## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEY S FOR APPELLEE :

MICHAEL A. SETLAK MICHAEL H. MICHMERHUIZEN Shilts Law Office Barrett & McNagny LLP Fort Wayne, Indiana Fort Wayne, Indiana

CORNELIUS B. HAYES Hayes & Hayes Fort Wayne, Indiana



## IN THE COURT OF APPEALS OF INDIANA

ROBERT A. MASTERS

, ) ) Appellant /Cross

- Appellee

, ) )

vs. ) No. 02A04

- 1404

- DR

- 178 ) LEAH MASTERS

, ) ) Appellee /Cross

- Appellant

. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Charles F. Pratt , Judge Ca u se No . 02D07

- 1204

- DR

- 261

October 29, 2014

OPINION

- FOR PUBLICATION

NAJAM, Judge2 STATEMENT OF THE CASE

In this contentious dissolution action

, the parties submitted to arbitration pursuant

to the Family Law Arbitration Act, Indiana Code Sections 34

- 57

- 5

- 1 to

- 13

. After

several hearings, the arbitrator entered numerous findings of fact and conclusions of law,

and the trial court reduced the arbitrator’s findings and conclusions to judgment

accordingly

. See Ind. Code § 34

- 57

- 5

- 7 (2014)

. In her finding s and conclusions

, the

arbitrator, among other things, dissolved the marriage of Robert A. Masters (“Husband”)

and Leah Masters (“Wife ” ) ; valued and distributed the vast majority of the marital assets ;
resolved questions of child custody, support, and pare nting time; and determined the

parties’ respective incomes, whether actual or imputed. In particular, the arbitrator found

that Husband had an annual income of $80,000 ; that he must immediately pay $17,735 in

back child support; that he must pay to Wife $ 23,965.05 in cash within 100 days of the

arbitrator’s order to equalize the parties’ marital assets; that he must replenish $51,000 in

the parties’ bank accounts; and that he should be awarded $93,843 in the valued portion

of the marital estate

. The arbit rator then ordered H usband to pay $95,000 of Wife’s

attorney’s fees

. On appeal, Husband challenges only the arbitrator’s finding that he pay $95,000 of

Wife’s attorney’s fees. We hold that the arbitrator ’s finding is clearly erroneous because

it does not consider H usband’s ability to pay Wife’s attorney’s fees in light of his

earnings, living expenses, and valued assets, or in light of the other obligations the

arbitrator imposed on Husband

. Further , we reject Wife ’s argument s on cross

- appeal as

well as each party’s request under Appellate Rule 66(E) for appellate attorney’ s fees

.3

Reversed and remanded with instructions.

FACTS AND PROCEDURAL HISTORY

After the parties had made several appearances before an arbitrator on the

dissolution of their marriage

, the arbitrator entered numerous findings of fact and

conclusions of law pursuant to Indiana Code Secti o n 34

- 57

- 5

- 7, which the trial court

reduced to judgment pursuant to Section 34

- 57

- 5

- 7(d)(1). According to the following

relevant and undisputed findings and conclusions:

1. The parties were married on August 21, 1993.

2. There has been an irretrievable breakdown of the marriage between Wife and Husband and their marriage should be dissolved.

3. Wife and Husband are the parents of one child, namely, [E.M .], born on January 22, 2007.

4. Husband filed a Verified Petition for Dissolution on April 3, 2012.

* * *

7. On May 18, 2012, Wife filed a Verified Counter

- Petition for Dissolution of Marriage.

* * *

1. [sic] This has been a very contentious divorce

.

* * *

20. The parties do not live in close proximity to one another . . . . Wife and [E.M.] reside in Allen Park, Michigan, with Wife’s mother and father, Paul and Dona Dawson. Husband resides in Brevard, North Carolina.

* * *

72. For child support purposes, Husband’s income should be [$80,000]. His income should not include any imputed income from his prior employment

.4

73. Expert testimony was provided that Wife would be required to obtain six (6) mandated credits and three (3) readying credits t o renew her teaching certificate, which could be completed in one (1) [] or [,] easily

, two (2) semesters.

74. Full

- time teachers in public schools in Michigan have an annual salary range[] from [$33,000] (rural) to [$48,500] (urban).

75. Other opportuniti es for Wife’s employment utilizing her [existing] college degree are:

a. Para Educator (with Elementary Education degrees pays $11

- 14 per hour ) [.] b. Public charter school

— pays approximately 75% of public school salary.

c. Home bound teacher

— contracts at $25.00 per hour (Avondale School District in Detroit, Michigan[,] averaged 30 hours per week). d. Intermediate school districts

— $24,000 to $34,000 per year[.]

76. Allen[] Park, Michigan[,] is an urban school district, but Wife testified that she desir es to work at E.M. ’s [parochial] school.

77. In 2012, Wife was unemployed, in part [] because she w as busy moving and getting E.M. settled in a new school. Minimum wage of [$290] per week [, or $15,080 annually,] is imputed to her for all of 2012.

78. I n 2013, Wife could have been employed as a Para Educator; therefore, income of [$450] per week [, or $23,400 annually,] is imputed to her for all of 2013.

79. Commencing January 1, 2014, [$40,000] annual income is imputed to Wife, who could have acquired h er Michigan teaching license by this time

.

80. Commencing April 3, 2012, until January 1, 2013, Husband shall pay child support of [$180] per week.

81. Commencing January 1, 2013, until January 1, 2014, Husband shall pay child support of [$172] per week.

82. Commencing January 1, 2014, . . . Husband shall pay . . . [$161] per week.5 * * *

86. Based upon the aforestated, as of March 14, 2014, Husband is [$17,735] in arrears on his obligation for child support, which sum is to be paid, forthwith

.

* * *

90. It is reasonable to have all future tuition and fee expenses at Inter

City Baptist School [E.M.’s parochial school] shared by Mother and Father in accordance with their respective income percentages (67%/33%)

. . . .

* * *

92. Wife’s father shall be reimbursed the tuition expense for [E.M.’s] enrollment at The Inter

- City Baptist School during the last two (2) years sixty

- seven [percent] (67%) by Husband and thirty

- three [percent] (33%) by Wife.

* * *

134. The following represents the parties’ mari t a l estate on the date of filing:

ASSET VALUE

* * *

Coins

— Gold and Silver (Disputed) Unknown Coins

— Ancient Coins (Disputed) Unknown

* * *

TOTAL [of valued assets] $234,607.32

* * *

147. Wife asserts that an auction is the fairest and best way to recog nize the highest value for the coins

. . . .

148. It is not clear to the Arbitrator

. . . why Husband should be compelled to auction his share of the coins if he does not desire to do so.6 * * *

154. . . . In assessing attorney fees and litigation expen ses in a dissolution of marriage proceeding, the trial court should consider the resources of the parties, their economic condition, the ability of the parties to engage in gainful employment and to earn adequate income, and such other factors that bear on the reasonableness of the award. Scott v. State

, 668 N.E.2d 691, 709 (Ind. [Ct.] App. 1996).

155. Evidence revealed that Husband told Wife that she could receive free legal services from the Hyatt Legal Plan, a benefit that Husband received by virtue of his union benefits . . . .

156. Wife testified that Husband informed her that she could meet with his attorney and such attorney could be her lawyer also.

157. Husband was subpoenaed to pr o duce the Hyatt Legal Plan which allegedly provided that two (2) parties to a divorce could have two (2) separate attorneys to be paid by the same plan. No evidence was produced by Husband to support his contention that the Hyatt Legal Plan would provide legal services for Wife.

158. For a portion of these proceedings , Husband’s attorney fees were covered by the Hyatt Legal Plan, as his attorney is a member of such Plan. The Plan provided Husband with an hourly rate of [$100,] which rate is one and one

- half (1 1⁄2) times less than the standard rate in the legal communit y. As such, Husband has benefited greatly from his employment benefit.

* * *

160. Husband’s Attorney Fee Affidavit states that Husband has incurred Attorney Fees in the aggregate sum of [$33,771.50] . . . . Husband has been billed at [$100] per hour an d the first [$12,000] of fees were paid by the Hyatt Legal Plan.

161. Wife secured independent counsel, C. Neil Hayes, Esq., and has been caused to incur debt with her father for the payment of Mr. Hayes’ services.

162. For each payment made toward Wife ’s attorney fees such was derived from borrowed monies from Paul and Dona Dawson of Allen Park, Michigan. All borrowings were secured with a Promissory Note from Wife to Paul and Dona Dawson.7

163. Wife is one of four children and is expected to repay the money that she borrowed in order to permit fairness to her siblings and her parents as testified [to] by Wife and Paul Dawson . . . . There has been no evidence produced to the contrary.

164. Additionally, Wife borrowed money from her parents . . . to s ecure the business valuator, Gregory Green. Wife paid the following litigation expenses . . . [which totaled] $5,513.90. Husband equally benefitted from payments made to Gregory Green and Fairfield Rare Coins & Jewelry[, which cost $582.20 and $1350, res pectively]. . . .

165. Husband incurred litigation expenses of [$100] to Pegasi Numismatics, [$50] for Recovery Coin Inventory, [$715] for Gregory Green, [and $1

, 050] for Timbrook Psychological Services.

* * *

170. The joint philosophy of the parties wa s that Wife would be a stay

- at

home Wife and a Mother for [E.M.], a life not contemplating the furthering of her formal education. At the same time, the evidence reveals that the Husband pursued his vocation at Navistar, provided tutorial services for
stu dents in mat h , secured a Graduate Certificate in Statistics and furthered his formal education earning a Master’s Degree in Mathematics . . . .

171. Wife has been unemployed outside the household for many years, and she continued [to be] so unemployed dur ing the separation.

172. In this proceeding, both parties have complained that the other’s conduct, and lack of cooperation, has caused an increase in the overall expense in this proceeding. The Arbitrator has taken due notice of both of the part[ies’] c ontentions.

173. The case before the Arbitrator is one of procedural[] complexity and substantive difficulty. A unique issue has arisen due to Husband’s 5 th Amendment objections and other discovery disputes arising from Husband’s relationship with his fo rmer employer.

174. The actual ratio of earnings is [100%] Husband and [ 0%] Wife. Even if income is imputed to Wife, there is a dramatic disparity in the parties’ incomes. It is also true that Wife has not earned any income for many years and apparently Husband did not object to this course of conduct

.8

175. Husband has paid nothing of Wife’s Attorney Fees and Cost of litigation and had no outstanding debt in relation thereto at the time of Arbitration.

176. The Arbitrator has considered the resources o f the parties, the parties’ economic condition, the ability of the parties to engage in gainful employment and to earn an adequate income and other such factors that bear on reasonableness of the award.

177. After considering all relevant factors, the Arb itrator finds that the Husband should be ordered to pay [$95,000] of Wife’s attorney fees . . . .

178. Wife also incurred cost[s] for which Husband benefitted from as set forth herein. Husband shall reimburse Wife [60%] of the following for which Husband derived direct benefit: [$582] Gregory Gree n ; [$1,350] Fairfield Rare Coins & Jewelry Appraisal; and [$1,800 in the Arbitrator’s expenses] within [30] days of the date of this Decree of Dissolution

.

179. Wife shall reimburse to Husband [40%] of his li tigation expenses [listed in paragraph 165].

* * *

198. Husband owes Wife a cash equalization of [$23,965.05, which] shall be paid before June 30, 2014[, or in about 100 days].

Appellant’s App. at 20, 23, 27

- 29, 34, 36

- 38 , 40

.

T he arbitrator then dis tributed marital assets 60% to 40% in Wife’s favor, as the

arbitrator had done with respect to certain miscellaneous litigation expenses quoted

above. Thus , the arbitrator awarded Husband about $93,843 in the valued marital assets.

And the arbitrator fur ther directed Husband to “replenish

. . . [$51,000]

. . . in the parties’

bank accounts.” 1 Id. at 45. This appeal ensued.

1 There are no findings to suggest that Husband engaged i n any misconduct, although the arbitrator did find that each party had been especially litigious.9 DISCUSSION AND DECISION

Attorney’s Fees

On appeal, Husband challenges the arbitrator’s findings and conclusions that he

pay $95,00 0 in Wife’s attorney’s fees. Pursuant to the Family Law Arbitration Act, an

appeal may be taken from the court’s judgment on an arbitrator’s findings and

conclusions “as may be taken after a j udgment in a civil action.” I.C. § 34

- 57

- 5

- 11. We

review the arbitrator’s findings and conclusions accordingly.

According to the Indiana Supreme Court, where the judgment on attorney’s fees i s

based on findings and conclusions, “the standard of review under [ Indiana Trial Rule]

52(A) . . . applies.” Quillen v. Qui llen , 671 N.E.2d 98, 103 (Ind. 1996). Trial Rule 52(A)

prohibits a reviewing court on appeal from setting aside the trial court’s judgment “unless clearly erroneous.” The court on appeal is further required to give “due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses.” When a trial court has made special findings of fact, as it did in this case, its judgment is clearly erroneous only if (i) its findings of fact do not support its conclusions of law or (ii) its conclusions of law do not support its judgment. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.

Id. at 102 (citation omitted). Findings are also clearly erroneous “if they are insuf ficient

to disclose a valid basis for the legal result reached in judgment

, ” Fumo v. Med. Group of

Mich. City, Inc. , 590 N.E.2d 1103, 1108 (Ind. Ct. App. 1992), trans. denied , or if they are

“facially inconsistent ” such that they cannot support the judgmen t , Ozug v. Ozug , 4

N.E.3d 827, 830

- 31 (Ind. Ct. App. 2014), trans. denied

.

O ur supreme court has added :
where the trial court finding at issue is the award of attorney [’s] fees in a dissolution proceeding:10 Trial courts enjoy broad discretion in awardin g allowances for attorney[’s] fees. . . . Reversal is proper only where the trial court’s award is clearly against the logic and effect of the facts and circumstances before the court. . . . In assessing attorney’s fees the court may consider such factor s as the amount of assets awarded to the parties, the relative earning ability of the parties, and which party initiated the action.

Quillen , 671 N.E.2d at 103 (quoting Selke v. Selke , 600 N.E.2d 100, 102 (Ind. 1992)).

We hold that the arbitrator’s findi ngs are clearly erroneous because they do not

demonstrate Husband’s ability to pay the fee assessed against him

. When determining

whether to award attorney’s fees, the other party’s ability to pay is a factor to be

consider ed

. See, e.g.

, Carrasco v. Grub b , 824 N.E.2d 705, 712 (Ind. Ct. App. 2005),

trans. denied

. But t here are no findings here that demonstrate that the arbitrator

considered th at factor

. To the contrary , the arbitrator expressly found that Husband’s

annual income is $80,000; she directed Husband to pay $17,735 in his child support

arrearage “forthwith,” Appellant’s App. at 29; she directed him to pay $23,965.05 as a

cash equalization payment within 10 0 days of the dissolution order ; and she directed him

to pay $51,000 to “replenish

. . . the parties’ bank accounts.” Id. at 45. Moreover, the

$95,000 award is about $1,000 more than Husband’s 40% of the valued portion of the

marital estate. If anything, the arbitrator’s findings seriously call into doubt Husband’s

ability to pay another $9 5,000 to Wife.

In response, Wife asserts that unvalued marital assets , namely, certain coins,

demonstrate Husband’s ability to pay the fee award. In support of this argument, Wife

relies on evidence she submitted to the arbitrator regarding the value of th o se assets. But,

de s p ite that evidence, t he arbitrator expressly found that the coins had an “ [ u ] nknown”11

value. Id. at 34. Moreover, the arbitrator expressly found that Husband should not “be

compelled to auction his share of the coins

. . . .” Id. a t 35. As such, we are in no

position either to speculate on a value for th e coins or to say that the arbitrator meant for

Husband to sell or otherwise collateralize them. A nd, a t best, Wife’s evidence regarding

the value of the coins would make the arbit rator’s findings irrational in that the arbitrator

would have found that the coins had an unknown value and then relied on that unknown

value to assess fees against Husband.

Neither do the arbitrator’s findings regarding Husband’s mistaken belief about

wh ether his union agreement would pay for Wife’s attorney, or Wife’s payment

agreement with her parents, which enabled her to obtain the attorney of her choice,

inform this court of a basis for the arbitrator’s conclusion that Husband should pay

Wife’s fees. There are no findings that Husband acted in bad faith or in any way more

inappropriately than Wife throughout the dissolution pro cess. As such, these findings do

not support the arbitrator’s conclusion.

Finally, in support of the fee award Wife lists a number of things the arbitrator

“could” have relied on. Appellee’s Br. at 25

- 27. But, w hile the fact

- finder “is not

required to give reasons for its determination ” on attorney’s fees

, Connolly v. Connolly

, 952 N.E.2d 203, 208 (Ind. Ct. App. 2011), neith er is this court obliged to rationalize the

judgment or to disregard the actual findings entered

. And it is not this court’s place to

explain to the fact

- finder what the fact

- finder should have explained to this court in the

first instance. Here, again, the arbitrator ’s findings of fact do not demonstrate that

Husband had the ability to pay Wife’s attorney’s fees.12

Thus , the judgment on this issue is clearly erroneous

. The arbitrator’s findings of

fact do not disclose a valid basis for the legal result reached in that they do not explain

whether Husband has the ability to pay Wife’s attorney’s fees

. 2 The court’s judgment

that Husband pay $95,000 to Wife for her attorney’s fees is reversed, and we remand

with instructions that the court enter a reasonab le award of attorney’s fees to Wife in a

manner that is not inconsistent with this opinion.

Cross

- Appeal & Appellate Rule 66 (E)

Wife raises two arguments on cross

- appeal. First , Wife asserts that the arbitrator’s

findings a nd conclusions are clearly erro n e ous because the arbitrator “failed to rule on

Husband’s Notice of Intent to Relocate and Wife’s Motion to Prevent Relocation

. ”

Appellee’s Br. at 35. In particular, Wife objected to Husband’s notice of intent to

relocate to North Carolina on the grounds that the notice was defective. Without ruling

on Wife’s objections, t he arbitrator entered findings and conclusions that establish

parenting time with Husband in North Carolina

. Thus, the arbitrator at least implicitly

rejected Wife’s objections, a nd Wi fe does not assert any other grounds that challenge the

arbitrator’s findings and conclusions on Husband’s living arrangements in North

Carolina

. Accordingly, Wife’s first issue in her cross

- appeal is without merit.

Wife also argues on cross

- appeal that the arbitrator erroneously “order[ed] the

parties to agree upon the means of transportation” for E.M. between parenting times. Id.

2 We need not consider Husband’s alternative argument that the $95,000 assessment is unreasonable, but we note that the arbitrator found that a reasonable ho urly rate for a l ocal attorney would have been $2 50. It is not at all clear to this court whether or how the arbitrator used that hourly rate , or any other information, to determine that the award for attorney’s fees in this case was a reasonable award

. See Gerstbauer v. Styers , 898 N.E.2d 369, 381 (Ind. Ct. App. 2008) (“ Our charge is to determine the objective reasonableness of attorneys ’ fees, which requires an examination of the facts and circumstances that gave rise to the fees. ”) (citing Ind. Profess ional Conduct Rule 1.5(a)).13

But Wife cites no authority that requires our courts or their officers to micro

- manage
parents’ lives. It is clear from th e order that the arbitrator expects the parents to act like

adults, figure out reasonable means of transportation

, and otherwise act in E.M.’s best

interests . If one side is unable to do so, the other side has a remedy through contempt

procedures. We wil l not reverse on this issue.

Finally, we summarily reject each party’s request for appellate attorney’s fees

under Indiana Appellate Rule 66(E). Each party is instructed to pay his or her own

appellate attorney’s fees. However, we hold that Husband has the right to recover his

appellate costs pursuant to Appellate Rule 67(C). 3

Conclusion

In sum, the arbitrator’s order that Husband pay $95,000 to Wife for her attorney’s

fees is clearly erroneous . As such, we reverse and remand on that issue. We reject

Wife’s arguments on cross

- appeal as well as each side’s request for appellate attorney’s

fees under Appellate Rule 66(E).

Reversed and remanded with instructions.

BAILEY, J., and PYLE, J., concur.

3 We note that Husband, both as the appellant and as the cross

- appellee, has been wholly successful in this appeal. See Ind. Appellate Rule 67(C).