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In re Marriage of Robert Mehl9/25/1998
FOR PUBLICATION
APPEAL FROM THE HAMILTON CIRCUIT COURT The Honorable Judith S. Proffitt, Judge Cause No. 29C01-9306-DR-300
FOR PUBLICATION
Robert Mehl ("Father") appeals the award of attorney's fees to his former wife, Shari A. Mehl ("Mother"), in post-dissolution proceedings concerning a petition to relocate. The sole issue presented on appeal is whether the trial court improperly awarded attorney's fees absent a finding of extreme hardship.
We remand with instructions.
Father and Mother were married in 1991 and divorced in 1994. The dissolution court awarded Mother custody of the couple's minor child. On January 9, 1996, Mother filed a petition to relocate to North Carolina and a separate petition for modification of child support. Father responded on January 26, 1996 by filing a petition for modification of custody and a petition for contempt based on Mother's alleged failure to comply with the court's visitation order. The child's paternal grandparents subsequently intervened seeking visitation with the child. Following protracted litigation and several hearings, on June 11, 1997, the court entered its detailed findings of fact, Conclusions of law and judgment denying Father's petition for modification of custody; determining Father's and grandparents' visitation schedules; setting Father's child support obligation; ruling Mother was in contempt but had purged herself of the contempt; and (5) awarding Mother $25,200.00 of her $31,500.00 total attorney's fees. The attorney fee award was based upon the trial court's finding a "substantial disparity in earnings and earning ability of the parties." Father appeals that award, claiming that under the prevailing statute the court had the authority to award attorney's fees only upon a finding of extreme hardship.
Central to the issue presented is which of two relevant statutes controls the award of attorney's fees in this case. In its Conclusions, the trial court specifically cited Ind. Code § 31-1-11.5-16 (1993) which permits a trial court to order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding in connection with the marriage dissolution. Shively v. Shively, 680 N.E.2d 877, 883 (Ind. Ct. App. 1997). When making such an award, the trial court considers the resources of the parties, their economic condition, their ability to engage in gainful employment and to earn adequate income and other factors that bear on the reasonableness of the award. Hanson v. Spolnik, 685 N.E.2d 71, 80 (Ind. Ct. App. 1997), trans. denied. The court may also look at the responsibility of the parties in incurring the attorney's fees. Id.
Under a second statute, Ind. Code § 31-1-11.5-21.1 (1993), when Mother intended to relocate to North Carolina, she was required to file notice of her intent with the trial court. The statute further provides:
(b) Upon request of either party, the court shall set the matter down for a hearing for the purposes of reviewing and modifying if appropriate the custody, visitation, and support orders. The court shall take into account the distance involved in the proposed change of residence and the hardship and expense involved for non-custodial parents to exercise such rights, in determining whether to modify the custody, visitation, and support orders.
(c) Except in cases of extreme hardship, the court shall not award attorney's fees.
IC 31-1-11.5-21.1 (b) and (c) (emphasis added).
Father insists that the trial court was required to apply the "extreme hardship" standard enunciated in the foregoing statute. To support his position, Father directs us to
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