Lane Benziger, Appellant-Respondent v. Katherine Elizabeth Radabaugh, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] In June of 2022, Katherine Radabaugh (“Mother”) petitioned for the dissolution of her marriage to Lane Benziger (“Father”). The parties have one child together, E.B. In October of 2023, the parties entered into a partial mediated settlement agreement (“Settlement Agreement”), which reserved several issues for the final hearing. After the final hearing, the trial court entered its order on July 25, 2024 (the “Final Hearing Order”), in which it granted legal and physical custody of E.B. to Mother, ordered Father to pay $11,000.00 of Mother's attorney's fees, and ordered Father to pay $1500.00 directly to the guardian ad litem (“GAL”) assigned to the case. On appeal, Father challenges the GAL's fees, the GAL reports, the custody order, and the attorney's fees award. We affirm.

Facts and Procedural History

[2] Mother and Father were married in October of 2017, and have one child together, E.B., born on April 1, 2018. Mother has one other child from a previous marriage, J.P. On June 28, 2022, Mother petitioned for dissolution of the parties’ marriage. Approximately one week prior to filing for dissolution, Mother, E.B., and J.P. moved in with the children's maternal grandmother. Mother is an occupational therapist employed by Westfield Washington Schools, while Father is a veterinarian who has owned a veterinary practice in Anderson since 2011.

[3] On August 22, 2022, Mother petitioned for a GAL appointment. The trial court appointed GAL Jane Daet (“GAL Daet”) to the case on August 23, 2022. The trial court ordered that Mother was responsible for payment to GAL Daet, with a cap of $2000.00, but reserved the right for allocation at a future hearing. Leading up to the preliminary hearing, Father made two reports to the Indiana Department of Child Services (“DCS”) with allegations that J.P. had been inappropriate or violent with E.B. Both reports were determined to be unsubstantiated.

[4] After the preliminary hearing held on September 19, 2022, the trial court issued a preliminary order in which it awarded legal and primary physical custody of E.B. to Mother. On October 23, 2023, the parties entered into the Settlement Agreement which resolved all issues except for:

(a) Child custody and parenting time;

(b) Overnight parenting time credit based on the Court's final order on custody and parenting time (the parties intend that all other inputs in the child support calculation will remain the same as those on the attached Child Support Obligation Worksheet); and

(c) Attorney fees incurred subsequent to October 23, 2023.

Appellee's App. Vol. II p. 21. These issues were specifically reserved for the final hearing, and the trial court approved the Settlement Agreement on October 25, 2023. Pursuant to the Settlement Agreement, Father was to pay child support in the amount of $127.00 per week beginning on October 27, 2023. Father was also required to pay a child-support arrearage in the amount of $17,825.00 to Mother on or before January 2, 2024. On November 13, 2023, the trial court entered a decree of dissolution of marriage.

[5] By January 11, 2024, Father had not paid any child support to Mother, and Mother petitioned for a rule to show cause. After the rule to show cause was filed, Father paid the arrearage and began paying the weekly child support amount, but those payments were inconsistent. Father made large payments in the days leading up to the final hearing to become current.

[6] On May 20, 2024, Mother petitioned for another rule to show cause, alleging that Father had failed and refused to refinance the indebtedness on certain real estate within the time allowed in the Settlement Agreement. After a hearing on the matter, the trial court issued an order finding that Father had not complied with the Settlement Agreement and appointed a commissioner to effectuate the sale of the real estate. The trial court further ordered that the issue of attorney's fees was set for the final hearing. On June 7, 2024, Father petitioned for a rule to show cause, which the trial court struck because it was filed by Father and not his attorney of record. On July 3, 2024, Father petitioned for another rule to show cause, alleging that Mother was untruthful, but did not allege a violation of any prior court order. In response, Mother moved to dismiss for failure to state a claim. The trial court dismissed Father's petition for failure to state a claim on the same date as the final hearing.

[7] The final hearing occurred on July 25, 2024. Three GAL reports were admitted into evidence at the final hearing, to which Father had “no objection.” Tr. Vol. II p. 76. Later during the hearing, Father moved to “exclude” GAL Daet's reports “based on the inconsistencies within the reports.” Tr. Vol. II p. 184. The trial court determined that “there may[ ]be some inconsistencies, but the Court finds that they are minor inconsistencies and don't affect the opinion of the [GAL].” Tr. Vol. II p. 185.

[8] Mother testified at the final hearing that it is “in [her] plan to purchase [her] own residence” and that she is waiting for her name to be removed from the mortgage associated with “what would have been the marital residence that was given to [Father] in the divorce[.]” Tr. Vol. II p. 101. GAL Daet testified that E.B. and J.P. have a “great bond” and that they “adore each other.” Tr. Vol. II p. 80. She also testified that she had not found “any evidence” in her investigation that the allegations in Father's DCS reports had occurred. Tr. Vol. II p. 85. GAL Daet testified that she had no concerns about E.B. as it related to J.P.

[9] GAL Daet agreed that Father “has been focused on his belief that [M]other lies since the day she met him” and that that “leaves it pretty difficult to co-parent[.]” Tr. Vol. II p. 98. GAL Daet testified that E.B. had reported that she “sleeps in bed with [Father] and some of his friends – girlfriends.” Tr. Vol. II p. 87. GAL Daet's final recommendation was that Mother and Father have joint legal custody, but if they are unable to reach a decision, then Mother should have the final decision-making power. GAL Daet also recommended that Father's parenting time be extended to include an additional overnight on Sundays during his alternating weekends to eliminate the parenting time exchange on alternating Sundays. GAL Daet testified that she had spent at least 125 hours on this case. At the conclusion of the final hearing, GAL Daet requested that Father pay $2000.00 to her in addition to Mother's payment.

[10] On August 20, 2024, the trial court entered its Final Hearing Order, in which the trial court granted legal and physical custody of E.B. to Mother, ordered Father to pay $11,000.00 of Mother's attorney's fees, and ordered Father to pay $1500.00 directly to GAL Daet.

Discussion and Decision

[11] Initially, we note that Father proceeds pro se. “A litigant is not given special consideration by virtue of his pro se status.” Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). “It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983–984 (Ind. Ct. App. 2016) (internal citations omitted), reh'g denied.

[12] The Indiana Supreme Court has recognized “a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (internal quotation omitted). The Indiana Supreme Court has further explained that

[a]ppellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “It is not enough on appeal that the evidence might support some other conclusion; rather, the evidence must positively require the result sought by the appellant.” Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), trans. denied. “Accordingly, we will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.” Id.

I. GAL Reports and GAL Fees

[13] Father contends that the trial court erred by admitting GAL Daet's reports into evidence and failing to strike GAL testimony.¹ However, Father explicitly had “[n]o objection” to the admission of GAL Daet's reports when they were introduced at the final hearing during GAL Daet's direct examination. Tr. Vol. II p. 76. It was only during Father's own direct examination that Father moved to “exclude” the reports “[b]ased on the inconsistencies within the reports.” Tr. Vol. II p. 184. The trial court determined that “[t]here may[ ]be some inconsistencies, but the Court finds that they are minor inconsistencies and don't affect the opinion of the [GAL].” Tr. Vol. II p. 185. Furthermore, Father spent time during his own direct examination to “bring to the Court's attention inconsistencies within the reports.” Tr. Vol. II p. 181. This included pointing to several different page numbers and lines in GAL Daet's reports and reading the content therein.

[14] Father also had the opportunity to cross-examine GAL Daet, and he did. It is evident that Father had the opportunity to discuss the weight of GAL Daet's reports as he saw fit, and Father fails to present any cogent argument that his objection based on “inconsistencies” was meritorious. Pursuant to Indiana Appellate Rule 46(A)(8)(a), “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.” See Smith v. State, 822 N.E.2d 193, 202–03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.

[15] Father also contends that the trial court erred in ordering him to pay GAL Daet's fees. Initially, the trial court ordered that Mother was responsible for payment to GAL Daet, with a cap of $2000.00, but reserved the right for allocation at a future hearing. In the Final Hearing Order, the trial court ordered Father to pay $1500.00 directly to GAL Daet for her services. GAL Daet testified that she had spent at least 125 hours on this case. Mother had already paid GAL Daet $2000.00 for her services. Pursuant to Indiana Code section 31-15-6-11(3), in a dissolution of marriage matter, “[t]he court may order either or both parents to pay the user fee to the individual or attorney guardian ad litem that provided the services.” Father cites to no relevant authority or basis in the record to support his contention that GAL Daet “did not advocate for the Child” or that he is not required to pay the fees ordered. Appellant's Br. p. 44. Father has therefore waived this argument. See Smith, 822 N.E.2d at 202–03.

[16] Furthermore, to the extent that Father contends that GAL Daet's reports should have been excluded under Indiana Rule of Evidence 403, GAL Daet's testimony should have been struck from the record, or GAL Daet was “bribed,” Appellant's Br. p. 42, Father does not point to anything in the record to even suggest that he raised these assertions before the trial court. See, e.g., Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. App. 2015) (“It has long been the general rule in Indiana that an argument or issue presented for the first time on appeal is waived for purposes of appellate review.”). Father, therefore, has waived these issues for appellate review.

II. Custody of E.B.

[17] Father contends that the trial court abused its discretion when it awarded Mother legal and physical custody of E.B. and that the trial court's custody determinations were not made in the best interests of E.B.²

A trial court's custody determination is afforded considerable deference as it is the trial court that sees the parties, observes their conduct and demeanor and hears their testimony. Trost–Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002), trans. denied. Thus, on review, we will not reweigh the evidence, judge the credibility of witnesses or substitute our judgment for that of the trial court. Id. We will reverse the trial court's custody determination only if it is clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom. Id.

Kondamuri v. Kondamuri, 852 N.E.2d 939, 945–46 (Ind. Ct. App. 2006).

[18] Pursuant to its preliminary order, the trial court initially awarded sole legal and primary physical custody of E.B. to Mother. Each party requested sole legal and primary physical custody of E.B. The Final Hearing Order awarded sole legal and physical custody of E.B. to Mother.

[19] In initial custody determinations, both parents are presumed to be equally entitled to custody in an initial custody determination, and there is no presumption favoring either. Hamilton, 103 N.E.3d at 694. The trial court “shall determine custody and enter a custody order in accordance with the best interests of the child.” Ind. Code § 31-17-2-8. In determining the best interests of the child, the trial court shall consider all relevant factors, including:

(1) The age and sex of the child.

(2) The wishes of the child's parent or parents.

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parent or parents;

(B) the child's sibling; and

(C) any other person who may significantly affect the child's best interest.

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

(9) A designation in a power of attorney of:

(A) the child's parent; or

(B) a person found to be a de facto custodian of the child.

Id. We review a trial court's custody decisions only for an abuse of discretion. Hamilton, 103 N.E.3d at 695.

[20] Here, the record indicates that the trial court's award of custody was well supported. E.B. is a six-year-old girl. Mother, as an employee of the Westfield Washington School District, testified at the preliminary hearing that she took E.B. to daycare “every day of the last school year” and “took her home every day” prior to the dissolution. Tr. Vol. II p. 9. Mother testified that she “watched E.B. during the summer.” Tr. Vol. II p. 9. At the time of the final hearing, Mother had been E.B.’s sole legal and primary physical custodian for nearly two years. Mother is employed in the same school district which E.B. attends, and Mother's and E.B.’s workday hours are similar. Mother testified that E.B. has thrived in her care over the last two years and that she provides a “loving and positive environment” for E.B. Tr. Vol. II p. 128.

[21] GAL Daet testified that E.B. is happy, healthy, well-adjusted, and that Mother's household is a “loving and positive household.” Tr. Vol. II p. 91. She also testified to the relationship between J.P and E.B., explaining that J.P. and E.B. “adore each other. Love each other. It's a bond. A great bond from what I've witnessed.” Tr. Vol. II p. 80.

[22] GAL Daet testified that Mother communicates what is necessary to Father about E.B.’s health-care needs or appointments and will take E.B. to the doctor at times when Father communicates a concern, even when Mother does not necessarily agree. Mother testified that Father often complains to her about typical, minor occurrences that happen to E.B., such as bug bites and occasional sunburns. Father also complains to Mother about E.B.’s bowel movements, including sending Mother photos of E.B.’s bowel movements in the toilet. Mother testified that she has discussed the issue of constipation with E.B.’s pediatrician. Father testified regarding his concerns with E.B.’s bowel movements and suggested that Mother was “intentionally deceiving” the trial court regarding E.B.’s alleged constipation. Tr. Vol. II p. 137. GAL Daet testified that she had reviewed correspondence between Mother and Father, in which Father had sent Mother photographs of E.B.’s bowel movements in the toilet. Father had also sent photographs to GAL Daet of E.B.’s bowel movements “with measurements.” Tr. Vol. II p. 82. Upon reviewing E.B.’s medical records, however, GAL Daet had no concerns about E.B.’s bowel movements or constipation.

[23] GAL Daet indicated that Father is “very focused on what he believes [M]other is doing wrong from a child-rearing perspective” and that Father “has been focused on his belief that [M]other lies since the day she met him[,]” which “leaves it pretty difficult to co-parent[.]” Tr. Vol. II p. 98. When asked whether Father is very rigid in his beliefs about child-rearing, GAL Daet testified “I think it's more about controlling [Mother]. It appears to be.” Tr. Vol. II p. 82. GAL Daet also testified that E.B. had told her, “my dad told me to tell you that I want more time” with him. Tr. Vol. II pp. 86–87. E.B. also reported to GAL Daet that she “sleeps in bed with [Father] and some of his friends – girlfriends.” Tr. Vol. II p. 87. GAL Daet's reports indicated that GAL Daet “believes that Mother would be the parent that would keep Father in the loop as to [E.B.]’s healthcare, religious training, and education,” whereas GAL Daet did not believe that Father “would reciprocate and keep Mother in the loop or take her opinion into consideration.” Ex. Vol. III p. 175.

[24] Again, “our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.” Best, 941 N.E.2d at 502. Suffice it to say, based on the record, we cannot say that the trial court abused its discretion by awarding Mother sole legal and primary physical custody of E.B. See Hamilton, 103 N.E.3d at 695. It is evident that the trial court considered the best interests of E.B. when determining custody and parenting time.³

III. Attorney's Fees

[25] Father contends that the trial court abused its discretion by ordering him to pay Mother's attorney's fees. Specifically, Father argues that the trial court “did not consider [Mother]’s resources and ability to engage in gainful employment” and “failed to adequately judge [Mother]’s credibility as a witness.” Appellant's Br. p. 30.

[26] “Pursuant to Indiana Code section 31-15-10-1, a trial court may order a party in a dissolution proceeding to pay a reasonable amount of the other party's attorney's fees.” Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018).

In determining whether to award attorney's fees in a dissolution proceeding, trial courts should consider the parties’ resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors bearing on the reasonableness of the award. A party's misconduct that directly results in additional litigation expenses may also be considered. Consideration of these factors promotes the legislative purpose behind the award of attorney's fees, which is to ensure that a party who would not otherwise be able to afford an attorney is able to retain representation. When one party is in a superior position to pay fees over the other party, an award is proper.

Id. (citations omitted). A trial court has broad discretion in awarding attorney's fees. Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied. “Reversal is proper only where the trial court's award is clearly against the logic and effect of the facts and circumstances before the court.” Id.

[27] The trial court ordered Father to pay $11,000.00 of Mother's attorney fees, the basis for which was partially Father's misconduct. The trial court found that Mother had incurred attorney's fees as a result of Father's noncompliance with court orders. This finding was supported by the record, as Mother had incurred $612.00 in attorney's fees associated with the petition for a rule to show cause she had filed on January 11, 2024, and $2193.00 in attorney's fees associated with the petition for a rule to show cause she had filed on May 20, 2024. In addition, leading up to the final hearing, Father had filed a petition for a rule to show cause alleging that Mother had been untruthful, and Mother had responded with a motion to dismiss for failure to state a claim, which the trial court had granted.

[28] Furthermore, Father is a veterinarian, has owned a veterinary practice since 2011, and earns more than Mother. The trial court heard testimony that Mother works in the same school district in which E.B. attends and does not work during the summer. At the time of the final hearing, Mother had been living with her mother for two years and primarily caring for E.B. Mother had not yet been able to purchase her own residence because Father had not refinanced or sold the real estate that had been the subject of Mother's May 20, 2024, petition for a rule to show cause.

[29] Moreover, despite being ordered to pay child support pursuant to the Settlement Agreement entered on October 25, 2023, Father had failed to make any child support payments until January of 2024 and then had failed to stay current with payments until just before the final hearing, leaving Mother essentially solely responsible for providing for E.B. The record reflects that the trial court had the opportunity to consider several factors bearing on the reasonableness of awarding attorney's fees to Mother, including the parties’ earnings, employment, Father's failure to timely pay child support, and Father's violations of the Settlement Agreement and, based on the foregoing, we cannot conclude that the trial court's award was clearly against the logic and effect of the facts and circumstances before the court. See Barton, 47 N.E.3d at 377.

[30] We affirm the judgment of the trial court.

FOOTNOTES

1.   To the extent that Father contends that GAL Daet's reports were untimely filed, we disagree. The record reflects that all GAL reports were timely filed and properly admitted pursuant to Indiana Code section 31-17-2-12(b).

2.   Father also appears to argue that the parenting time that he was awarded was unreasonable but fails to provide any cogent argument on this issue. Therefore, this argument is waived. See Smith, 822 N.E.2d at 202–03.

3.   Furthermore, many of Father's other arguments, including Father's arguments regarding Mother's credibility, mental health, and J.P.’s relationship with E.B., amount to nothing more than invitations to reweigh the evidence and judge the credibility of witnesses, which we will not do. See Kondamuri, 852 N.E.2d at 945–46. Additionally, we find no merit in Father's assertions regarding Mother's alleged “contempt of court,” and we fail to find any cogent argument on these grounds. See Smith, 822 N.E.2d at 202–03. To the extent that Father makes “requests” accompanied with no argument whatsoever in the final pages of his brief, these requests are waived. See id.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.