COA affirms $15K attorney fee award in parents’ custody dispute

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An order awarding $15,000 in attorney fees to a mother after her ex-husband sought to modify custody and child support will stand, the Indiana Court of Appeals has ruled. It found the fees weren’t barred by res judicata or the law of the case doctrine.

Michael and Amber Bousum have one child together, who was born a few years before the couple divorced in 2012. Since then, both parents have continued to litigate custody and child support issues, with the most recent fight sprouting in 2017.

In that dispute, Michael filed a petition to modify custody, parenting time and child support that involved numerous continuances and three days of hearings. The Clinton Superior Court ultimately denied his request and awarded Amber attorney fees incurred in connection with his petition.

Michael appealed, unsuccessfully, after his motion to correct error was denied, and Amber sought appellate attorney fees, which was also denied under Appellate Rule 66(E). But in February 2020, she renewed her request, and the trial court granted it in the amount of $15,000.

Michael was also ordered to make minimum monthly payments to Amber’s attorney of $1,500 per month until the attorney’s fees were paid in full. He appealed his subsequently denied motion to correct error, but the Indiana Court of Appeals affirmed on Tuesday.

The appellate panel concluded that Amber’s attorney fee award was not barred by the doctrines of res judicata or the law of the case, as alleged by Michael.

The COA first noted Amber’s award was not adjudicated in Bousum v. Bousum, 18A-DR-2786 (Ind. Ct. App. July 15, 2019). Specifically, it found that the Bousum I court’s adjudication of Amber’s Rule 66(E) appellate attorney fees request did not operate as “a final adjudication on the merits.”

Additionally, the panel found the law of the case doctrine does not bar Amber’s award of attorney fees under Indiana Code §§ 31-15-10-1 and 31-16-11-1. It noted that the trial court awarded appellate attorney fees because “[Father] has substantially greater earnings than” she did.

The case is Michael Bousum v. Amber Bousum, 20A-DR-1834

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