Stacey L. Berg, Appellant-Petitioner v. Russell G. Berg, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Stacey L. Berg (now Stacey L. Wietfeldt) (“Wife”) appeals the trial court's denial of her request for attorney's fees pursuant to an indemnification provision in the mediated settlement agreement between Wife and Russell G. Berg (“Husband”). Because the trial court erred in concluding that Wife waived her request for attorney's fees, we reverse and remand for a determination of the reasonableness of Wife's requested fees.

Facts and Procedural History

[2] Husband and Wife's divorce was finalized in 2018. Their mediated settlement agreement, which was incorporated into the dissolution decree, provided that each of them would retain all stock accounts in their respective names, and Husband would receive all jointly held stock accounts. The agreement also contained the following provisions:

Each party agrees to indemnify and save and hold the other harmless from all damages, losses, expenses (including attorney's fees), costs and other fees incurred by reason of that party's violation or breach of any of the terms and conditions hereof․

․

Each of the parties further represent and warrant one to the other that all assets and debts owned or owed by the parties, either individually or jointly, have been correctly and truly revealed to the other and reflected within this agreement.

Appellant's App. Vol. 2 pp. 15, 18-19.

[3] The litigation that followed was detailed in our opinion in Wietfeldt v. Berg:

One year later, Wife filed a Trial Rule 60(B) motion for relief from judgment, alleging that the Agreement shouldn't be enforced because it was procured through fraud, constructive fraud, misrepresentation, mutual mistake, or other misconduct. Wife's motion rested on the omission of a stock account from the balance sheet that the parties had used in determining the division of assets.

The trial court initially denied relief to Wife. Wife then filed a motion to correct error [in September 2019], which the trial court granted. Because the trial court found that fraud, constructive fraud, mutual mistake, or misrepresentation had occurred and that Husband had breached the Agreement's warranty provision, it awarded Wife half of the value of the account.

Husband appealed, and this Court reversed the trial court. On transfer, our Supreme Court reinstated the trial court's judgment, noting that “the trial court incorrectly determined that fraud, constructive fraud, mutual mistake, or misrepresentation had occurred, but because the trial court didn't abuse its discretion in finding that Husband had breached the warranty clause of the Agreement, we affirm the trial court.” [Berg v. Berg, 170 N.E.3d 224, 232 (Ind. 2021) (Berg I).]

In July 2021, Wife filed a motion in the trial court to enforce the Supreme Court's opinion or, in the alternative, for a judgment against Husband and a request for attorney's fees.

No. 25A-DC-996, 2025 WL 3213989, at *1-2 (Ind. Ct. App. Nov. 18, 2025) (mem.) (Berg II) (citation modified). In requesting attorney's fees, Wife relied on the indemnification provision of the settlement agreement. She explained that she “incurred substantial attorney's fees and other related expenses and costs in addressing and ultimately prevailing on her claim that [Husband] breached the warranty” and argued that “she should be indemnified for those attorney[’s] fees and other related expenses and costs.” Appellant's App. Vol. 2 p. 80.

[4] In September 2024, after several pretrial conferences, a motion by Husband to extend the discovery deadline, and multiple motions to continue from each party (all of which were unopposed), the trial court held a hearing on Wife's July 2021 motion. Wife testified that she'd “incurred attorney's fees ․ in responding to [Husband's] appeal and then a petition to transfer on through preparing for this hearing and actually participating in this hearing.” Tr. p. 66. Her attorney submitted a fee affidavit delineating the fees Wife had incurred since January 2020, after Husband initiated his appeal, which totaled $32,540.81.

[5] In January 2025, the trial court entered a judgment against Husband for $94,129.19—half of the last documented value of the omitted stock account plus interest. The court denied Wife's request for attorney's fees, concluding that “Wife waived her right to attorney's fees by not presenting, arguing, or securing such a request within her Motion to Correct Error filed in 2019.” Appellant's App. Vol. 2 p. 100.

[6] Wife appealed the denial of attorney's fees, purporting to appeal from a final judgment. But because “certain child-related issues remained pending,” we observed that the January 2025 order was not a final judgment and dismissed the appeal. Berg II, 2025 WL 3213989, at *2. Wife subsequently moved for entry of final judgment pursuant to Indiana Trial Rule 54(B). The trial court granted the motion, rendering its January 2025 order “a final judgment as to [W]ife's request for attorney fees.” Appellant's App. Vol. 2 p. 110.

[7] This appeal ensued.

Discussion and Decision

[8] Wife argues that the trial court erred in denying her request for attorney's fees. We review a trial court's decision to award or deny attorney's fees for an abuse of discretion. River Ridge Dev. Auth. v. Outfront Media, LLC, 146 N.E.3d 906, 912 (Ind. 2020); Ahls v. Ahls, 52 N.E.3d 797, 802-03 (Ind. Ct. App. 2016). An abuse of discretion occurs when the court's decision either clearly contravenes the logic and effect of the facts and circumstances or misinterprets the law. River Ridge, 146 N.E.3d at 912. To make this determination, we review any findings of fact for clear error and any legal conclusions de novo. Id.

[9] Here, the trial court concluded that Wife waived her request for attorney's fees because she failed to present such a request in her September 2019 motion to correct error. Wife contends this was error because by September 2019, she hadn't yet incurred the attorney's fees she sought to recover. Instead, she argues, her claim for attorney's fees under the indemnification provision in the settlement agreement arose after Husband brought his appeal in Berg I. For the reasons set forth below, we agree.

[10] The parties here agreed to indemnify each other “from all damages, losses, expenses (including attorney's fees), costs and other fees incurred by reason of” a “violation or breach of any of the terms and conditions hereof.” We addressed the recovery of post-dissolution attorney's fees pursuant to a substantially similar indemnification provision in Masters v. Masters, 99 N.E.3d 711 (Ind. Ct. App. 2018), reh'g denied, trans. denied (Masters III). There, when the parties’ marriage was dissolved, the husband was ordered to pay $95,000 of the wife's attorney's fees. The husband appealed the award of attorney's fees. Masters v. Masters, 20 N.E.3d 158 (Ind. Ct. App. 2014) (Masters I), vacated in part by Masters v. Masters, 43 N.E.3d 570 (Ind. 2015) (Masters II). Both parties in Masters I requested appellate attorney's fees pursuant to Indiana Appellate Rule 66(E). We reversed the order awarding attorney's fees to the wife, finding it clearly erroneous, and summarily rejected the parties’ requests for appellate attorney's fees under Appellate Rule 66(E). But in Masters II, our Supreme Court granted transfer, concluded that the award of attorney's fees in the trial court was supported by the findings of fact, and affirmed.

[11] Following Masters II, the wife moved for indemnification of the attorney's fees and costs she incurred while defending herself in the husband's appeal. The trial court granted the wife's motion, and the husband again appealed. He argued that because the parties’ requests for appellate attorney's fees under Appellate Rule 66(E) were denied in Masters I and II, they were barred from recovering any appellate attorney's fees. We disagreed, explaining that since “recovery of appellate attorney fees under the indemnification clause follows a separate legal route from attorney fees recoverable under Rule 66(E), the denial of attorney fees in [Masters I and II] is irrelevant in discussing whether it was proper for the trial court to grant [the wife's] motion for indemnification.” Masters III, 99 N.E.3d at 720. And we held that “[b]ased on our determination that [the husband] in this case violated the Decree by failing to immediately pay [the wife's] attorney fees and costs in the amount of $95,000, the indemnity clause was triggered when [the wife] defended herself in [the husband's] appeal, thereby incurring post-dissolution attorney fees and costs.” Id. at 723; see also Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct. App. 2008) (ordering husband to pay attorney's fees to wife where parties’ settlement agreement contained indemnification provision and wife established that husband breached the agreement), trans. denied.

[12] In granting Wife's September 2019 motion to correct error, the trial court found that Husband breached the warranty clause of the settlement agreement by omitting a stock account from the balance sheet used for division of the parties’ assets. Husband appealed, and the Supreme Court ultimately affirmed the trial court's finding of breach in Berg I. Like in Masters II, the indemnification provision here was triggered when Wife defended herself in Husband's appeal beginning in 2020. Wife's request for attorney's fees in her 2021 motion to enforce corroborates this—the language of her request, her testimony at the September 2024 hearing on her motion, and her attorney-fee affidavit make clear that she sought only those fees incurred after Husband filed his appeal through the September 2024 hearing. See Appellant's App. Vol. 2 p. 80; Tr. pp. 66-67; Ex. 10. Because Wife's indemnification claim hadn't been triggered by the time of her 2019 motion to correct error, the trial court erred in concluding that she waived her request for attorney's fees by failing to present it in the 2019 motion. See Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1002-03 (Ind. Ct. App. 2015) (“[A] request for attorney fees almost by definition is not ripe for consideration until after the main event reaches an end․ Therefore, we are unwilling to hold that a party must request attorney fees before a matter has reached its conclusion.” (quotation omitted)).

[13] Husband's attempts to distinguish the Masters cases are unfounded. He argues that “[u]nlike Masters III, where the indemnification claim could not have been asserted before the underlying fee judgment became final, Wife's claimed loss and the underlying violation were both fully ripe in 2019.” Appellee's Br. p. 16. But as just explained, Wife's indemnification claim wasn't “ripe” until she defended herself in Husband's appeal. Husband also makes much of the fact that Wife didn't request appellate attorney's fees in Berg I, whereas the parties in Masters I each requested appellate attorney's fees pursuant to Indiana Appellate Rule 66(E). But as noted above, we held in Masters III that “reimbursement of attorney fees pursuant to Appellate Rule 66(E), and recovery of attorney fees pursuant to an indemnity clause follow two separate legal channels.” 99 N.E.3d at 720. Wife's failure to request attorney's fees pursuant to Appellate Rule 66(E) (or any other channel) in Berg I does not preclude her request for fees under the indemnification provision.

[14] Finally, Husband claims that even if Wife properly presented her request for attorney's fees for the first time in her July 2021 motion to enforce, “she let her request sit for three years,” and her “three-year delay in pursuing it independently bars relief.” Appellee's Br. pp. 16, 19. This claim mischaracterizes the procedural history and ignores Husband's role in the hearing on Wife's motion not being held for three years. Wife did not “let her request sit”; throughout the three years, the parties engaged in discovery (including Husband moving to extend the discovery deadline), and the trial court held several pretrial conferences. Additionally, the parties each filed multiple motions to continue, all of which were unopposed. The amount of time that passed between the filing of Wife's motion to enforce—which, Husband seems to forget, she wouldn't have had to file if he hadn't breached the settlement agreement in the first place—and the hearing on the motion has no effect on Wife's ability to recover attorney's fees.

[15] Because the trial court erred in finding waiver, we reverse the denial of Wife's request for fees. Under the indemnification provision of the parties’ settlement agreement, Wife is entitled to attorney's fees from 2020, after Husband filed his appeal, through the September 2024 hearing on her motion to enforce—all of which she “incurred by reason of” Husband's breach of the agreement. Since the court denied Wife's request altogether, it made no findings as to the reasonableness of the amount of fees Wife sought. See Corvee, Inc. v. French, 943 N.E.2d 844, 847 (Ind. Ct. App. 2011) (“[E]ven under a contract, an award of attorney's fees must be reasonable.”). We therefore remand to the trial court to determine the reasonableness of Wife's requested attorney's fees.¹

[16] Reversed and remanded.

FOOTNOTES

1.   Husband contends that because Wife prevailed on only one of her theories in Berg I, her “claimed fees must be apportioned to exclude amounts attributable to her ․ rejected theories.” Appellee's Br. p. 5. But as Wife points out, at the September 2024 hearing, Husband didn't object to the admission of her attorney-fee affidavit or cross examine her about which fees were attributable to her rejected theories. Husband also argues that his “billing records entail substantial time spent on Wife's rejected fraud-based theories,” and he should “thereby [be] award[ed] commensurate fees ․ based upon the lack of merit to such claims.” Appellee's Br. pp. 5, 11. But Husband didn't provide his attorney's billing records or even the total amount of fees he incurred, much less the specific fees attributable to Wife's rejected theories. Thus, these issues are not properly before us to decide.

Vaidik, Judge.

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