Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JP-1015 | November 28, 2017 Page 1 of 24

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

Danielle L. Gregory

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Stacy L. Kelley

Glaser & Ebbs

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dameka Dunlop,

Appellant-Petitioner,

v.

Courtney Johnson, Sr.,

Appellee-Respondent

November 28, 2017

Court of Appeals Case No.

49A02-1705-JP-1015

Appeal from the Marion Circuit 

Court

The Honorable Sheryl Lynch, 

Judge

The Honorable Marie Kern, 

Magistrate

Trial Court Cause No.

49C01-1510-JP-35602

Barnes, Judge.
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Case Summary

[1] Dameka Dunlop (“Mother”) appeals the trial court’s order granting sole legal 

custody and physical custody of Courtney Johnson, Jr. (“Child”) to Courtney 

Johnson, Sr. (“Father”), denying Mother’s motion to relocate with Child, and 

awarding attorney fees to Father. We affirm in part, reverse in part, and 

remand.

Issues

The issues before us are as follows:

I. whether the trial court erred in awarding physical custody 

to Father;

II. whether the trial court erred in awarding sole legal custody 

to Father;

III. whether the trial court erred in denying Mother’s request 

to relocate with the parties’ minor child; 

IV. whether the trial court abused its discretion in finding 

Mother in contempt; and

V. whether the trial court erred in awarding attorney fees to 

Father.

Facts

[2] Mother and Father are the parents of Child, who was born in 2011. In August 

of 2015, Mother moved from the home she shared with Father, her prior-born 
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son, Father’s prior-born son, and Father’s mother. Mother filed a verified 

petition to establish support pursuant to execution of a paternity affidavit on 

October 27, 2015. Child’s paternity was established on February 24, 2016. 

Mother was awarded primary physical custody of Child.

[3] On May 6, 2016, Mother filed a notice of intent to relocate. On May 31, 2016, 

the trial court ordered (“Order”) that Mother could not relocate with Child until 

the court had conducted a hearing on Father’s motion in opposition. Mother

relocated to Atlanta, Georgia, in early October of 2016. Mother denied

receiving notice of the Order.

[4] A hearing scheduled for September 2016 was continued due to the trial judge’s 

illness. The rescheduled hearing took place on December 7, 2016. On that 

date, Mother failed to appear. Father, having taken leave from work, appeared 

with his counsel. On December 7, 2016, Father filed a petition for contempt 

against Mother. 

[5] On March 21, 2017, the trial court conducted a hearing regarding the relocation 

dispute and Father’s contempt action. Mother and Father appeared and 

presented evidence. Father requested primary physical custody of Child and 

asked the trial court to order joint legal custody with Mother having parenting 

time pursuant to the Indiana Parenting Time Guidelines applicable when 

distance is a factor. Father also requested his attorney fees and lost wages for 

the December 7, 2016 hearing and attorney fees for the contempt action.
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[6] Child has a healthy, loving relationship with Father and his sibling in Father’s

home. Father has supplied clothing and money for Child’s shoes, and has paid 

some child support.1 From August 2015, when Mother moved out, until

August 2016, Father picked up his prior-born son, Mother’s prior-born son, and 

Child from school on Thursdays and some Fridays, and Child would spend the 

night. Father typically exercised six to eight overnight visits with Child each 

month. 

[7] Father agrees that Mother is a committed and nurturing parent to Child. He 

and Mother typically communicated “through phone calls or texts” regarding 

his parenting time, and Mother was generally flexible regarding his parenting 

time; however, after he and Mother argued in December 2016, Mother stopped 

responding to his calls and text messages. Tr. p. 129. Afterwards, he briefly 

stopped trying to contact Mother but resumed calling and sent five unanswered 

texts to her from January to February 2017. The December 2016 argument was 

not the first time that Mother ignored his telephone calls. Id. at 149 (“[T]here 

have been times where she may be [sic] wouldn’t answer the phone for two to 

three weeks or a month since she left in 2015 . . . .”).

[8] Father is a lifelong resident of Marion County and “pretty much all of [his] 

family is here.” Id. at 122. Child has a “good relationship” with Father’s prior-

 

1 The trial court credited Father with $900 in financial and in-kind contributions toward support of Child and 

offset the sum against Father’s child support obligation, leaving an arrearage of $9,784 owed by Father. App. 

p. 30.
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born son and has friends in Father’s neighborhood. At the hearing on the 

parties’ relocation and contempt disputes, Father testified that he had not seen 

Child in three months.

[9] Father learned of Mother’s relocation to Atlanta on social media, and Mother’s 

relocation interfered with his parenting time “a whole lot.” Id. at 133. After 

Mother relocated, she returned to Indianapolis on alternating weekends, and he 

was only able to exercise a maximum of twenty-four hours of parenting time, as 

opposed to the full weekends that he had previously enjoyed.

[10] Father requested primary physical custody and joint legal custody of Child. He 

also asked that Mother be awarded parenting time pursuant to the Indiana 

Parenting Time Guidelines when distance is a factor. 

[11] Father moved the trial court to enter a finding of contempt against Mother for 

relocating Child in violation of the court order and without his permission. He 

also requested attorney fees relating to the contempt filing, and lost wages and 

attorney fees for the December 7, 2016 hearing, for which Mother failed to 

appear.

[12] Mother’s testimony was as follows: Child has a healthy, loving relationship 

with Mother and her prior-born son. Mother testified that after August 2015, 

Father paid $900 or less in child-support or in-kind benefits for Child’s needs. 

She testified that she obtained Child Care Development Fund assistance to pay 

for work-related child care, and thereafter paid child care expenses herself. 
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[13] Mother had a longtime desire to relocate eight hours away from Indianapolis to 

Atlanta, where paternal grandfather and Mother’s relatives reside, and where

Mother believed there existed more favorable career opportunities and a better

environment for Child. In April 2016, Mother prepared to relocate to Atlanta, 

where she planned to work for a high-profile hairstylist. Mother testified that 

she advised Father of her plans, and that he did not object until she filed her 

notice of intent to relocate. She began working in Atlanta in August 2016, 

signed an apartment lease in September 2016, paid for daycare registration in 

Atlanta in mid-September 2016, and got keys to her new apartment in October 

2016. Child began attending school in Atlanta in mid-October 2016.

[14] Mother testified that after she moved to Atlanta, she continued her 

longstanding practice of coordinating and facilitating Father’s parenting time 

with Child. Mother returned to Indianapolis on alternating weekends to work

as a hairstylist from mid-October 2016 through approximately December 2016. 

She testified that, around Christmas 2016, she and Father argued, and that she 

subsequently stopped initiating communication with Father to prompt his 

scheduling parenting time with Child. After December 2016, Mother testified 

that Father telephoned Child only once and failed to inquire about Child’s 

health, schooling, or welfare. Mother returned to Indianapolis on three 

separate occasions in January, February and March 2017, respectively. She did 

not notify Father that she was in town, and Father was not able to visit with 

Child. 
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[15] Mother asked the trial court for continued primary physical custody of Child 

because she is a fit parent and has always been Child’s primary caregiver. She 

testified that she intended to remain in Atlanta and to return to Indianapolis in 

alternating weeks to work as a hairstylist.

[16] On April 28, 2017, the trial court entered an order (1) determining that even if 

Mother’s relocation was made in good faith and for a legitimate reason, the 

move was not in Child’s best interests; (2) granting primary physical custody to 

Father; (3) granting sole legal custody to Father, because distance so warranted 

and because the parties could not communicate effectively and cooperatively; 

(4) ordering Mother to pay Father’s attorney fees of $675 as a sanction for 

violating the Order, and to pay Father’s attorney fees of $750 and to reimburse 

$83.92 in his lost wages as a sanction for failing to appear for the December 7,

2016 hearing. The order of the trial court found, in part, as follows:

118. The Court finds that it is in the child’s best interests to order 

that Father shall have primary physical custody of the minor 

child. Father has demonstrated more significant stability than 

Mother since the parties separated in August 2015. Further, the 

Court believes that Mother has demonstrated poor judgment 

associated with her relocation decision, acting in her best 

interests, not those of the child. Finally, the Court does not find 

Mother’s assertions that she was unaware of the Court’s order 

prohibiting relocation to be persuasive or credible. All of 

Mother’s actions suggest a complete disregard for any order of 

the Court as Mother took deliberate and calculated steps to 

advance her relocation, prior to any order from the Court 

permitting that action to be taken on behalf of the child. The 

Court believes that Father is the more likely of the two parents to 

abide by any orders of this Court as a result.
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119. The Court also orders Father to have sole legal custody of 

the minor child, as the evidence has demonstrated that Mother 

and Father have an inability to effectively communicate in a 

cooperative manner and due to the significant distance involved.

120. Father is ordered to be able to assume custody of the minor 

child effective May 13, 2017, in order to give him an opportunity 

to make any necessary travel arrangements, as well as provisions 

for child care and schooling.

121. Mother shall have parenting time per the IPTGS When 

Distance is a Factor. All ancillary provisions of the IPTGS shall 

apply. In addition, if Mother is going to be in the Indianapolis 

area, she may elect to exercise additional parenting time in

Indianapolis, but must give Father a minimum of seven days’

notice of her intent to exercise that parenting time. Those 

additional periods of parenting time shall not exceed 48 hours in 

duration, absent an agreement between Mother and Father.

122. Transportation for Mother’s parenting time shall be equally 

divided, absent an alternate agreement of the parties.

* * * * *

146. I.C. 31-14-18-2 permits the court to order a party to pay a 

reasonable amount for attorney’s fees, including amounts for 

legal services provided and costs incurred. . . . 

* * * * *

148. The Court finds that Mother is in contempt for failure to 

comply with the Court’s order not to relocate the child until the 

matter had been heard to completion. Mother testified that she 

assumed that she’d be allowed to relocate the child and all of
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Mother’s actions demonstrate that she went forward with her 

plan to relocate the child, despite the Court order prohibiting his 

relocation.

149. As sanction for Mother’s contempt, the Court orders 

Mother to pay $675 of Father’s attorney fees to attorney Stacey 

Kelley within 180 days of the date of this order. Any fees owing 

thereon at the conclusion of that period of time may be reduced 

to a judgment in favor of attorney Kelley upon written request.

150. The Court further finds that Mother’s misconduct associated 

with her failure to appear for trial on December 7, 2016, resulted 

in additional unnecessary legal fees for Father, as well as missed 

wages associated with four hours of Father’s employment. As 

sanction for this misconduct, the Court orders Mother to pay 

attorney Stacy Kelley $750 in attorney fees within 180 days of the 

date of this order. Any balance owed thereon at the conclusion 

of that period of time may be reduced to a written judgment in 

favor of attorney Kelley upon written request. Additionally, 

Mother shall reimburse Father $83.92 in lost wages within 30 

days of the date of this order and provide proof of payment to the 

Court.

App. Vol. II pp. 27, 32-33. Mother now appeals.

Analysis

I. Physical Custody

[17] Mother argues that the trial court abused its discretion in awarding physical

custody of Child to Father. Child custody determinations fall squarely within 

the discretion of the trial court and will not be disturbed except for an abuse of 

discretion. Walker v. Walker, 539 N.E.2d 509, 510 (Ind. Ct. App. 1989). On 

review, we will not reweigh the evidence, adjudge the credibility of the 
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witnesses, nor substitute our judgment for that of the trial court. Id. We will 

examine the evidence to determine if there is any evidence supporting the trial 

court’s determination. Id. We will not reverse unless we find the trial court’s 

decision is against the logic and effect of the facts and circumstances or the 

reasonable inferences drawn therefrom. Id. “Appellate deference to the 

determinations of our trial court judges, especially in domestic relations 

matters, is warranted because of their unique, direct interactions with the 

parties face-to-face, often over an extended period of time.” Best v. Best, 941 

N.E.2d 499, 502 (Ind. 2011). “Thus enabled to assess credibility and character 

through both factual testimony and intuitive discernment, our trial judges are in 

a superior position to ascertain information and apply common sense, 

particularly in the determination of the best interests of the involved children.” 

Id.

[18] The modification of a custody order also lies within the sound discretion of the 

trial court. Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997). Upon 

appeal, we will reverse a trial court’s decision only upon a showing of an abuse 

of discretion. Id. In general, a court must find that modification would be in 

the child’s best interests and that there has been a substantial change in 

circumstances. Ind. Code § 31-17-2-21; Haley v. Haley, 771 N.E.2d 743, 747 

(Ind. Ct. App. 2002). However, where, as here, a motion for custody 

modification is filed in response to a relocation, the trial court must instead take 

the following factors into account in deciding whether to modify custody:

(1) The distance involved in the proposed change of residence.
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(2) The hardship and expense involved for the nonrelocating 

individual to exercise parenting time . . . .

(3) The feasibility of preserving the relationship between the 

nonrelocating individual and the child through suitable parenting 

time . . . arrangements, including consideration of the financial 

circumstances of the parties.

(4) Whether there is an established pattern of conduct by the 

relocating individual, including actions by the individual to either 

promote or thwart a nonrelocating individual’s contact with the 

child.

(5) The reasons provided by the:

(A) relocating individual for seeking relocation; and

(B) nonrelocating parent for opposing the relocation of the 

child.

(6) Other factors affecting the best interest of the child.

I.C. § 31-17-2.2-1(b). See Baxendale v. Raich, 878 N.E.2d 1252, 1256-57 (Ind.

2008). The “[o]ther factors” to be considered are enumerated in Indiana Code 

Section 31-17-2-8 for ascertaining a child’s best interests:

(1) The age and sex of the child.

(2) The wishes of the child’s parent or parents.

(3) The wishes of the child, with more consideration given to the 

child’s wishes if the child is at least fourteen (14) years of age.
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(4) The interaction and interrelationship of the child with:

(A) the child’s parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the 

child’s best interests.

(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either 

parent.

(8) Evidence that the child has been cared for by a de facto 

custodian, and if the evidence is sufficient, the court shall 

consider the factors described in section 8.5(b) [IC 31-17-2-8.5(b)] 

of this chapter.”

[19] In considering the statutory factors relevant to a decision to modify custody

under Indiana Code Section 31-17-2.2-1(b), we note the following: Mother’s 

relocation put Child eight hours away from Indianapolis. Because of the 

distance, Father’s visits, formerly six to eight overnight visits each month, were 
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drastically limited to approximately twenty-four hours of parenting time on 

alternating weekends when Mother returned to Indianapolis. Challenges 

presented by the geographic distance and Mother’s intermittent return trips to 

Indianapolis thus made it less feasible that Father’s close bond with Child, as 

well as other familial bonds, could be adequately preserved through parenting 

time after Mother’s relocation. 

[20] Mother’s reasons for relocating to Atlanta were aspirational – more lucrative 

work and an allegedly more positive social and academic environment for 

Child, including free, state-funded pre-kindergarten in Georgia. The record 

reflects that at the time of the hearing, however, Mother’s financial goals had 

not materialized, and she had suffered a significant reduction in her income and

standard of living. As the trial court noted, “Mother has effectively reduced her 

income and set herself back several years in terms of career advancement by 

relocating to Atlanta.” App. Vol. II p. 23.

[21] Additionally, the record reveals an established pattern of conduct by Mother to 

thwart Father’s exercise of parenting time. After an argument in December of 

2016, Mother stopped acknowledging Father’s telephone calls and texts and 

deliberately ceased initiating communications regarding parenting time. 

Mother testified that she tired of orchestrating Father’s parenting time, when he 

was not helping her financially. The record is clear that Mother was struggling 

financially and that Father was behind on child support. It also appears that 

unless Mother prompted him, Father did not consistently initiate parenting time 

with Child. 
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[22] We sympathize with Mother; however, we agree with the trial court that it was 

incumbent upon her—as the party who relocated and who dictated the

timetable for her intermittent return trips to Indianapolis—to maintain open 

lines of communication with Father. See Tr. p. 103 (“[Trial Judge]: And so I 

know you said that you got tired of always being the one to initiate contact with 

dad, but how was he to know what weekends you were going to be up here if 

you did not tell him?”). Although Mother returned to Indianapolis in January, 

February, and March 2017, she failed to notify Father; consequently, on each 

occasion, Father was unable to exercise parenting time with Child. At the time 

of the hearing on the relocation and contempt disputes, Father had not seen 

Child in three months.

[23] Regarding the best interests of Child, we observe that Child was five years old

at the time of Mother’s relocation. Child was closely bonded with each parent 

and with his sibling in each parent’s household. Each parent sought physical 

and legal custody, having established a satisfactory physical and emotional 

home environment. Each parent testified that the other was a loving and 

nurturing parent to Child. Child was accustomed to Mother being his primary 

caregiver and custodial parent. Mother testified that she took Child to routine 

medical appointments and to school, paid his school fees, bought the bulk of his 

food and clothing, and paid for his haircuts.

[24] Child was also accustomed to spending multiple overnight visits with Father 

each month. Father’s mother resides with him and his sister lives nearby, and 

each is willing and able to assist with supervising Child or getting Child on and 
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off the school bus each day. At the time of the hearing, Mother testified that 

she lacked consistent family support and child care.

[25] Given Mother’s relocation to Atlanta, the trial court determined that 

modification of custody was in Child’s best interests and that there has been a 

substantial change in circumstances. Based upon the foregoing evidence, the 

trial court did not abuse its discretion in modifying custody in Father’s favor

upon a finding that placement with Father would promote stability and 

permanence for Child.

II. Sole Legal Custody

[26] Mother argues that the trial court abused its discretion in awarding sole legal 

custody of Child to Father. When considering a modification from joint legal 

custody to sole legal custody, we must determine whether there has been a 

substantial change in one or more of the factors listed in Indiana Code Section 

31-17-2-15, in addition to considering any substantial change to the Indiana 

Code Section 31-17-2-8 factors, as is typically necessary for physical custody 

modifications. Julie C. v. Andrew C., 924 N.E.2d 1249, 1259 (Ind. Ct. App. 

2010) (citing Carmichael v. Siegel, 754 N.E.2d 619, 635 n.7 (Ind. Ct. App. 2001)). 

The court shall also consider:

(1) the fitness and suitability of each of the persons awarded joint 

custody;

(2) whether the persons awarded joint custody are willing and 

able to communicate and cooperate in advancing the child’s 

welfare;
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(3) the wishes of the child, with more consideration given to the 

child’s wishes if the child is at least fourteen (14) years of age;

(4) whether the child has established a close and beneficial 

relationship with both of the persons awarded joint custody;

(5) whether the persons awarded joint custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so; and

(6) the nature of the physical and emotional environment in the 

home of each of the persons awarded joint custody.

I.C. § 31-17-2-15.

[27] Our courts have reiterated that factor (2), whether the parents are willing and 

able to cooperate in advancing the child’s welfare, is of particular importance in 

making legal custody determinations. Julie C., 924 N.E.2d at 1260; see also 

Carmichael, 754 N.E.2d at 635 (“One of the key factors to consider when 

determining whether joint legal custody is appropriate is whether the persons 

awarded joint custody are willing and able to communicate and cooperate in 

advancing the child’s welfare.”). Where “the parties have made child-rearing a 

battleground, then joint custody is not appropriate.” Periquet-Febres v. Febres,

659 N.E.2d 602, 605 (Ind. Ct. App. 1995). “Indeed, to award joint legal 

custody to individually capable parents who cannot work together is 

tantamount to the proverbial folly of cutting the baby in half in order to effect a 
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fair distribution of the child to competing parents.” Swadner v. Swadner, 897 

N.E.2d 966, 974 (Ind. Ct. App. 2008) (quotation omitted).

[28] As we have discussed, although Child has good relationships with both parents, 

the trial court heard evidence that the parties lack the ability to co-parent 

effectively. After a dispute with Father, Mother changed the parties’ parenting 

time practices, ignored Father’s telephone calls and text messages, failed to 

notify him when she returned to Indianapolis from Atlanta, and thereby 

thwarted his efforts to exercise parenting time. See App. Vol. II p. 27 (“The 

Court also orders Father to have sole legal custody of the minor child, as the 

evidence has demonstrated that Mother and Father have an inability to 

effectively communicate in a cooperative manner and due to the significant 

distance involved.”). Based on the foregoing, the trial court did not abuse its 

discretion in awarding sole legal custody to Father upon a finding that joint 

legal custody was not appropriate for the parties.

III. Denial of Motion to Relocate

[29] Mother argues that the trial court abused its discretion in denying her motion to 

relocate with Child. Under Indiana’s relocation statute, there are two ways for 

a non-custodial parent to object after receiving notice that the custodial parent 

intends to relocate: by filing a motion to prevent the relocation or by filing a 

motion to modify custody. T.L. v. J.L., 950 N.E.2d 779, 784 (Ind. Ct. App. 

2011. See I.C § 31-17-2.2-1, I.C. § 31-17-2.2-5. 
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[30] Following a motion to prevent relocation, the relocating parent must prove 

“that the proposed relocation is made in good faith and for a legitimate reason.” 

I.C. § 31-17-2.2-5(c). If the court finds a good faith, legitimate purpose for the 

relocation, the burden then shifts to the non-relocating parent to demonstrate 

“that the proposed relocation is not in the best interest of the child.” I.C. § 31-

17-2.2-5(d). If the non-relocating party fails to object, the custodial parent is 

permitted to relocate with the Child. I.C. § 31-17-2.2-5(e).

[31] Because there is no explicit criteria for determining whether a relocation is in 

good faith and for a legitimate reason, our court has generally required that the 

moving parent demonstrate an objective basis—that is, “more than a mere 

pretext”—for relocating. T.L., 950 N.E.2d at 787. It is commonly understood 

in today’s society that many individuals move in order to live closer to family 

members, for financial reasons, for employment opportunities, and various 

other reasons. Id. at 788. As such, “[w]e infer that these and similar reasons . 

. . are what the legislature intended in requiring that relocation be for 

‘legitimate’ and ‘good faith’ reasons.” Id.

[32] Here, the trial court rightly “g[a]ve Mother the benefit of the doubt” regarding 

the first prong of the relocation analysis—namely, whether the relocation was 

made in good faith and for a legitimate reason. See App. Vol. II p. 24. Mother

testified that she was struggling financially in Indianapolis and believed that she 

could fare better as a hairstylist in Atlanta, especially as an assistant to a highprofile Atlanta hairstylist. Her struggle to pay for Child’s schooling expenses in 

Indianapolis was eased in Atlanta because Georgia offers free pre-kindergarten. 
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Mother testified that she relocated fully anticipating a challenging transitional

period during which she might have to reduce her rates to establish a new client 

base. That her move did not prove instantly lucrative does not render her 

relocation made in bad faith and for an illegitimate reason. 

[33] As to the second prong—whether Father established that relocation was not in 

Child’s best interests—we revisit the aforementioned factors enumerated in 

Indiana Code Section 31-17-2.2-1 as well as the “other factors affecting the best 

interest of the child including the statutory factors listed in Indiana Code 

Section 31-17-2-8. For reasons we have already discussed relating to the eighthour distance between Indianapolis and Atlanta; the difficulties inherent in 

Father exercising parenting time when Mother returns to Indianapolis 

intermittently; the difficulty of preserving Father’s bond with Child under the 

circumstances; Mother and Father’s questionable record of working 

cooperatively regarding parenting time; the relative instability of Mother’s seminomadic lifestyle; Child’s youthful age; and Child’s existing bonds with siblings 

and family in Indianapolis, we find that the trial court did not abuse its 

discretion in denying Mother’s motion to relocate with Child.

IV. Contempt 

[34] Mother argues that the trial court abused its discretion in finding her in 

contempt. In order to be held in contempt for failing to follow a court’s order, a 

party must have willfully disobeyed the order. City of Gary v. Major, 822 N.E.2d 

165, 170 (Ind. 2005). “The order must have been so clear and certain that there 

could be no question as to what the party must do, or not do, and so there could 
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be no question regarding whether the order is violated.” Ind. High Sch. Athletic 

Ass’n v. Martin, 765 N.E.2d 1238, 1241 (Ind. 2002). “A party may not be held 

in contempt for failing to comply with an ambiguous or indefinite order.” Id.

“Otherwise, a party could be held in contempt for obeying an ambiguous order 

in good faith.” Id. (citing Bowyer v. Ind. Dep’t of Natural Res., 798 N.E.2d 912, 

918 (Ind. Ct. App. 2003)). The determination of whether a party is in contempt 

of court is a matter left to the trial court’s discretion. Id. at 171. We will reverse

a trial court’s finding of contempt only where there is no evidence or inferences 

therefrom to support it. Id. As with other sufficiency matters, we will neither

reweigh evidence nor judge witness credibility. Mitchell v. Mitchell, 871 N.E.2d 

390, 394 (Ind. Ct. App. 2007).

[35] Here, on May 31, 2016, the trial court unambiguously ordered Mother not to 

relocate with Child until the parties’ dispute had been adjudicated. The trial 

court did not believe that Mother was unaware of its Order. The record reveals 

that trial court staff mailed the Order to each party on June 1, 2016; Father 

received the Order; and the trial court has no record of Mother’s notice being 

returned. Moreover, it is evident from her own testimony that Mother began to 

lay the groundwork for her move to Atlanta as early as April 2016, assuming 

that she would be permitted to move with Child. Mother relocated with Child 

in early October 2016, and the hearing on Father’s opposition to Mother’s 

motion to relocate was not held until March 21, 2017. Sufficient evidence exists 

to support the trial court’s finding of contempt under the circumstances. See 

B.L. v. J.S., 59 N.E.3d 253, 265 (Ind. Ct. App. 2016) (“It is beyond dispute that 
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the trial court had issued the order before the events in question and that the . . . 

order was intended to prevent the type of conduct that resulted in the trial 

court’s contempt finding.”).

V. Attorney Fees

[36] Mother argues that the trial court erred in ordering her to pay Father’s attorney 

fees as sanctions for her contempt and misconduct in failing to appear. “A 

determination regarding attorney fees in proceedings to modify a child support 

award is within the sound discretion of the trial court and will be reversed only 

upon a showing of a clear abuse of that discretion.” Martinez v. Deeter, 968 

N.E.2d 799, 810 (Ind. Ct. App. 2012). 

In determining whether to award attorney fees, the trial court 

must consider the parties’ resources, their economic condition, 

their ability to engage in gainful employment, and other factors 

that bear on the award’s reasonableness. The trial court may also 

consider any misconduct on the part of either of the parties that 

creates additional legal expenses not otherwise anticipated.

Id. (citations omitted). 

[37] The factor with the most bearing upon the appropriateness of an award of 

attorney fees is the relative financial standing of the parties. Here, the record is 

replete with references to Mother’s financial challenges. The trial court’s final 

order references: (1) Mother’s need for CCDF benefits; (2) her need to obtain 

Medicaid assistance to cover surgery bills exceeding $200,000; (3) her inability 

to maintain her second job as a school bus driver due to acute surgical 
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JP-1015 | November 28, 2017 Page 22 of 24

complications; (4) Father’s considerable child support arrearage of nearly ten 

thousand dollars ($10,000); (5) Mother’s “effective reduc[tion] [in] her income 

and [setback of] . . . several years in terms of career advancement” by relocating 

to Atlanta, app. p. 35; and (6) her weekly gross income of $480 as compared to 

Father’s of $1,072.

[38] As we reasoned in Haley, in which we vacated an award of attorney fees to the 

father,

[P]ermitting the awarding of attorney fees serves to insure equal 

access to the courts despite the relative financial conditions of the 

parties. There can be no assurance of equal access to the courts 

when a party, who is in the financial position of Mother, is 

required to pay the attorney fees of another who is in a superior 

financial state. While the trial court may order a party to pay a 

reasonable amount for attorney fees of the other party, the order 

here was not reasonable and is clearly against the logic and 

effects of the facts and circumstances before the court.

771 N.E.2d at 754. 

[39] The instant facts are distinguishable from Haley in that this case involves 

Mother’s violation of an express court order and failure to appear for a hearing. 

We certainly have no quarrel with the trial court’s authority to punish such 

misconduct. That said, at the time of the hearing, Father was in a far superior 

financial position to Mother. Given Mother’s well-documented, financial 

challenges, we find that the extent of the award of attorney’s fees to Father was 

not reasonable and is clearly against the logic and effect of the facts and 

circumstances before the trial court. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JP-1015 | November 28, 2017 Page 23 of 24

[40] Moreover, Father’s briefing regarding the trial court’s award of attorney fees is 

entirely and inadequately comprised of the following: “[I]t follows that the trial 

courts [sic] sanction and award of attorney fees pursuant to I.C. 31-14-18-2 is 

reasonable and also supported by the record and not an error.” Appellee’s Br. 

p. 22. Father’s failure to make cogent argument and to address this issue in a 

meaningful way is akin to failing to file a brief. In such a situation, we do not 

undertake the burden of developing an argument for the appellee. See Tisdial v. 

Young, 925 N.E.2d 783, 784-85 (Ind. Ct. App. 2010) (“We will reverse the trial 

court’s judgment if the appellant presents a case of prima facie error.”). We 

find that Mother has met the prima facie error standard. 

[41] For the foregoing reasons, we reverse and remand with instructions to the trial 

court to determine a reasonable amount of attorney’s fees to be paid by Mother

as sanctions for violating the trial court’s Order and for her misconduct in 

failing to appear for the December 7, 2016, hearing.

2

 

Conclusion

[42] We conclude that the trial court did not abuse its discretion in awarding 

physical custody and sole legal custody to Father or in denying Mother’s 

motion to relocate; however, the trial court erred in awarding unreasonable 

 

2 The trial court’s award to Father of $83.92 in lost wages was not addressed by either party and remains in 

effect.
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JP-1015 | November 28, 2017 Page 24 of 24

attorney fees to Father. We affirm in part, reverse in part, and remand with 

instructions.

Affirmed in part, reversed in part, and remanded with instructions.

May, J., and Bradford, J., concur.