Worrell v. Worrell

172 N.E.3d 705 (Table)

Brian WORRELL, Appellant-Petitioner,

v.Cynthia WORRELL, Appellee-Respondent,

Court of Appeals Case No. 20A-DR-2106

Court of Appeals of Indiana.

FILED July 26, 2021

Attorney for Appellant: Christopher M. Gilley, Gilley, Dandurand, & Summerfield, Anderson, Indiana

Attorney for Appellee: Allison Martinez Wheeler, Wheeler Law Firm, LLC, Indianapolis, Indiana

MEMORANDUM DECISION

Robb, Judge.

Case Summary and Issue

[1] Brian Worrell ("Father") and Cynthia Worrell ("Mother") are the parents of five children, three of whom are now emancipated, and have been divorced since November 2011. The current post-dissolution proceeding began in 2018, when Father filed a motion for rule to show cause alleging Mother was in contempt of a court order regarding one of the children's extracurricular activities. He subsequently filed a motion seeking to restrict Mother's parenting time with the children and modify child support accordingly. Mother filed a motion for rule to show cause alleging Father was also in contempt. Those three motions were heard by the trial court in 2020. The trial court denied all pending motions. In addition, the trial court considered issues remanded to it from an earlier appeal in this case and determined that 1) Father should pay $10,000 of Mother's attorney fees; 2) Father should reimburse Mother $2,830 for her overpayment of child support for two of their emancipated children, and 3) Father's request for Mother to pay his appellate attorney fees had been deemed denied.

[2] Father now appeals, raising two issues for our review: 1) whether the trial court erred in denying his petition to restrict Mother's parenting time; and 2) whether the trial court erred in its orders on the financial issues. Concluding the trial court did not err in denying Father's petition to restrict Mother's parenting time, ordering reimbursement of Mother's overpayment, or not awarding Father appellate attorney fees, but did err in ordering Father to pay $10,000 of Mother's attorney fees without conducting an analysis of the attorney fees each owed to the other, we affirm in part and remand in part.

Facts and Procedural History

[3] When the parties divorced in 2011, they agreed to joint legal custody of their five children, with Father having primary physical custody of the parties’ two oldest children ("the girls") and Mother having primary physical custody of the parties’ three youngest children, C., P., and M. ("the boys"). They set a parenting time schedule and determined the child support obligation each owed to the other, resulting in a net payment from Father to Mother of $174.00 per week.¹ Soon after the dissolution decree was signed, the parties began to file numerous motions to modify custody and parenting time and motions for contempt based on parenting time issues. As described in one of the trial court's post-dissolution orders, "Since the dissolution, the parties’ relationship has remained contentious and fraught with conflict." Appellee's Appendix, Volume 2 at 56.

[4] In June 2015, the trial court ruled on various motions to modify parenting time and/or custody and motions for contempt filed by both parties. The court found that the girls had turned eighteen years of age and were no longer subject to the court's orders regarding custody and parenting time. The trial court further found that a change in custody was not in the boys’ best interests, keeping primary physical custody with Mother. The court also found both parties in contempt of previous court orders: Mother for failing to ensure that Father had visitation with the boys and Father for failing to ensure that Mother had visitation with the girls. Because the girls were over eighteen by this time, Father was "simply unable to purge his Contempt by restoring [Mother] with meaningful visitation[.]" Id. at 61. Therefore, the court ordered Father to purge his contempt by paying $10,000 of Mother's attorney fees over sixteen months beginning in September 2015. See id.² Prior to this order, Mother's attorney had submitted a summary of her fees showing Mother owed her $27,086.20 as of October 3, 2014. See id. at 49-54. Father filed a motion to correct error raising issues related to the trial court's failure to modify custody of the boys and the contempt sanction against him. While that motion was pending, the parties filed multiple additional motions.³

[5] In May 2016, the trial court ruled on Father's motion to correct error and other pending motions. The trial court modified custody of the boys to grant Father primary physical custody with Mother to have parenting time pursuant to the Indiana Parenting Time Guidelines. They continued to share joint legal custody with Father having final medical decision-making authority. The trial court found the girls were emancipated as of their high school graduation and modified Mother's child support obligation to zero as of June 19, 2015, but did not address whether or in what amount Mother had overpaid child support since that date. And finally, the trial court found that Mother "willfully, wantonly, and regularly denied Father visitation time with the [boys] without notice or good cause." Appellee's App., Vol. 2 at 65. With respect to Mother's contempt, the trial court ordered:

Due to Mother's wanton and willful contempt of the Court's order, she shall pay to Father attorney's fees. Father was previously ordered to pay attorney fees for contempt. Father previously paid attorney fees under the Court's last order.^{[4 ]} As of the date of this order, the parties shall no longer be indebted to one another resulting in a zero sum net to Mother or Father.

Id. at 69.⁵

[6] Mother and Father both appealed the trial court's 2016 order. As relevant to this appeal, Mother appealed the trial court's failure to calculate her child support overpayment based on the emancipation date of the girls and its modification of the 2015 order that Father pay a portion of her attorney fees. With respect to child support, a panel of this court noted that the trial court correctly found that Mother's child support obligation ended on the date of emancipation. However, because the trial court failed to indicate the amount Mother paid in child support after that date, we remanded for the trial court to calculate and order Father to reimburse Mother in that amount. See Appellant's Appendix, Volume 2 at 95 (Worrell v. Worrell , Cause No. 06A-1606-DR-1456 at ¶ 20 (Ind. Ct. App. Aug. 9, 2017)). As to the "zero sum" attorney fee provision, we held the order did not "explain how it arrived at a ‘zero sum’ balance [and] did [not] provide any findings that support that ‘zero sum.’ " Id. at 97. We therefore remanded to the trial court to clarify its order regarding attorney fees. Id. As for Father's request that the court award him appellate attorney fees pursuant to Appellate Rule 66(E), we found Mother's appeal was not frivolous or in bad faith and therefore "each party shall be left to pay his or her own appellate attorney fees." Id.⁶

[7] Father filed a new motion for rule to show cause just days after the Court of Appeals opinion was handed down, alleging that despite a prior court order that Mother facilitate C.’s participation in band during her parenting time, Mother had failed to take C. to band practice for a week in July 2017. Father requested Mother be found in contempt and ordered to pay his attorney fees incurred in preparing the motion. The trial court held a hearing on August 17, 2017, to address Mother's compliance with its previous orders, Father's new motion for rule to show cause, and the issues remanded back to the trial court by the Court of Appeals.⁷ Following the hearing, Father filed a Brief in Support of Award of Attorney Fees and Motion for Appellate Attorney Fees. He requested an order that Mother pay $1,000 for attorney fees incurred due to the most recent motion for rule to show cause and also requested the trial court "award him attorney fees for the appellate costs incurred for [Mother's] baseless appeal[,]" citing no authority for such award and failing, despite quoting extensively from the Court of Appeals opinion, to acknowledge the Court found Mother's appeal was not frivolous or in bad faith and had therefore denied his request for such fees pursuant to Appellate Rule 66(E). Id. at 43. He argued that even after crediting Mother the amount she had overpaid in child support, she should still owe him in excess of $5,000 in attorney fees. See id. at 44-45.

[8] On September 8, the trial court issued an order from the August 17 hearing. With respect to the remanded issue of Mother's overpayment of child support, the trial court determined Mother had overpaid by $4,080⁸ but owed Father $1,250 in fees for various instances of contempt, and therefore ordered Father to reimburse Mother the difference of $2,830 within twelve months. The court did not address the remanded "zero sum" attorney fee provision. The court acknowledged that Father had requested an additional setoff from Mother's child support overpayment for his appellate attorney fees but stated it would rule on that issue no earlier than September 25 to give Mother time to respond.

[9] In July 2018, Father filed a Petition for Rule to Show Cause and Request for Hearing on Appellate Attorney Fees. The petition alleged that despite the court order requiring Mother to ensure that C. attended all band activities that occur during her parenting time, she again failed to do so on two dates in July 2018. The petition also asked the trial court to schedule a hearing on the appellate attorney fee issue left undecided in the September 2017 order, as Mother had never responded to Father's request and the trial court had not yet ruled on it.⁹ Before a hearing was held on that petition, however, Father filed a Petition to Modify Parenting Time and Child Support with respect to C. and P., seeking to terminate Mother's parenting time with them. He alleged that Mother was ...