      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                 FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                                    Aug 09 2017, 6:11 am

      the defense of res judicata, collateral                                               CLERK
                                                                                       Indiana Supreme Court
      estoppel, or the law of the case.                                                   Court of Appeals
                                                                                            and Tax Court




      ATTORNEY FOR APPELLANT
      Nancy A. McCaslin
      McCaslin & McCaslin
      Elkhart, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Christopher A. Toth,                                     August 9, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A03-1701-DR-48
              v.                                               Appeal from the Elkhart Superior
                                                               Court
      Julia Lynne Noblitt,                                     The Honorable David C. Bonfiglio,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               20D06-0508-DR-629



      Mathias, Judge.


[1]   Christopher A. Toth (“Father”) appeals the Elkhart Superior Court’s order

      awarding appellate attorney fees to Julia Lynne Noblitt (“Mother”). Father

      claims the trial court abused its discretion by failing to hold a hearing and


      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-DR-48 | August 9, 2017               Page 1 of 7
      consider the economic resources of the parties when it awarded the fees to

      Mother.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The parties’ marriage was dissolved in 1998. They have two children, K.T.,

      born on November 13, 1993, and A.T., born on June 25, 1998. The parties

      initially shared joint legal custody of the children, but the parties’ relationship

      deteriorated to the point where joint legal custody was terminated. Mother was

      granted primary custody of the children.


[4]   In 2006, K.T. was struck by lightning while boating with Father. As a result,

      she could not walk by herself, talk coherently, prepare her own meals, dress

      herself, use the bathroom by herself, or be left alone. Mother quit her job so that

      she could be K.T.’s full-time caregiver. In 2008, the trial court found that

      Mother’s loving care of K.T. could not be duplicated by a paid in-home care

      provider.


[5]   In 2013, Mother filed a motion to determine arrears with respect to medical

      expenses, educational expenses, and child support. She filed a supplement to

      her motion in 2015. In March 2016, Father filed a motion to modify child

      support because A.T. was eighteen years old. In April 2016, Mother filed a

      petition for A.T.’s college expenses.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-DR-48 | August 9, 2017   Page 2 of 7
[6]   An evidentiary hearing was held, and the trial court addressed the parties’

      motions in an order dated May 6, 2016. Father was ordered to pay over $17,000

      for unreimbursed medical expenses from the years 2006 through 2015,

      approximately $6,000 for education expenses from the years 2008 through

      2015, nearly $2,000 for a repair to A.T.’s car, and Mother’s attorney fees in the

      amount of $16,250. Father appealed the trial court’s May 6, 2016 order.


[7]   On June 17, 2016, another panel of our court handed down a memorandum

      decision affirming the trial court’s May 6, 2016 order in part and reversing the

      judgment in part. Specifically, the panel affirmed the trial court’s order with

      respect to medical expenses and attorney fees. However, the panel reversed the

      award of education expenses after concluding that an unknown amount of the

      expenses were related to A.T.’s college education. Therefore, that panel of this

      court remanded the case for a determination of college expenses and whether

      Father should pay for a portion of those expenses. See Toth v. Noblitt, 2017 WL

      2569788, No. 20A03-1609-DR-2240 at *13 (Ind. Ct. App. June 14, 2017).


[8]   While that appeal was pending, on December 6, 2016, the trial court held a

      hearing on Mother’s motion requesting an award of appellate attorney fees so

      that she could hire counsel to represent her in that appeal. Mother appeared in

      person and by counsel, and Father appeared by phone and by counsel. On

      December 9, 2016, the trial court issued an order awarding appellate attorney

      fees to Mother. Specifically, the court ordered Father to pay reasonable attorney

      fees to Mother’s appellate counsel, which it estimated were $4,000 to $4,500 for

      15 to 20 hours of work. The court clarified that “the parties may request further

      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-DR-48 | August 9, 2017   Page 3 of 7
       hearing on the reasonableness of the specific fees upon Appellate Counsel for

       [M]other being employed if there is a dispute that the fees requested are not

       reasonable.” Id. Father now appeals the December 9, 2016 order awarding

       appellate attorney fees to Mother.


                                          Standard of Review
[9]    Mother hired counsel to represent her in Father’s appeal of the May 6, 2016

       order for which she sought appellate attorney fees. However, Mother did not

       file an appellee’s brief in this case. Therefore, we apply a less stringent standard

       of review. We do not undertake the burden of developing arguments for the

       appellee. Painter v. Painter, 773 N.E.2d 281, 282 (Ind. Ct. App. 2002). We may

       reverse the trial court if the appellant establishes prima facie error. Id. Prima

       facie is defined as at first sight, on first appearance, or on the face of it. Id.


                                      Discussion and Decision
[10]   Under Indiana Code section 31-16-11-1, a dissolution court has broad

       discretion to impose attorney’s fees on either party to a child support

       proceeding. Thompson v. Thompson, 868 N.E.2d 862, 870 (Ind. Ct. App. 2007).

       An attorney fee award will be reversed only if it is clearly against the logic and

       effect of the facts and circumstances before the court. Brown v. Brown, 776

       N.E.2d 394, 397 (Ind. Ct. App. 2002), trans. denied.


[11]   To determine whether to award attorney fees, “a trial court must consider the

       resources of the parties, their economic condition, the ability of the parties to

       engage in gainful employment and to earn adequate income, and such other

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-DR-48 | August 9, 2017   Page 4 of 7
       factors as bear on the reasonableness of the award.” Allen v. Proksch, 832 N.E.2d

       1080, 1102 (Ind. Ct. App. 2005) (citations and internal quotation marks

       omitted). The court may also take into account any misconduct by one party

       that causes the other party to directly incur additional fees. Id. In Allen, this

       court held that the trial court abused its discretion by failing to hold an

       evidentiary hearing to consider the relative economic circumstances of the

       parties to the custody dispute or to enter findings indicating that it had

       considered such circumstances. Id. at 1103. See also Bertholet v. Bertholet, 725

       N.E.2d 487, 501 (Ind. Ct. App. 2000) (holding that trial court abused its

       discretion in failing to hold evidentiary hearing to assess both parties’ respective

       economic circumstances and ability to pay own attorney’s fees).


[12]   Father claims that the trial court failed to hold an evidentiary hearing.

       However, the court held a hearing and heard argument concerning Mother’s

       motion. Neither party presented any evidence, but nothing in the record would

       lead us to conclude that they were prevented from doing so. Mother argued that

       she did not have funds to hire counsel to represent her in the appeal. Father

       argued that either Mother should have to pay her own fees or that the motion

       was premature because Mother’s appellate fees could not be determined until

       after briefing was completed.


[13]   The trial court is well acquainted with the parties, including their resources,

       economic condition, and ability to maintain gainful employment. The parties

       have litigated child support, medical expenses, education expenses, and

       arrearages for several years. Mother has filed numerous motions attempting to

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-DR-48 | August 9, 2017   Page 5 of 7
       compel Father to reimburse her for medical expenses and educational expenses

       she paid for their children. In an order dated May 6, 2016, the trial court found

       that Father undervalues “the care Mother continues to give to their disabled

       child,” does not want “to pay his fair share of the costs of her overall

       condition,” and attempts “to minimize his financial exposure for their”

       youngest child.1 See Toth v. Noblitt, 2017 WL 2569788, No. 20A03-1609-DR-

       2240 at *3 (Ind. Ct. App. June 14, 2017).

[14]   Importantly, Mother is not employed because K.T. requires constant care. It is

       unlikely that Mother’s economic circumstances changed in the months between

       the hearing on the underlying matter and the date Mother filed her motion

       requesting appellate attorney fees.2 Also, the trial court specifically found that

       Mother’s financial situation had not changed since the court issued the May 6,

       2016 order that Father has appealed. Appellant’s App. p. 40.


[15]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it awarded appellate attorney fees to Mother.




       1
         In the May 6, 2016 order, the trial court observed that Father had not paid any principal or interest on a
       June 8, 2009 judgment for $5,851 in unpaid child support, and the court entered judgment against Father for
       $17,526.89 for unreimbursed medical expenses for the years 2006 through 2015 and $6689.16 for educational
       expenses from the years 2008 through 2015. See Toth, No. 20A03-1609-DR-2240 at *4. Father filed a motion
       to correct error and as a result, the trial court reduced the judgment for educational expenses by $561.25. Id.
       at *8.
       2
        At the hearing on Mother’s motion for appellate attorney fees, Father’s counsel stated that Father was
       making “about $79,000 to $80,000” per year. Father did not present any evidence to support his claim. In its
       May 2016 order, the trial court found that Father’s income was approximately $104,000 per year. See id. at
       *4.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-DR-48 | August 9, 2017                 Page 6 of 7
[16]   Affirmed.


       Kirsch, J., and Altice, J., concur.




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