Opinion
24A-DR-670
11-27-2024
Brian Scott Graham, Appellant-Respondent v. Cynthia J. Graham and Haley Graham, Appellees-Petitioners
ATTORNEY FOR APPELLANT Carl Paul Lamb Carl Lamb & Associates, PC Bloomington, Indiana ATTORNEYS FOR APPELLEE Joyce Anne Jewell Jewell Law, LLC Bloomington, Indiana, Kristin Linley Garner Slotegraaf Legal P.C. Bloomington, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Monroe Circuit Court The Honorable Kara E. Krothe, Judge Trial Court Cause No. 53C06-1301-DR-16
ATTORNEY FOR APPELLANT Carl Paul Lamb Carl Lamb & Associates, PC Bloomington, Indiana
ATTORNEYS FOR APPELLEE Joyce Anne Jewell Jewell Law, LLC Bloomington, Indiana, Kristin Linley Garner Slotegraaf Legal P.C. Bloomington, Indiana
MEMORANDUM DECISION
WEISSMANN, JUDGE.
[¶1] When they divorced, Brian Scott Graham (Father) and Cynthia Graham (Mother) agreed, and the court ordered, that they share a portion of their three children's college expenses and that Father pay Mother a percentage of his bonus income as child support. When Father later sought modification of the orders, Mother moved to hold Father in contempt for paying less than he owed in college expenses and bonuses. Father then petitioned to end his contribution to their daughter's college expenses altogether based on her grades and her alleged repudiation of their relationship.
[¶2] The post-dissolution court found Father in contempt for violating the college expenses order and ordered him to pay $5,116.73 in unpaid bonus income, $11,344.68 in back college expenses, and $20,850 toward the attorney fees separately incurred by Mother and the parties' youngest daughter (Daughter). Father appeals both the contempt finding and the court's payment orders. We affirm.
Facts
[¶3] Father and Mother were married in 1996 and divorced 18 years later. They are the parents of three children, two of whom are in college. As part of their divorce, Father and Mother entered into a settlement agreement, which the trial court later incorporated into its Decree of Dissolution. The decree provided:
Bonus Income. In addition to weekly child support obligation . . . [Father] shall also pay to [Mother] as child support, Eleven
Percent (11%) of the gross amount of any bonus or extraordinary income he receives, payable to [Mother] within ten (10) days of [Father's] receipt of the bonus or extraordinary income. [Father] will also concurrently provide documentation of his bonus to [Mother], and the means by which the support percentage was calculated ....
College Expenses. The parties agree that each of the children shall be responsible for contributing one third (33%) of the cost of his or her college education through scholarships, grants, fellowships, student loans, and work study or other employment. The remaining costs of each child's undergraduate college education, after applying any available grants, scholarships, or fellowships, that exceed the child's share shall be divided between the parties, with Mother paying one third (33%) and Father paying one third (33%). The "cost of college" is defined as tuition, room and board, required fees, and textbooks. The parties' obligations for the cost of the children's undergraduate college educations shall be limited to the residential costs of an Indiana state-supported institution, shall be limited to four (4) consecutive years per child, and shall continue only so long as the child maintains a cumulative grade point average equivalent to a "B" or better.App. Vol. II, pp. 46-47.
[¶4] After several years, Father and Mother requested that the trial court modify certain portions of its dissolution decree. In July 2021, the court approved the parties' Mediated Agreed Order, which provided:
BONUS INCOME: Commencing in January 1, 2021, in addition to the weekly child support obligation set forth above, Father shall also pay Mother as and for child support, nine percent (9%) of all income Father receives over his base salary of $93,912.00, with said monies to be payable to Mother within ten
(10) days of Father's receipt of the bonus or extraordinary income. Father shall also concurrently provide documentation of his bonus to Mother, and the means by which the support percentage was calculated.
For the year 2021, Father agrees to provide Mother his income information when he receives his W-2 and the parties shall reconcile any monies owed at that time." ....
The parties shall continue to be obligated to pay a portion of the children's post-secondary educational expenses as provided in the Decree of Dissolution dated April 8, 2014, except as follows: The remaining cost of each child's undergraduate college education, after applying any available grants, scholarships, or fellowships, that exceed the child's share shall be divided between the parties, with [Mother] paying 33% and Father paying 67%. This shall be retroactively effective to January, 2021.Id. at 60-61.
[¶5] Disputes over Father's share of college expenses later arose. Father filed a rambling pro se motion in October 2022, seeking to modify the post-secondary expense orders based on the orders' alleged ambiguities. Father alleged that Mother might be taking out loans in the children's names. He requested the court, among other things, order the parties to pay their respective shares to their children's universities directly and to disclose details of student loans.
[¶6] About three months later, Father, now represented by counsel, petitioned to terminate his responsibility for Daughter's college expenses based on her alleged failure to maintain a B average and her purported repudiation of their relationship. In response, Mother filed a "Verified Motion for Rule to Show Cause" requesting the court find Father in contempt for failing to pay $5,000 of his share of Daughter's and Son's college expenses for the spring 2023 semester. Mother also attached documents showing that Daughter had emailed Father her university's report of her grades for the fall 2022 semester. This report showed that she earned a 3.8 grade point average that semester and that her cumulative grade point average exceeded 3.0.
[¶7] The trial court conducted a joint hearing on these motions. During opening remarks, Mother noted, without objection from Father, that Mother and Father "agreed that there's an issue with bonus income per the [2021] agreement that's also in this issue that we need to address today because all of it comes back to who owes who money and to what amount." Tr. Vol. II, p. 10.
[¶8] After concluding the first day of the hearing but before the second day of the hearing scheduled for two weeks later, Father moved for summary judgment as to Daughter's college expenses. Although he had presented no documentation of Daughter's grade point average in her early years of college, Father contended in his summary judgment motion that no genuine issue of material fact existed as to whether his obligation to pay her college expenses had ceased due to her failure to maintain a B grade point average.
[¶9] The trial court rejected Father's efforts to modify or end his postsecondary educational obligations. It also found Father in contempt for failing to pay his full share of the college expenses of Daughter and Son beginning with the Fall 2022 semester. The court ordered Father to pay within 90 days: (1) $5,116.73 in unpaid bonus income due Mother as child support; (2) $11,344.68 to Mother for Father's unpaid share of postsecondary educational expenses; (3) $10,000 towards Mother's attorney fees; and (4) $10,850 towards Daughter's attorney fees. Father appeals.
Discussion and Decision
[¶10] Father claims the trial court abused its discretion in finding him in contempt. He also contends the court erred in awarding the unpaid bonus income and attorney fees and ordering all the payments, which totaled more than $37,000, to be paid within 90 days. Addressing the two claims in turn, we find no abuse of discretion.
I. The Trial Court Did Not Abuse Its Discretion in Finding Father in Contempt
[¶11] The trial court has discretion to determine whether a party is in contempt of a court order. McCallister v. McCallister, 105 N.E.3d 1114, 1119 (Ind.Ct.App. 2018). "On appeal, we will reverse the trial court's finding of contempt only for an abuse of that discretion-that is, when the decision is against the logic and effect of the facts and circumstances before it." Id. at 1120. During this review, we "neither reweigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence and reasonable inferences in support thereof." Id.
[¶12] A court that finds a party in contempt has discretion to award monetary damages to compensate the other party for injuries resulting from the contempt. In re Adoption of A.A, 51 N.E.3d 380, 387 (Ind.Ct.App. 2016). "We will reverse an award of damages only if there is no evidence to support the award." Id. at 387-88.
[¶13] A party must have willfully disobeyed the court order to be held in contempt. Id. "The court order must be so clear and certain that there could be no question as to what the party must do or not do, such that there could be no question regarding its violation." Id. For that reason, no party may be held in contempt for violating an ambiguous or indefinite order. Id.
[¶14] Father claims the trial court abused its discretion in finding him in contempt because the college expense orders were ambiguous. He testified, and seemingly argues on appeal, that he understood the orders to require Mother and him to split Daughter's and Son's remaining college expenses after each child's grants, fellowships, scholarships, and student loans were applied to the child's total college expenses. The trial court found "Father's alleged confusion [was] not credible." App. Vol. II, p. 32. The college expense provisions of the court's Dissolution Decree and Modified Agreed Order, as well as the record on appeal, support this finding.
[¶15] The Dissolution Decree required each child to contribute 1/3 of the child's college expenses "through scholarships, grants, fellowships, student loans, and work study or other employment." Id. at 7. The decree further provided that "[t]he remaining costs of each child's undergraduate college education, after applying any available grants, scholarships, or fellowships, that exceed the child's share shall be divided between the parties...." Id. Thus, the order made clear that student loans taken out by a child that exceeded the child's 1/3 portion were not to be considered in the division-only grants, scholarships, or fellowships.
[¶16] The Modified Agreed Order generally reaffirmed the college expense portion of the Dissolution Decree. The order simply altered the individual percentages of Father's and Mother's contributions to their shares of each child's college expenses. Rather than splitting the parents' collective share equally, Mother would pay 1/3 and Father would pay 2/3 of the parents' collective share. Id.
[¶17] Neither of the trial court's orders can reasonably be construed as requiring student loans that exceed a child's 1/3 share of their college expenses to be deducted from the child's total college expenses before Father and Mother become liable for any college expenses. The Dissolution Decree expressly provided that only grants, scholarships, and fellowships exceeding a child's 1/3 share may reduce the parents' share, and the Modified Agreed Order reaffirmed that calculation. Under these orders, any student loans taken out by a child may contribute to the child's 1/3 share but do not reduce the parents' share of the child's college expenses.
[¶18] In the end, the trial court reaffirmed the college expense provisions of its prior orders by ruling:
Father shall pay [Son's] post-secondary education expenses as set out in the Decree and Agreed Order. Loans taken out by [Son] which exceed his one-third portion shall not reduce the amount either parent is required to pay.Id. at 41. The trial court did not abuse its discretion in finding Father in contempt for paying less than these unambiguous orders required.
[¶19] Father also contends that the trial court found him in contempt for failing to pay Mother's full portion of his bonus income as required by the Dissolution Decree and Modified Agreed Order. But no such contempt finding was made. In its judgment, the trial court resolved the contempt separately from its disposition of the bonus income issue. The court's contempt finding was limited to Father's underpayment of college expenses.
[¶20] Father does not dispute that he underpaid his bonuses nor does he challenge the trial court's calculation of the amount underpaid. Instead, he claims only that he was improperly "sanctioned" for this underpayment, given that the contempt petition only alleged underpayment of college expenses. Appellant's Br., p. 22. But Father testified regarding the bonuses during his case-in-chief and did not object when Mother did the same and asked the court to order Father to pay the bonus amounts still outstanding. Tr. Vol. IV, pp. 166-68. To the extent Father claims the bonus award is improper because it falls outside the pleadings, Father has waived this issue by raising the issue for the first time on appeal. See Tyagi v. Tyagi, 184 N.E.3d 1159, 1166 (Ind.Ct.App. 2022). Neither Father's challenge to the contempt finding nor his bonus-related arguments justify relief.
II. The Trial Court Did Not Abuse Its Discretion in Ordering Father to Pay Within 90 Days
[¶21] The court ordered Father to pay: (1) $5,116.73 in unpaid bonus income due Mother as child support; (2) $11,344.68 to Mother for Father's unpaid share of postsecondary educational expenses; (3) $10,000 towards Mother's attorney fees; and (4) $10,850 towards Daughter's attorney fees. Father claims the trial court was overly punitive when it ordered him to pay all of these amounts within 90 days. The court also ordered statutory interest to apply to bonus income unpaid at 30 days after the judgment and to the other amounts if not paid within 90 days after the judgment. Addressing the unpaid bonus income and college expenses separately from the attorney fees, we find no abuse of discretion.
A. Unpaid Bonus Income and College Expenses
[¶22] The trial court did not abuse its discretion in ordering Father to repay in short order the $16,000-plus in bonus income and college expenses that he should have paid months or years earlier. As for the college expenses, Father's failure to pay adversely impacted both Daughter and Mother. Daughter was unable to pay her expenses when due which made her anxious. Meanwhile, Mother had to obtain parental loans to offset the shortfall caused by Father's underpayments. She also worked two jobs (70 to 80 hours weekly) to support herself, Son, and Daughter. See id. (ruling that when calculating contempt damages, the court may take into account "the inconvenience and frustration suffered by the aggrieved party") (quotations omitted).
[¶23] The bonus payments arose from 2021 and 2022, when Father was earning $183,623.23 and $154,979.99, respectively. These bonuses went unpaid due to Father's improper use of his taxable income, rather than his gross income, in making the calculations. Father also did not disclose his income documents to Mother or reveal his ownership interest in his new wife's psychology practice.
[¶24] Requiring Father to repay the unpaid bonus and educational expenses relatively quickly ensures he does not benefit further, and that Mother and Daughter will not suffer, from Father's financial misconduct. Nor does Father specifically allege that he lacks the means to pay these particular expenses within the time frame ordered. We find no error.
B. Attorney Fees
[¶25] The trial court's ability to impose attorney fees here arose from two primary sources. First, a trial court has authority to award attorney fees in a postdissolution proceeding. Ind. Code § 31-15-10-1(a) ("The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney's fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment."). Second, a trial court also has inherent authority to award attorney fees for civil contempt. J.S. v. W.K., 62 N.E.3d 1, 9 (Ind.Ct.App. 2016). We review the trial court's award of attorney fees for an abuse of discretion and will reverse only if the award is clearly against the logic and effect of the facts and circumstances before the court. Id.
[¶26] Father challenges the amount of the attorney fees awards, as well as the terms of their payment. As to Daughter's attorney fees, Father argues that Daughter did not require separate counsel from Mother. He notes that the positions of Daughter and Mother on the issues before the trial court were largely similar.
[¶27] But Father's own actions prompted Daughter's need for counsel. Daughter first obtained counsel when Father subpoenaed Daughter for a deposition. Daughter later intervened in the post-dissolution action because Father sought to end his contribution to her postsecondary educational expenses claiming she had repudiated her relationship with him-an action by Father that did not necessarily negatively impact Mother's own interests but would have a dramatic effect on Daughter's interests. And Father does not contest the trial court's order allowing Daughter's intervention in this post-dissolution matter or the wide disparity in their incomes (Father's $150,000 annually compared to Daughter's $100 weekly). Under these circumstances, the trial court did not err in requiring Father to pay Daughter's attorney fees.
[¶28] As to Mother's attorney fees, Father contends Mother could afford to pay them. When determining an attorney fees request in a dissolution action, the court considers the parties' resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors bearing on the reasonableness of the award. Barton v. Barton, 47 N.E.3d 368, 377 (Ind.Ct.App. 2015). Misconduct that directly results in additional litigation expenses may be taken into account when awarding attorney fees. Id.
[¶29] Here, Mother earned a third less than Father, although she worked 70 to 80 hours weekly at two jobs. She had the additional burden of loans that she had taken to fund the children's education, at least partly due to Father's failure to meet his court-ordered obligations. Father increased the costs of litigation by moving for summary judgment midway through the hearings. He also alleged in his motion to modify that he was "happy to support our wonderful children" in their college endeavors but then moved three months later to end those payments based on allegations of repudiation and grades that the trial court rejected. App. Vol. II, p. 66. Ultimately, the court found Father had engaged in various misconduct before and during the litigation, some of which resulted in the contempt finding. Given Father's superior financial position and misconduct, the trial court did not err in requiring him to pay part of Mother's attorney fees.
[¶30] Finally, Father alleges that the attorney fees awards are an abuse of discretion because they must be paid within 90 days or statutory interest will apply to any outstanding amounts. Father suggests the order sets him up for failure, given that he must also pay the tardy bonus and college expense payments within the same time frame. Yet Father largely is responsible for these payments coinciding. If he had paid the bonuses and college expenses when they were due under the court's orders, he would be facing payment of only the attorney fees. Father also does not specifically allege that he lacks the means to pay these amounts. He notes only that the approximate $37,000 in payments equal 92% of his income during the 90-day period as calculated by the trial court. Father does not suggest that he lacks financial assets other than his paycheck to satisfy this judgment. We conclude that Father has failed to show an abuse of discretion in the award of attorney fees for both Mother and Daughter.
[¶31] Given that Father has failed to establish any abuse of discretion as to either the contempt finding or the monetary awards, we affirm the trial court's judgment.
Mother and Daughter request an award of their attorney fees on appeal under Indiana Appellate Rule 66(E), which authorizes this Court to "assess damages if an appeal . . . is frivolous or in bad faith." Although Father's arguments are unmeritorious, we find that an award of damages under Rule 66(E) is not appropriate. This ruling does not bar an award of appellate attorney fees by the trial court under the dissolution statutes.
Pyle, J., and Felix, J., concur.