MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Aug 23 2016, 6:36 am

this Memorandum Decision shall not be                                   CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jared Michel Thomas                                      Thomas A. Massey
Evansville, Indiana                                      Massey Law Offices, LLC
                                                         Evansville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of A.D.:                             August 23, 2016
                                                         Court of Appeals Case No.
                                                         82A01-1512-JP-2308
Abram M. Dwyer,
                                                         Appeal from the Vanderburgh
Appellant-Defendant,                                     Superior Court
                                                         The Honorable Leslie C. Shively,
        v.
                                                         Judge
                                                         Trial Court Cause No.
Lindsy L. (Redden) Eickhoff,                             82D01-0909-JP-601
Appellee-Plaintiff.



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016      Page 1 of 13
                                            Case Summary
[1]   Abram Dwyer (“Father”) and Lindsy Eickhoff (“Mother”) are the parents of a

      daughter, A.D. Between 2013 and 2015, they made numerous filings relating

      to the custody of A.D., including several petitions to modify custody and

      petitions to have the other parent found in contempt. Following a hearing, the

      trial court (1) granted sole legal custody to Mother, (2) ordered Father to obtain

      the court’s permission before filing any further custody-modification or

      contempt petitions, and (3) ordered Father to pay $10,000 of Mother’s

      attorney’s fees. We affirm the first two rulings but remand for revision of the

      award of attorney’s fees.



                             Facts and Procedural History                                 1




[2]   This case concerns the custody of A.D., who was born to Mother and Father in

      2008. In March 2010, the trial court approved an agreed entry that established

      Father’s paternity, granted primary physical custody to Mother and parenting

      time to Father, and gave the parties joint legal custody. The parties amended

      their agreement slightly in December 2011. Then, in November 2013, Father,

      acting pro se, filed a petition to modify in which he sought additional weekday

      overnights during the school year. Over the next six months, the parties made




      1
        Father’s Statement of the Case and Statement of Facts do not include any citations to his appendix, in
      violation of Indiana Appellate Rules 22(C) and 46(A)(5)-(6). His brief does not include a Summary of
      Argument, in violation of Rule 46(A)(7). And 338 of the 555 pages in his appendix consist of a complete
      reproduction of the separately filed transcript and exhibits, in violation of Rule 50(F).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016          Page 2 of 13
      additional filings accusing each other of contempt. In early June 2014, the trial

      court held a hearing and issued an order in which it denied Father’s petition to

      increase his parenting time, rejected Father’s contempt claim against Mother,

      found Father in contempt for wrongfully claiming A.D. as a dependent on his

      2012 tax return, and ordered him to pay $500 in attorney’s fees to Mother. The

      court concluded its order as follows: “Father is warned against excessive

      requests for additional parenting time. He shall not harass or annoy mother in

      this regard.” Appellee’s App. p. 4.

[3]   Notwithstanding that warning, two months later, in August 2014, Father filed

      another petition to modify, again seeking additional weekday overnights during

      the school year. The trial court held a hearing on September 3, 2014, and two

      weeks later issued an order denying Father’s petition to modify and directing

      Father to pay the previously awarded $500 in attorney’s fees by the end of the

      month.

[4]   On June 29, 2015, Father filed a third petition seeking additional weekday

      overnights during the school year, as well as an Information for Contempt in

      which he accused Mother of various wrongdoing. On July 24, 2015, Mother

      filed her own Information for Contempt, Petition to Modify, and Petition for

      Attorney’s Fees from Father. Among other things, Mother asked the trial court

      to give her sole legal custody of A.D. and to award her attorney’s fees “in an

      amount sufficient to deter the Father from future frivolous and harassing

      conduct.” Appellant’s App. p. 160. Over the next three-and-a-half months,



      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 3 of 13
      Father filed four more petitions to modify and three more informations for

      contempt.

[5]   The trial court held a hearing on all of the parties’ motions on November 17,

      2015. From the bench, the trial court denied all of Father’s petitions to modify

      and rejected all of his claims of contempt against Mother, and it granted

      Mother’s request for sole legal custody and ordered Father to pay $10,000

      toward Mother’s attorney’s fees within 180 days. After the judge left the

      courtroom, Father engaged in some sort of “inappropriate conduct,” prompting

      the judge to return and admonish him. Tr. p. 171-73.


[6]   In a written order issued after the hearing, the trial court laid out the reasons for

      its rulings. Regarding legal custody, the court wrote:

              The Court finds overwhelming evidence establishes the Father’s
              unwillingness to work with the Mother on joint legal custody
              decisions for [A.D.]. As the sole result of the Father’s conduct,
              the joint legal custody Order has become unreasonable,
              unworkable, and certainly not in [A.D.’s] best interests. The
              Court finds the Mother has been extremely patient, civil, and at
              all times appropriate in her dealings with the Father regarding
              [A.D.].


      Appellant’s App. p. 52. The court also explained that all of Father’s pending

      petitions to modify and informations for contempt were “frivolous and without

      merit” and ordered him to seek leave of court before filing any such documents

      in the future. Id. at 53. Addressing its award of attorney’s fees to Mother, the

      court wrote that “Father’s frivolous, repetitive, and harassing pleadings filed


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 4 of 13
      with the Court over the past 14 months were the sole cause for the Mother to

      incur attorney’s fees in defense thereof[.]” Id. at 54. Finally, in light of Father’s

      post-hearing behavior, the trial court sua sponte issued an order “restraining

      and enjoining the Father from harassing or bothering the Mother at any time or

      place.” Id. at 55.


[7]   Father now appeals.



                                 Discussion and Decision
[8]   Father challenges the trial court’s legal custody ruling, its order restricting his

      ability to file further motions, and its award of attorney’s fees to Mother. Such

      determinations lie within the discretion of the trial court. See Higginbotham v.

      Higginbotham, 822 N.E.2d 609, 611 (Ind. Ct. App. 2004) (legal custody); Allied

      Prop. and Cas. Ins. Co. v. Good, 919 N.E.2d 144, 154 (Ind. Ct. App. 2009)

      (sanctions); In re Paternity of M.R.A., 41 N.E.3d 287, 296 (Ind. Ct. App. 2015)

      (attorney’s fees). As such, we will reverse only if the decision is clearly against

      the logic and effect of the facts and circumstances before the trial court.

      Higginbotham, 822 N.E.2d at 611. In considering Father’s arguments, we are

      guided by the “well-established preference in Indiana for granting latitude and

      deference to our trial judges in family law matters.” Steele-Giri v. Steele, 51

      N.E.3d 119, 125 (Ind. 2016).




      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 5 of 13
                                             I. Legal Custody
[9]   Father argues that the trial court abused its discretion by finding that joint legal

      custody is no longer workable.2 In paternity proceedings, the question of joint

      legal custody is governed by Indiana Code section 31-14-13-2.3, which

      provides, in subsection (a), that “the court may award legal custody of a child

      jointly if the court finds that an award of joint legal custody would be in the best

      interest of the child.” In turn, subsection (c) provides:

               (c) In determining whether an award of joint legal custody under
               this section would be in the best interest of the child, the court
               shall consider it a matter of primary, but not determinative,
               importance that the persons awarded joint legal custody have
               agreed to an award of joint legal custody. The court shall also
               consider:


                        (1) the fitness and suitability of each of the persons
                        awarded joint legal custody;


                        (2) whether the persons awarded joint legal custody are
                        willing and able to communicate and cooperate in
                        advancing the child’s welfare;


                        (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;




      2
       Father does not make the argument that he, rather than Mother, should be the custodian if sole legal
      custody is appropriate. Therefore, we need only address the trial court’s determination that joint legal
      custody is no longer workable.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016             Page 6 of 13
                        (4) whether the child has established a close and beneficial
                        relationship with both of the persons awarded joint legal
                        custody;


                        (5) whether the persons awarded joint legal custody:


                                (A) live in close proximity to each other; and


                                (B) plan to continue to do so;


                        (6) the nature of the physical and emotional environment
                        in the home of each of the persons awarded joint legal
                        custody; and


                        (7) whether there is a pattern of domestic or family
                        violence.


[10]   As stated, the primary consideration in determining whether joint legal custody

       is appropriate is whether “the persons awarded joint legal custody have agreed

       to an award of joint legal custody.” Here, the parties originally reached such an

       agreement, but that has obviously changed. This lack of agreement weighs

       heavily in favor of the trial court’s decision to modify the parties’ arrangement.


[11]   In addition, we have held that consideration (2)—“whether the persons

       awarded joint custody are willing and able to communicate and cooperate in

       advancing the child’s welfare”—is “[p]articularly germane to whether joint

       legal custody should be modified[.]” Julie C. v. Andrew C., 924 N.E.2d 1249,

       1260 (Ind. Ct. App. 2010) (addressing issue in dissolution context, under

       Indiana Code section 31-17-2-15). If the record before us demonstrates

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 7 of 13
       anything, it is that Father and Mother are currently unable to communicate and

       cooperate, even with regard to relatively minor issues. Things have gotten so

       bad that the trial court found it necessary to sua sponte issue an order

       “restraining and enjoining the Father from harassing or bothering the Mother at

       any time or place.” Therefore, we cannot say that the trial court abused its

       discretion by terminating joint legal custody and awarding sole legal custody to

       Mother. See Higginbotham, 822 N.E.2d at 612 (affirming modification to sole

       legal custody where record demonstrated “breakdown in communication and

       cooperation”); Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001)

       (affirming modification to sole legal custody where parents “cannot work and

       communicate together to raise the children”); cf. Julie C., 924 N.E.2d 1249, 1260

       (Ind. Ct. App. 2010) (affirming grant of joint legal custody where one parent

       testified that parties “communicate best through email and respond fairly

       promptly to each other”); Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct.

       App. 2008) (affirming grant of joint legal custody where parties “demonstrated

       their general ability to communicate and work together to raise their children”);

       Walker v. Walker, 539 N.E.2d 509, 513 (Ind. Ct. App. 1989) (affirming grant of

       joint legal custody where the parties “demonstrated a willingness and ability to

       communicate and cooperate”).


                                     II. Restriction on Filing
[12]   Father also contends that he “has not exhibited the characteristics of an abusive

       litigant” and that the trial court therefore abused its discretion by requiring him



       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 8 of 13
       to seek leave of court before filing any new petitions to modify, informations for

       contempt, or similar documents. Appellant’s Br. p. 19. We disagree.

[13]   Father filed seven petitions to modify in less than two years, including five in

       just a few months in 2015, most of them seeking relief that had already been

       denied: additional weekday overnights during the school year. He did so after

       being explicitly warned, in June 2014, “against excessive requests for additional

       parenting time.” Appellee’s App. p. 4. He also filed four informations for

       contempt during the same stretch in 2015, all of which the trial court found to

       be frivolous and without merit.


[14]   Father points out that he alleged new and different facts in each of his filings

       and asserts that this distinguishes him from abusive litigants who file

       “repetitive” motions. As just noted, though, Father’s petitions to modify were

       repetitive, at least on the issue of additional weekday overnights. And, in any

       event, a filing can be frivolous and meritless even if it is not “repetitive.” Father

       focuses entirely on the issue of repetition and makes no effort to refute the trial

       court’s conclusion that his petitions were frivolous and harassing.

[15]   We have recognized the inherent power of our trial courts to impose sanctions

       in order to maintain their dignity, secure obedience to their process and rules,

       rebuke interference with the conduct of business, and punish unseemly

       behavior. Good, 919 N.E.2d at 152 (citing City of Gary v. Major, 822 N.E.2d 165,

       169 (Ind. 2005)). This power “enables courts to protect their institutional

       integrity and to guard against abuses of the judicial process with contempt


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 9 of 13
       citations, fines, awards of attorneys’ fees, and such other orders and sanctions

       as they find necessary[.]” Id. at 153 (quoting Shepherd v. Am. Broad. Cos., Ind.,

       62 F.3d 1469, 1472 (D.C. Cir. 1995)). More recently, our Supreme Court

       explained, “The courts of this state, after due consideration of an abusive

       litigant’s entire history, may fashion and impose reasonable conditions and

       restrictions . . . on the litigant’s ability to commence or continue actions in this

       state that are tailored to the litigant’s particular abusive practices.” Zavodnik v.

       Harper, 17 N.E.3d 259, 266 (Ind. 2014).


[16]   Here, we conclude that the trial court acted within its discretion when it found

       that Father has become an abusive litigant and that some sort of filing limit is

       necessary to protect Mother from his harassment. Furthermore, while the trial

       court imposed an additional procedural requirement for the filing of certain

       documents in the future, it did not bar any type of filing entirely. In other

       words, Father will still be able to go to the court when he believes that court

       action is justified; only those petitions that are patently frivolous or redundant

       would be rejected. Under the circumstances, we decline to disturb the modest

       restriction imposed by the trial court.


                                         III. Attorney’s Fees
[17]   Finally, Father argues that Mother was barred by the doctrine of res judicata

       from seeking reimbursement for any attorney’s fees incurred before the trial

       court’s September 2014 order and that the trial court therefore abused its

       discretion by including such fees in its award to Mother. Mother does not


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 10 of 13
       respond to Father’s res judicata argument, which means that Father need only

       establish prima facie error to prevail. See Front Row Motors, LLC v. Jones, 5

       N.E.3d 753, 758 (Ind. 2014). We conclude that Father has done so.

[18]   First, even though the trial court’s written attorney’s-fees order referred to

       Father’s misconduct “over the past 14 months,” i.e., since the previous order in

       September 2014, see Appellant’s App. p. 54, it is apparent that the court’s award

       to Mother included at least some fees incurred before the court’s September

       2014 order. At the hearing on November 17, 2015, Mother testified that, as of

       November 6, 2015, she had paid $6,804.80 in fees and still owed $3,290.16, a

       total of $10,094.96.3 Mother did not provide any sort of itemization, but when

       questioned by the court, Mother explained that these were all of the fees she

       had incurred since Father’s original petition to modify in November 2013.

       Having heard Mother’s testimony, the trial court ordered Father to pay

       $10,000, essentially the full amount.

[19]   In support of his res judicata claim, Father cites Small v. Centocor, Inc., where we

       explained:

                The doctrine of res judicata bars litigation of a claim after a final
                judgment has been rendered in a prior action involving the same
                claim between the same parties or their privies. The principle
                behind this doctrine, as well as the doctrine of collateral estoppel,
                is the prevention of repetitive litigation of the same dispute. The



       3
         Mother also testified that she would be responsible for additional fees relating to her attorney’s preparation
       for and attendance at the November 17, 2015 hearing, but she did not specify a dollar figure.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016             Page 11 of 13
                following four requirements must be satisfied for a claim to be
                precluded under the doctrine of res judicata: 1) the former
                judgment must have been rendered by a court of competent
                jurisdiction; 2) the former judgment must have been rendered on
                the merits; 3) the matter now in issue was, or could have been,
                determined in the prior action; and 4) the controversy
                adjudicated in the former action must have been between the
                parties to the present suit or their privies.


       731 N.E.2d 22, 26 (Ind. Ct. App. 2000) (citations omitted, emphasis added),

       reh’g denied, trans. denied. Here, it is undisputed that the trial court awarded

       attorney’s fees to Mother in its June 2014 order and that it reiterated that award

       in its September 2014 order. Moreover, even if all possible fee issues were not

       raised by Mother and determined by the trial court at that time, they certainly

       could have been. The doctrine of res judicata bars the litigation of both matters

       that have already been determined and those that “could have been”

       determined. See id. Father has demonstrated at least prima facie error on the

       issue of attorney’s fees. Therefore, we remand this matter to the trial court with

       instructions to issue a revised fee award that excludes any fees incurred by

       Mother before the court’s September 2014 order.4

[20]   Affirmed in part and remanded in part.




       4
         Father also argues that the trial court abused its discretion by ordering him to pay the full $10,000 within
       180 days without first inquiring into his ability to do so. In light of our remand of the attorney’s-fees issue,
       we need not address this argument. If the trial court includes a time limit in its revised fee award, Father is
       free to raise an ability-to-pay objection.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016              Page 12 of 13
Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Memorandum Decision 82A01-1512-JP-2308 | August 23, 2016   Page 13 of 13
