MEMORANDUM DECISION                                                  FILED
                                                                Jan 30 2018, 9:24 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                CLERK
                                                                 Indiana Supreme Court
regarded as precedent or cited before any                           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
Christopher M. Forrest                                   Laura Boyer King
Forrest Legal LLC                                        Scott & Aplin LLC
Fort Wayne, Indiana                                      Fort Wayne, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David A. Scott,                                          January 30, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1708-DR-1864
        v.                                               Appeal from the Allen Circuit
                                                         Court
Sara J. Scott,                                           The Honorable Charles F. Pratt,
Appellee-Respondent                                      Special Judge
                                                         Trial Court Cause No.
                                                         02C01-1410-DR-1333



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1708-DR-1864 | January 30, 2018   Page 1 of 6
                                             Case Summary
[1]   David A. Scott (“Father”) filed a motion for contempt and request for

      attorney’s fees against Sara J. Scott (“Mother”). The trial court granted the

      motion and found Mother in contempt, but denied Father’s request for fees.

      Father appeals and contends that the trial court erred in denying his request for

      attorney’s fees. Concluding that Father has waived this assertion of error, we

      affirm.


                                 Facts and Procedural History
[2]   A decree dissolving the marriage between Father and Mother was entered on

      April 25, 2016. The decree incorporated the parties’ mediated marital

      settlement agreement (“the Agreement”). The parties were granted joint legal

      custody of their three minor children, with Mother having primary physical

      custody and Father having parenting time. Pursuant to the Agreement, the

      parties are to maintain open communication “in an effort to mutually agree in

      regard to the general health and welfare, education and development of the

      minor children to the end that, insofar as possible, they may adopt a mutual

      harmonious policy to said children’s upbringing.” Appellant’s App. Vol. 2 at

      35. The Agreement further provides that the parties will jointly decide which

      schools the children will attend. Id. at 37.


[3]   Following the dissolution, Mother was required to vacate the marital residence

      which was in the Fort Wayne Community Schools district. She moved with

      the children to the Northwest Allen County Schools district. Because the


      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-DR-1864 | January 30, 2018   Page 2 of 6
      parties’ oldest child had completed elementary school, Mother was required to

      enroll him in middle school. In July 2016, Mother informed Father that she

      had decided to enroll that child in Maple Creek Middle School in the

      Northwest Allen County Schools system rather than Jefferson Middle School in

      the Fort Wayne Community Schools system which he was otherwise in line to

      attend. Mother and Father exchanged text messages in which Father clearly

      objected to the enrollment.


[4]   On August 25, 2016, Father filed a petition for contempt and request for

      attorney’s fees against Mother. Father asserted that Mother intentionally and

      willfully disregarded the Agreement by enrolling the parties’ oldest child in a

      new school without Father’s agreement or consent, and without adequately

      discussing the matter with Father. Father alleged that he incurred attorney’s

      fees as a direct result of Mother’s “willful failure to abide by [the Agreement]

      and her responsibilities as a joint legal custodian.” Id. at 57. Thus, Father

      requested reimbursement for the reasonable fees incurred.


[5]   The trial court held a hearing on Father’s contempt petition on January 20,

      2017. On March 27, 2017, the trial court entered its order finding Mother in

      contempt. The trial court determined that Mother did not provide Father an

      opportunity to engage in discussion, but instead acted unilaterally in her

      decision to enroll the parties’ oldest child in a new school, and that such action

      was willful and violated the trial court’s orders. Regarding Father’s request for

      attorney’s fees, the trial court stated,



      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-DR-1864 | January 30, 2018   Page 3 of 6
              The Court is cognizant that the parties have had significant issues
              between them over the course of the pendency of this case.
              Taking judicial notice of the record the Court finds that there
              were four (4) protective orders filed and dismissed by [Father]
              against [Mother]. [Mother’s] testimony regarding the difficulty
              with their communication was not contradicted. The
              [Agreement] to mutually work together for the benefit of the
              children is, then, a significant step in the right direction. More
              time is likely needed for the parents to adjust to their new roles and the
              new ways decisions must now be made. Accordingly, the cost of the
              learning curve should not be assigned to one party. The request for fees is
              thus denied.


      Id. at 31 (emphasis added).


[6]   Thereafter, Father filed a motion to correct error asserting that the trial court

      erred in denying his request for attorney’s fees. In his motion, Father alerted

      the trial court for the first time to the fact that the parties’ Agreement includes

      an indemnification clause in which the parties agreed to “indemnify and save

      and hold the other harmless from all damages, losses, expenses, fees (including

      reasonable attorney fees), and other costs and expenses incurred by reason of

      said party’s violation or breach of any of the terms and conditions” of the

      Agreement. Following a hearing, the trial court denied the motion to correct

      error. This appeal ensued.


                                     Discussion and Decision
[7]   In his motion to correct error and on appeal, Father claims that the trial court

      erred in denying his request for attorney’s fees. As a general matter, a trial

      court has broad discretion in awarding attorney’s fees in post-dissolution

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-DR-1864 | January 30, 2018   Page 4 of 6
      proceedings, including contempt actions. See Ind. Code § 31-15-10-1; Julie C. v.

      Andrew C., 924 N.E.2d 1249, 1261 (Ind. Ct. App. 2010); Crowl v. Berryhill, 678

      N.E.2d 828, 831 (Ind. Ct. App. 1997). However, Father asserts that the trial

      court was without discretion to deny his request for attorney’s fees for Mother’s

      contempt because he is entitled to such fees based upon the indemnification

      clause in the parties’ Agreement. Mother contends that Father has waived this

      assertion of error. We agree with Mother.


[8]   Our thorough review of the record reveals that, other than making a general

      request for attorney’s fees as a sanction for Mother’s contempt, Father did not

      raise or even mention the indemnification clause as a basis for recovery of

      attorney’s fees in his contempt petition, or at any time during the evidentiary

      hearing before the trial court. Instead, he raised this basis for relief for the first

      time in his motion to correct error. It is well established that a party may not

      raise issues or arguments for the first time in a motion to correct error, and that

      such issues or arguments are waived on appeal. Shepherd Props. Co. v. Int’l Union

      of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 849 n. 3 (Ind. 2012).


[9]   In his motion to correct error, Father speculates that the trial court “simply did

      not recall” that the Agreement contained an indemnification clause and that is

      what led to the court’s erroneous belief that it had discretion to deny Father’s

      fee request. Appellant’s App. Vol. 2 at 68. However, Father did nothing to

      refresh the trial court’s alleged lack of recollection and essentially invited the




      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-DR-1864 | January 30, 2018   Page 5 of 6
       trial court to exercise its discretion in considering whether to award attorney’s

       fees as a sanction for Mother’s contempt.1 Again, this amounts to waiver. See

       Bunting v. State, 854 N.E.2d 921, 924 (Ind. Ct. App. 2006) (“A party may not sit

       idly by, permit the court to act in a claimed erroneous manner, and

       subsequently attempt to take advantage of the alleged error.”); trans. denied.

       Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1077 (Ind. Ct.

       App. 2003) (“A party cannot invite error and then request relief on appeal based

       upon that ground; such an error cannot be reviewed by this court.”), trans.

       denied. We conclude that Father has waived his assertion of error on appeal.

       The trial court’s order is affirmed.2


[10]   Affirmed.


       Robb, J., and Bradford, J., concur.




       1
         We are unpersuaded by Father’s assertion that his request for the trial court to take judicial notice of its
       records, including the Agreement, was sufficient to alert the court to the existence of the indemnification
       clause.
       2
           Because we affirm the trial court’s order, we need not address Father’s request for appellate attorney’s fees.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-DR-1864 | January 30, 2018                Page 6 of 6
