MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 27 2020, 8:08 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
Christine C. Douglas                                     Melanie K. Reichert
Keating Douglas LLP                                      Broyles Kight & Ricafort, P.C.
Carmel, Indiana                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

T.J.W.,                                                  February 27, 2020
Appellant/Cross-Appellee-Petitioner,                     Court of Appeals Case No.
                                                         19A-DC-2167
        v.                                               Appeal from the Marion Superior
                                                         Court
K.M.W.,                                                  The Honorable Gary L. Miller,
Appellee/Cross-Appellant-Respondent.                     Judge
                                                         The Honorable Deborah J. Shook,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D03-1807-DC-29869



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020              Page 1 of 18
                                          Case Summary
[1]   This appeal stems from the dissolution of the marriage between T.W.

      (“Father”) and K.W (“Mother”). After Father petitioned to dissolve the

      marriage, the parties resolved many issues through settlement agreements.

      They eventually presented several issues to the trial court. Father appeals—and

      Mother cross-appeals—from the trial court’s order addressing (1) the

      distribution of personal property; (2) the educational and therapeutic plan for

      the parties’ son (“Son”); and (3) the responsibility for attorney’s fees.


[2]   We affirm.



                                                   Issues
[3]   Father presents the following restated issue:


              1.       Whether an approved settlement agreement resolved all
                       marital-property issues, precluding further consideration.


[4]   Mother presents the following restated issues:


              2.       Whether Father’s educational and therapeutic plan was
                       contrary to the terms of a settlement agreement.


              3.       Whether the court abused its discretion by declining to
                       order Father to contribute toward Mother’s attorney’s fees.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 2 of 18
                            Facts and Procedural History
[5]   Mother and Father married in 2011 and had two children during the marriage.

      Son was born in 2014 and later diagnosed with autism. Son received services

      and had an Individualized Education Program (“IEP”) in place at a school in

      Winchester. At some point, Father moved from Winchester to Indianapolis.

      As of the final hearing in this matter, Mother was living in Winchester.


[6]   In July 2018, Father petitioned to dissolve the marriage. The trial court held a

      provisional hearing in August 2018 and ordered the parties to participate in

      mediation before the final hearing. Father and Mother then participated in a

      mediation session, resulting in the first mediated settlement agreement. That

      agreement stated that it was settling Mother’s and Father’s “respective rights to

      and interests in property, real, personal and mixed, now owned by them,

      separately or jointly.” Appellant’s App. Vol. 2 at 15. Under the agreement,

      each party would have “one-half of the personal property and household goods

      and furniture to be divided by agreement of the parties.” Id. at 16. The

      agreement also included the following dispute-resolution provision:


              If the parties are unable to agree on the division of personal
              property, the parties shall equally divide the cost for Bob Brown
              to appraise all property located on both sides of the marital
              residence duplex [in Indianapolis]; Wife’s residence in
              Winchester, Indiana and in the storage unit. The parties shall
              then take turns picking items until each has 50% of the value as
              set forth on Bob Brown’s appraisal.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 3 of 18
      Id. 16-17. The agreement specified that “[p]ersonal property shall be removed

      and distributed 30 days from the approval of this Agreement.” Id. at 17. The

      agreement also contained a clause contemplating the possibility of waiving or

      amending its terms: “No modification or waiver of any of the terms of this

      Agreement shall be valid, unless in writing and executed by both parties

      hereto.” Id. at 23. The trial court approved the agreement in April 2019.


[7]   The parties participated in another mediation session, resulting in a second

      mediated settlement agreement. That agreement provided for the appointment

      of Lara Pendoski (“Pendoski”) as the Parenting Coordinator. This agreement

      was approved by the trial court on May 20, 2019. Thereafter, the court entered

      an order appointing Pendoski. Pursuant to the order, Pendoski’s role included

      “facilitating conflict management” as well as “assisting the parties in the

      development of parenting plans and alternative resolutions to other disputes.”

      Appellee’s App. Vol. 2 at 3. The order specified that Pendoski “shall attempt to

      resolve conflicts between the parties by recommendation, negotiation,

      education, and discussion” and that, if the parties cannot resolve disputes on

      their own or with Pendoski’s suggestions, Pendoski could “make reports or

      recommendations to the parties and the court for further consideration.” Id.


[8]   On June 8, 2019, Father and Mother met at Father’s residence to distribute

      personal property. During the meeting, they signed a document that stated as

      follows: “Within next month still go through misc. items in both basements &

      5602 upstairs. [A friend] will come to see if they want outgrown children items.



      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 4 of 18
       Contested items will be discussed at mediation & possible negotiation of

       additional items if contested cannot be agreed upon.” Exhibit Vol. I at 15.


[9]    Father and Mother participated in a third mediation session, resulting in a third

       mediated settlement agreement. That agreement provided, in pertinent part,

       that Father would have primary physical custody of Son. The agreement

       specified that “[t]he parties shall share legal custody of both children with the

       parent having primary physical custody having the ‘tie-breaking vote’ in the

       event the parties cannot agree on a joint legal decision.” Appellant’s App. Vol.

       2 at 37. The agreement also provided as follows: “[Father] shall have the final

       decision about [Son’s] schooling and ABA services . . . . The parties agree that

       [Son] will receive ABA services; OT; Speech Therapy; special education/IEP as

       well as exposure to peer typical children until otherwise recommended by his

       providers or until no longer covered by insurance or Medicaid.” Id. at 38.


[10]   During the third mediation session, the parties did not resolve any marital-

       property issues. Their third agreement stated that there was “a dispute as to

       whether personal property has been distributed and finalized pursuant to the

       First Partial Agreement which shall . . . be reserved for final hearing.” Id. at 40.

       It also stated that “[t]he issue [of] attorney fees . . . shall be reserved for final

       hearing set for August 19, 2019.” Id. The court approved the agreement in July

       2019, and issued a decree dissolving the marriage between Father and Mother.

       In issuing the decree, the court expressly incorporated the parties’ agreements.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 5 of 18
[11]   Before the final hearing, a dispute arose over the educational and therapeutic

       plan for Son. In July 2019, Father obtained an assessment from a provider of

       ABA services. The assessment recommended that Son receive forty hours per

       week of ABA therapy. Father planned to have son participate in the therapy.

       Father was also exploring a preschool-like program to provide exposure to peer-

       typical children. Mother asserted that Father’s plan violated the third

       settlement agreement because the ABA services would not be administered at a

       school with opportunities for concurrent exposure to peer-typical children.

       Father and Mother brought the dispute to Pendoski, who prepared and filed a

       report. Therein, Pendoski recommended following Father’s plan for Son.


[12]   On August 19, 2019, a final hearing was held. The parties agreed to addressing

       two issues at the final hearing—i.e., they agreed that the court should address

       (1) the plan for Son and (2) attorney’s fees incurred during the proceedings, as

       each party sought contribution from the other party. Mother also asked the

       court to address contested marital property. Father objected, claiming that all

       property issues had been resolved through the first settlement agreement. He

       asserted that Mother waived any challenge to the division of property by failing

       to follow the dispute-resolution procedures set forth in the first agreement.


[13]   The court heard evidence and addressed all three issues in a written order. As

       for personal property, the court determined that “[d]espite having ‘resolved’ the

       personal property issues, the distribution of that personal property has not been

       completed.” Appellant’s App. Vol. II at 47. In its written order, the court

       ordered Mother to provide Father with a “specific list of property she claims she

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 6 of 18
       has not received.” Id. The court also addressed gifts and heirlooms, ordering

       that the parties were entitled to gifts and heirlooms from their respective

       families. Id. As for the educational and therapeutic plan, the court adopted

       Pendoski’s recommendation, determining that Father’s plan was not contrary

       to the agreement. Finally, the court denied the parties’ requests for attorney’s

       fees, noting that (1) the parties had incurred “about the same total amount” of

       fees; (2) “[e]ach party had kept up with his/her fees throughout the cause”; and

       (3) [b]oth parties[’] income, assets and access to income has been considered

       and each has sufficient income/assets to pay for his/her own fees.” Id.


[14]   Father now appeals. Mother cross-appeals.



                                  Discussion and Decision
[15]   Where—as here—the trial court entered sua sponte findings and conclusions,

       those findings and conclusions control the issues they cover, with a general-

       judgment standard controlling “other issues . . . not covered by such findings.”

       Ind. Trial Rule 52(D). We look to whether the evidence supports the findings

       and the findings support the judgment. Masters v. Masters, 43 N.E.3d 570, 575

       (Ind. 2015). Pursuant to Trial Rule 52(A), we “shall not set aside the findings

       or judgment unless clearly erroneous” and shall give “due regard . . . to the

       opportunity of the trial court to judge the credibility of the witnesses.” Clear

       error is “that which leaves us with a definite and firm conviction that a mistake

       has been made.” Masters, 43 N.E.3d at 575 (quoting Egly v. Blackford Cty. Dep’t

       of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). Furthermore, findings are

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 7 of 18
       clearly erroneous if “the record contains no facts supporting them either directly

       or inferentially.” Town of Brownsburg v. Fight Against Brownsburg Annexation, 124

       N.E.3d 597, 601 (Ind. 2019). Moreover, the “judgment . . . must follow from

       the conclusions of law and is clearly erroneous if the court applied the ‘wrong

       legal standard to properly found facts.’” Id. (quoting Town of Fortville v. Certain

       Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016)).


                                             Contract Issues
[16]   The parties to a dissolution action “may agree in writing” to contract terms

       concerning “the disposition of any property” and “the custody and support of

       the children of the parties.” Ind. Code § 31-15-2-17(a). If approved by the

       court, those settlement terms “shall be incorporated and merged into the decree

       and the parties shall be ordered to perform the terms.” I.C. § 31-15-2-17(b). At

       that point, “[t]he disposition of property settled by [the] agreement . . . is not

       subject to subsequent modification by the court, except as the agreement

       prescribes or the parties subsequently consent.” I.C. § 31-15-2-17(c).


[17]   In general, the meaning of a written contract “is a pure question of law for the

       court,” subject to de novo review. Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind.

       2002). Moreover, a marriage-settlement agreement is construed like any other

       contract. See Ryan v. Ryan, 972 N.E.2d 359, 364 (Ind. 2012). “[U]nless the

       terms of the contract are ambiguous, they will be given their plain and ordinary

       meaning. Clear and unambiguous terms in the contract are deemed conclusive,




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 8 of 18
       and when they are present we . . . will merely apply the contractual provisions.”

       Id. (quoting Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006)).


                                                   Property
[18]   The first approved settlement agreement specified that it was settling matters

       concerning personal property. That agreement contained a mechanism for

       modifying the agreement—through a writing signed by Mother and Father.

       After entering into the first agreement, the parties executed a document that

       brought personal-property matters back into issue. Indeed, the document

       specified that the parties would go through personal property and “[c]ontested

       items will be discussed at mediation” with “possible negotiation of additional

       items if contested cannot be agreed upon.” Exhibit Vol. at 15. The parties did

       not resolve personal-property issues at the next mediation session, with their

       third agreement identifying “a dispute as to whether personal property has been

       distributed and finalized pursuant to the First Partial Agreement which

       shall . . . be reserved for final hearing.” Appellant’s App. Vol. 2 at 40.


[19]   Father argues that he and Mother fully resolved property issues in the first

       settlement agreement—and that the trial court therefore erred by addressing

       personal-property issues at the final hearing. He argues that Mother should

       have followed the dispute-resolution procedures in the first agreement.


[20]   In one sense, Father is correct; Father and Mother attempted to divide personal

       property in the first agreement. However, the parties subsequently consented to

       modifying the agreement as to personal property—contemplating bringing

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 9 of 18
       unresolved personal-property issues to mediation. Following that modification,

       those issues were not resolved prior to the final hearing. Therefore, we cannot

       say the trial court erred by addressing these unresolved personal-property issues.


                              Educational and Therapeutic Plan
[21]   Pursuant to the third approved agreement, Father had primary physical custody

       of Son. The parties had joint legal custody, meaning they would “share

       authority and responsibility for the major decisions concerning the child’s

       upbringing, including the child’s education, health care, and religious training.”

       I.C. § 31-9-2-67. Nevertheless, Father had tie-breaking authority if there was a

       disagreement as to Son’s upbringing. Moreover, the agreement specified that

       Son “will receive ABA services; OT; Speech Therapy; special education/IEP

       as well as exposure to peer typical children until otherwise recommended by his

       providers or until no longer covered by insurance or Medicaid.” Appellant’s

       App. Vol. 2 at 38. (emphasis added). The agreement also authorized Father to

       make “the final decision” regarding Son’s schooling and ABA services. Id.


[22]   Before the hearing, Father obtained an assessment from a provider of ABA

       services—Bierman Autism Center. That provider recommended that Son

       participate in forty hours of ABA services each week. Father planned to follow

       the recommendation, which led to a dispute. According to Mother, the

       agreement required a “combination of services/opportunities.” Appellee’s

       App. Vol. 2 at 15. It appears that Mother wanted Son to have services more in

       line with what he received at his former school in Winchester. Under the IEP


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 10 of 18
       at that school, Son would receive approximately twenty-seven hours per week

       of ABA therapy and “they would allow the ABA therapist to come to school,”

       where the therapist “would be present to help [Son] attune to the preschool

       teacher.” Tr. Vol. 2 at 83. With integrated ABA services, Son would have

       exposure to peer-typical children and would also receive special education.


[23]   Mother focuses on the provision specifying that Son “will receive” certain

       services. Appellant’s App. Vol. 2 at 38. She argued at trial—and reasserts on

       appeal—that, because the forty hours of ABA services would not include

       concurrent exposure to peer-typical children, Father’s plan was contrary to the

       agreement. Mother also asserts that providing forty hours of ABA services

       would “eliminat[e] classroom time for special education.” Appellee’s App. Vol.

       2 at 22. She contends that Pendoski should not have recommended Father’s

       plan, and the trial court should not have adopted Pendoski’s recommendation.


[24]   The trial court ultimately concluded that “the agreement at issue does not

       require contemporaneous exposure to peer typical children and in [Son’s]

       educational curriculum only.” Id. at 48. We agree. Although the agreement

       specified that Son “will receive” several types of services, the agreement did not

       specify how much time was to be allocated to each service or whether those

       services were to be rendered concurrently—or in a particular order. Moreover,

       the agreement gave Father final decision-making authority regarding ABA

       services. There was evidence that Father selected an ABA service provider and

       planned to follow its recommendations for Son. He was also exploring

       alternative ways to provide exposure to peer-typical children. Furthermore,

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 11 of 18
       Father had “indicated that if [the provider of ABA services] were to recommend

       school and . . . special education services, . . . that’s what he would follow, that

       recommendation.” Tr. at 20. There was evidence that, if the provider did not

       recommend school and special education, the goal of the ABA services would

       be to “prepare [Son] for that situation.” Id. Moreover, Father anticipated that

       Son “would have an IEP and special education services in the future.” Id.


[25]   We conclude that the plan was consistent with the provisions merged into the

       dissolution decree. Thus, we cannot say the court erred in allowing the plan.1


                                               Attorney’s Fees
[26]   A court may order a party to pay “a reasonable amount . . . to the other party”

       for attorney’s fees associated with a dissolution action. I.C. § 31-15-10-1(a).

       The court has broad discretion in deciding whether to award attorney’s fees,

       and we will reverse its decision only upon a showing of an abuse of discretion.

       See Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007). An abuse of discretion

       occurs if the decision is clearly against the logic and effect of the facts and




       1
         Moreover, assuming arguendo the order was tantamount to a modification of the legal-custody arrangement,
       the court has authority to modify its custody order where doing so “is in the best interests of the child” and
       “there is a substantial change in one (1) or more of the factors” listed in Indiana Code Section 31-17-2-8. I.C.
       § 31-17-2-21. Among those factors is “[t]he mental and physical health of all individuals involved.” I.C. §
       31-17-2-8. Here, there is evidence that Son would benefit from forty hours per week of ABA services with the
       goal of preparing Son for integration into a school setting with an IEP in place. To the extent Mother points
       out that a prior assessment recommended only twenty-seven hours of ABA services and Son already had an
       IEP, the court was free to give more weight to Father’s recent assessment. Ultimately, the evidence supports
       a determination that it is in Son’s best interests to receive increased ABA services now—which would
       preclude a more-integrated therapeutic approach—and strive for that integrated approach in the future.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020                 Page 12 of 18
       circumstances. DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 731-32 (Ind.

       2015). An abuse of discretion also occurs if the court misapplies the law. Id.


[27]   “In determining whether to award attorney’s fees in a dissolution proceeding,

       trial courts should consider the parties’ resources, their economic condition,

       their ability to engage in gainful employment and earn income, and other

       factors bearing on the reasonableness of the award.” Eads v. Eads, 114 N.E.3d

       868, 879 (Ind. Ct. App. 2018). Moreover, “[a] party’s misconduct that directly

       results in additional litigation expenses may also be considered.” Id.


[28]   Here, there is evidence that Mother incurred about $44,000 in attorney’s fees

       and that Father incurred a similar amount—about $46,000. As to income,

       Father earns a salary of about $109,000 per year and was eligible for an annual

       bonus. Mother has an M.B.A. and worked full-time for the first three months

       of the marriage, earning around $55,000 per year as the executive director of an

       organization. She then transitioned to part-time work and took care of the

       children. After Father filed the dissolution petition, Mother began working

       about twenty hours per week as a paraprofessional at an elementary school. As

       a paraprofessional, she earns $11.25 per hour. There is also evidence that, to

       pay attorney’s fees, Mother borrowed $15,000 from individuals and incurred

       substantial credit-card debt. As of the final hearing, Mother leased a home her

       parents owned. Her parents were allowing her additional time to pay rent.


[29]   The trial court denied Mother’s request for a fee contribution from Father. In

       doing so, the court observed that Mother had kept up with her fees during the


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 13 of 18
       course of the proceedings. The court also noted that it had considered Mother’s

       “income, assets and access to income” and that Mother “has sufficient

       income/assets to pay for . . . her own fees.” Appellant’s App. Vol. 2 at 47.


[30]   Mother argues that denying her request for attorney’s fees was an abuse of

       discretion, contending that the court did not “fully [or] accurately assess the

       parties’ financial situations.” Reply Br. of Cross-Appellant at 4. Mother

       focuses on the difference between incomes. She also argues that Father is in a

       better financial position due to the division of assets—that is, when the parties

       divided assets, Father received real estate, “which can be accessed without tax

       consequence through an equity line of credit,” whereas “the majority of the

       marital assets received by Mother were in the form of retirement funds,” the

       liquidation of which results in “tax consequences.” Br. of Appellee at 21.


[31]   Mother also directs us to Barton v. Barton, a case involving income disparity. 47

       N.E.3d 368 (Ind. Ct. App. 2015), trans. denied. However, there—unlike here—

       the trial court elected to award attorney’s fees. See id. Indeed, in resolving

       Barton, this Court identified evidence of income disparity and concluded there

       was no abuse of discretion in ordering the higher-earning party to pay a portion

       of the other party’s attorney’s fees. See id. In other words, the award was not

       clearly against the logic and effect of the facts and circumstances in that case.

       See id. To the extent Mother is arguing as much, Barton does not support the

       proposition that a court must award fees upon a showing of income disparity.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 14 of 18
[32]   Ultimately, regardless of tax consequences, Mother negotiated a settlement

       agreement and left the marriage with assets—among them, $121,500 of a 401(k)

       plan. Moreover, there is evidence that Mother has an advanced degree and is

       employable—capable of obtaining a substantially higher-paying, full-time job.

       Mother notes that “[t]he parties agreed that Mother would work primarily

       within the home during the marriage, especially in light of the fact that their

       younger child has special needs.” Br. of Appellee at 20. However, as of the

       final hearing, Father had primary physical custody of Son. Their daughter—of

       which Mother is the primary physical custodian—attends school, and there is

       no indication that she requires special services in the way that Son does.


[33]   It was not clearly against the logic and effect of the facts and circumstances to

       decline Mother’s request to have Father contribute toward her attorney’s fees.


[34]   Affirmed.


       Kirsch, J., concurs.
       Mathias, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 15 of 18
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       T.J.W.,                                                  Court of Appeals Case No.
                                                                19A-DC-2167
       Appellant/Cross-Appellee-Petitioner,

               v.

       K.M.W.,
       Appellee/Cross-Appellant-Respondent.



       Mathias, Judge, dissenting.


[35]   Although I concur with much of the majority’s reasoning and result, I

       respectfully dissent as to the trial court’s decision not to award Mother any

       attorney’s fees at all.


[36]   As the majority points out in its opinion:


               “In determining whether to award attorney’s fees in a dissolution
               proceeding, trial courts should consider the parties’ resources,
               their economic condition, their ability to engage in gainful
               employment and earn income, and other factors bearing on the
               reasonableness of the award.” Eads v. Eads, 114 N.E.3d 868, 879
               (Ind. Ct. App. 2018). Moreover, “[a] party’s misconduct that
               directly results in additional litigation expenses may also be
               considered.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020    Page 16 of 18
               Here, there is evidence that Mother incurred about $44,000 in
               attorney’s fees and that Father incurred a similar amount—about
               $46,000. As to income, Father earns a salary of about $109,000
               per year and was eligible for an annual bonus. Mother has an
               M.B.A. and worked full-time for the first three months of the
               marriage, earning around $55,000 per year as the executive
               director of an organization. She then transitioned to part-time
               work and took care of the children. After Father filed the
               dissolution petition, Mother began working about twenty hours
               per week as a paraprofessional at an elementary school. As a
               paraprofessional, she earns $11.25 per hour. There is also
               evidence that, to pay attorney’s fees, Mother borrowed $15,000
               from individuals and incurred substantial credit-card debt. As of
               the final hearing, Mother leased a home her parents owned. Her
               parents were allowing her additional time to pay rent.


               The trial court denied Mother’s request for a fee contribution
               from Father. In doing so, the court observed that Mother had
               kept up with her fees during the course of the proceedings. The
               court also noted that it had considered Mother’s “income, assets
               and access to income” and that Mother “has sufficient
               income/assets to pay for . . . her own fees.” Appellant’s App. Vol.
               2 at 47.


       Slip op. at 13.


[37]   The review standard in the area of the award of attorney fees is abuse of

       discretion. Eads, 114 N.E.3d at 879. The question of an attorney fee award is

       separate from the division of property. See id. (listing the factors the trial court

       may consider in deciding whether to award attorney fees); Bloodgood v.

       Bloodgood, 679 N.E.2d 953, 958 (Ind. Ct. App. 1997) (affirming an award of




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 17 of 18
       attorney fees to Wife due to disparity in the parties’ incomes where the court

       equally divided the marital estate).


[38]   My review of the evidence cited by the majority leads me to the opposite

       conclusion both it and the trial court reached. Mother’s economic condition is

       quite poor, and there is no credible way to conclude that she will ever be able to

       find a position like the executive directorship she left in order to care for the

       parties’ children. Further, there is no credible way to impute that level of

       income to Mother. All of the available evidence supports an award of attorney’s

       fees to Mother in the full amount of her documented fees incurred. The failure

       to award Mother any fees at all is a clear abuse of the trial court’s discretion and

       should be reversed.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2167 | February 27, 2020   Page 18 of 18
