Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015 Page 1 of 20

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.

ATTORNEYS FOR APPELLANT

Andrea L. Ciobanu

Alex Beeman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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.

June 9, 2015

Court of Appeals Case No.

49A02-1409-DR-623

Appeal from the Marion Superior 

Court.

The Honorable John F. Hanley, 

Judge.

The Honorable Christopher B. Haile, 

Magistrate.

Cause No. 49D11-0401-DR-43

Riley, Judge
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STATEMENT OF THE CASE

[1] Appellant-Petitioner, Sheila R. (Naum) Porter (Mother), appeals the trial 

court’s findings 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.

ISSUES

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

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

testificandum to elicit testimony from the minor child;

(2) Whether 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 HISTORY2

 

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 completion 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 endeavored to maintain 

confidentiality on appeal and, thus, approach the inclusion of certain facts with the necessary caution. But 
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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 born: 

Damon Naum (Damon), born on August 11, 1993, Sarah Naum (Sarah), born 

on May 24, 1995, and L.N., born on 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 parenting 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. Accordingly, 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 the 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).
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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 petitions.

[6] On November 4, 2013, Mother filed a verified emergency motion for 

modification of custody and 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 emancipation. 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 instructed Damon to 

silence 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 

troubled child. From a very early age, [L.N.] began exhibiting 

behavioral issues which continue to date. [L.N.] has a history of lying 
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about her whereabouts, her activities, and her companions and wishes 

to move from Father’s home where there is structure and 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 parenting 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 continue 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 appointment of a domestic 

relations counseling bureau (DRCB) investigation. On December 18, 2013, 

Mother filed a belated verified notice of relocation and a verified motion to 

offset child support overpayments against attorney’s fees, requesting that the 

child support she paid for Damon and Sarah during 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 an 
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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 emancipation 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 trial 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 appeal 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 comfortably 
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express her desires and concerns as they relate to her current living arrangement 

with Father.” (Appellant’s App. p. 159). The trial court denied Mother’s 

request on May 30, 2014. On 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 health 

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 July 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 quash 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 attorney’s fees, concluding, in 

pertinent part, that 

36. Mother failed to meet her burden of proof on all of the factors 

required for modification of custody. Beyond her own wishes, Mother 

was unable to prove that a substantial change in circumstances has 

occurred to support that a modification of custody is in the best 

interests of the child.
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37. Mother’s on-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 school 

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 not 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 been 

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 interrogatories, three sets of requests for 

production, two sets of requests for admissions, and deposed Father. 
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55. Father was forced to respond to these motions. When Father 

attempted to refrain from responding to Mother’s motion for child 

support overpayments 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]ourt 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 wellbeing 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 were without merit 

and not in the best interest of the child and she should contribute 

toward Father’s fees. 

61. That the [c]ourt finds Father’s fees 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 DECISION
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I. Subpoena Ad Testificandum

[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 issues. 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 ad testificandum. 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 

personal 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. 

Additionally, erroneously excluded evidence requires reversal only if it relates 

to a material matter or substantially affects the rights of the parties. Turner v. 
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Bd. of Aviation Comm’rs, 743 N.E.2d 1153, 1165 (Ind. Ct. App. 2001), trans. 

denied.

[17] In Newton 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 noted that Indiana Trial Rule 

45(B), which provides a trial 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 testimony, 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 court 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 asserts 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.].” (Appellant’s Br. p. 23). As pointed out by Father, L.N. had been 

interviewed by the DRCB and had the opportunity to disclose her claimed 
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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 cumulative. 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—of her 

allegations, she did not do so. The investigator also located collateral 

information from 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 advocate 

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 the 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 presenting the trial court with a proffer of L.N.’s testimony, 

filed with the court on the morning of the hearing and signed by Mother’s 
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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 proffered testimony stricken from the 

record. 

[21] Older case law suggests 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 incompetent or when it has otherwise

prevented a witness from 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 with 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 on 
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appeal. See id. 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 

error 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 testimony 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 

affected 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 expenses during the final hearing. Relying on Trial Rule 15(B), Father 

replies that because Mother was ordered in the dissolution decree 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. 
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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 Clause 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 peculiarities 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 amendments 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 issues. 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 thereby and the objecting party fails to satisfy the court that 
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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 the 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 strict 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, where 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 from 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 implied, as where the evidence presented at 
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trial is such that a reasonably competent attorney would have recognized that 

the unpleaded issue was being litigated. Baker, 508 N.E.2d at 35. 

[27] The record reveals that Father had sent Mother a request for reimbursement 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, Father 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 evidence. Although in her appellate brief Mother claims to have objected 

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]ourt 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 evidence, and she failed to insist on 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 were 
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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 were 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 discretion 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 decision 

to award attorney’s fees only if 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, their relative earning abilities, and other factors which bear on the 

reasonableness of the award. Id. Any misconduct on the part 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 | 49A02-1409-DR-623 | June 9, 2015 Page 19 of 20

[31] The complexity of the case is evidenced by Mother’s filings of 26 motions, 

Father’s filing of 12 motions, numerous objections and responses, 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 the modification, 

requesting 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 successful 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 despite the fact that the issue was not ripe and no other record 

existed but the pleadings. We dismissed Mother’s appeal 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. 

CONCLUSION
Court of Appeals of Indiana | Memorandum Decision | 49A02-1409-DR-623 | June 9, 2015 Page 20 of 20

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

subpoena ad testificandum 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 when 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