PYLE, Judge.
Kelley L. Kelly ("Father") appeals the denial of his motion to correct error following the entry of the trial court's post-dissolution order awarding $5,000.00 in attorney fees to his former wife, Tiffany
We affirm.
Whether the trial court abused its discretion by ordering Father to pay a portion of Mother's attorney fees.
During Father and Mother's marriage, they had one child, T.K., who was born in 2003. The parties dissolved their marriage in September 2006 and entered into a settlement agreement regarding child custody, support, and visitation. Under their agreement, Father and Mother shared legal custody of T.K., with Father having primary physical custody.
Following their dissolution, both parties remarried. Father married Tammy Kelly ("Stepmother"), who had two adult children from a previous marriage. Mother married John Kravec ("Stepfather"), who had a child, N.K., who was close in age to T.K. Father, Mother, and Stepfather were employed by or had served in the military.
In 2007, a petition to modify custody was filed.
On August 11, 2009, the parties entered an Agreed Stipulation ("2009 Agreed Stipulation") to resolve all pending custody matters.
(App. 63). In the 2009 Agreed Stipulation, the parties also agreed that each party was responsible for his or her own attorney fees. The trial court entered a nunc pro tunc order accepting the 2009 Agreed Stipulation, including the provision that Stepfather's contact with T.K. be supervised until he completed the additional psychological evaluation.
Following Stepfather's evaluation with Dr. Ross, Father and Mother were unable to resolve the issue of removing the prohibition on Stepfather's contact with T.K. Therefore, on October 23, 2009, Mother filed a Petition to Modify Court Order, seeking to remove the provision that Stepfather's contact with T.K. be supervised. In her petition, Mother asserted that Father was "unwilling to reach an agreement on this issue" and requested that Father be ordered to pay her attorney fees incurred in relation to the matter. (App. 85). In February 2010, following a case management conference regarding Mother's petition, the trial court scheduled a trial on Mother's petition for September 27, 2010 and appointed a guardian ad litem.
Thereafter, in May 2010, Father issued non-party requests for documents and subpoenas duces tecum, seeking to obtain Stepfather's employment and health care records as well as the health care records of Stepfather's daughter. Mother then filed an objection to Father's non-party discovery requests. In her objection, Mother asserted that Father's non-party requests sent to Stepfather's employers, Ball State University Army ROTC and IPFW University Army ROTC, were a "witch hunt" and "could unnecessarily harm [Stepfather's] military career." (App. 98). Mother also sought to recover attorney fees in connection with the matter. Additionally, the Army notified Father that it could not release the requested information without a written release authorization or a court order. Stepfather refused to sign a release for his and his daughter's medical records.
On September 9, 2010, Father filed a motion to continue the September 27, 2010 trial on Mother's Petition to Modify Court Order. On September 24, 2010, after holding a hearing, the trial court issued an order on Mother's objection to Father's non-party discovery and on Father's motion to continue the trial. The trial court ruled that Father's non-party requests for Stepfather's employment and health care records were relevant to the trial issue, which was "what restrictions, if any, should be placed on [Stepfather's] contact with [T.K.] during [Mother's] parenting time." (App. 118). The trial court, however, ruled that Father's request for Stepfather's daughter's health care records was not relevant. The trial court also granted Father's continuance motion and rescheduled the trial to June 6 and 7, 2011.
In May 2011, the parties filed a stipulation for a continuance of the June 2011 trial due to the fact that Stepfather's employment required him to be in Afghanistan from May 22, 2011 to August 31, 2011. The trial court granted the parties' stipulated continuance and reset the trial for February 24, 2012.
In October 2011, the parties agreed to mediate, and the trial court entered an order granting their stipulation for mediation. Prior to attending mediation, both parties filed a motion to modify parenting time, with Mother filing her motion on November 3, 2011 and Father filing his motion on December 7, 2011. In Mother's motion, she requested additional parenting time during the occasions when Father was out of town or needed child care, and she requested that Father be responsible for her attorney fees. Father's motion
On January 18, 2012, the parties filed an Agreed Stipulation ("2012 Agreed Stipulation"). In relevant part, the parties agreed that "the requirement that [T.K.] not be left alone with [Stepfather] without [Mother] being present, pursuant to the Court's Order of September 9, 2009, shall be terminated[.]" (App. 138). The 2012 Agreed Stipulation did not contain any provisions regarding Mother's request for attorney fees and noted that a hearing was scheduled for all pending matters. That same day, trial court entered an order granting the parties' 2012 Agreed Stipulation.
The trial court held hearings on the parties' pending matters on February 24, 2012, March 26, 2012, and July 12, 2012. At the beginning of the February hearing, Mother's counsel asked the trial court to award attorney fees to Mother for the fees she incurred to resolve the issue regarding Stepfather's contact with T.K. during Mother's parenting time. Father argued that the attorney fee issue was not preserved and had been resolved by the 2012 Stipulated Agreement. Father also argued that the attorney fee issue was barred by "res judicata as a result of the order adopting [the parties'] agreement." (Tr. 14).
On the day of the March 26, 2012 hearing, Father filed a memorandum in opposition to Mother's request for attorney fees. Specifically, Father argued that Mother could not seek attorney fees because the 2012 Agreed Stipulation did not include any provision regarding the recovery of attorney fees. Father alleged that Mother's request for attorney fees was a request for the trial court to modify or set aside its order accepting the 2012 Stipulated Agreement, and he argued that Mother had failed to allege any grounds under Indiana Trial Rule 60(B) to set aside that order.
On the day of the July 12, 2012 hearing, Mother filed a response to Father's objection and a memorandum in support of her attorney fee request. In her memorandum, Mother argued that the omission of an attorney fee provision in the 2012 Agreed Stipulation neither resolved the attorney fee claim nor precluded her from raising the issue. During the hearing, Mother offered into evidence Respondent's Exhibit V, which was an attorney fee affidavit with an itemization of fees attached that revealed that Mother had incurred attorney fees totaling $49,020.34 from September 2009 to July 2012. Father specifically stated that he had "[n]o objection" to the admission of Mother's attorney fee affidavit, and he did not challenge the amount of fees. (Tr. 477).
On December 7, 2012, the trial court issued an order, which, in relevant part, awarded $5,000 in attorney fees to Mother.
(App. 33, 36-37). Aside from the award of $5,000.00 in attorney fees to Mother, the trial court ordered that the parties were responsible for their own respective attorney fees.
Father then filed a motion to correct error, arguing, in relevant part, that the trial court had erred by ordering Father to pay Mother $5,000.00 for attorney fees that she incurred regarding Father's delay in removing the restriction on Stepfather's contact with T.K. Father alleged that Mother had resolved the issue of Stepfather's contact in the 2012 Stipulated Agreement but had failed to obtain an agreement regarding attorney fees. Father also alleged that Mother had failed to present evidence of the specific fees that she would not have incurred but for Father's delay. The trial court denied Father's motion in regard to the attorney fee issue, finding that Mother was not precluded from seeking attorney fees by the parties' 2012 Stipulated Agreement; that Mother submitted evidence of her attorney fees via her attorney's fee affidavit; and that award of attorney fees was reasonable.
The sole issue in this appeal is attorney fees. Father argues that the trial court abused its discretion by ordering him to pay $5,000.00 of Mother's attorney fees. We have set forth our review of a trial court's decision to award attorney fees as follows:
Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind.Ct.App.2012) (internal citations and quotation marks omitted), trans. denied. Additionally, where, as here, the trial court entered findings of fact and conclusions of law, we will not set aside the findings or judgment unless clearly erroneous, and we will not reweigh the evidence or reconsider the credibility of witnesses. Best v. Best, 941 N.E.2d 499, 502 (Ind.2011).
Generally, Indiana observes the American rule that a party must pay his or her own attorney's fees absent an agreement between the parties, a statute, or other rule to the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind.2012). Here, the trial court awarded attorney fees under Indiana Code § 31-17-4-3, which provides:
Father argues that the trial court's award of attorney fees was erroneous because: (a) Mother's conduct was the cause of her attorney fees; (b) Mother's attorney fee request was barred by res judicata; and (c) the trial court did not hold a separate hearing on the reasonableness of Mother's attorney fees.
Father first argues that the trial court erred by awarding attorney fees to Mother because her attorney fees were a result of her own misconduct and failure to cooperate, not his.
The record before us reveals that in August 2009, Father and Mother signed the 2009 Stipulated Agreement with a provision that Stepfather's contact with T.K. would be supervised by Mother during Mother's parenting time until Stepfather was able to complete an evaluation with Dr. Ross.
Father's argument that the trial court's award of attorney fees was improper because Mother's misconduct was responsible for the delay in resolving the supervised contact issue is nothing more than a request that we reweigh the evidence and witness credibility, which we will not do. See Best, 941 N.E.2d at 502. Upon review of the record, we conclude that the trial court did not abuse its discretion by ordering Father to pay a portion of Mother's
Father also argues that Mother's attorney fee request was barred by res judicata, specifically by claim preclusion. Father contends that the parties' 2012 Agreed Stipulation precluded Mother from seeking attorney fees during the parenting time hearing because the stipulation did not address the attorney fee issue.
"The doctrine of res judicata prevents the repetitious litigation of disputes that are essentially the same." Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind.Ct.App.2005), trans. denied. Claim preclusion applies when a "final judgment" on the merits has been rendered in a prior action, and it acts to bar a subsequent action on the same claim between the same parties. Id. A "final judgment" is one which "disposes of all claims as to all parties[.]" App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App.2002) (explaining that a final judgment is one that "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues" and "reserves no further question or direction for future determination" (citations and internal quotations omitted)).
Here, at the time the parties entered into the 2012 Agreed Stipulation to resolve the Stepfather contact issue, they also each had a motion to modify parenting time pending before the trial court. The 2012 Agreed Stipulation did not contain any provision regarding attorney fees but noted that all pending matters were scheduled for a future hearing. The trial court entered an order approving the parties' 2012 Agreed Stipulation, but that order was not a final judgment because there were still matters pending before the trial court and because it did not dispose of all issues. Accordingly, claim preclusion does not apply because the 2012 Stipulated Agreement was not a final judgment. See, e.g., Pond v. McNellis, 845 N.E.2d 1043, 1054 (Ind.Ct.App.2006) (holding that res judicata did not apply where a trial court's order was not a final judgment), trans. denied. Thus, the attorney fee issue was not barred by res judicata.
Lastly, Father argues that the trial court's award of attorney fees to Mother was erroneous because the trial court did not hold a separate evidentiary hearing on the reasonableness of Mother's attorney fees.
Here, the record reveals that during the July parenting time modification hearing, Mother submitted her attorney's fee affidavit to show the amount of attorney fees that she had incurred. The affidavit showed the hourly billing rates for the attorney and paralegal, and attached to the affidavit was a detailed bill that explained the time spent, amount charged, and the specific description of the work done. Father, however, did not challenge the reasonableness of the fees or request an evidentiary hearing relating to attorney fees. Instead, Father specifically stated that he had no objection to Mother's attorney fee affidavit.
"When a party fails to make an objection to the trial court, it cannot raise the objection on appeal." Wilcox Lumber Co., Inc. v. The Andersons, Inc., 848 N.E.2d 1169, 1171 (Ind.Ct.App.2006). Because Father did not object to the admission of the fee affidavit, the reasonableness of the fees, or the lack of a separate evidentiary hearing, he has waived appellate review of any argument challenging the lack of separate hearing or reasonableness of the fees.
Affirmed.
BARNES, J., and CRONE, J., concur.
Waiver notwithstanding, we note that one of the cases upon which Father relies, Reuille, has been vacated by our Indiana Supreme Court's grant of transfer. Additionally, Father's reliance on Stenger is misplaced. In that case, we held that when an offer of judgment under Indiana Trial Rule 68, and acceptance of that offer, and resulting judgment are "completely silent on the issue of attorney's fees and appear to otherwise settle all claims between the parties, the judgment cannot be interpreted to leave the issue of attorney fees open." Stenger, 819 N.E.2d at 484. Unlike Stenger, here, there was no offer of judgment under Indiana Trial Rule 68 and the 2012 Agreed Stipulation did not settle all claims between the parties.