 135, 136 (Ind. Ct. App. 2019) (“It is well settled that pro se litigants are

       held to the same standards as licensed attorneys, and thus they are required to

       follow procedural rules.”). The trial court did not abuse its discretion in

       denying Father’s petition to modify his child support obligation because Father

       failed to demonstrate a substantial change in circumstances. See MacLafferty v.

       MacLafferty, 829 N.E.2d 938, 942 (Ind. 2005) (holding trial court did not abuse

       discretion in denying motion to modify child support because moving party did

       not demonstrate a change in circumstances so substantial as to render terms of

       prior order unreasonable).


                                    II. Award of Attorney Fees
[10]   Father also challenges the trial court’s order that he pay $15,000 of Mother’s

       attorney fees. Indiana Code section 31-15-10-1 concerns the award of attorney

       fees in dissolution proceedings, and the statute provides:


               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.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 9 of 12
       Trial courts enjoy broad discretion in determining whether to award attorney

       fees. Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018). This is meant “to

       ensure that a party who would not otherwise be able to afford an attorney is

       able to retain representation.” Id. Trial courts consider several factors when

       deciding whether to award attorney fees, including whether a party’s

       misconduct resulted in additional litigation expenses. Id. We review the award

       of attorney fees for an abuse of discretion and will only reverse if “the trial

       court’s award is clearly against the logic and effect of the facts and

       circumstances before the court.” Myers v. Myers (Phifer), 80 N.E.3d 932, 938

       (Ind. Ct. App. 2017).


[11]   Attorneys for both Father and Mother have expended large quantities of time

       pursuing and defending against the various motions filed in this case. From

       November 16, 2018, through September 9, 2019, Mother incurred $21,400 in

       legal expenses. Mother works as a part-time photographer, and she has a gross

       weekly income of $360. While Father spends most of his time taking care of his

       stepchildren, his wife’s income covers the vast majority of their household

       expenses. She owns the house she and Father live in, and Father has access to

       his wife’s bank accounts. Father’s wife will also give Father cash, and she has

       paid $17,000-$18,000 of Father’s attorney fees.


[12]   Additionally, Father’s actions have caused Mother to incur substantial legal

       expenses. Mother filed her petition to hold Father in contempt because he

       failed to comply with the 2018 order. Father failed to meet his child support

       obligation or cover his share of the children’s uninsured medical expenses.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 10 of 12
       Mother also moved to modify legal custody and parenting time in response to

       Father’s obstructionist behavior. Father did not cooperate with the parenting

       coordinator. Despite the 2018 order directing Mother and Father to allow the

       children to participate in extracurricular activities, Father would hesitate to

       agree to allowing the children to attend extracurricular activities during his

       parenting time. He would also give the children permission to participate in

       certain activities and then claim he never gave the children permission. Mother

       also had to pay attorney fees to defend against Father’s unsuccessful petition to

       hold Mother in contempt. Therefore, the trial court did not abuse its discretion

       in ordering Father to pay a portion of Mother’s attorney fees. See Barton v.

       Barton, 47 N.E.3d 368, 377-78 (Ind. Ct. App. 2015) (holding trial court did not

       abuse discretion in ordering husband to pay wife’s attorney fees because

       husband’s misconduct resulted in wife incurring additional litigation expenses

       and husband enjoyed greater earning capacity than wife), trans. denied.



                                               Conclusion
[13]   The trial court did not abuse its discretion when it denied Father’s motion to

       modify child support. Both Father and Father’s wife testified that his income

       had not changed since the 2018 order. Additionally, the trial court did not

       abuse its discretion in ordering Father to pay a portion of Mother’s attorney

       fees, as Mother incurred substantial litigation expenses primarily because of

       Father’s actions. We accordingly affirm.


[14]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 11 of 12
Robb, J., and Vaidik, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2443 | June 22, 2020   Page 12 of 12
