MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Jul 08 2015, 9:17 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE1                                         ATTORNEY FOR APPELLEE
Christopher Rehtorik                                      Colby A. Barkes
Hobart, Indiana                                           Blachly, Tabor, Bozik & Hartman LLC
                                                          Valparaiso, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Christopher Rehtorik,                                     July 8, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          64A03-1411-DR-402
        v.                                                Appeal from the Porter Superior
                                                          Court
                                                          The Honorable William E. Alexa,
Jamie Rehtorik,                                           Judge
Appellee-Respondent                                       The Honorable Katherine R. Forbes,
                                                          Magistrate
                                                          Trial Court Cause No. 64D02-0710-
                                                          DR-10033




Bradford, Judge.




1
 Attorneys Steven M. Bush and Christopher W. Kimbrough of Millbranth and Bush prepared and submitted
Appellant’s Brief and Reply Brief in the instant matter. They have subsequently requested permission to
withdraw their appearances as Appellant’s counsel with no objection from Appellant. Their withdrawal as
counsel of record has been granted in an order handed down on the same day as this memorandum decision.

Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015            Page 1 of 14
                                          Case Summary
[1]   Appellant-Petitioner Christopher Rehtorik (“Father”) and Appellee-Respondent

      Jamie Rehtorik (“Mother”) are the parents of two minor children, Al.R. and

      Ad.R. In February of 2010, Mother and Father divorced and entered into a

      property settlement agreement. This property settlement agreement set Father’s

      child support obligation and, among other things, indicated that Father could

      claim the parties’ son, Al.R., as a dependent on his federal and state income tax

      returns if Father was current on his child support obligation at year’s end.

      Father was not current on his child support obligation at the end of 2012. As a

      result, Mother, not Father, claimed Al.R. as a dependent on her 2012 federal

      and state income tax returns.


[2]   Father subsequently alleged before the trial court that Mother’s act of claiming

      Al.R. as a dependent on her 2012 federal and state income tax returns

      constituted an act of contempt. The trial court determined that Mother’s act of

      claiming Al.R. as a dependent on her 2012 federal and state income tax returns

      did not amount to an act of contempt because Father was not current on his

      child support obligation at the end of 2012.


[3]   On appeal, Father contends that the trial court erred in (1) allowing Mother to

      claim Al.R. as a dependent on her 2012 federal and state income tax returns

      and (2) denying Father’s motion for rule to show cause relating to his allegation

      that Mother was in contempt of the parties’ settlement agreement. Father also

      contends that the trial court abused its discretion in ordering him to pay


      Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 2 of 14
      $6000.00 of Mother’s attorney’s fees. For her part, Mother contends that the

      trial court’s determinations relating to the 2012 tax exemptions and her request

      for attorney’s fees should be affirmed. Mother also requests that this court

      order Father to pay her appellate attorney’s fees. Finding no error or abuse of

      discretion, we affirm the trial court. However, we deny Mother’s request for

      appellate attorney’s fees.



                            Facts and Procedural History
[4]   Mother and Father are the parents of two minor children, Al.R. and An.R. In

      early 2010, Mother and Father divorced. On or about February 24, 2010, the

      parties entered into a property settlement agreement (hereinafter the “parties’

      agreement”). The parties’ agreement, which was approved by the trial court,

      covered issues relating to division of the parties’ estate and issues relating to the

      support and care of the parties’ minor children, Al.R. and Ad.R. With respect

      to tax exemptions, the parties’ agreement states, in relevant part, as follows:

              E. TAX EXEMPTIONS. Mother shall be granted the right to claim
              the parties’ minor child, [Ad.R.] as a tax exemption for purposes of
              filing federal and state tax returns and Father shall be granted the right
              to claim the parties’ minor child [Al.R.] if he is current in child support
              at years end.


      Appellant’s App. p. 21 (underlining in original, brackets and italics added).


[5]   On August 1, 2011, the parties entered into an agreed order, which stated that,

      effective retroactively to July 1, 2011, Father’s weekly child support obligation

      would be $329.00 per week. Father filed a petition for modification of his

      Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 3 of 14
      weekly child support obligation on November 5, 2012. Father was not current

      with his weekly child support obligation at the end of 2012. Because Father

      was not current in his child support obligation at the end of 2012, Mother

      claimed Al.R. as a dependent on her 2012 federal and state income tax returns.


[6]   On April 12, 2013, Father filed a verified petition for modification of child

      support and a verified motion alleging Mother was in contempt of the parties’

      February 24, 2010 settlement agreement. On June 18, 2013, Father filed a

      verified petition to modify custody and parenting time and a verified motion for

      rule to show cause. On August 2, 2013, the parties entered into an agreed order

      with respect to Father’s request to modify his weekly child support obligation.


[7]   In addition to numerous filings relating to Father’s contempt allegation, Father

      subsequently filed numerous petitions and motions including a motion for an

      in-camera interview of Al.R. and a motion for appointment of a Guardian Ad

      Litem. On November 6, 2013, Father also filed a request for findings of fact

      and conclusions thereon. Mother’s counsel responded to Father’s petitions and

      motions.


[8]   Mother filed a request for an award of attorney’s fees on April 28, 2014. In this

      Motion, Mother outlined certain filings made by Father which Mother claimed

      were redundant and frivolous. Mother attached as an exhibit a letter sent by

      Mother’s counsel to Father’s then-counsel notifying Father’s then-counsel that

      Mother would be seeking attorney’s fees in light of Father’s insistence on

      litigating issues after it became apparent that the issues were not given to


      Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 4 of 14
       reasonable dispute. Mother also attached as an exhibit an affidavit setting forth

       the amount of attorney’s fees incurred by Mother as a result of Father’s

       allegedly redundant and frivolous filings.


[9]    On October 21, 2014, the trial court issued an order in which it found that

       because Father was not current on his weekly child support obligation as of the

       end of 2012, pursuant to the parties’ February 24, 2010 settlement order,

       Mother was entitled to claim Al.R. as a dependent on her 2012 federal and state

       income tax returns. As a result, the trial court determined that Mother was not

       in contempt of the parties’ February 24, 2010 settlement order. The trial court

       also ordered Father to pay $6000.00 of Mother’s attorney’s fees. This appeal

       follows.



                                  Discussion and Decision
                    I. Issues Relating to 2012 Tax Exemptions
         A. Whether the Trial Court Erred in Allowing Mother to
         Claim Al.R. as a Dependent For Purposes of Claiming the
        Relevant Tax Exemptions on Her 2012 Federal and State Tax
                                Returns
[10]   Father contends that the trial court erred in determining that Mother was

       entitled to claim Al.R. as a dependent for 2012. Specifically, Father argues that

       because he had paid at least 95% percent of his 2012 child support obligation by

       year’s end, he should have been entitled to claim Al.R. as a dependent for that

       year. For her part, Mother argues that pursuant to the terms of the parties’

       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 5 of 14
       agreement, Father must be current with his child support obligation, not merely

       within 95% of current, in order to claim Al.R. as a dependent for tax purposes.

       We agree with Mother.


[11]   In support of his contention that the trial court erred in determining that

       Mother was entitled to claim Al.R. as a dependent for purposes of claiming the

       relevant tax exemption on her 2012 federal and state tax returns, Father cites to

       Indiana Code section 31-16-6-1.5, which went into effect on February 22, 2012,

       and provides, in relevant part, as follows:

               (a) A court shall specify in a child support order which parent of a
               child may claim the child as a dependent for purposes of federal and
               state taxes.
                                                      *****
               (d) If a court determines that a parent who is ordered to pay child
               support may claim the child as a dependent under subsection (a), the
               court shall include in the order that the parent may only claim the
               child as a dependent for federal and state tax purposes if the parent has
               paid at least ninety-five percent (95%) of the parent’s child support for
               the calendar year for which the parent is ordered to claim the child as a
               dependent by January 31 of the following year.


[12]   In the instant matter, however, the trial court was not called upon to determine

       which parent was entitled to claim the parties’ children for tax exemption

       purposes because the parties entered into a contractual agreement which

       address that issue.

               Indiana courts recognize the freedom of parties to enter into contracts
               and, indeed, presume that contracts represent the freely bargained
               agreement of the parties. Weaver v. American Oil Co. (1971), 257 Ind.
               458, 463, 276 N.E.2d 144, 147. This reflects the principle that it is in

       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 6 of 14
               the best interest of the public not to restrict unnecessarily persons’
               freedom of contract. Raymundo v. Hammond Clinic Ass’n (1983), Ind.,
               449 N.E.2d 276, 279 (quoting Hodnick v. Fidelity Trust Co. (1932), 96
               Ind. App. 342, 350, 183 N.E. 488, 491); see also Ind. Const. art. I, § 24.


       Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1129 (Ind. 1995). “Thus, as a general

       rule, the law allows persons of full age and competent understanding the utmost

       liberty in contracting; and their contracts, when entered into freely and

       voluntarily, will be enforced by the courts.” Fed. Kemper Ins. Co. v. Brown, 674

       N.E.2d 1030, 1033 (Ind. Ct. App. 1997) (citing Pigman v. Ameritech Publ’g Co.,

       641 N.E.2d 1026, 1029 (Ind. Ct. App. 1994)). “Accordingly, Indiana has long

       adhered to the rule that contracting parties may enter into any agreement they

       desire so long as it is not illegal or contrary to public policy.” Id. (citing Pigman,

       641 N.E.2d at 1030).

[13]   Again, on or about February 24, 2010, the parties entered into the parties’

       agreement. The parties’ agreement, which was approved by the trial court,

       covered issues relating to division of the parties’ estate and issues relating to the

       support and care of the parties’ minor children, Al.R. and Ad.R. With respect

       to tax exemptions, the parties’ agreement states, in relevant part, as follows:

               E. TAX EXEMPTIONS. Mother shall be granted the right to claim
               the parties’ minor child, [Ad.R.] as a tax exemption for purposes of
               filing federal and state tax returns and Father shall be granted the right
               to claim the parties’ minor child [Al.R.] if he is current in child support
               at years end.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 7 of 14
       Appellant’s App. p. 21 (underlining in original, brackets and italics added).

       Importantly, the parties’ agreement does not state that Father may claim Al.R.

       for income tax purposes if he is “substantially current” or within 95% of current

       of his child support obligation, but rather only if he is “current” in his child

       support obligation. Likewise, it has not been modified to include any

       “substantially current” language.


[14]   Father conceded during the evidentiary hearing that he was not current on his

       child support obligation at the end of 2012. In making this concession, Father

       engaged in the following discussion with Mother’s counsel:

               [Mother’s Counsel]: On here it was part of your agreement that you
                                   would be even with your child support at the end
                                   of the year, correct?
               [Father]:                 Yes.
               [Mother’s Counsel]: And at the end of 2012 you were not even with
                                   your child support; is that correct?
               [Father]:                 Yes and no.
               [Mother’s Counsel]: Realistically did you owe child support at the end
                                   of 2012?
               [Father]:                 Yes.
               [Mother’s Counsel]: That’s not yes or no.
               [Father]:                 Right I owed.
               [Mother’s Counsel]: So you were behind in child support at the end of
                                   2012?
               [Father]:                 Yes.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 8 of 14
       Tr. pp. 51-52. Following the conclusion of the hearing, the trial court found

       that Mother was entitled to claim Al.R. as a dependent for her 2012 federal and

       state taxes because Father was not current on his child support obligation.

[15]   Upon review, we cannot not say that the trial court’s determination was clearly

       erroneous. While it is true that child support orders, including orders

       previously agreed to by the parties, are modifiable, see Hay v. Hay, 730 N.E.2d

       787, 791 (Ind. Ct. App. 2000), the portion of the parties’ agreement relating to

       tax exemptions has not been modified. Further, Father has failed argue, much

       less to persuade us, that the parties’ agreement is illegal or contrary to public

       policy. As such, we conclude that the trial court properly applied the language

       of the parties’ agreement in determining that Mother, and not Father, was

       entitled to claim Al.R. as a dependent for the purpose of claiming the relevant

       tax exemption on her 2012 federal and state tax returns. We therefore affirm

       the trial court in this regard.


             B. Whether the Trial Court Erred in Denying Father’s
                      Motion for Rule to Show Cause
[16]   Father also contends that the trial court erred in denying his motion for rule to

       show cause. Father filed a motion for rule to show cause on or about June 18,

       2013. While Father has not provided a copy of this motion in the record on

       appeal, he claims on appeal that the motion alleged in part that Mother should

       have been held in contempt because she had violated the parties’ agreement by

       claiming Al.R. as a dependent on her 2012 federal and state taxes. However,

       having concluded above that the trial court correctly determined that Mother

       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 9 of 14
       was entitled to claim Al.R. as a dependent on her 2012 federal and state tax

       returns, we conclude that the trial court did not err in denying Father’s motion

       for rule to show cause.


                                         II. Attorney’s Fees
           A. Whether the Trial Court Erred in Granting Mother’s
                       Request for Attorney’s Fees
[17]   Father also contends that the trial court erred in awarding Mother $6000.00 in

       attorney’s fees.

               In post-dissolution proceedings, the trial court may order a party to
               pay a reasonable amount for attorney fees. Ind. Code § 31-16-11-1
               (1998). The trial court has broad discretion in awarding attorney fees.
               Selke v. Selke, 600 N.E.2d 100, 102 (Ind. 1992). We will reverse the
               trial court’s decision if the award is clearly against the logic and effect
               of the facts and circumstances before the court. Id.
               In assessing attorney fees, the court may consider such factors as the
               resources of the parties, the relative earning ability of the parties, and
               other factors that bear on the reasonableness of the award. Id. In
               addition, any misconduct on the part of one of the parties that directly
               results in the other party incurring additional fees may be taken into
               consideration. In re Marriage of Lewis, 638 N.E.2d 859, 861 (Ind. Ct.
               App. 1994).


       Claypool v. Claypool, 712 N.E.2d 1104, 1110 (Ind. Ct. App. 1999) (footnote

       omitted).

               Although it is generally true that a court need not list specific reasons
               for awarding or not awarding attorney fees in a dissolution action, that
               general rule is inapplicable when one party has specifically requested
               findings and conclusions under Trial Rule 52. See Fobar v. Vonderahe,
               756 N.E.2d 512, 517-18 (Ind. Ct. App. 2001), summarily aff’d in relevant

       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 10 of 14
               part, 771 N.E.2d 57, 58 n. 1 (Ind. 2002). A trial court must, upon
               request, make complete special findings sufficient to disclose a valid
               basis for the legal result reached in the judgment and to provide the
               parties and reviewing courts with the theory upon which the case was
               decided. [Balicki v. Balicki, 837 N.E.2d 532, 536 (Ind. Ct. App. 2005),
               trans. denied.]


       Maxwell v. Maxwell, 850 N.E.2d 969, 975 (Ind. Ct. App. 2006).


[18]   On November 4, 2013, Father filed a motion requesting findings of fact and

       conclusions thereon. Father has failed to include a copy of his November 4,

       2013 motion in the appellate record. On April 28, 2014, Mother filed a request

       that Father be ordered to pay a portion of her attorney’s fees. In making this

       request, Mother asserted that Father had engaged in the “frivolous and

       fictitious filing of motions” and that “[a]s a result of said filings, a total of at

       least nine (9) petitions, it has been necessary for [Mother’s] attorney to expend

       additional time to defend the motions filed by [Father], even after [Father] was

       on notice that the filing of said petitions was not based on fact or law[.]”

       Appellee’s App. p. 1. Again, Mother’s motion included an affidavit prepared

       by her attorney setting forth the fees incurred by Mother as a result of Father’s

       allegedly frivolous filings. This motion was properly filed before and could be

       considered by the trial court. Father did not respond to Mother’s request that

       Father be ordered to pay a portion of her attorney’s fees or amend his motion

       for findings of fact and conclusions thereon to specifically include Mother’s

       request that Father be ordered to pay a portion of her attorney’s fees.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 11 of 14
[19]   The trial court provided no explanation as to why it ordered Father to pay

       $6000.00 of Mother’s attorney’s fees. Father argues that it was an abuse of the

       trial court’s discretion to order him to pay a portion of Mother’s attorney’s fees

       without an explanation as to why the trial court imposed the order because

       Father had filed a motion for findings of fact and conclusions thereon. For her

       part, Mother argues that the trial court was not required to make special

       findings with regard to the award of attorney’s fees because Mother’s request

       for attorney’s fees was filed approximately six months after Father’s November

       4, 2013 motion and Father did not respond to Mother’s request for attorney’s

       fees or amend his November 4, 2013 motion to specifically include Mother’s

       request for attorney’s fees.


[20]   We acknowledge the general rule that a trial court must, upon request, make

       complete special findings sufficient to disclose a valid basis for the legal result

       reached in the judgment and to provide the parties and reviewing courts with

       the theory upon which the case was decided. See Maxwell, 850 N.E.2d at 975.

       However, in the instant matter, our review of the scope of Father’s November

       4, 2013 motion is hampered by the fact that Father has failed to include the

       motion in the record on appeal. Father, as the appellant, had the duty to

       provide an adequate record for review. Page v. Page, 849 N.E.2d 769, 771 (Ind.

       Ct. App. 2006) (citing Mayflower Transit, Inc. v. Davenport, 714 N.E.2d 794, 799

       (Ind. Ct. App. 1999)). In light of Father’s failure to provide this court with a

       copy of his November 4, 2013 motion, we are unable to determine whether it

       was broad enough in scope to encompass a request for attorney’s fees that was


       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 12 of 14
       filed approximately six months after the November 4, 2013 motion was filed

       before the court. Accordingly, we cannot say that the trial court abused its

       discretion in this regard.


               B. Whether Mother Is Entitled to Receive Appellate
                              Attorney’s Fees
[21]   We next turn to Mother’s request for appellate attorney’s fees. In pertinent

       part, Indiana Appellate Rule 66(E) provides that a court on review “may assess

       damages if an appeal ... is frivolous or in bad faith. Damages shall be in the

       Court’s discretion and may include attorney’s fees.” In Orr v. Turnco

       Manufacturing Co., 512 N.E.2d 151, 152 (Ind. 1987), the Indiana Supreme Court

       noted, that an appellate court “must use extreme restraint” in exercising its

       discretionary power to award damages on appeal. “Hence, the discretion to

       award attorney fees under App. R. 66(C) is limited to instances when an appeal

       is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness,

       or purpose of delay.” Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct.

       App. 2001) (internal quotation omitted). Here, while we ultimately rule in her

       favor, we decline to award appellate attorney’s fees as requested by Mother.



                                               Conclusion
[22]   In sum, we conclude that the trial court did not err in determining that Mother

       was entitled to claim Al.R. as a dependent for the purpose of claiming the

       relevant tax exemption on her 2012 federal and state tax returns or in denying

       Father’s motion for rule to show cause. We further conclude that the trial court

       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 13 of 14
       did not abuse its discretion in ordering Father to pay $6000.00 of Mother’s

       attorney’s fees. We also decline Mother’s request for appellate attorney’s fees.


[23]   The judgment of the trial court is affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1411-DR-402 | July 8, 2015   Page 14 of 14
