Opinion
22A-DC-1688
03-13-2023
Lane Devin Snowberger, Appellant-Petitioner, v. Stephanie Lee Sparling (Snowberger), Appellee-Respondent.
ATTORNEYS FOR APPELLANT Laura B. King Michael B. Scott Fort Wayne, Indiana ATTORNEY FOR APPELLEE Yvonne M. Spillers Fort Wayne, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Lori K. Morgan, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D08-1810-DC-1316
ATTORNEYS FOR APPELLANT
Laura B. King Michael B. Scott Fort Wayne, Indiana
ATTORNEY FOR APPELLEE
Yvonne M. Spillers Fort Wayne, Indiana
MEMORANDUM DECISION
Riley, Judge
STATEMENT OF THE CASE
[¶1] Appellant-Petitioner, Lane Devin Snowberger (Husband), appeals following the trial court's partial denial of his motion to correct error and entry of the Second Amended Decree of Dissolution in favor of Appellee-Respondent, Stephanie Lee Sparling (Wife).
ISSUES
[¶2] Husband presents this court with four issues, which we consolidate and restate as:
(1) Whether the trial court's division of the marital estate is clearly erroneous;
(2) Whether the trial court's decision declining to hold Wife in contempt is clearly erroneous; and
(3) Whether the trial court's physical custody order is clearly erroneous. In addition, Wife requests that this court award her appellate attorney's fees.
FACTS AND PROCEDURAL HISTORY
[¶3] On January 13, 2003, the parties married. Two children were born during the marriage: C.S., born in September 2006, and Q.S., born in June 2010 (collectively, Children). The parties also have an adult child, Kiana. On October 29, 2018, Husband filed a verified petition to dissolve the marriage, and, at the end of December 2018, Husband vacated the marital residence, where Wife and Children continued to reside. On March 5, 2019, Wife filed a counter-petition for dissolution.
These are not the initials of C.S.'s birth name. Because the parties refer to this child as C.S. using he/him pronouns, we do so as well. There is nothing before us indicating that C.S.'s name has been changed through a legal proceeding.
[¶4] On August 9, 2019, Dr. David Lombard (Dr. Lombard) was appointed as custody evaluator. On December 19, 2019, the trial court entered its Provisional Orders granting Wife primary physical custody of Children, with Husband exercising parenting time pursuant to the Indiana Parenting Time Guidelines, with an additional midweek overnight with Children. The parties were to exercise joint legal custody. Wife was also granted possession of the marital residence, with Husband to pay the mortgage and various other expenses in lieu of paying child support.
[¶5] The parties were in college when they met, and both financed their educations with loans. The parties attained their degrees during the marriage. Husband is currently a mechanical engineer in the construction industry who earns approximately $94,000 and a varying bonus per year. Husband is also a former Marine, and he receives a disability benefit of $505 per month. Wife had been a stay-at-home mom since C.S.'s birth. After the parties separated, Wife obtained a full-time position with an hourly wage of $15.25, plus varying overtime. During the marriage, the parties had incurred substantial personal debt which, after the parties' legal separation, they had attempted to reduce through consolidation and paying down the debt with money obtained through cashing in at least one of Husband's retirement accounts. This debt consolidation included the parties' student loans. After the parties separated, Wife incurred more than $26,500 in personal debt.
[¶6] During the dissolution proceedings, C.S. explored his gender identity. Wife and Husband were both generally supportive of C.S.'s efforts. However, C.S.'s relationship with Husband became strained when Husband would not consent to fourteen-year-old C.S. receiving puberty blockers. In March 2020, Husband took C.S.'s cellphone from him when C.S. did not help schedule a medical appointment, further straining the relationship. After this incident, C.S. reported that he had cut himself, and C.S. began therapy. After October 2020, C.S. routinely refused to go to Husband's house for parenting time. As a result, after October 2020, Husband had only eight hours of parenting time with C.S. On December 3, 2020, and February 15, 2021, Husband filed verified motions seeking to have Wife held in contempt for denying Husband parenting time with C.S. Throughout the proceedings, Q.S. and Husband exercised parenting time pursuant to the Indiana Parenting Time Guidelines, including half of summer breaks.
[¶7] During the summer of 2019, Q.S. reported seeing demons, and Wife found that Q.S. had attempted to cut himself. Wife wanted to take Q.S. for emergency treatment, but Husband preferred to wait a few days until the parties' scheduled mediation had taken place. Wife did not wait and took Q.S. for evaluation at Parkview Behavioral Health. Q.S. was admitted there for four days of inpatient treatment. Q.S. was discharged with a safety plan that knives and other weapons should be removed from his environment. Q.S. began therapy, and by the summer of 2020, the therapist and Q.S. agreed that Q.S. no longer needed therapy. However, in May 2021, Q.S. had a major behavioral incident that resulted in him being expelled from his daycare. At Husband's request, Children were evaluated by Dr. Kevin Weiland (Dr. Weiland).
This is how the parties referred to the place where Q.S. spent time when he was not at home or in school.
[¶8] On April 30, 2021, the trial court convened the Final Hearing on all pending matters, which took place on five separate days, concluding on October 27, 2021. Wife requested the sale of the marital residence and exclusion of the parties' student loans from the marital estate. Wife also sought primary physical and sole legal custody of Children. Husband requested possession of the marital residence but acknowledged that selling the residence was preferable over awarding it to Wife. Husband sought the inclusion of the parties' student loan debt in the marital estate but argued that Wife had failed to prove the amount of the balance of the loan. Husband sought primary physical custody of Q.S., with parenting time with C.S., who would stay in Wife's primary physical custody. Husband recognized the futility of an award of make-up parenting time with C.S. since October 2020, but requested that steps be taken "to ensure future compliance with the [trial court's] Orders." (Appellant's App. Vol. II, p. 210). Husband also requested joint legal custody. Drs. Lombard and Weiland testified at trial. Dr. Lombard opined that Children should remain in Wife's primary physical custody. On October 27, 2020, the trial court conducted an in camera interview with Children.
[¶9] On March 14, 2022, the trial court entered a decree of dissolution, which it amended the next day to correct a scrivener's error. On April 13, 2022, Husband filed a motion to correct error, challenging the trial court's orders with respect to the division of the marital estate, contempt, and custody. On June 16, 2022, after a hearing, the trial court granted Husband's motion to correct error in part and denied it in part. The trial court also entered the Second Amended Decree of Dissolution of Marriage (Dissolution Decree). The trial court found that a 60/40 split in favor of Wife was just and equitable. The trial court found that the marital estate, excluding the marital residence, had a value of negative $41,220.77. The trial court ordered the sale of the marital residence and that Husband pay an equalization judgment of $16,488.31 to Wife from the proceeds of the sale of the marital residence. The trial court ordered each party to pay its own respective outstanding student loan debt, Husband's in the undisputed amount of $21,977.80 and Wife's in the amount of $16,150. The trial court declined to find Wife in contempt regarding C.S.'s failure to attend parenting time with Husband. The trial court granted Wife primary physical custody of Children and awarded Husband parenting time pursuant to the Guidelines, with Husband's parenting time to be deferred so that he and C.S. could receive therapy to repair their relationship. The trial court ordered the parties to exercise joint legal custody of Children.
[¶10] Husband now appeals, and Wife requests that we award her appellate attorney's fees. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Second Amended Decree of Dissolution
A. Standard of Review
[¶11] Husband challenges the trial court's Dissolution Decree. Husband filed a request pursuant to Indiana Trial Rule 52(A) for special findings of fact and conclusions thereon, and the parties submitted proposed orders. Our standard of review following a party's request for special findings and conclusions is well-settled:
First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions.Haggarty v. Haggarty, 176 N.E.3d 234, 246 (Ind.Ct.App. 2021) (quoting Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind.Ct.App. 2020), trans. denied). In addition, Husband appeals following the partial denial of his motion to correct error. As a general rule, we review a trial court's denial of a motion to correct error for an abuse of its discretion. B.A. v. D.D., 189 N.E.3d 611, 614 (Ind.Ct.App. 2022), trans. denied.
[¶12] We observe that there is a well-established preference to grant deference and latitude to Indiana trial court judges in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). To succeed on appeal, it is not enough for the appellant to demonstrate that the evidence might support some other conclusion; rather, the appellant must show that the evidence positively requires the desired conclusion. Id.
B. Division of the Marital Estate
[¶13] Husband contends that the trial court erred when it ordered the parties to sell the marital residence and when it included Wife's student loan debt of $16,150 in the marital estate. "[T]he division of marital assets is a matter reserved to the trial court's sound discretion, and we will reverse only for an abuse of that discretion." Crider v. Crider, 26 N.E.3d 1045, 1047 (Ind.Ct.App. 2015). The appellant "bears the burden of overcoming 'a strong presumption that the trial court considered and complied with the applicable statute, and that presumption is one of the strongest presumptions applicable to our consideration on appeal.'" Id. (quoting O'Connell v. O'Connell, 889 N.E.2d 1, 10 (Ind.Ct.App. 2008)).
i. Marital Residence
[¶14] The trial court entered the following relevant findings of fact and conclusions thereon regarding the sale of the marital residence:
58. The [c]ourt finds the parties do not dispute the value of the marital residence was $265,000 on or about May 10, 2019 and by November 15, 2021 the value had increased to $325,000.00 as this matter pended final hearing. The [c]ourt finds as well that Husband continued to pay the mortgage and the balance is significantly less than when these proceedings began [in] 2018.
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63. The [c]ourt finds that both parties desire being awarded the home but the [c]ourt finds by preponderance of the evidence that they would alternatively like the residence sold if not awarded to them.
64. The [c]ourt finds that Wife is not financial[ly] suited to pay for the mortgage and maintain the residence, nor can this [c]ourt find by preponderance of the evidence that she will realistically be able to refinance the mortgage into her name alone.
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70. In consideration of awarding the home to Husband the [c]ourt finds that absent the equity in the real estate, the marital residence has negative value of -$4l,220.77. Although Wife's financial condition is dire, Husband's financial condition is not favorable as well in consideration of the marital estate.
71. The award of the marital residence to Husband would result in a substantial property equalization judgment owed from
Husband to Wife considering the substantial increase in value. The [c]ourt would also note that although Husband has only sponsored the 2018 mortgage balance during these proceedings, there is no dispute that he continued to pay the mortgage resulting in reduction in the principal balance.
72. Additionally, there is no equalizing asset with which Wife may be made whole. Further, awarding the marital residence to Husband ignores the volatile market factors acknowledged by both parties. Displacing Wife requires that she has immediate access to funds to establish a new residence, not simply a judgment for funds. The [c]ourt is guided by the Court of Appeals where in it was cautioned that "the disposition of the marital estate is to be considered as whole, not item by item." Eye v. Eye, 849 N.E.2d 698 (Ind.Ct.App. 2006).
73. Therefore, the [c]ourt considering the estate as [a] whole, the economic circumstances of both parties, the award of primary physical custody to Wife, and the weighing of all equitable principles within this [c]ourt's discretion, now [o]rders the marital residence be sold.(Appellant's App. Vol. II, pp. 34-36).
[¶15] Husband does not challenge the trial court's unequal division of the marital estate in Wife's favor or dispute that the trial court correctly declined to award the marital residence to Wife. We also observe that, at trial and in his proposed findings, Husband advocated for the sale of the marital residence if that asset was not awarded to him. Therefore, we will address Husband's arguments only insofar as they dispute the trial court's decision to decline to award the marital residence to him.
[¶16] Husband challenges the evidence supporting the trial court's findings that his financial condition was "not favorable", there would be a substantial property equalization payment resulting from the increase in value of the home from $265,000 to $325,000 over the course of the proceedings, and that there was no equalizing asset in the marital estate to make Wife whole. (Appellant's App. Vol. II, p. 35). However, although Husband disputes the inclusion of Wife's student loan debt in the marital estate, he does not dispute the trial court's overall determination that, without including the equity in the marital residence, the marital estate is in the negative and would be even if Wife's student loan debt were not included. We also note that during the final hearings, Husband indicated that he had no funds in his budget to purchase a new computer and had difficulty making the parties' homeowners association fees payment. When asked how much he had in savings, Husband did not provide an answer. In addition, Husband acknowledges on appeal that he would owe Wife at least a $20,199.59 equalization payment should the marital residence be awarded to him. Given the negative marital estate, the absence of evidence that Husband had any substantial non-marital assets to pay the sum he contends that he would owe Wife, and the dearth of any other assets in the marital estate to make Wife whole, we conclude that the evidence supported the trial court's findings and were not, therefore, clearly erroneous. Haggarty, 176 N.E.3d at 246. Husband's argument that he could refinance the debt on the marital residence to make an equalization payment is speculative and amounts to a request that we reweigh the evidence before the trial court, which we do not do. Id. Contrary to Husband's assertions on appeal, we interpret the trial court's finding regarding the volatility in the real estate market as further support for its decision, in that the sale of the marital residence at a time when its value had appreciated considerably would be of the most financial benefit to the parties.
[¶17] In addition, the trial court's order that the parties sell the marital residence was supported by its findings. The trial court's statutory mandate was to divide the marital estate "in a just and reasonable manner[.]" Ind. Code § 31-15-7-4(b). The trial court was statutorily-authorized to order the sale of the marital residence. See I.C. § 31-15-7-4(b)(3) (providing that the trial court "shall divide" the marital estate by "ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale"). The parties agree that the marital residence was the major asset included in the marital estate. Wife was awarded primary physical custody of Children, she is unable to financially support the marital residence, and, given her poor financial health, required funds to procure a new residence. Given the overall split of the marital estate, Husband's financial health, and the absence of evidence that Husband could make an equalization payment to Wife if awarded the home, the trial court's order to sell was not in error. See Herron v. Herron, 457 N.E.2d 564, 567 (Ind.Ct.App. 1983) (concluding that the trial court's order to sell the marital residence was not an abuse of its discretion where an outright award of the house to wife could not be done without giving her the lion's share of the marital property); Swinney v. Swinney, 419 N.E.2d 996, 997-99 (Ind.Ct.App.1981) (reversing the outright award of the marital residence to wife, where the home comprised the largest of the marital assets).
[¶18] Husband argues that the trial court should have awarded him the marital residence and allowed Wife reasonable time to vacate because it would better address Wife's need for funds and housing, it would preserve the home Children had lived in, and it would save the parties the transaction costs of the sale. However, our task is not to determine whether another outcome other than that reached by the trial court is preferable or justified. See Kirk, 770 N.E.2d at 307. Rather, we must confine our review to a determination of whether the evidence supports the trial court's exercise of its discretion, and we conclude that it does. See Ramsey v. Ramsey, 546 N.E.2d 1280, 1281-82 (Ind.Ct.App. 1989) (upholding the trial court's order to sell the marital residence, where the court was not convinced that the evidence was "clearly against the facts and circumstances" and noting that the trial court, having observed the parties, "might have concluded that [allowing wife the use of the home] would not, in fact, have worked as well" as wife argued it would on appeal) (emphasis in original).
ii. Wife's Student Loan Debt
[¶19] Husband contends that the trial court erred when it included $16,150 of Wife's student loan debt in the marital estate. Huband's argument on this point is not that the debt should not have been included but that Wife failed to prove the amount of the debt. Husband contends that the only evidence supporting the amount of the debt was his demonstrative exhibit listing his proposed marital assets and debts and his testimony, which he contends was merely "a guess based on his recollection from seeing a statement while arranging their finances in 2018." (Appellant's Br. p. 35).
[¶20] In addressing this argument, we initially observe that at the first part of the final hearing on April 30, 2021, Husband had admitted into evidence Exhibit 36, which listed his proposed marital assets and debts, including Wife's student loan debt at $16,150. Contrary to his implications on appeal, Husband did not limit the admission of Exhibit 36 to demonstrative purposes only. Husband presents us with no legal authority indicating that Exhibit 36 could not be considered by the trial court as substantive evidence. However, even if Exhibit 36 had not been admitted as substantive evidence, Husband testified that Exhibit 36 showed what he believed to be the marital estate and what allocation of the estate he was requesting the trial court to make. Husband also testified that it was his "idea[]" that the balance of Wife's student loan debt was "$16,160 [sic]" and that the amount was based upon a previous loan statement that he had seen from October 2018. (Tr. Vol. II, p. 82). In light of this testimony, Husband's assertion on appeal that only his demonstrative exhibits showed the amount of Wife's debt is not supported by the record. The trial court entered findings consistent with this evidence to support its decision to value Wife's student loan debt at $16,150. The trial court was free to decide what weight to accord to Husband's testimony, and we do not second-guess the trial court's credibility assessments and weighing of the evidence as part of our review. See Haggarty, 176 N.E.3d at 246. Accordingly, we find no abuse of the trial court's discretion in the allocation of the marital estate.
C. Contempt
[¶21] Husband next challenges the trial court's decision to decline to find Wife in contempt due to C.S. not exercising parenting time with Husband, arguing that the trial court's findings and conclusions were unsupported by the evidence. "The right of a non-custodial parent to visit with his or her children is a sacred and precious privilege, and, ideally, a child should have a well-founded relationship with both parents." In re Paternity of P.B., 60 N.E.3d 1092, 1098 (Ind.Ct.App. 2016). We have summarized our review of a trial court's contempt order as follows:
A party that is willfully disobedient to a court's order may be held in contempt of court. Whether a person is in contempt of a court order rests within the trial court's discretion, and we review the trial court's finding for an abuse of discretion. An abuse of discretion occurs only when the trial court's decision is against the logic and effect of the facts and circumstances before the trial court. We do not reweigh the evidence or judge the credibility of witnesses, and we will affirm the trial court's contempt finding unless review of the record leaves us with a firm and definite belief that a mistake has been made.Clary-Ghosh v. Ghosh, 26 N.E.3d 986, 993 (Ind.Ct.App. 2015) (quotations and citations omitted), trans. denied. Our supreme court has observed that "[c]rucial to the determination of contempt is the evaluation of a person's state of mind, that is, whether the alleged contemptuous conduct was done willfully." Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). "The trial court possesses unique knowledge of the parties before it and is in the best position to determine how to maintain its authority, justice, and dignity and whether a party's disobedience of the order was done willfully." Id. at 203.
[¶22] Here, the trial record is replete with evidence offered by both parties that C.S., who turned fourteen in September 2020, essentially refused to attend parenting time with Husband after October 2020 due to C.S.'s anger that Husband would not consent to C.S.'s desire to take puberty blockers. C.S. refused and/or ignored Husband when Wife was present and when she was not, such as when Husband picked up Q.S. from the bus stop for parenting time. At trial, Wife testified that she wants Husband to have a good relationship with both C.S. and Q.S., she did not willfully thwart Husband's parenting time with C.S., she had specifically told C.S. that she expected him to go for parenting time, and that she had attempted to impose consequences for C.S.'s refusal to make staying at her home less comfortable for C.S., such as making him do additional chores and accompanying her on errands instead of staying in his room as he preferred. Wife had also consulted with C.S.'s therapist for solutions to get C.S. to parenting time. Wife had videos of her attempts to convince C.S. to go with Husband for parenting time admitted into evidence. For his part, Father acknowledged at trial that he had heard Wife encouraging C.S. to come to parenting time with him. The trial court's key findings and conclusions on Husband's contempt motion were as follows:
We observe that Husband admitted at trial that, during the summer of 2020 and without Wife's knowledge, he told C.S. that he would consent to puberty blockers if he could have shared custody of Children.
31. The [c]ourt finds that by October 2020, C.S. had stopped attending parenting time with Husband. Wife contends that C.S. has refused to attend and the [c]ourt finds same given the content of a video that was admitted into evidence. The [c]ourt also finds that pursuant to the [G]uidelines that a child is not permitted to refuse to attend parenting; however, the reunification of the relationship is address[ed] further herein. The [c]ourt finds that Wife is not in compliance with the [o]rder for parenting time but that the deeper mental health issues of C.S. are the primary issues in parenting time with Husband.
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152. [After disposing of the parties' other contempt claims] The [c]ourt does not further find either party in contempt.(Appellant's App. Vol. II, pp. 28, 48) (parties' and child's designations changed throughout). The trial court implicitly concluded that Wife's conduct in failing to force C.S. to attend parenting time with Husband was not willful. In light of the above-cited evidence, which specifically entailed a credibility assessment of Wife's testimony and video evidence, we cannot conclude that the trial court's conclusion was clearly erroneous or an abuse of the trial court's discretion. Compare In re Paternity of P.B., 60 N.E.3d at 1097 (reversing the trial court's failure to hold Wife in contempt for disobeying its parenting time orders pertaining to a fourteen-year-old child who refused to attend, where the trial court had found that Wife had frankly admitted that she would not allow parenting time and had otherwise made it clear she would not abide by the court's orders).
[¶23] Husband argues that the trial court's decision is unsupported by the evidence because Wife did not raise any concerns about C.S.'s mental health and parenting time, Wife never sought an order restricting Husband's parenting time, Wife did not seek alternatives to repair his relationship with C.S., there was no evidence that parenting time would be detrimental to C.S., and Wife never claimed that she "was denying parenting time based on the recommendations of a clinical professional." (Appellant's Br. p. 39). Husband also draws our attention to an instance on May 21, 2021, wherein he contends that Wife purposefully told him to come to the marital residence to retrieve Children for parenting time when she knew C.S. would not be there. We are mindful that Husband has a right to parenting time with C.S., and we do not condone the fact that C.S. has not exercised parenting time with Husband. However, these arguments miss the mark, as they are either irrelevant to the issue of whether Wife's conduct was willful, or they impermissibly invite us to reweigh the evidence and reassess the parties' credibility pertaining to the trial court's conclusion that Wife's conduct was not willful. See Clary-Ghosh, 26 N.E.3d at 993. Accordingly, we do not disturb the trial court's decision not to hold Wife in contempt.
D. Primary Physical Custody of Q.S.
[¶24] Husband's final challenge to the Dissolution Decree is to the trial court's award of primary physical custody of Q.S. to Wife. "The trial court shall determine custody and enter a custody order in accordance with the best interests of the child" after considering all relevant factors, including:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.I.C. § 31-17-2-8. The trial court's custody decision "comes to us clothed with the presumption that a correct result was reached[,]" and we will only reverse where the trial court has abused its discretion, not merely on the basis of conflicting evidence. Wright v. Wright, 471 N.E.2d 1240, 1242 (Ind.Ct.App. 1984), trans. denied.
[¶25] The trial court entered the following relevant findings and conclusions in support of its award of primary physical custody of Q.S. to Wife:
23. The [c]ourt considers that both [C]]hildren have always lived together in the same home as siblings and even through the duration of these proceedings.
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32. [] The [c]ourt finds that leading up to these proceedings and predating [C.S.'s] issues with gender, both parents had a close and beneficial relationship with both [C]hildren.
33. [] The [c]ourt finds that [Dr.] Wieland conducted an evaluation of both Children. With respect Q.S., Dr. Wieland found that he is a "normal and very intelligent boy" and that because of his intellect he requires clear expectations. Dr. Wieland indicated that Q.S. would have tendency to "run circles around people" and would not benefit from a permissive style of parenting. Overall [Dr.] Wieland did not find any underlying mental health issues that require clinical intervention indicating that Q.S.'s struggles have been related to his having to "compete for resources" during the course of his parents' divorce.
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40. Ultimately, [Dr.] Lombard recommended that the parties share joint legal custody and that physical custody remain as it was provisionally ordered. [Dr.] Lombard observed that Wife and Husband have different parenting styles with Husband being more authoritative and Wife being more permissive.
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42. Although neither [Dr.] Weiland and [Dr.] Lombard could not say that splitting the siblings would be "harmful", the [c]ourt finds through the testimony of [Dr.] Lombard that siblings that are raised separately do not have a strong sibling relationship later in life and so he does not generally recommend separating the siblings if there is no risk from them staying together.
43. The [c]ourt finds that dispute has arisen with respect to the supervision of Q.S. when the parties are unable to do so. The [c]ourt finds that although those that know Q.S. remark that he is [a] highly intelligent and delightful boy, they also remark that he had been struggling since the dissolution to the extent that he had been expelled from his daycare program for highly inappropriate behaviors. The [c]ourt finds through [Dr.] Weiland that Q.S. is desperately grasping for the limited resources of his parents. The [c]ourt finds this consistent with the amount of attention that has been focused on C.S.'s mental health issues. Further both experts contend that Q.S. would benefit from clear expectations and boundaries. The [c]ourt finds that to combine a highly intelligent boy who has already engaged in attention seeking and self-harming behaviors with unsupervised and unoccupied time equates to the significant "permissiveness" that has been noted by the experts. The [c]ourt finds that until both Wife and Husband agree, Q.S. shall not be left alone. Whether C.S. supervises him or the parties find another mutually agreeable adult to do so shall be left to their discretion.
44. The [c]ourt also considers and finds that the nature of the physical and emotional environment in both parties' homes neither provides an advantage or disadvantage to the [C]hildren, only that the homes are different in the style of parenting which was the case when the parties were married.
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94. The [c]ourt having further considered all statutory factors concludes it is in the best interests of the child that Wife shall be granted primary physical custody of the parties' minor children[.](Appellant's App. Vol. II, pp. 27-31, 40) (parties' and Children's names substituted throughout).
[¶26] As a basis for its custody award, the trial court had before it the testimony of the parties, the reports and testimony of Drs. Weiland and Lombard, and its in camera interview with Children. Its custody order relied upon appointed custody evaluator Dr. Lombard's recommendation that Children remain together with Wife. The trial court took into account Q.S.'s needs, each party's parenting style, and Dr. Lombard's observations regarding the weakening of the sibling bond due to separation. The parties' adult child testified at trial that she sees Children almost every day and that Children "really rely on each other." (Tr. Vol. IV, p. 72). Given this evidence in the record supporting the trial court's custody determination, it is not clearly erroneous or an abuse of the trial court's discretion. See Haggarty, 176 N.E.3d at 246; Wright, 471 N.E.2d at 1242.
[¶27] Father presents us with a variety of other evidence and factors which he feels weighed in his favor, primarily arguing that his authoritarian parenting style was more suitable for Q.S.'s needs. However, Dr. Weiland testified that Father might benefit from taking a less authoritarian approach, and Dr. Lombard opined that, as children get older, parents must shift away from an authoritarian parenting style towards an approach of influencing the child. As Q.S. approached his teen years, the trial court could have reasonably concluded that, even with Q.S.'s need for structure and boundaries, Wife's more permissive approach to parenting was in Q.S.'s best interests. As we have already noted, we cannot reweigh the evidence supporting the trial court's findings and conclusions, nor do we substitute our own judgment for the trial court's. Haggarty, 176 N.E.3d at 246; Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013) (observing that custody matters are fact-sensitive and that the reviewing court will not substitute its own judgment for the trial court's if any evidence or legitimate inferences support the judgment).
II. Appellate Attorney's Fees
[¶28] Wife requests that we award her appellate attorney's fees for the costs of responding to Husband's appeal. Indiana Appellate Rule 66(E) provides us with the authority to award appellate attorney's fees at our discretion if an appeal "is frivolous or in bad faith." The exercise of our discretion to award attorney's fees pursuant to Rule 66(E) is limited "to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Edwards by Next of Friend Glaser v. City of Carmel, 191 N.E.3d 900, 911 (Ind.Ct.App. 2022). We exercise our discretion in awarding appellate attorney's fees "with extreme restraint" in recognition of the potential chilling effect such awards may have upon the exercise of the right to appeal. Id.
[¶29] Wife claims that we should award her attorney's fees because Husband made no meritorious assertions on appeal. However, simply proffering appellate arguments that do not ultimately prevail is inadequate to support an award of attorney's fees to the party who responds to those arguments. See Basic v. Amouri, 58 N.E.3d 980, 986 (Ind.Ct.App. 2016) (observing that we do not impose the sanction of attorney's fees to punish mere lack of merit but only for something more egregious); Kelley v. Kelley, 158 N.E.3d 396, 400 (Ind.Ct.App. 2020) (holding that "just because an appellant is unsuccessful on appeal does not mean the appellee is entitled to appellate attorney's fees"). In order to merit an award of attorney's fees, an appeal must be "wholly frivolous" and "utterly devoid of all plausibility." Fritts v. Fritts, 28 N.E.3d 258, 267 (Ind.Ct.App. 2015). While we have rejected Husband's appellate claims, we cannot say they are "utterly devoid of all plausibility." Id.
[¶30] Wife also claims that, in his appellate brief, Husband "made references to testimony or evidence purportedly in the record, but which were not[,]" forcing her to comb the record to discern Husband's arguments. (Appellee's Br. p. 24). We may award appellate attorney's fees where "a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court." Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind.Ct.App. 2003). However, Wife has failed to support her own argument on this point with examples from Husband's brief of the conduct she criticizes. Husband has generally complied with the Indiana Rules of Appellate Procedure 46(A)(6)(a) and (8)(a) by supporting his factual contentions with citations to the record. After reviewing Husband's brief and the record, we cannot say that Husband's brief is so permeated with a lack of citation to the record so as to merit an award of attorney's fees. Compare Thacker, 797 N.E.2d at 347 (awarding appellate attorney's fees where Thacker's multiple violations of the appellate rules was substantial, permeated his entire brief, and precluded our review).
[¶31] In support of her argument that she be awarded appellate attorney's fees, Wife also cites additional litigation initiated by Husband in this matter that she contends has taken place after the entry of the Dissolution Decree and after Husband filed his notice of appeal. Wife has filed an appellee's appendix including an updated chronological case summary reflecting these additional pleadings filed in the trial court, as well as a copy of a trial court order issued December 16, 2022. However, "[a] trial court can decide the issues based only upon that evidence which is properly before the court and in the record, and we are bound by that record on appeal." Bernel v. Bernel, 930 N.E.2d 673, 676 n.2 (Ind.Ct.App. 2010), trans. denied. Wife has presented us with no relevant authority to support her contention that we may consider matters outside the trial record in deciding whether to award her appellate attorney's fees. We agree with Husband that Husband's post-dissolution litigation in the trial court is irrelevant for purposes of determining whether an award of attorney's fees is merited for the costs of defending this appeal. As a result, we do not award Wife appellate attorney's fees in this matter.
By separate order, we grant Husband's Motion to Strike Appellee's Appendix.
CONCLUSION
[¶32] Based on the foregoing, we conclude that the trial court's orders on the division of the marital estate, contempt, and primary physical custody are not clearly erroneous. In addition, we decline to award Wife appellate attorney's fees.
[¶33] Affirmed.
[¶34] Altice, C. J. and Pyle, J. concur.