Court of Appeals of Indiana | Opinion 19A

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A PPELLANT P RO S E Gregory W. Brown Merrillville, Indiana A PPELLEE P RO S E Tula Kavadias Crown Point, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

In t he Paternity of C.B. and S.B. Gregory W. Brown , Appellant

- Father ,
v. 

### K ara A. Davis , Appellee

- Mother and 

### Tula Kavadias , Intervenor

- Appellee 

### Jill Swope , Intervenor

- Appellee March 18, 2020 Court of Appeals Ca se No. 19A

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- 1618 Appeal from the Lake Superior Court The Honorable Nanette K. Raduenz, Special Judge Trial Court Cause No s
. 45D06

- 1504

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- 402 45D06

- 1504

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- 403

Vaidik , Judge .Court of Appeals of Indiana | Opinion 19A

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# Case Summary

[1] When Kara A. Davis (“Mother”) was represented by counsel, she asked the trial court to order Greg ory W. Brown (“Father”) to pay her appellate attorney fees. Before the court ruled on Mother’s request, she fired her attorney

. Mother’s attorney sought to intervene in order to seek the fees from Father

. Mother and Father then filed with the court an agreed order , which provided that Mother withdrew her request for appellate attorney fees from Father and Father agreed to pay a portion of the fees. Despite this agreement , the court allowed Mother’s attorney to intervene and ordered Father to pay all of Mother’s appellate attorney fees. Father now appeals.

[2] We reverse. A n attorney cannot litigate an award of attorney fees “separate and apart” from the client . Accordingly, once Mother withdrew her petition for appellate attorney fees from Father, Mother’s attorney was not allowed to s eek fees from Father on her own

. We therefore reverse the trial court’s order and remand this case with instructions for the court to order Father to pay a portion of Mother’s attorney fees in accordance with their agreed order

. To the extent Mother’s at torney is still owed fees, she may seek them from Mother.



# Facts and Procedural History

[3] Mother and Father, who were never married, ha ve two children, C.B. and S.B. (“the children”). In 2015, Father petition ed to establish paternity of the children. Fat her was represented by counsel, and Mother was represented byCourt of Appeals of Indiana | Opinion 19A

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attorney Tula Kavadias from the Crown Point law firm of Kavadias & Associates, P.C. T he par ties stipulated that Father i s the father of the children, and a hearing was eventually held on the re maining issues , including custody and parenting time . On October 30, 2017, the trial court issued an order awarding Mother sole legal and primary physical custody of the children with Father having parenting time . In addition, the court ordered Father to “pay $25,000, over and above any amounts he has already paid, of [Mother’s] attorney fees directly to Attorney Kavadias. The Court reduces this amount to judgment in favor of Attorney Kavadias and against [Fathe r].” Appellee ’ s App. Vol. II p. 6

.
[4] Thereafter, Father appealed, and Mother cross appealed (hereinafter, “the first appeal ”)

. In January 2018, during the briefing process of the first appeal, Mother filed a petition for appellate attorney fees in t he trial court . Appellant’s App. Vol. II p. 64. In the petition, Kavadias estimated that the fees and
expenses for the first appeal wou ld “exceed $15,000” and asked the court to order Father “to make a preliminary payment toward Mother’s appellate co[s]t s and fees.” Id. at 65. The trial court did not rule on Mother ’s petition at the time

.
[5] I n February 2018, while briefing in the first appeal was continuing, F ather sought a second appeal (hereinafter, “the second appeal”)

. See 18A

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- 319. Mother filed a motion to dismiss the second appeal, arguing that the interlocutory orders Father was attempting to appeal were not properly before this Court under Indiana Appellate Rule 14

. We granted Mother’s motion toCourt of Appeals of Indiana | Opinion 19A

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dismiss in April 2018

. A couple weeks later, Mother filed a second petition for appellate attorney fees (which sought fees for the second appeal ) in the trial
court

. The court did not rule on this petition at the time either

.
[6] In October 2018, this Court issued a decision in the first appeal in which we affirm ed the trial court’s custody and parenting

- time rulings and remand ed on child

- support issues

. See In re C.B. , 112 N.E.3d 746 (Ind. Ct. App. 2018). Father sought transfer, which our Supreme Court denied.

[7] In Marc h 2019, the trial court held a hearing on, among other issues , Mother’s petitions for appellate attorney fees. At the hearing, Kavadias submitted affidavit s that (1) Mother owed $35,529.65 for the first appeal and had paid $8, 021.25 toward it and (2) Mother owed $ 3 ,277.60 for the second appeal but had not paid anything toward it

. Ex. Vol. 3, Ex s . 15

- 16

. Again, the court did not rule on the fee petitions at the time

.
[8] Thereafter, Mother and Kavadias had a falling out , and Mother fired Kavadias

. On April 12, Kavadias filed a motion to withdraw her appearance for Mother , which the trial court granted. That same day, Kavadias filed a motion to intervene , w hich alleged that Kavadias had “no reason to believe that Mother will protect the firm’s interes ts with respect to the several petitions for attorneyCourt of Appeals of Indiana | Opinion 19A

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fees now pending” and that Indiana Trial Rule 24(A)(2) allowed her to intervene as of right

. 1 Appellant’s App. Vol. II p. 68.

[9] On May 3, Mother and Father (who was also proceeding pro se at that time) filed a “Verified Agreed Order on All Pending Petitions and Matters

. ” Id. at 77. The agreed order cover ed several topics, including how much Father would pay toward Mother’s appellate attorney fees. Specifically , Father a greed to pay $6,500 of Mother’s attorney fees for the first appeal and $1,000 of Mother’s attorney fees for the second appeal. 2 Mother and Father “agree[d] that these fees are the maximum amount and the entirety of attorney fees for which Father shall be responsible to pay to Tula Kavadias and Kavadias & Associates, P.C.” Id. at 80. Finally, Mother said that she “dismisses all petitions and motions to further allocate Kavadias’ claimed fees.” Id.

[10] The trial court held a hearing on Kavadias’s motion to intervene and the agreed order on May 10. At the hearing, the trial court said that the only problem it

1 Trial Rule 24(A)(2) provides: (A) Intervention of Right
. Upon timely motion anyone shall be permitted to intervene in an action: * * * * * (2) when the applicant claims an interest relating to a property, fund or transaction which is the subject of the action and he is so situated that th e disposition of the action may as a practical matter impair or impede his ability to protect his interest in the property, fund or transaction, unless the applicant ’ s interest is adequately represented by existing parties.
2 Father also “ agreed ” to pay $2 5,000 in attorney fees (plus interest of $1,287.67) to Kavadias that the trial court ordered on October 30, 2017 , and $14, 773.90 in attorney fees to Kavadias that a different trial court ordered in a replevin action filed by Mother

. Appellant’s App. Vol. II p. 79. The trial court’s order in this case does not address these fees , as Father ha s already been ordered to pay them

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had with the agreed order was the part abou t Kavadias’s attorney fees. Tr. Vol. IV pp. 68

- 69. Mother reaffirmed that she was withdrawing her petitions for appellate attorney fees from Father. Tr. Vol. III p. 148. Kavadias made a n additional request for attorney fees for services rendered to Mother for new trial

- court matters that arose in the pat ernity case from October 31, 2017, to March 5, 2019. In June 2019 , the court issued an order in which it granted Kavadias’s motion to intervene “for the limited purpose of allowing Attorney Kavadias the opportunity to present evidence on the various issue s of attorney fees owed to Kavadias & Associates, P.C. ” Id. at 58. The court approved all parts of the agreed order except for the part about Kavadias’s attorney f ees. Specifically, the court ordered Father to pay “all of Mother’s attorney fees and costs incurred for the first appeal,” which amounted to $26,908.40, and “ all of Mother’s attorney fees and costs incurred for the second appeal, ” which amounted to $3,277.50. Id. at 59

- 60. The court also determined that Mother incurred $19,735.25 in other attorney fees from October 31, 20 17 to March 5, 2019, and ordered Father to pay 93%

— o r $18,353.78

— of the m
.
[11] Father now appeals.


# Discussion and Decision

[12] Father contends that the trial court erred in allowing Kavadia s to intervene in the paternity case in order “to pursue her fees against” him

. Appellant’s Br. p. 24. One seeking intervention pursuant to Trial Rule 24(A)(2) must claim “anCourt of Appeals of Indiana | Opinion 19A

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immediate and direct interest in the proceedings.” Valparaiso Tech. Inst., Inc. v. Porter Cty. Treasurer

, 682 N.E.2d 819, 821 (Ind. Ct. App. 1997)

.
[13] Father argues that Kavadias did not have a right to intervene and request attorney fees from him in her own name

. In response, Kavadias cites Indian a Code section 31

- 14

- 18

- 2 , which provides , in relevant part : (a) The court may order a party to pay:

* * * * *
(2) a reasonable amount for attorney ’ s fees, including amounts for legal services provided and costs incurred, before the commencement of the pr oceedings or after entry of judgment.
(b) The court may order the amount to be paid directly to the attorney, who may enforce the order in the attorney ’ s name. Kavadias believes that this statute gives her the right to pursue attorney fees against Father e ven though Mother fired her and withdrew her petitions. But this statute only provides that attorney s may enforce attorney
- fee order s in th eir

own name ; it does not authorize attorney s to request attorney fees in their own

name.

[14] In support of his argument that Kavadias should not have been able to request attorney fees from him in her own name , Father cites Valparaiso Techni c al Institute , which provides that the client

— not the attorney

— is the “true owner” of the right to recover attorney fees and “ the master of its own lawsuit .” 682Court of Appeals of Indiana | Opinion 19A

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N.E.2d at 821 (citing 2 A William F. Harvey, Indiana Practice , § 24.1 ( 3d ed. 2000 ) )

. In her appellee’s brief, Kavadias does not acknowledge Valparaiso Technical Institute , much less respond to Father’s argument. 3 B ecause the client is the “true owner” of the right to recover attorney fees, the attorney cannot litigate an award of attorney fees “separate and apart” from the client. Id.

[15] Here, when Kavadias sought to intervene, the trial court had not ye t ruled on Mother’s petitions for appellate attorney fees from Father

. And b efore the trial
court ruled on Kavadias’s petition to intervene , Mother withdrew her petitions for appellate attorney fees from Father . Because Mother was no longer asking the trial court to order Father to pay her fees , Kavadias did not have a right , “separate and apart” from Mother , to request the m from Father

. T he trial court therefore erred by (1) allow ing Kavadias to intervene pursuant to Indiana T rial Rule 24(A)(2) ; (2) order ing Father to pay all of Mother’s appellate attorney fees ; and (3) ordering Father to pay $18,353.78 of Mother’s attorney fees for new trial

- court matters that arose in the paternity case from October 31, 2017, to March 5, 2019

. Accordingly, we vacate the trial court’s June 2019 order and remand this case to the trial court. On remand, the trial court shall approve all parts of the agreed order, including Father’s agreement to pay $6,500 of Mother’s attorney fees for the first appeal and $1,000 of Mother’s attorney fees

3 Instead, Kavadias argues that Mother and Father “sought to limit the award of fees [to her] through th eir agreed order.” Appellant’s Br. p. 13. While Mother and Father agree d to limit the amount of attorney fees Father had to pay to Kavadias, the agreed order did not limit Mother ’ s liability to Kavadias.Court of Appeals of Indiana | Opinion 19A

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for the second appeal. 4 To the extent Kavadias is still owed attorney fees for her services in the paternity case , she may seek them from Mother, her client.

[16] Reversed and remanded. Najam, J., and Tav ita s, J., concur

.

4 In its June 2019 order, the trial court also ordered that Mother and Father were “jointly and severally ” liable for the parenting

- time coordinator’s fees. Appellant’s App. Vol. II p. 62. However, Mother and Father’s agreed order provided for a different payment arrang e ment

. See id. at 78

- 79. On appeal, Father argues that the parenting

- time coordinator’s fees should be paid according to the agreed order. The parenting

- time coordinator did not file an appellee’s brief in this case. O n remand , the trial court should order the parenting

- time coordinator’s fees to be paid according to the agreed order.