                                                                         FILED
                                                                     Mar 18 2020, 9:40 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




APPELLANT PRO SE                                           APPELLEE PRO SE
Gregory W. Brown                                           Tula Kavadias
Merrillville, Indiana                                      Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Paternity of C.B. and S.B.                          March 18, 2020
                                                           Court of Appeals Case No.
Gregory W. Brown,                                          19A-JP-1618
Appellant-Father,                                          Appeal from the
                                                           Lake Superior Court
        v.
                                                           The Honorable Nanette K.
                                                           Raduenz, Special Judge
Kara A. Davis,
                                                           Trial Court Cause Nos.
Appellee-Mother                                            45D06-1504-JP-402
                                                           45D06-1504-JP-403
        and

Tula Kavadias,
Intervenor-Appellee

Jill Swope,
Intervenor-Appellee




Vaidik, Judge.



Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020                           Page 1 of 9
                                            Case Summary
[1]   When Kara A. Davis (“Mother”) was represented by counsel, she asked the

      trial court to order Gregory W. Brown (“Father”) to pay her appellate attorney

      fees. Before the court ruled on Mother’s request, she fired her attorney.

      Mother’s attorney sought to intervene in order to seek the fees from Father.

      Mother and Father then filed with the court an agreed order, which provided

      that Mother withdrew her request for appellate attorney fees from Father and

      Father agreed to pay a portion of the fees. Despite this agreement, the court

      allowed Mother’s attorney to intervene and ordered Father to pay all of

      Mother’s appellate attorney fees. Father now appeals.


[2]   We reverse. An attorney cannot litigate an award of attorney fees “separate

      and apart” from the client. Accordingly, once Mother withdrew her petition for

      appellate attorney fees from Father, Mother’s attorney was not allowed to seek

      fees from Father on her own. We therefore reverse the trial court’s order and

      remand this case with instructions for the court to order Father to pay a portion

      of Mother’s attorney fees in accordance with their agreed order. To the extent

      Mother’s attorney is still owed fees, she may seek them from Mother.



                             Facts and Procedural History
[3]   Mother and Father, who were never married, have two children, C.B. and S.B.

      (“the children”). In 2015, Father petitioned to establish paternity of the

      children. Father was represented by counsel, and Mother was represented by


      Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020           Page 2 of 9
      attorney Tula Kavadias from the Crown Point law firm of Kavadias &

      Associates, P.C. The parties stipulated that Father is the father of the children,

      and a hearing was eventually held on the remaining issues, including custody

      and parenting time. On October 30, 2017, the trial court issued an order

      awarding Mother sole legal and primary physical custody of the children with

      Father having parenting time. In addition, the court ordered Father to “pay

      $25,000, over and above any amounts he has already paid, of [Mother’s]

      attorney fees directly to Attorney Kavadias. The Court reduces this amount to

      judgment in favor of Attorney Kavadias and against [Father].” Appellee’s App.

      Vol. II p. 6.


[4]   Thereafter, Father appealed, and Mother cross appealed (hereinafter, “the first

      appeal”). In January 2018, during the briefing process of the first appeal,

      Mother filed a petition for appellate attorney fees in the trial court. Appellant’s

      App. Vol. II p. 64. In the petition, Kavadias estimated that the fees and

      expenses for the first appeal would “exceed $15,000” and asked the court to

      order Father “to make a preliminary payment toward Mother’s appellate co[s]ts

      and fees.” Id. at 65. The trial court did not rule on Mother’s petition at the

      time.


[5]   In February 2018, while briefing in the first appeal was continuing, Father

      sought a second appeal (hereinafter, “the second appeal”). See 18A-JP-319.

      Mother filed a motion to dismiss the second appeal, arguing that the

      interlocutory orders Father was attempting to appeal were not properly before

      this Court under Indiana Appellate Rule 14. We granted Mother’s motion to

      Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020          Page 3 of 9
      dismiss in April 2018. A couple weeks later, Mother filed a second petition for

      appellate attorney fees (which sought fees for the second appeal) in the trial

      court. The court did not rule on this petition at the time either.


[6]   In October 2018, this Court issued a decision in the first appeal in which we

      affirmed the trial court’s custody and parenting-time rulings and remanded on

      child-support issues. See In re C.B., 112 N.E.3d 746 (Ind. Ct. App. 2018).

      Father sought transfer, which our Supreme Court denied.


[7]   In March 2019, the trial court held a hearing on, among other issues, Mother’s

      petitions for appellate attorney fees. At the hearing, Kavadias submitted

      affidavits that (1) Mother owed $35,529.65 for the first appeal and had paid

      $8,021.25 toward it and (2) Mother owed $3,277.60 for the second appeal but

      had not paid anything toward it. Ex. Vol. 3, Exs. 15-16. Again, the court did

      not rule on the fee petitions at the time.


[8]   Thereafter, Mother and Kavadias had a falling out, and Mother fired Kavadias.

      On April 12, Kavadias filed a motion to withdraw her appearance for Mother,

      which the trial court granted. That same day, Kavadias filed a motion to

      intervene, which alleged that Kavadias had “no reason to believe that Mother

      will protect the firm’s interests with respect to the several petitions for attorney




      Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020           Page 4 of 9
       fees now pending” and that Indiana Trial Rule 24(A)(2) allowed her to

       intervene as of right.1 Appellant’s App. Vol. II p. 68.


[9]    On May 3, Mother and Father (who was also proceeding pro se at that time)

       filed a “Verified Agreed Order on All Pending Petitions and Matters.” Id. at 77.

       The agreed order covered several topics, including how much Father would pay

       toward Mother’s appellate attorney fees. Specifically, Father agreed to pay

       $6,500 of Mother’s attorney fees for the first appeal and $1,000 of Mother’s

       attorney fees for the second appeal.2 Mother and Father “agree[d] that these

       fees are the maximum amount and the entirety of attorney fees for which

       Father shall be responsible to pay to Tula Kavadias and Kavadias & Associates,

       P.C.” Id. at 80. Finally, Mother said that she “dismisses all petitions and

       motions to further allocate Kavadias’ claimed fees.” Id.


[10]   The trial court held a hearing on Kavadias’s motion to intervene and the agreed

       order on May 10. At the hearing, the trial court said that the only problem it




       1
           Trial Rule 24(A)(2) provides:
                (A) Intervention of Right. Upon timely motion anyone shall be permitted to intervene in an
                action:
                                                             *****
                  (2) when the applicant claims an interest relating to a property, fund or transaction which is
                  the subject of the action and he is so situated that the disposition of the action may as a
                  practical matter impair or impede his ability to protect his interest in the property, fund or
                  transaction, unless the applicant’s interest is adequately represented by existing parties.
       2
        Father also “agreed” to pay $25,000 in attorney fees (plus interest of $1,287.67) to Kavadias that the trial
       court ordered on October 30, 2017, and $14,773.90 in attorney fees to Kavadias that a different trial court
       ordered in a replevin action filed by Mother. Appellant’s App. Vol. II p. 79. The trial court’s order in this
       case does not address these fees, as Father has already been ordered to pay them.

       Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020                                     Page 5 of 9
       had with the agreed order was the part about Kavadias’s attorney fees. Tr. Vol.

       IV pp. 68-69. Mother reaffirmed that she was withdrawing her petitions for

       appellate attorney fees from Father. Tr. Vol. III p. 148. Kavadias made an

       additional request for attorney fees for services rendered to Mother for new

       trial-court matters that arose in the paternity case from October 31, 2017, to

       March 5, 2019. In June 2019, the court issued an order in which it granted

       Kavadias’s motion to intervene “for the limited purpose of allowing Attorney

       Kavadias the opportunity to present evidence on the various issues of attorney

       fees owed to Kavadias & Associates, P.C.” Id. at 58. The court approved all

       parts of the agreed order except for the part about Kavadias’s attorney fees.

       Specifically, the court ordered Father to pay “all of Mother’s attorney fees and

       costs incurred for the first appeal,” which amounted to $26,908.40, and “all of

       Mother’s attorney fees and costs incurred for the second appeal,” which

       amounted to $3,277.50. Id. at 59-60. The court also determined that Mother

       incurred $19,735.25 in other attorney fees from October 31, 2017 to March 5,

       2019, and ordered Father to pay 93%—or $18,353.78—of them.


[11]   Father now appeals.



                                   Discussion and Decision
[12]   Father contends that the trial court erred in allowing Kavadias to intervene in

       the paternity case in order “to pursue her fees against” him. Appellant’s Br. p.

       24. One seeking intervention pursuant to Trial Rule 24(A)(2) must claim “an



       Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020        Page 6 of 9
       immediate and direct interest in the proceedings.” Valparaiso Tech. Inst., Inc. v.

       Porter Cty. Treasurer, 682 N.E.2d 819, 821 (Ind. Ct. App. 1997).


[13]   Father argues that Kavadias did not have a right to intervene and request

       attorney fees from him in her own name. In response, Kavadias cites Indiana

       Code section 31-14-18-2, which provides, in relevant part:


               (a) The court may order a party to pay:


                                                      *****


                         (2) a reasonable amount for attorney’s fees, including
                        amounts for legal services provided and costs incurred,
                        before the commencement of the proceedings or after entry
                        of judgment.


               (b) The court may order the amount to be paid directly to the
               attorney, who may enforce the order in the attorney’s name.


       Kavadias believes that this statute gives her the right to pursue attorney fees

       against Father even though Mother fired her and withdrew her petitions. But

       this statute only provides that attorneys may enforce attorney-fee orders in their

       own name; it does not authorize attorneys to request attorney fees in their own

       name.


[14]   In support of his argument that Kavadias should not have been able to request

       attorney fees from him in her own name, Father cites Valparaiso Technical

       Institute, which provides that the client—not the attorney—is the “true owner”

       of the right to recover attorney fees and “the master of its own lawsuit.” 682
       Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020         Page 7 of 9
       N.E.2d at 821 (citing 2A William F. Harvey, Indiana Practice, § 24.1 (3d ed.

       2000)). In her appellee’s brief, Kavadias does not acknowledge Valparaiso

       Technical Institute, much less respond to Father’s argument.3 Because the client

       is the “true owner” of the right to recover attorney fees, the attorney cannot

       litigate an award of attorney fees “separate and apart” from the client. Id.


[15]   Here, when Kavadias sought to intervene, the trial court had not yet ruled on

       Mother’s petitions for appellate attorney fees from Father. And before the trial

       court ruled on Kavadias’s petition to intervene, Mother withdrew her petitions

       for appellate attorney fees from Father. Because Mother was no longer asking

       the trial court to order Father to pay her fees, Kavadias did not have a right,

       “separate and apart” from Mother, to request them from Father. The trial court

       therefore erred by (1) allowing Kavadias to intervene pursuant to Indiana Trial

       Rule 24(A)(2); (2) ordering Father to pay all of Mother’s appellate attorney fees;

       and (3) ordering Father to pay $18,353.78 of Mother’s attorney fees for new

       trial-court matters that arose in the paternity case from October 31, 2017, to

       March 5, 2019. Accordingly, we vacate the trial court’s June 2019 order and

       remand this case to the trial court. On remand, the trial court shall approve all

       parts of the agreed order, including Father’s agreement to pay $6,500 of

       Mother’s attorney fees for the first appeal and $1,000 of Mother’s attorney fees




       3
        Instead, Kavadias argues that Mother and Father “sought to limit the award of fees [to her] through their
       agreed order.” Appellant’s Br. p. 13. While Mother and Father agreed to limit the amount of attorney fees
       Father had to pay to Kavadias, the agreed order did not limit Mother’s liability to Kavadias.

       Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020                               Page 8 of 9
       for the second appeal.4 To the extent Kavadias is still owed attorney fees for

       her services in the paternity case, she may seek them from Mother, her client.


[16]   Reversed and remanded.


       Najam, J., and Tavitas, J., concur.




       4
         In its June 2019 order, the trial court also ordered that Mother and Father were “jointly and severally”
       liable for the parenting-time coordinator’s fees. Appellant’s App. Vol. II p. 62. However, Mother and
       Father’s agreed order provided for a different payment arrangement. See id. at 78-79. On appeal, Father
       argues that the parenting-time coordinator’s fees should be paid according to the agreed order. The
       parenting-time coordinator did not file an appellee’s brief in this case. On remand, the trial court should
       order the parenting-time coordinator’s fees to be paid according to the agreed order.

       Court of Appeals of Indiana | Opinion 19A-JP-1618 | March 18, 2020                                   Page 9 of 9
