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Court reverses $1,660 attorney fee award in parenting time action

October 22, 2014

Because there is nothing in the record to show the court considered the resources of the parties when it awarded a guardian $1,660 in attorney fees, the Indiana Court of Appeals reversed Wednesday.

In In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C., 32A05-1403-JP-99, father E.M. appealed two orders issued out of Decatur Circuit Court and one order issued in Hendricks Circuit Court, which all dealt with his child’s custody and parenting time. E.M.’s daughter, B.N, was born in January 2009 in Illinois, but relocated to Greensburg, Indiana, in 2013 so B.N. could live with P.C., who later would become the girl’s guardian. P.C. is a friend of father’s who wanted B.N. to move to Indiana so he could be closer to her.

Both parents consented to P.C. being appointed as B.N.’s guardian, and the Decatur Circuit Court granted the petition. Six months later, E.M. filed a petition in Hendricks County to register the Illinois order recognizing his paternity and then filed a motion in Decatur County to vacate the guardianship order issued by that court. He alleged the Decatur County court lacked jurisdiction when it awarded custody to the guardian. A few months later, that court restricted his parenting time and ordered it be supervised. And a month after that, E.M. filed a petition to modify custody, parenting time and support in the Hendricks County court.

The Decatur County court denied his motions and the Hendricks County court granted the guardian’s motion to dismiss. The Hendricks County court also awarded P.C. attorney fees, but the appellate judges reversed because the court didn’t hear testimony regarding the parties’ incomes or their ability to engage in gainful employment.

But the COA affirmed the two courts in all other respects. The judges found E.M. waived his challenge to the guardianship in Decatur County when he consented to the county’s jurisdiction initially. They also found evidence in the record to support the determination that he posed a danger to his daughter’s physical health based on a history of drug and alcohol addiction and his failure to take acceptable care of his other children.

The judges also held the Hendricks County court did not err in dismissing the paternity action because the subject of child custody and parenting time was already properly before the Decatur County court in the guardianship action.

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