BERRY v. BERRY (2026)

MEMORANDUM DECISION

Case Summary

[1] Following the 2018 dissolution of the marriage between Jennifer Berry (“Mother”) and Ryan Berry (“Father”), the parties have engaged in extensive litigation over their children. That litigation began in October 2020 and concluded when the trial court issued its final order over five years later in November 2025. Father now appeals that order, raising several issues. We affirm.

Facts and Procedural History

[2] Mother and Father, who married in 2003, are the parents of two children, M.B. (born in September 2008) and E.B. (born in April 2013). The parties’ marriage was dissolved in March 2018. According to the parties’ mediated settlement agreement, they were awarded joint legal and physical custody of the children, parenting time was roughly equal, and Father had to pay $50/week in child support.

[3] More than two years passed before either party returned to court. In October 2020, Mother filed a Verified Petition for Contempt and Modification, in which she alleged that Father “frequently and directly denigrate[d]” her, which directly or indirectly harmed the children. Appellant's App. Vol. 2 p. 92. Mother believed that the children needed counseling, which Father opposed. Mother asked for sole legal custody, or, in the alternative, an order authorizing her to “arrange a program of counseling for the children.” Id. at 93. In September 2021, with Mother's petition still pending, Father petitioned to modify custody, parenting time, and child support. That same month, the trial court issued a provisional order, finding that M.B. exhibited “signs of acute mental and emotional distress” and ordering M.B. to “immediately engage in a course of talk therapy.” Id. at 43.

[4] In July 2022, the parties agreed to dismiss their pending petitions and that Lisa Fears would be appointed as parenting coordinator (PC) for six months. See id. at 99, 102-07. PC Fears started her duties in August 2022.

[5] Three months later, in November 2022, Father and M.B., then 14, had a “physical altercation” about M.B.’s grades. Id. at 43, 110. M.B. continued to participate in parenting time with Father until late February 2023, when he stopped due to “fear of physical or emotional harm from Father.” Id. at 110. In March, PC Fears, who had conferred with M.B.’s therapist, filed a status report in which she recommended that (1) Father's parenting time with the children be temporarily suspended “until such time the court is satisfied that parenting time with Father is not a danger to the emotional or physical health” of the children and (2) Father undergo a psychological evaluation at Meridian Psychological Services. Id. at 112. Finding that “time [was] of the essence,” the court adopted PC Fears's recommendations as an order of the court on March 20. Id. at 114.

[6] On March 28, Father filed an objection to PC Fears's report and the trial court's order. The court set a hearing for June 21.¹ Father did not ask for an earlier hearing date or seek to certify the trial court's March 20 order for an interlocutory appeal. In the meantime, although the March 20 order briefly suspended Father's parenting time with E.B. as well, contact with her resumed within weeks because their relationship was “stable.” Id. at 44-45 (explaining that despite the order, Father was allowed to see E.B. on Thursdays and Sundays and other times), 52 (noting that in the weeks following the suspension of Father's parenting time, it became clear to PC Fears and the parties that “resumption of contact between Father and E.B. was in the child's best interests”); see also Tr. Vol. 1 pp. 24-25 (Father acknowledging that he was allowed to spend time with E.B. despite the trial court's order suspending his parenting time).

[7] On June 16, Father's psychological evaluation was filed with the court. The clinical psychologist's diagnostic impressions of Father were “Narcissistic, Dependent and Passive-Aggressive Personality Features.” Appellant's App. Vol. 2 p. 45. The psychologist recommended “intensive psychodynamically oriented psychotherapy.” Id. at 46. The next day, Mother filed a new petition to modify, asking the court to modify custody from joint legal and physical custody to sole legal custody and primary physical custody in her favor. See id. at 120.

[8] At the June 21 hearing on Father's objection to PC Fears's report and the trial court's March 20 order, the parties again agreed to the appointment of a parenting coordinator, and the trial court reappointed PC Fears for one year. See id. at 123, 125-30. Although Father participated in some type of therapy, he never participated in the intensive psychotherapy recommended by the clinical psychologist. See id. at 46-47. In addition, during the course of this litigation, Father contacted the Indiana Department of Child Services and law enforcement and made the following allegations against Mother and her new husband: (1) they are addicted to energy drinks; (2) they are alcoholics; and (3) Mother's new husband is grooming E.B. to engage in unlawful sexual activity with him. Id. at 47. These accusations “were deemed non-actionable by both agencies.” Id. Yet, Father stood by them. Id.

[9] A final hearing on Mother's petition to modify physical and legal custody and child support was held over the course of four days between September 2024 and November 2025. In the meantime, in March 2025, E.B.—who had been “regular[ly]” having parenting time with Father since 2023—stopped going for reasons “not placed into evidence.” Id. at 48.

[10] On November 4, 2025, the last day of the hearing, Father “ceded the issues of legal and physical custody to Mother” and “acquiesced as it relates to parenting time with M.B. and agrees that parenting time should only occur between the two (2) as agreed upon by the parties with input from M.B.” Id. at 51. Thus, the only issues left for the trial court to decide were parenting time between E.B. and Father and child support. See id. Mother, whose attorney's fees totaled $56,641 for the post-dissolution litigation, asked the court to order Father to pay $25,375 of her fees. See Tr. Vol. 3 p. 59; Ex. p. 129.

[11] Later that month, the trial court issued an extensive order. Among other things, the court awarded Father parenting time with E.B. according to the Parenting Time Guidelines, reappointed Fears as the PC for an additional year, increased Father's child support to $137 per week, and ordered Father to pay $13,000 of Mother's attorney's fees.

[12] Father now appeals.²

Discussion and Decision

I. Father's due-process argument is moot

[13] Father does not challenge the part of the trial court's November 2025 final order that addresses custody and parenting time. Instead, he contends that his due-process rights were violated when the court adopted PC Fears's recommendation as an order of the court in March 2023. He argues that because the trial court's order suspended his parenting time, the court was required to make a finding under Indiana Code section 31-17-4-2 that parenting time would endanger the children's physical health or significantly impair their emotional development.

[14] If Father wanted to challenge the trial court's March 2023 order because of the restrictions it placed on his parenting time, the time to do so was then. But Father did not ask the court to certify that order for an interlocutory appeal. See Ind. Appellate Rule 14(B). The court has since entered a final order on custody and parenting time, which is based largely on the concessions Father made on the final day of the hearing. Thus, we cannot grant Father effective relief. See In re Paternity of E.B.K., 242 N.E.3d 500, 511 (Ind. Ct. App. 2024) (“[T]o the extent Mother is attacking the validity of the trial court's temporary custody order, we note that Mother did not seek interlocutory appeal and that the trial court has now made a final custody determination in this case. We are unable to render her any effective relief, and we find that the issue is moot.” (quotation omitted)); Stratton v. Stratton, 834 N.E.2d 1146, 1149 (Ind. Ct. App. 2005) (same). This issue is moot.³

II. The trial court did not abuse its discretion in reappointing Fears as the PC

[15] Father next contends that the trial court erred in reappointing Fears as PC in its November 2025 order. We review a trial court's decision regarding the appointment of a parenting coordinator for an abuse of discretion. In re Paternity of C.H., 936 N.E.2d 1270 (Ind. Ct. App. 2010), reh'g denied, trans. denied.

[16] The basis of Father's argument that the trial court abused its discretion is a statement by PC Fears in her August 2024 status report that “a new parenting coordinator may be most beneficial for this family.” Appellant's App. Vol. 2 p. 144. But the court concluded otherwise in its November 2025 order, which was issued over a year after this status report. The court's order makes clear that it reappointed PC Fears based on her experience with the parties:

The court is reappointing Ms. Fears and the parties should lean on her through what will almost assuredly be a bumpy ride. Father should be very reluctant to file contempt petitions if E.B. does not want to engage in parenting time and Mother should refrain from petitioning the court for a suspension or modification of parenting time as this endeavor unfolds. The parties should seek the counsel of Ms. Fears before prematurely filing motions to bring this matter back to court. It will in all likelihood take months, if not years, to unravel this skein and continued litigation, while certainly available to the parties, should not necessarily be the initial impulse when things don't go according to each [party's] preconceived plan.

Id. at 56. Given the deference afforded the trial court combined with PC Fears's experience with the parties, the court did not abuse its discretion in reappointing her as PC.⁴

III. The trial court did not abuse its discretion in ordering Father to pay $13,000 of Mother's attorney's fees

[17] Finally, Father contends that the trial court erred in ordering him to pay $13,000 of Mother's nearly $57,000 in attorney's fees. The court awarded fees under Indiana Code section 34-52-1-1(b), which provides that the court may award attorney's fees as part of the cost to the prevailing party if it finds that the opposing party (1) brought a frivolous, unreasonable, or groundless claim; (2) continued to litigate the action after the claim clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith. We review the court's decision to award attorney's fees and the amount thereof for an abuse of discretion. Techna-Fit, Inc. v. Fluid Transfer Prods., Inc., 45 N.E.3d 399, 418 (Ind. Ct. App. 2015).

[18] Here, the trial court explained that it was ordering Father to pay $13,000 of Mother's attorney's fees as follows:

This award is based upon Mother prevailing in this litigation as well as the unreasonable and groundless claims litigated by Father during the course of these proceedings, including, but not limited to, the following: (i) Father's assertion of gross weekly income of four hundred and six dollars ($406) dollars per week [when it was $824]; (ii) Father's claims that [Mother's new husband] was engaged in acts of sexual grooming and that Mother and [her new husband] were alcoholics; and (iii) Father's wholly unrealistic pursuit of joint legal and physical custody in the face of a surfeit of evidence making abundantly clear the folly of that endeavor. (See I.C. 34-52-1-1).

Appellant's App. Vol. 2 p. 63. Father argues that (iii) is not supported by the evidence. But as Mother points out, after she sought to modify custody in June 2023 from joint legal and physical custody to her having sole legal custody and primary physical custody, Father actively litigated the issue for over two years and then conceded the issue at “the eleventh hour.” Appellee's Br. p. 21. The evidence supports this basis. Moreover, the court based its award on two additional grounds, neither of which Father challenges on appeal. The trial court did not abuse its discretion in ordering Father to pay $13,000 of Mother's attorney's fees, which was less than a quarter of her total fees and about half of what she requested.

[19] Affirmed.

FOOTNOTES

1.   Father says the trial court initially scheduled a hearing on his objection for April 26 but then continued it to June 21. Not so. A review hearing was already scheduled for April 26 when Father filed his objection. In his objection, Father specifically asked the trial court to reschedule the April 26 hearing. See Appellant's App. Vol. 2 p. 117 (“[Father] requests that the Court vacate the review hearing scheduled for April 26, 2023 at 8:30 A.M. and schedule a two (2) hour contested hearing[.]”).

2.   After the trial court issued this order, the parties continued their litigation below. Since that time, PC Fears's services have been suspended due to nonpayment by the parties, mediation was tried but unsuccessful, and Father has filed an emergency motion for temporary modification of custody and parenting time, which the court said it will rule upon after we issue our opinion in this matter.

3.   To the extent Father separately argues that his due-process rights were violated by the fact that the final hearing on Mother's June 2023 petition to modify physical and legal custody and child support wasn't held until September 3, 2024, October 1, 2024, January 22, 2025, and November 4, 2025, there is no merit to this argument. As Mother highlights, Father sought multiple continuances in this case. See Appellee's Br. p. 17. Moreover, Father has taken numerous other actions that have undoubtedly delayed the final hearing, including making “baseless” claims against Mother and her new husband that involved “both law enforcement and the Department of Child Services.” Appellant's App. Vol. 2 p. 53. The court recognized the drawn-out nature of this case at the January 2025 hearing, stating “one of my concerns ․ is that the gaps here between hearings give rise to new incidents that we then have to litigate, which extends this.” Tr. Vol. 2 p. 94.

4.   As noted above, in January 2026, the trial court suspended PC Fears's services due to nonpayment by the parties. See Order, Cause No. 41C01-1701-DC-79 (Jan. 29, 2026).

Vaidik, Judge.

Altice, J., and Foley, J., concur.