                                                                        Dec 22 2015, 9:27 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Bryan M. Truitt                                           Debra Lynch Dubovich
      Bertig & Associates LLC                                   Levy & Dubovich
      Valparaiso, Indiana                                       Merrillville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Melissa Capellari,                                        December 22, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                37A05-1505-DR-479
              v.                                                Appeal from the Jasper Superior
                                                                Court
      Gino Capellari,                                           The Honorable James Ahler, Judge
                                                                The Honorable Robert E. Hall, Senior
      Appellee-Respondent                                       Judge
                                                                Trial Court Cause No.
                                                                37D01-1109-DR-809




      Bailey, Judge.



                                           Case Summary
[1]   Melissa Capellari (“Mother”) and Gino Capellari (“Father”) divorced. The

      trial court included as part of its order upon final dissolution of the marriage a

      settlement agreement (“the Agreement”) that provided for child support,



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      parenting time, and other matters. The Agreement also included a fee-shifting

      provision.


[2]   Father subsequently sought modification of his parenting time and child

      support from that provided for by the Agreement. Mother responded and

      requested payment of attorney fees if Father’s requests were denied. The trial

      court subsequently denied Father’s requests. The court also denied Mother’s

      request for payment of attorney fees based upon its construction of the fee-

      shifting provision. Mother filed a motion to correct error, which the trial court

      also denied. Mother now appeals.


[3]   We affirm.



                                                     Issue
[4]   Mother raises as the sole issue for our review whether the trial court erred in its

      construction of a provision in the Agreement.



                            Facts and Procedural History
[5]   Mother and Father were married on September 14, 2002. The marriage

      produced two children.


[6]   On September 23, 2011, Mother filed a petition for dissolution of the marriage.

      During the dissolution proceedings, Mother and Father entered into The

      Agreement, which provided for distribution of marital assets, determination of

      parenting time based in part upon the Indiana Parenting Time Guidelines then

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      in effect, and child support. The Agreement also provided that Indiana law as

      of the time of the signing of the Agreement would determine all matters

      between the parties, except for questions concerning child support, which

      would be determined under the Child Support Guidelines in effect at the time

      any question arose. The Agreement further provided:

              In the event that any action is filed with regard to this Agreement, the
              unsuccessful party in the action shall pay to the successful party, in
              addition to all sums that either party may be called upon to pay, a
              reasonable sum for the successful parties [sic] attorney fees at the
              discretion of the court.
      App’x at 57.


[7]   On April 20, 2012, the trial court entered its decree dissolving the marriage.

      The court incorporated the Agreement as part of its order.


[8]   On September 30, 2013, Father filed a Verified Petition for Rule to Show Cause

      (“the Show Cause Petition”), in which he averred that Mother had failed to

      comply with aspects of the Agreement. The same day, Father also filed a

      verified petition seeking modification of child support, modification of the

      division of payment for children’s extracurricular activities, and modification of

      parenting time (“the Petition”). Specifically, Father sought modification of his

      parenting time in light of changes to the Parenting Time Guidelines that were

      made effective in 2013, after the entry of the Agreement. In the Petition, Father

      also challenged Mother’s relocation to Porter County with the children.


[9]   Mother responded to the Petition on August 14, 2014. In her response, Mother

      argued that Father was trying to circumvent the Agreement, and requested that

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       Father pay attorney fees Mother might incur in the event Father did not obtain

       his requested relief.


[10]   An evidentiary hearing on the Petition was conducted over the course of several

       days, on October 28, 2014, November 7, 2014, and December 18, 2014. The

       trial court took the matter under advisement.


[11]   On January 16, 2015, the trial court entered its order, which denied Father’s

       requests for modification of parenting time and child support. The order also

       addressed mother’s request for attorney fees. In denying the request for fees,

       the court stated that it had examined the fee-shifting provision of the

       Agreement, “which refers to the discretion of the court.” App’x at 132.

       Concluding that neither Mother nor Father had acted blamelessly, and that the

       issues Father presented were “not wholly groundless,” the court denied

       Mother’s request for attorney fees. App’x at 132.


[12]   On February 17, 2015, Mother filed a motion to correct error challenging the

       trial court’s denial of her request for attorney fees. After a hearing on April 24,

       2015, the trial court denied Mother’s motion to correct error.


[13]   This appeal ensued.



                                  Discussion and Decision
[14]   Mother appeals the trial court’s denial of her motion to correct error, which

       challenged the trial court’s order denying her request that Father pay the

       attorney fees Mother incurred in defending against the Petition. We review a
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       trial court’s decision on a motion to correct error for an abuse of discretion,

       which occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it, or when the trial court erred on a

       matter of law. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App.

       2010), trans. denied.


[15]   The underlying question here is a question of law: whether the fee-shifting

       provision in the Agreement required that the trial court award attorney fees to

       Mother when Father’s petition was denied. Here, the Agreement was

       incorporated into a trial court’s order. The Indiana Supreme Court has held

       that trial courts are “in the best position” to clarify their prior orders, and the

       authority of a trial court in a dissolution case to interpret its own divorce decree

       is “an extension of ‘the necessary and usual powers essential to effectuate [the

       dissolution of a marriage.]’” Fackler v. Powell, 839 N.E.2d 165, 167 (Ind. 2005)

       (quoting Behme v. Behme, 519 N.E.2d 578, 582 (Ind. Ct. App. 1988)).


[16]   The fee-shifting provision at issue in this case provides:

               In the event that any action is filed with regard to this Agreement, the
               unsuccessful party in the action shall pay to the successful party, in
               addition to all sums that either party may be called upon to pay, a
               reasonable sum for the successful parties [sic] attorney fees at the
               discretion of the court.
       App’x at 57.


[17]   In her appeal, Mother argues that the trial court abused its discretion when it

       did not award attorney fees, because the fee-shifting provision states that “the

       unsuccessful party in the action shall pay” the other party’s fees. App’x at 57

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       (emphasis added). Under this construction, the language of the Agreement’s

       fee-shifting provision means that the trial court was bound to order attorney

       fees, and thus the court’s discretion would have been limited to determining

       what amount of fees constituted a reasonable amount. The trial court,

       however, interpreted the fee-shifting provision as preserving discretion not only

       in setting the amount of fees, but also in determining whether or not a party

       could recover attorney fees at all.


[18]   The Agreement, together with its fee-shifting provision, was adopted as part of

       a trial court’s order, and “the trial court retains jurisdiction to enforce its own

       decree, because it is in ‘the best position to resolve questions of interpretation.’”

       Schwartz v. Heeter, 994 N.E.2d 1102, 1108 (Ind. 2013). The parties to an

       agreement, as well as the trial court, are presumed to have contemplated the

       law in effect at the time of the agreement. Id. In light of these standards, we

       think the trial court’s interpretation was a reasonable one given the tension

       inherent in the statement that “the unsuccessful party in the action shall pay …

       [the other party’s] attorney fees at the discretion of the court.”


[19]   Finding no error in the trial court’s decision, we affirm its denial of Mother’s

       motion to correct error with respect to the denial of her request for attorney

       fees.


[20]   We write further today, however, to express concern with fee-shifting

       provisions in agreements related to child support and parenting time in light of

       our state’s public policy. Our statutes provide that a trial court may, in its


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       discretion, order the payment of attorney fees in litigation concerning the

       enforcement or modification of parenting time orders. Ind. Code § 31-17-4-3;

       also I.C. § 31-15-10-1 (pertaining to attorney fees in initial dissolution

       proceedings). Such statutory provisions have as their purpose ensuring that “a

       party, who otherwise could not afford an attorney in connection with

       dissolution proceedings, have access to an attorney’s services by providing that

       the other party is responsible for paying the attorney fees.” Beeson v. Christian,

       594 N.E.2d 441, 443 (Ind. 1992). Unlike the statutory scheme, fee-shifting

       provisions in contracts generally serve not to ensure access to the courts, but

       rather to ensure that the prevailing party in a contract dispute is made whole.

       Walton v. Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818, 825-26 (Ind. Ct.

       App. 2005).


[21]   The purpose of fee-shifting provisions in the typical contract matter may

       contrast unfavorably with the public policy of this state with respect to the

       rights of children to a relationship with both parents, and to child support. The

       Indiana Supreme Court has long held that “the right of parents to visit their

       children is a precious privilege that should be enjoyed by noncustodial parents.”

       Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind. 2013) (quotations omitted).

       Children are not “to be treated as nothing more than a bargaining chip.” Id. at

       765. Accordingly, the Perkinson Court held that “an agreement to contract

       away a child’s right to receive parenting time … must also be held as void as a

       matter of public policy.” Id. The Indiana Supreme Court has also held that

       child support is duty owed by a parent to a child. Schwartz, 994 N.E.2d at 1107.


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       Thus, child support is not subject to the same negotiation and agreement as

       other civil matters. Id.


[22]   The fee-shifting provision at issue here, construed as Mother suggests, would

       serve to penalize any unsuccessful effort at the modification of parenting time or

       child support. This outcome creates a significant disincentive for parents to

       seek additional parenting time with their children, and seems at odds with this

       state’s public policy concerning the primacy of the best interest of the child with

       respect both to parenting time and child support. See id. at 1107. Here,

       however, the trial court was within the law and its discretion in interpreting its

       own order and reaching its conclusion denying Mother’s request for attorney

       fees.


[23]   Affirmed.


       Crone, J., concurs.


       Vaidik, C.J., concurs in result without separate opinion.




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