Court of Appeals of Indiana | Memorandum Decision | 49A02

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### 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.

A TTORNEY S FOR A PPELLANT Andrea L. Ciobanu Alex Beeman Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Brian K. Zoeller Julie Andrews Maggie L. Sadler Cohen & Malad, LLP Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Sheila R. (Naum) Porter , Appellant

- Petitioner ,

v. 

### Brett T. Naum, Appellee

- Respondent. J une 9, 2015 Court of Appeals Ca se No. 49A02

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- 623 Appeal from the Marion Superior Court. The Honorable John F. Hanley, Judge. The Honorable Christopher B. Haile, Magistrate. Cause No. 49D11

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- 43



### Riley , JudgeCourt of Appeals of Indiana | Memorandum Decision | 49A02

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### STATEMENT OF THE CASE

[1] Appellant

- Petitioner , Sheila R. (Naum) Porter (Mother) , appeals the trial court’s fi ndings of fact and conclusions of law, and order on custody, emancipation and attorney ’s fees , denying her motion for modification of custody of the minor child, L.N. , and granting her motion for emancipation of the two older children

. 1

[2] We affirm

.


### ISSUE S

[3] Mother raises three issues on appeal, w hich we restate as:

(1) Whether the trial court abused its discretion by quashing the s ubpoena ad

t estificandum to elicit testimony from the minor child; (2) Whet her the trial court violated Mother’s due process rights by granting Father’s request for reimbursement of medical expenses; and (3) Whether the trial court abused its discretion when it ordered Mother to pay Father’s attorney’s fees in the amount of $15,000

.


### FACTS AND PROCEDURAL HISTO RY 2

1 The parties do not appeal the emancipation of Damon Naum, born in August 1993 , and Sarah Naum, born in May 1995 . Facts with respect to these young adults will only be included if relevant to the appealed issues.
2 Even though the notice of appeal and com pletion of transcript were filed prior to the new Administrative Rule 9(G) becoming effective, we applaud parties for attempting to comply with the provisions of the Rule to retain confidentiality of certain facts in this cause. As such , we have equally e ndeavored to maintain confidentiality on appeal and, thus, approach the inclusion of certain facts with the necessary caution. ButCourt of Appeals of Indiana | Memorandum Decision | 49A02

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[4] On August 18, 2000, after approximately nine years of marriage, a decree of dissolution of marriage was entered between Mother and Appellee

- Respondent, Brett T. Naum (Father). During their marriage, three children were b orn: Damon Naum (Damon), born o n August 11, 1993, Sarah Naum (Sarah), born

o n May 24, 1995, and L.N., born o n April 10, 1997. Pursuant to the divorce decree, Father was awarded sole legal and physical custody of the parties’ three minor children, with Mother receiving supervised paren ting time

. Mother was ordered to pay weekly child support in the amount of $55. On November 19, 2004, the trial court documented Mother’s child support arrearage to be $5,011.97 and entered a judgment of $1,800 in Father’s attorney ’s fees against Mother. On April 7, 2005, Mother obtained unsupervised parenting time , with restrictions as to specific people who were not to be around the children

. In the three years preceding the trial court’s final order in this cause, Mother had never exercised more than fifty overnights per year with the children.

[5] On January 4, 2008, Mother filed a petition for contempt citation and petition for emergency hearing on modification of custody, parenting time , and child support. Three days later, Father filed his notice of respondent’s active duty

an appellate opinion that both decides the case and articulates the law requires consideration of the underlying facts. Acc ordingly, we have included a number of facts derived from the confidential records in this cause because “we deem such information to be public as essential to the resolution of the litigation and appropriate to further the establishment of precedent and t he development of the law.” Drake v. Dickey , 2 N.E.3d 30, 32 n.1 (Ind. Ct. App. 2013), aff’d 12 N.E.3d 875 (Ind. 2014).Court of Appeals of Indiana | Memorandum Decision | 49A02

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military service and request for stay of proceedings pursuant to the service members ’ civil relief act. On February 7, 2008, Mother withdrew her petition s
.

[6] On November 4, 2013 , Mother filed a verified emergency motion for modifica tion of custody an d request for expedited hearing, as well as a verified petition for modification of custody, a verified motion to appoint a guardian ad litem, and a verified petition to terminate child support for Damon and Sarah due to their emancipatio n. In her emergency motion, Mother alleged that Father had become physical with L.N., slapping her across the face . Mother elaborated that on October 27, 2013, Father and Damon had entered L.N.’s bedroom. During the argument that ensued, Father instruct ed Damon to

s ilence L.N

. upon which Damon slapped his sister in the face. On November 18, 2013, Mother filed her petition for order of protection and request for hearing, filed on behalf of L.N., asserting that Father had hit L.N. with his fist. L.N. was knocked to the floor, and “decided to lay there to avoid further abuse from” Father. (Appellant’s Conf. App. p. 39). 911 was called and L.N. was transported to the hospital.

[7] On November 20, 2013, Father filed his verified response to Mother’s verified motion to appoint a guardian ad litem and her emergency motion for modification of custody, and request for expedited hearing. In his response, Father noted, in pertinent part, that
5. [L.N.] is sixteen (16) years of age and is now, and has been, a tro ubled child. From a very early age, [L.N.] began exhibiting behavioral issues which continue to date. [L.N.] has a history of lyingCourt of Appeals of Indiana | Memorandum Decision | 49A02

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- 623 | J u n e 9 , 2 0 1 5 Page 5 of 20 about her whereabouts, her activities, and her companions and wishes to move from Father’s home where there is structure a nd discipline. 6. Because Father would not agree to allow [L.N.] to move from his home, in an attempt to force the issue, [L.N.] invented a story of neglect and abuse which was reported to the department of Child Services (DCS) by an anonymous caller. 7. DCS investigated and found the allegations to be unsubstantiated. 8. Father believes that Mother, who has not had custody of [L.N.] for thirteen (13) years, and whose own history of poor decisions in this matter resulted in her having supervised parentin g time for several years, allows [L.N.] to have more freedom than is wise for a 16

- year old child, especially one who is as confused as [L.N.] is at this time. 9. Father believes it is in [L.N.’s] best interest for her to remain with him where he will con tinue to provide love, structure, discipline and counseling for [L.N.’s ] behavioral issues. . . . (Appellant’s App. p. 46).

[8] On December 2, 2013, Mother filed a motion to quash subpoena duces tecum , seeking to quash the notice of deposition served on her by Father. On December 4, 2013, the trial court issued its order on the motion to quash, advising the parties to agree on a date before December 20, 2013. On December 5 , 2013, Mother filed a motion for appoint ment of a domestic relations counseling b ureau (DRCB) investigation. On December 18, 2013, Mother filed a belated verified notice of rel ocation and a verified motion to offset child support overpayments against attorney’s fees , requesting that the child support she paid for Damon and Sarah durin g the time they should have been emancipated be credited against the amount she owed Father in previously awarded attorney’s fees. At the same time, she also filed anCourt of Appeals of Indiana | Memorandum Decision | 49A02

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amended witness and exhibit list, naming, among others, L.N. as a potential witness.

[9] On December 20, 2013, after a hearing, the trial court denied Mother’s emergency motion for modification of custody and appointment of a guardian ad litem, but granted her request for appointment of a DRCB investigation. On January 10, 2014, Mother filed an amended motion to credit her overpayment in child support towards the arrearage in Father’s attorney’s fees, which was subsequently denied by the trial court on February 12, 2014. Two days later, Mother filed a motion to correct error and/or to reconsider or, in the alternative, to rule on Mother’s eman cipation petition.

[10] On March 14, 2014, Mother filed a notice of appeal to the trial court’s denial of her amended motion to offset her child support overpayments, as well as a motion to remand pending the t rial court’s ruling on her motion to correct

error. The trial court denied Mother’s motion to correct error that same day. On March 28, 2014, this court declared Mother’s motion to remand to be moot. On April 1, 2014, Mother filed an amended notice of a ppeal to reinstate the appellate process. Two weeks later, Father filed a motion to dismiss the appeal as the appealed order was not a final order. We granted Father’s motion on May 16, 2014 , and dismissed Mother’s appeal with prejudice.

[11] On May 2, 2014, Father filed his praecipe for final hearing with the trial court, which the trial court set for July 8, 2014. On May 28, 2014, Mother filed a motion for an in camera hearing with counsel present so L.N. “can comfortablyCourt of Appeals of Indiana | Memorandum Decision | 49A02

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express her desires and concerns as they relate to her current living arrangeme nt with Father.” (Appellant’s A pp. p. 159). The trial court denied Mother’s request on May 30, 2014. O n June 6, 2014, Mother filed her motion to reconsider the in camera hearing and to vacate the trial court’s May 30 order on the basis that “Father fears what [L.N.] may express to the [c]ourt and, as such, first attempted to discredit her as a child with ‘behavioral issues.’ However, now Father indicates that [L.N.] is a child suffering from ‘serious mental he alth issues.’” (Appellant’s App. p. 166) (internal references omitted). On June 10, 2014, Mother’s motion to reconsider was denied by the trial court. On the same day, Father moved for attorney’s fees incurred in the dismissal of Mother’s appeal.

[12] On J uly 7, 2014, the day before the final hearing, Mother filed a notice of intent to call L.N. as a witness at the final hearing and served Father with a copy of a subpoena ad testificandum issued to L.N. The following morning, Father filed his motion to qua sh subpoena ad testificandum , which was granted by the trial

court. The trial court conducted its final hearing that same day.

[13] On August 18, 2014, the trial court issued its findings of fact, conclusions of law, and order on custody, emancipation, and at torney ’s fees, concluding, in pertinent part, that
36. Mother failed to meet her burden of proof on al l of the factors required for modification of custody. Beyond her own wishes, Mother was unable to prove that a substantial change in circumstances h as occurred to support that a modification of custody is in the best interests of the child.Court of Appeals of Indiana | Memorandum Decision | 49A02

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- going denial of [L.N.’s] mental health issues places the child’s welfare at risk. 38. [L.N.] has been displaying serious behavioral problems in s chool and at home. Father has addressed these problems in a timely and appropriate manner which has been in the child’s best interest. 39. Father has concerns that Mother would fail to ensure that [L.N.’s] educational, social, and behavioral needs are no t being met. 40. Stability is in the child’s best interest and any transfer of custody to Mother could possibly disrupt the child’s treatment which would be detrimental to her recovery. 41. Mother has failed to present evidence proving that there has bee n a substantial change in circumstances in one or more of the factors. 42. It is in the best interest of the children that primary physical custody remains with Father. Mother shall be entitled to parenting time pursuant to the [Indiana Parenting Time Guidelines]

. 43

. Mother is ordered to fully cooperate in [L.N.’s] mental health treatment and counseling. * * * 45. The older children are emancipated by law. However, the emancipation does not date back to the date of emancipation due to the existence of an in gross order. The overpayment of child support only dates back to the date of filing for modification of child support. * * * 47. Father established that Mother had a past due uninsured medical expense arrearage for the children in the amount of $577.00. Mother is entitled to a credit of support overpayment as a result of the emancipation in the amount of $490.00 as established in Father’s Exhibit B. Offsetting Mother’s overpayment against her medical arrearage results in her owing Father $87.00 in past due medical bills. * * * 54. Between November of 2013 and the final hearing, Mother filed approximately eleven motions with the court, two notices of appeal and multiple motions with the Indiana Court of Appeals, served Father with two sets of in terrogatories, three sets of requests for production, two sets of requests for admissions, and deposed Father.Court of Appeals of Indiana | Memorandum Decision | 49A02

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- 623 | J u n e 9 , 2 0 1 5 Page 9 of 20 55. Father was forced to respond to these motions. When Father attempted to refrain from responding to Mother’s motion for child support overp ayments to offset attorney’s fees, Mother’s attorney went so far as to file a notice with the court that Father was non

- responsive, forcing Father to incur further attorney fees. 56. Furthermore, Mother’s notice of appeal was dismissed because this [c]our t had simply not yet issued a final order. When it became apparent that Father needed to file a motion to dismiss and that the [c]ourt of [a]ppeals would not dismiss sua sponte , Father was again forced to incur unwarranted attorney fees. 57. Furthermore, Mother has shown a complete disregard for the well

being of the mentally ill child in this case by exposing her to the proceedings by seating her at the counsel’s table and more egregiously by attempting to force her on the eve of trial to be transported from an inpatient mental health treatment facility in Columbus Indiana to testify at the hearing. 58. Furthermore, Mother continued to pursue a modification of custody despite being told by the Department of Child Services caseworker who investigated this matter that the child’s allegations were unsubstantiated and indeed fabricated by the child. 59. Mother’s flat fee representation has had the effect of allowing Mother to run up Father’s attorney fees. 60. Many of Mother’s actions in this proceeding w ere without merit and not in the best interest of the child and she should contribute toward Father’s fees. 61. Tha t the [c]ourt finds Father’s fee s of $20,000.00 are reasonable given the extensive filings and responses required by Father’s attorney, the complexity of the matter and the issues involved. 62. [Mother] shall contribute $15,000.00 towards [Father’s] attorney fees incurred in this action.

. . . (Appellant’s App. pp. 248

- 53).

[14] Mother now appeals. Additional facts will be provided as necessary

.


### DISCUSSION AND DECISIONCourt of Appeals of Indiana | Memorandum Decision | 49A02

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[15] During these custody proceedings, Mother repeatedly attempted to elicit the testimony of the minor child in an effort to rebut Father’s allegations that L.N. is suffering from certain mental health is sues. Ranging from an order of protection to listing L.N. as a potential witness and requesting an in camera interview , Mother’s filings culminated in a subpoena ad testificandum , served on the eve of the final hearing. On the morning of trial, Father filed a motion to quash the subpoena on the ground that L.N. was receiving inpatient mental health services and disrupting her treatment would not be beneficial for her care. The trial court quashed the subpoena a d testific andum . Mother now contends that the trial court abused its discretion when it quashed the subpoena as it deprived her of the opportunity to refute the allegations made by Father about L.N.’s behavior and to which Mother could not testify as she lacked
per sonal knowledge.

[16] As a general matter, the decision to admit or exclude evidence is within the trial court’s sound discretion and is afforded great deference on appeal. Southtown Props., Inc. v. City of Fort Wayne ex rel. Dep’t of Redev ., 840 N.E.2d 393, 399 (Ind. Ct. App. 2006), trans. denied . A trial court’s decision to exclude evidence constitutes an abuse of discretion if it is clearly against the logic and effect of the facts and circumstances before the court or if it misinterprets the law. Id

. A dditionally, erroneously excluded evidence requires reversal only if it relates to a material matter or substantially affects the rights of the parties. Turner v.Court of Appeals of Indiana | Memorandum Decision | 49A02

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Bd. of Aviation Comm’rs , 743 N.E.2d 1153, 1165 (Ind. Ct. App. 2001), trans. denied

.

[17] In Newto n v. Yates , 353 N.E.2d 485 (Ind. Ct. App. 1976) , reh’g denied , this court dealt with the question of the court’s authority to quash a subpoena ad testificandum for the first time. The Newton court note d that Indiana Trial Rule 45(B), which provides a tria l court with authority to quash a witness subpoena, only refers to “subpoena duces tecum and has no applicability to subpoenas ad testificandum .” Id . at 499. Applying the general rule of evidence that a witness must present relevant and admissible testim ony, the court held that the quashing of a subpoena ad testificandum is improper where a witness potentially has some relevant and admissible evidence to offer at trial. Id . at 494; see also In re Adoption of L.C ., 650 N.E.2d 726, 732 (Ind. Ct. App. 1995) , reh’g denied, trans. denied . Accordingly, a trial court may properly quash a subpoena on immateriality, irrelevancy, or inadmissibility grounds. In re Adoption of L.C ., 650 N.E.2d at 732 . However, our c ourt has previously warned that the “procedure for separating admissible from inadmissible testimony must not be the quashing of all testimony.” Newton , 353 N.E.2d 485, 494 (Ind. 1976).

[18] Claiming that the minor child was competent to testify, Mother assert s that L.N. “had some pretty significant and important testimony for which [sic] the trial court should have heard which goes directly towards what is in her best interests and even to the protective order requested by Mother on behalf of [L.N.].” (Appell ant’s Br. p. 2 3 )

. As pointed out by Father, L.N. had been interviewed by the DRCB and had the opportunity to disclose her claimedCourt of Appeals of Indiana | Memorandum Decision | 49A02

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allegations of abuse, but did not do so. As such, Father maintains that L.N.’s testimony would have been irrelevant and cumu lative. We agree.

[19] During the DRCB investigation, the parents and the three children were interviewed separately and confidentiality. Mother and Father both presented their concerns and wishes to the investigator , including accounts on how the other parent treated the children. While talking with L.N., the investigator noted that she was guarded and reluctant to speak. Even though she was given the opportunity to divulge the details

— or even the existence

— o f her allegations, she did not do so. The i nvestigator also located collateral information f

rom IMPD and DCS reports. The DRCB report concluded L.N. to be in need of additional support, extending beyond the basic, family intervention. The report also recognized that Father presented as an advocat e for L.N. and showed willingness to give her the care she needed, while Mother was reluctant to accept that her daughter required mental health assistance or extra parenting supervision. Accordingly, as the trial court had ordered the DRCB investigation as part of the proceedings and L.N. had been interviewed and allowed to present her wishes and concerns, the trial court did not abuse its discretion by quashing the subpoena as L.N.’s testimony would have been cumulative to the DRCB’s proceedings

.

[20] After t he trial court properly quashed the subpoena ad testificandum and during the hearing

— at which L.N. was not present

— Mother attempted to make an offer of proof by pre senting the trial court with a p roffer of L.N.’s testimony, filed with the court on the morn ing of the hearing and signed by Mother’sCourt of Appeals of Indiana | Memorandum Decision | 49A02

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counsel. The trial court vociferously refused to let Mother make an offer of proof and ordered Mother’s filing of the proffer ed testimony stricken from the record.

[21] Older case law suggest s that when the objection “is to the right of the witness to testify at all, the party introducing that witness need not state what he expects to prove by him, as the question for the court to pass upon in such a case is not as to the competency of the [witness’] testimony, but as to the competency of the witness himself.” Sullivan v. Sullivan , 32 N.E. 1132, 1133 (Ind. 1893). However, more recent case law has held that an offer of proof is required even when the trial court has found a witness incompete nt or when it has otherwise
prev ented a witness f

r om giving any testimony. Bedree v. Bedree , 747 N.E.2d 1192, 1196 (Ind. Ct. App. 2001), trans. denied . In Donaldson v. Indianapolis Pub. Transp. Corp ., 632 N.E.2d 1167, 1170 (Ind. Ct. App. 1994) (internal reference omitted) , we noted:
During direct examination, when the trial court rules that a witness may not testify, the proponent of the excluded testimony must make an offer of proof to preserve the ruling for appellate review. An offer of proof provides the appellate court wi th the scope and effect of the area of inquiry and the proposed answers, in order that it may consider whether the trial court’s ruling excluding the evidence was proper. Thus, failure to make an offer of proof results in waiver of the evidentiary issue. Bedree , 747 N.E.2d at 1196.

[22] Because an appellant may be subject to waiver if he or she fails to make an offer of proof, we believe that generally, the better course of action is for the trial court to allow an offer of proof so that a record can be made for this court onCourt of Appeals of Indiana | Memorandum Decision | 49A02

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appeal. See i

d . However, we do not believe that the trial court committed reversible error in this particular instance by disallowing Mother’s offer of proof of L.N.’s purported testimony. Indiana Evidence Rule 103(a)(2) states that

er ror may not be predicated upon a ruling excluding evidence unless a substantial right of the party is affected and an offer of proof was made or “the substance of the evidence . . . was apparent from the context[.]” The substance of L.N’s proffered testim ony was apparent from the context as both Father and Mother testified as to L.N.’s wish to live with Mother and to L.N.’s dysfunctional relationship with Father , which was well documented in the various reports properly before the trial court. Therefore, we conclude that the trial court properly quashed Mother’s subpoena ad testificandum and although the trial court abused its discretion when it rejected Mother’s offer of proof of L.N.’s anticipated testimony, this error was harmless and would not have aff ected the outcome of the modification proceeding

.

II. Reimbursement of Medical Expenses

[23] Next, Mother contends that she was denied due process because Father had not provided her with notice that he intended to request the reimbursement of medical expens es during the final hearing. Relying on Trial Rule 15(B), Father replies that because Mother was ordered in the dissolution d ecree to pay a certain amount of the uninsured medical expenses, Mother was on notice that this issue could be brought before the trial court during the hearing.Court of Appeals of Indiana | Memorandum Decision | 49A02

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[24] Due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses. In re M.L.K ., 751 N.E.2d 293, 295

- 96 (Ind. Ct. App. 2001). Before an action affecting a party’s interest in life, liberty , or property protected by the Due Process Cl a use of the Fourteenth Amendment proceeds, the State at a minimum, must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id

. (citing Yoder v. Elkhart Co. Auditor, 632 N.E.2d 369, 372 (Ind. Ct. App. 1994). Such notice must reasonably convey the required information to the affected party, must afford a reasonable time for that party to respond, and is constitutionally adequate when the practicalities and peculiariti es of the case are reasonably

met. In re M.L.K

., 751 N.E.2d at 296.

[25] While Indiana is a notice pleading state, issues may be tried without an overt pleading pursuant to Ind. Trial Rule 15(B). Baker v. Midland

- Ross Corp . 508 N.E.2d 32, 35 (Ind. Ct. App. 1987), trans. denied

. Trial Rule 15(B) provides as follows:
When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendm ents of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these iss ues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the preservation of the merits of the action will be subserved t hereby and the objecting party fails to satisfy the court thatCourt of Appeals of Indiana | Memorandum Decision | 49A02

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- 623 | J u n e 9 , 2 0 1 5 Page 16 of 20 the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The purpose behind T.R. 15(B) is to provide the parties with some flexibility in litigating a case, and to promote justice by permitting evidence brought in at trial to determine the liability of the parties. Baker , 508 N.E.2d at 37. The function of th e issues, whether formed by the pleadings, pre

- trial orders, or contentions of the parties, is to provide a guide for the parties and the court as they proceed through trial. In re V.C. , 867 N.E.2d 167, 178 (Ind. Ct. App. 2007). Either party may demand s trict adherence to the issues raised before the trial. Id . If the trial court allows introduction of an issue not raised before trial, an objecting party may seek a reasonable continuance in order to prepare to litigate the new issue. Id . However, wher e the trial ends without objecting to the new issue, the evidence actually presented at trial controls. Baker , 508 N.E.2d at 35. Consequently, neither pleadings, pre

- trial orders, nor theories proposed by the parties should frustrate the trier of fact fr om finding the facts that a preponderance of the evidence permits. Id

.

[26] Because fairness compels certain restraints, however, there are limits upon the principle of amending pleadings through implied consent. In re V.C ., 867 N.E.2d at 178. For example, a party is entitled to some form of notice that an issue that was not pleaded is before the court. Id . Notice can be overt, as where the unpleaded issue is expressly raised prior to or sometime during the trial but before the close of the evidence, or i mplied, as where the evidence presented atCourt of Appeals of Indiana | Memorandum Decision | 49A02

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trial is such that a reasonably competent attorney would have recognized that the unpleaded issue was being litigated. Bake r , 508 N.E.2d at 35.

[27] The record reveals that Father had sent Mother a request for reimb ursement of medical expenses on January 1, 2008, without receiving any financial satisfaction from her. During the hearing, Father introduced the issue of these unreimbursed medical expenses in the framework of Mother’s motion to offset her child support overpayments due to the emancipation of the older children. Our review of proceedings reveals a plethora of evidence elicited without objection at trial that Mother had not received notice of Father’s intent to seek this reimbursement. Specifically, Fath er was allowed to testify

—without objection

— on his request for reimbursement, the amount of the medical expenses and Mother’s share thereof, and introduce his written request of 2008 into eviden ce. Although in her appellate b rief Mother claims to have obj ected to the admission of the itemized exhibit, no such objection appears on the record. Rather, the closest Mother came to raising an objection was during

cross - examination, when she confirmed with Father that he had “nothing pending before [t]his [c]our t to actually ask for these reimbursements from 2008, do you?” (Tr. p. 145). However, no formal objection was ever lodged.

[28] Accordingly, as Mother received overt notice by Father’s express request to reimburse Mother’s share of medical expenses during the hearing and prior to the close of the evid ence, and she failed to insist o n a strict adherence to the issues raised or ask for a reasonable continuance, the unreimbursed medical expenses were properly before the trial court. Mother’s due process rights w ereCourt of Appeals of Indiana | Memorandum Decision | 49A02

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not violated. Therefore, we affirm the trial court’s grant of Father’s request for reimbursement of medical expenses.

III. Father’s Attorney’s Fees

[29] After receiving evidence on Father’s attorney ’s fees incurred during these child custody modification proceedings, the trial court concluded that Father’s fees of $20,000 wer e reasonable and ordered Mother to contribute $15,000 towards these fees. Mother now disputes Father’s award of attorney ’s fees.

[30] Pursuant to Ind. Code § 31

- 17

- 7

- 1, the trial court may order a party to pay a reasonable amount for the cost of the other party maintaining an action for custody modification and for attorney ’s fees and mediation services. The trial court had broad dis cretion in awarding attorney ’s fees. Haley v. Haley , 771 N.E.2d 743, 753 (Ind. Ct. App. 2002). We will reverse the trial court’s decisi on to award attorney ’s fees only i f the decision is clearly against the logic and effect of the facts and circumstances

. Id

. What constitutes a reasonable attorney’s fee “is not limited to an hourly rate, but includes such matters as the result achieved . . . and the difficulty of the issues.” Finley v. Finley , 422 N.E.2d 289, 293 (Ind. Ct. App. 1981). When determining whether an award of attorney ’s fees is appropriate, the court may also consider such factors as the resources of the parties, the ir relative earning abilit ies , and other factors which bear on the reasonableness of the award. Id . Any misconduct on the pa rt of one party which causes the other party to directly incur additional fees may be taken into consideration. Id

.Court of Appeals of Indiana | Memorandum Decision | 49A02

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[31] The complexity of the case is evidenced by Mother’s filings of 26 motions, Father’s filing of 12 motions, numerous objections and respons es, extensive discovery by Mother, as well as subsequent notices of appeal . The short time span in which all motions were made and the appeal was taken is indicative of the contentious nature of this modification. Mother pursued th e modification, request ing the same result

— a court

- conducted interview of the minor child

— several times and by varied legal avenues , regardless of the well

- being of a mentally ill minor child and in spite of the unsubstantiated reports of child abuse. Even though Mother was suc cessful in having the minor child interviewed by the DRCB, Mother persisted in filing repeated motions to have L.N. brought into court, even on the eve of the final hearing. Father was forced to respond to Mother’s motions ; if Father attempted to refrain from responding, Mother filed a notice with the trial court that Father was unresponsive.

[32] When Mother received a negative response to her motion to offset an overpayment in child support payments against an attorney fee judgment, she filed an appeal desp ite the fact that the issue was not ripe and no other record existed but the pleadings. We dismissed Mother’s app eal with prejudice but not before Father incurred fees to defend against an improper appeal.

[33] Mindful of the trial court’s discretion in awarding attorney ’s fees and Mother’s numerous filings which repeatedly sought the same result, we cannot say that the trial court improperly granted Father an award of attorney’s fees.



### CONCLUSIONCourt of Appeals of Indiana | Memorandum Decision | 49A02

- 1409

- DR

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[34] Based on the foregoing, we conclude that the trial court properly quashed the

s ubpoena ad t

estificandum to elicit testimony from the minor child; Mother’s due process rights were not violated by addressing Father’s request for reimbursement of medical expenses; and the trial court did not abuse its discretion wh en it ordered Mother to pay Father’s attorney’s fees in the amount of $15,000.

[35] Affirmed

.

[36] Bailey, J. and Barnes, J. concur