FRIEDLANDER, Judge.
William Gerard (Father) appeals the award of attorney and expert witness fees to Althea Gerard (Mother) in an action involving the modification of Father's parenting time with the parties' minor child, C.G. On appeal, Father claims that the trial court abused its discretion by ordering him to pay these fees, totaling over $14,500.
We affirm.
Mother and Father were married in January 1999 and separated in June 2008, when their only child, C.G., was seven years old. During the parties' two-year separation, Father had little contact with his daughter. At the beginning of her parents' separation, C.G. began therapy with Christine Ottaviano Shestak to deal with anxiety and other issues.
On July 1, 2010, the trial court entered an order approving the marital settlement agreement executed by the parties. The agreement granted Mother sole custody of C.G. and provided for parenting time as follows:
Appellant's Appendix at 23-24.
Father had two family therapy sessions with Shestak, C.G.'s established counselor, prior to the dissolution decree being entered. These occurred on June 7 and 22, 2010. At the end of the second session, Mother, Father, and Shestak began discussing supervised parenting time on July 11 and follow-up family therapy on July 13. A disagreement arose between Father and Mother regarding whether one or two supervisors were required to be present during parenting time. Shestak indicated that the supervised parenting time should be in compliance with the dissolution decree at which time Father angrily advised that he had not yet signed the agreement and accused Shestak of trying to keep his daughter from him.
In a follow-up letter to counsel sent June 23, Shestak provided in part:
Exhibits at 54. Father executed the agreement on June 30, and the agreement was approved by the trial court as set forth above.
By July 2, Shestak had learned that Father, by advice of counsel, secretly audio taped the two family therapy sessions in June. After speaking with Dr. Davidson and consulting the ethics departments of the American Counselors Association and the American Mental Health Counselors Association, Shestak cancelled the upcoming supervised parenting time and suspended family therapy until a court order could be issued directing Father not to tape the sessions in violation of HIPAA.
On July 7, less than a week after entry of the dissolution decree, Father filed a petition for citation against Mother. As grounds for contempt, the petition provided in part:
Exhibits at 36-37.
Thereafter, on July 21, Mother filed a petition for citation against Father, alleging in part:
Id. at 39. This same day, Mother also filed a request for production of electronically stored information, seeking copies of all tapes made by Father during the family therapy sessions.
On August 5, Father filed a petition for contempt finding against Shestak and to remove her from the case.
The trial court held an evidentiary hearing on all pending matters on September 17 and December 15, 2010. Between these two dates, Mother filed a motion for appointment of a guardian ad litem (GAL). Over Father's objection, the court appointed a GAL on November 3.
Following the December hearing, the trial court issued an order, on December 20, quashing the subpoena issued to Shestak by Father, denying the petition for contempt against Shestak and to remove her from the case, prohibiting the recording of family therapy sessions without the written authorization of all present, and finding that Father violated HIPPA by secretly recording the counseling sessions. Further, the court ordered Father to pay Shestak's attorney fees in the amount of $3403.60.
On December 21, the trial court issued a temporary order regarding supervised parenting time, as agreed by the parties at the prior hearing. Accordingly, Father was granted parenting time on five different days (December 23 and 24, January 8 and 22, and February 5) for three to four hours each. Two supervisors were required to be present during parenting time, one selected by Father and one selected by Mother. Further, the order provided that Shestak and Dr. Davidson would remain involved in the post-dissolution matter. A status hearing was scheduled for February 7, 2011.
Following the February status hearing, the court issued another temporary order increasing by one hour each period of supervised parenting time, which was set at about twice a month. The court scheduled a hearing "on the issue of parenting time" for April 21, 2011. Appellant's Appendix at 64. The hearing was ultimately delayed until November 2, 2011.
In the interim, Father filed a motion for C.G. to see Dr. Davidson. Mother objected and noted that the GAL had previously proposed a joint session between Father, C.G., Shestak, and Dr. Davidson. The court agreed with Mother and ordered a joint session, which the court viewed as "more likely to be emotionally easier on the child and therefore more in the child's best interest". Id. at 72. The joint session occurred in April. Dr. Davidson subsequently filed a report with the court, the parties, and the GAL providing a number of recommendations regarding future family therapy and indicating some concern with the therapy provided by Shestak. In sum, he stated that he saw no benefit to C.G. for his continued involvement in "so called family sessions" and no benefit in further communication with Shestak. Id. at 75.
On June 22, 2011, Mother and Father agreed with the GAL's recommendation to switch to Dr. Therese C. Mihlbauer for family therapy. After meeting with Father on October 21, however, Dr. Mihlbauer advised the GAL that she was not willing to work with Father "given his current mindset" and indicated that Father should not be seen for therapy with his child.
On November 2, 2011, the court held an evidentiary hearing on Father's request for "the expansion of parenting time." Transcript at 122-23. When the court indicated at the beginning of the hearing that it believed Father was the moving party for change and that he should go first, Father did not object. Rather, he proceeded with the presentation of his evidence in support of increased parenting time. Father acknowledged on cross examination that he does not trust Shestak, Dr. Mihlbauer, or the GAL. He believes no change is needed on his part and that C.G. has been brainwashed by Mother and is not in a fragile, psychological state as represented by others.
At the hearing, Mother requested that the supervised parenting time remain the same (a four to five hour period every other week) until the professionals involved in the case advised otherwise. Mother also requested attorney and witness fees incurred since Father's contempt filing against her in July 2010. Mother claimed that the contempt filing was frivolous and noted that she also incurred fees as a result of his filings with regard to Shestak and the instant hearing on the expansion of parenting time. Mother testified that paying the fees was difficult for her, detailing her current financial situation.
In addition to her own testimony, Mother called Dr. Mihlbauer, Dr. Gregory Sowles, Shestak, and the GAL as witnesses. Dr. Sowles, the original custody evaluator who prepared psychological evaluations of the parties, opined that C.G. had a genuine fear of Father that was not coached. Dr. Sowles described it as "a global sense of anxiety where her dad is concerned." Transcript at 205. Shestak and the GAL both testified that C.G. continues to exhibit great fear of Father and that in their opinion C.G. cannot emotionally handle more parenting time with Father yet. Both felt that an increase in the parenting time schedule could significantly impair the child's emotional development given her high level of anxiety and Father's demonstrated unwillingness to change.
The trial court took the matter under advisement and issued its order on November 21, 2011. In its lengthy order, the court ultimately found:
Appellant's Appendix at 18. Thus, the order maintained the status quo, including the requirement of two supervisors during Father's parenting time. Citing Ind. Code Ann. § 31-17-4-3 (West, Westlaw current with all 2012 legislation), the court also ordered Father to pay Mother's attorney fees ($8360.04) and witness fees ($6195.00), as well as one-half of the GAL fees. Father now appeals, challenging only the award of attorney fees and witness fees.
I.C. § 31-17-4-3 provides:
This statute is discretionary and allows the court to consider an unlimited number of factors. In assessing the award of attorney and litigation expenses, the court may consider such factors as the respective economic conditions of the parties, whether misconduct of one party resulted in the other party incurring additional fees, and other factors which bear on the reasonableness of the award. Meade v. Levett, 671 N.E.2d 1172 (Ind. Ct. App. 1996). The court, however, is not required to give a reason for its decision to award fees. Holmes v. Holmes, 726 N.E.2d 1276 (Ind. Ct. App. 2000), trans. denied. We will reverse a trial court's decision in this regard only if the award is clearly against the logic and effect of the facts and circumstances before the court. Meade v. Levett, 671 N.E.2d 1172.
The essence of Father's appellate argument is that I.C. § 31-17-4-3 is not applicable in the instant case because he never filed a request to modify or enforce an order regarding parenting time. If Father's contempt filings against Mother and Shestak, his petition to remove Shestak from the case, his "60(B)(1) Motion for Relief from Judgment or Alternatively, to Modify Section VIII Parenting Time/Parental Access",
The record reveals that the November 2, 2011 hearing was conducted with Father as the moving party on the issue of his request for expanded parenting time as contemplated by the original decree. Regardless of Father's assertion regarding the state of the pleadings, he cannot reasonably claim that he was not seeking enforcement or modification of his parenting time rights throughout this process, which entailed multiple hearings, two temporary orders regarding parenting time, and a final order. Accordingly, the trial court had authority to award reasonable attorney fees, court costs, and other reasonable expenses of litigation pursuant to I.C. § 31-17-4-3.
We now consider whether the trial court abused its broad discretion by awarding attorney and witness fees to Mother. On appeal, Father argues only that the factors expressly listed in I.C. § 31-17-4-3(b)(1) and (2) are inapplicable to this case. He ignores, however, that these factors are nonexclusive and that an award of fees may be premised on other factors.
In the instant case, the trial court did not explain the basis of the award of fees to Mother. Thus, we look to the record to determine whether the award is clearly against the logic and effect of the facts and circumstances before the trial court. At the final hearing, Mother testified briefly regarding her financial situation and indicated that it is difficult for her to pay the attorney and witness fees that have accumulated during the post-dissolution proceedings. Further, the record indicates that Father's unauthorized recording of the June 2010 family therapy sessions, in violation of HIPPA, is what led to the temporary cessation of family therapy sessions, delay in supervised parenting time, and the flurry of filings immediately following entry of the dissolution decree.
Finally, although we agree with Father that his basic action to obtain additional parenting time was not frivolous, some of his filings were. Of particular note, we observe that there was no basis for his 60(B)(1) Motion for Relief from Judgment or Alternatively, to Modify Section VIII Parenting Time/Parental Access, which was filed only one month after the decree was entered. The record clearly establishes that the number of supervisors to be present during parenting time was a negotiated term in the settlement agreement of which Father was well aware.
In sum, Father has failed to establish an abuse of discretion regarding the award of attorney fees and witness fees pursuant to I.C. § 31-17-4-3.
Judgment affirmed.
MAY, J., and BARNES, J., concur.
Exhibits at 57.
Transcript at 195.
Exhibits at 36. Mother's counsel provided Father with the revised agreement, which had been signed by Mother. Despite arguing with Mother about this issue at the end of the June 22 family therapy session, Father executed the agreement as drafted by Mother's counsel on June 30, 2010.
