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COA upholds grant of attorney fees to ex-wife

April 12, 2018

Addressing a longstanding divorce case for the second time on appeal, the Indiana Court of Appeals has upheld a trial court order requiring a man to pay his ex-wife’s attorney fees pursuant to an indemnification clause in the couple’s dissolution decree.

As part of a contentious divorce arbitration between Robert and Leah Masters, Leah was granted sole legal and primary physical custody of the parties’ daughter, while Robert was granted parenting time and was ordered to pay child support. Robert was also ordered to pay $95,000 in Leah’s attorney fees, a requirement that was initially reversed by the Indiana Court of Appeals, but upheld by the Indiana Supreme Court in 2015.

After the Supreme Court’s decision, Leah moved for indemnification and sought an assessment of attorney fees incurred while defending herself in the appeal. She based her argument on an indemnification clause included in the dissolution decree, which held that “each party is ordered to indemnity the other party from any violation of the terms and conditions of this Decree, including costs and reasonable attorney fees.”

The Allen Superior Court agreed with Leah that Robert had violated the indemnity provision by failing to pay the original attorney fees until the appeals process had concluded and, thus, granted the indemnification and ordered Robert to pay $75,000 in attorney fees. Addressing the Masters’ case for the second time on Thursday, the Indiana Court of Appeals upheld the second attorney fees order in Robert A. Masters v. Leah Masters, 02A05-1706-DR-1317.

Judge Patricia Riley wrote for the unanimous appellate panel that the indemnification clause was a specific term and condition of the decree, so noncompliance with its directive constituted a violation of the decree.

“Based on our determination that Husband in this case violated the Decree by failing to immediately pay Wife’s attorney fees and costs in the amount of $95,000, the indemnity clause was triggered when Wife defended herself in Husband’s appeal, thereby incurring post-dissolution attorney fees and costs,” Riley wrote, relying on Fackler v. Powell, 891 N.E.2d 1091 (Ind. Ct. App. 2008). “As such, we conclude that the trial court did not err in granting Wife’s motion for indemnification.”

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