The Indiana Court of Appeals affirmed a trial court’s decision to not award a mother attorney fees despite the inclusion of a fee-shifting provision in her divorce settlement. In doing so, the appeals court pointed out how these provisions may go against public policy.
“The fee-shifting provision at issue here, construed as Mother suggests, would serve to penalize any unsuccessful effort at the modification of parenting time or child support. This outcome creates a significant disincentive for parents to seek additional parenting time with their children, and seems at odds with this state’s public policy concerning the primacy of the best interest of the child with respect both to parenting time and child support,” Judge L. Mark Bailey wrote in Melissa Capellari v. Gino Capellari, 34A05-1505-DR-479. “Here, however, the trial court was within the law and its discretion in interpreting its own order and reaching its conclusion denying Mother’s request for attorney fees.”
When Melissa and Gino Capellari divorced, they entered into an agreement regarding distribution of assets, parenting time and child support. The agreement contained a fee-shifting provision that stated, “In the event that any action is filed with regard to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all sums that either party may be called upon to pay, a reasonable sum for the successful parties [sic] attorney fees at the discretion of the court.”
Father sought to modify child support and parenting time a year after the divorce was finalized. Mother sought attorney fees in the event he was unsuccessful. The trial court denied his petition but also denied mother’s request for attorney fees, ruling it had discretion to decide whether to award the attorney fees.
The COA agreed, finding the trial court’s interpretation to be reasonable given the tension inherent in the statement that “the unsuccessful party in the action shall pay … [the other party’s] attorney fees at the discretion of the court,” Bailey wrote.
Chief Judge Nancy Vaidik concurred in result without separate opinion.