Court of Appeals of Indiana | Memorandum Decision 73A01-1708-DR-1926 | June 29, 2018 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Theodore J. Minch

Sovich Minch, LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Margaret M. Christensen

Bingham Greenebaum Doll LLP

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Mark A. Roesler,

Appellant-Respondent,

v.

Amy S. (Roesler) Riesmeyer,

Appellee-Petitioner

June 29, 2018

Court of Appeals Case No.

73A01-1708-DR-1926

Appeal from the Shelby Circuit 

Court

The Honorable Jennifer K. 

Kinsley, Magistrate

The Honorable Charles D. 

O’Connor, Judge

Trial Court Cause No.

73C01-9809-DR-71

May, Judge.
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[1] Mark A. Roesler (“Father”) appeals the trial court’s denial of his verified 

petition for educational and other expenses. He argues the trial court erred 

when it determined it lacked authority pursuant to Indiana Code section 31-16-

6-6 (2012) to issue an order for post-secondary educational expenses because 

Father’s petition was untimely. Amy S. (Roesler) Riesmeyer (“Mother”) argues 

the court did not err when it so decided, and she requests we award appellate 

attorney fees. We dismiss this appeal and remand for the court to calculate an 

award of appellate attorney fees for Mother.

Facts and Procedural History

[2] Mother and Father married in 1986. Three children were born of the marriage. 

The marriage was dissolved in 2001 by agreement. The dissolution decree

provided for support and custody of the three then-minor children, but was 

silent regarding post-secondary expenses for the children. 

[3] On October 29, 2012, Father filed a verified petition to recognize emancipation 

and to modify child support, which sought to emancipate their two older 

children and modify Father’s child support accordingly. On August 18, 2014, 

the parties filed an agreed entry emancipating their two older children and 

modifying Father’s child support to an amount solely for the support of the 

youngest child, J.R. The court approved that agreed entry and entered an order 

(hereinafter, “2014 Order”) that in relevant part provided:

D. Mother and Father, by this Agreed Entry, agree to resolve all 

pending issues and issues discussed between the parties 
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(excepting college expense allocation, which is expressly reserved 

for future review), including but not limited to past child support, 

payment of child support through the date of [J.R.’s]

emancipation (May 30, 2016), private high school costs, and 

property settlement payments.

* * * * *

7. [J.R.’s] College Expenses. The parties defer addressing the

issue of payment of [J.R.’s] college expenses to a later date.

(Appellant’s App. Vol. II at 43 & 46.)1

[4] On June 9, 2016, Father filed a verified petition asking the court to recognize 

J.R.’s emancipation and terminate child support. Father’s request did not 

address J.R.’s post-secondary education expenses. The trial court granted 

Father’s petition the same day (“2016 Order”).

[5] On November 19, 2016, Father filed a verified petition for educational and 

other related expenses. Father’s petition acknowledged the trial court’s 2016 

Order and stated J.R. was enrolled in post-secondary education at the 

University of Southern California and was participating in a study-abroad 

program as a full-time student effective Fall 2016. Father asked the trial court 

 

1 The pages in Appellant’s Appendix are not numbered as required by Indiana Appellate Rule 51(C). This 

oversight has hampered our review of the facts of this case.
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to determine Mother’s obligation for J.R.’s educational expenses and other 

special related expenses totaling at least $65,000.

[6] On December 22, 2016, Mother filed a motion to dismiss Father’s petition 

pursuant to Indiana Trial Rule 12(H)(2). Mother argued the trial court lacked 

authority to issue an order for educational support. On the same day, Mother 

also filed a motion for attorney’s fees.

[7] Mother filed a brief supporting her motion to dismiss on April 19, 2017. Father 

responded thereafter and the trial court held a hearing on Father’s petition on 

July 7, 2017. On July 28, 2017, the trial court denied Father’s petition, finding 

it lacked authority to issue an order allocating post-secondary educational 

expenses. The trial court’s order did not address Mother’s request for attorney’s 

fees.

Discussion and Decision

Jurisdiction

[8] Our authority to exercise appellate jurisdiction is generally limited to appeals 

from final judgments, certain interlocutory orders, and agency decisions. Ind. 

Appellate Rule 5. A judgment is final if:

(1) it disposes of all claims as to all parties;

(2) the trial court in writing expressly determines under Trial 

Rule 54(B) or Trial Rule 56(C) that there is no just reason for 

delay and in writing expressly directs the entry of judgment (i) 
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under Trial Rule 54(B) as to fewer than all the claims or parties, 

or (ii) under Trial Rule 56(C) as to fewer than all the issues, 

claims or parties;

(3) it is deemed final under Trial Rule 60(C);

(4) it is a ruling on either a mandatory or permissive Motion to 

Correct Error which was timely filed under Trial Rule 59 or 

Criminal Rule 16; or

(5) it is otherwise deemed final by law.

Ind. App. R. 2(H). Whether an order is a final judgment governs our subject 

matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003), reh’g 

denied. 

Neither the parties nor the trial court can confer appellate 

jurisdiction over an order that is not appealable either as a final 

judgment or under Trial Rule 54(B). To the contrary, the lack of 

appellate jurisdiction can be raised at any time, and if the parties 

do not question subject matter jurisdiction, the appellate court 

may consider the issue sua sponte.

Id.

[9] Here, the trial court’s order denied Father’s petition for educational and other 

expenses but does not address Mother’s petition for attorney’s fees. Thus, it 

does not dispose of “all claims” between the parties as required by Indiana 

Appellate Rule 2(H)(1). See Clark v. Atkins, 489 N.E.2d 90, 99 (Ind. Ct. App. 

1986) (trial court’s order was not final order because it did not fully address 
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issue of attorney’s fees), reh’g denied, trans. denied, overruled on other grounds by 

Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008). The order also does not 

contain language pursuant to Indiana Trial Rule 54(B) or Indiana Trial Rule 

56(C) directing the entry of judgment as to fewer than all the issues. 

Additionally, the order was not deemed final for the purposes of relief from the 

judgment pursuant to Indiana Trial Rule 60(C), it is not a ruling on a timelyfiled mandatory or permissive motion to correct error under Indiana Trial Rule 

59, and has not been otherwise deemed final by law. Therefore, we lack subject 

matter jurisdiction and cannot entertain Father’s challenge of the trial court’s 

order. 

Appellate Attorney’s Fees

[10] In her cross-appeal, Mother requests appellate attorney’s fees pursuant to 

Indiana Appellate Rule 66(E), which states in relevant part: “The Court may 

assess damages if an appeal, petition, or motion, or response, is frivolous or in 

bad faith. Damages shall be in the Court’s discretion and may include 

attorneys’ fees.” An award of appellate attorney’s fees pursuant to Indiana 

Appellate Rulle 66(E) is discretionary and may be ordered when an appeal is 

“replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or 

purpose of delay.” Trost–Steffan v. Steffan, 772 N.E.2d 500, 514 (Ind. Ct. App.

2002), reh’g denied. In awarding these fees we must use extreme restraint 

because of the potential chilling effect on the exercise of the right to appeal. Id. 
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[11] There are two types of bad faith that permit appellate attorney fees -

“substantive” and “procedural.” Wressell v. R.L. Turner Corp., 988 N.E.2d 289, 

299 (Ind. Ct. App. 2013), reh’g denied.

To prevail on a substantive bad faith claim, the party must show 

that the appellant’s contentions and arguments are utterly devoid 

of all plausibility. Procedural bad faith, on the other hand, 

occurs when 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. Even if the appellant’s conduct falls short of that which is 

“deliberate or by design,” procedural bad faith can still be found. 

Id. (quoting Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003)) 

(citations omitted).

[12] Here, Father filed an appeal from an order that was not a final judgment, which 

required us to dismiss the appeal without addressing the merits of his argument 

challenging the trial court’s decision, such that his arguments are devoid of 

plausibility due to our lack of jurisdiction. In addition, Father’s appendices 

have no page numbers, which makes review of and citation to the record

difficult. While these substantive and procedural missteps do not rise to a level 

that would justify appellate sanctions, they are an unnecessary drain on not 

only our judicial resources, but also Mother’s resources. Therefore, we remand 

for the trial court to determine an appropriate award of appellate attorney’s fees

to cover the costs Mother incurred defending this appeal. See In re Walter Penner 
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Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014) (awarding appellee Trust 

appellate attorney’s fees based on appellant’s procedural violations), trans. 

denied.

Conclusion

[13] Because the trial court’s order denying Father’s petition for educational and 

other expenses is not a final appealable order, we dismiss. We remand to the 

trial court for determination of appropriate appellate attorney’s fees to be paid 

to Mother by Father.

[14] Dismissed and remanded.

Riley, J., and Mathias, J., concur.