Troyer v. Troyer, 987 N.E.2d 1130 (Ind. Ct. App. 2013)

OPINION

CRONE, Judge.

Case Summary

Phillip J. Troyer (“Husband”) and Tracy L. Troyer (“Wife”) were married in 1993 and had one child, K.T., in 2000. In May 2010, Wife filed two petitions to dissolve the marriage, which were later dismissed. The parties’ attempts at reconciliation were unsuccessful, and Wife filed a third petition in May 2011. In July 2011, the trial court entered a Provisional Order that awarded the parties joint legal custody and Wife primary physical custody of K.T. The Provisional Order also addressed issues such as child support and K.T.’s healthcare expenses. Between February and April of 2012, the trial court held four days of hearings on the dissolution petition. Husband filed a petition for attorney fees. In April 2012, the court issued a partial decree dissolving the marriage and holding the remaining issues under advisement. In June 2012, the trial court issued a Final Decree containing extensive findings of fact and conclusions thereon. In the Final Decree, the court valued the marital assets and divided them equally between the parties. The court also awarded the parties joint legal custody and Wife primary physical custody of K.T. Fi

nally, the court denied Husband’s petition for attorney fees.

Husband appealed, and Wife cross-appealed. Husband contends that the trial court abused its discretion in valuing and dividing the marital estate; exceeded its statutory authority in retroactively increasing his child support and healthcare expenses; abused its discretion in denying his petition for attorney fees; and failed to rule on two issues that he raised below. Wife contends that the trial court abused its discretion in awarding the parties joint legal custody of K.T. She also asserts that Husband’s appeal is frivolous or in bad faith such that she is entitled to attorney fees pursuant to Indiana Appellate Rule 66(E).

We conclude as follows: (1) the trial court did not abuse its discretion in valuing and dividing the marital estate; (2) the trial court exceeded its statutory authority in retroactively increasing Husband’s child support and healthcare expenses; (3) the trial court did not abuse its discretion in denying Husband’s petition for attorney fees; (4) the trial court did fail to rule on Husband’s request for Wife to reimburse him for her share of K.T.’s private school expenses; (5) the trial court did not abuse its discretion in awarding the parties joint legal custody of K.T.; and (6) Husband’s appeal is neither frivolous nor in bad faith, and therefore Wife is not entitled to attorney fees pursuant to Appellate Rule 66(E). Consequently, we affirm in part, reverse in part, and remand.

Facts and Procedural History

Husband and Wife were married in January 1993 and had one child, K.T., who was born in April 2000. On May 14, 2010, Wife filed a petition to dissolve the marriage, which she dismissed less than two weeks later. Wife filed a second petition for dissolution on May 27, 2010. The parties continued to live together until they sold their home in early July 2010, at which time Husband moved to an apartment. In December 2010, Wife asked Husband if the two could reconcile; as such, Wife dismissed her second petition on February 22, 2011.

The attempted reconciliation failed, and Wife filed a third petition for dissolution on May 3, 2011, which was deemed to be “the legal date of the parties’ separation.” Appellant’s App. at 37. On July 15, 2011, the trial court entered a Provisional Order, which provided in pertinent part as follows: (1) at KT.’s request, Wife requested that Husband’s parenting time with K.T. be limited, reduced, or restricted; however, there was no evidence that the exercise of Husband’s parenting time would endanger the emotional or physical well-being of the child; (2) the trial court took judicial notice that Indiana caselaw prevents a child from dictating when, and in what fashion, a parent will exercise his or her parenting time; if the child has emotional issues that are interfering with parenting time, the solution is not to bow to the child, but instead to seek appropriate treatment for the child; (3) absent evidence to the contrary, there is an established presumption that each parent is a fit and proper person to have the care, custody, and control of K.T.; (4) the trial court recognized the sincerity of love and devotion by both parents toward K.T., and awarded joint legal custody; however, historical involvement with K.T. warranted Wife having primary physical custody and Husband exercising parenting rights under the Indiana Supreme Court’s Parenting Time Guidelines; (5) by agreement of the parties, Wife was ordered to maintain health insurance for K.T., and Husband was ordered to pay $53 a week, effective May 3, 2011 (a $530 arrearage was to be satisfied with Husband making extra payments of $20 per week until the arrearage

was paid); (6) each parent was responsible for his or her respective indebtedness incurred since the separation; and (7) each party was restrained from transferring, encumbering, concealing, selling, or otherwise disposing of joint marital property.

In September 2011, Husband asked Wife to reconcile, but Wife refused, stating that the marriage had run its course. In April 2012, the trial court entered its “Partial Decree and Dissolution of Marriage,” which in pertinent part stated that the “marriage being irretrievably broken, is hereby dissolved,” that all other issues remain under advisement, and that “costs of this action are assessed to [Wife].” Appellant’s App. at 37.

The Final Decree was fifteen pages long, identified eighty-three factual findings or legal conclusions, and was entered following the final hearing, which took the better part of four days and resulted in a transcript in excess of 800 pages. The Final Decree also: (1) identified KT.’s circumstances and health history, including that K.T. suffered from anorexia nervosa and major depressive disorder; (2) identified the need for a Parenting Time Coordinator; (3) analyzed five years of Husband’s income for child support purposes; (4) dealt with health insurance, uninsured healthcare expenses, and tax exemption issues; and (5) detailed the few agreements and the many disagreements of the parties, both prior to and during the dissolution process. The Final Decree identified stipulated values for various assets and then systematically resolved disputed property issues, including whether certain assets or debts should be included in the marital estate, whether dissipation under the statute had occurred from the actions of either party, and whether Wife’s sale of her interest in her law practice eleven months prior to having filed the instant dissolution action was an arm’s-length transaction. Ultimately, the trial court divided the marital estate equally and identified a balancing equalization judgment. Husband now appeals, and Wife cross-appeals. Additional facts will be included below.

Discussion and Decision

After the final hearing, the trial court, on its own motion, entered findings of fact and conclusions thereon regarding the parties’ dissolution proceedings. In reviewing an order in which the trial court makes findings of fact and conclusions thereon, our standard of review is well-settled:

Thalheimer v. Halum, 973 N.E.2d 1145, 1149-50 (Ind.Ct.App.2012) (quoting McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010), trims, denied (2011)). On appeal, we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses.” Ind. Trial Rule 52(A).

Husband contends that the trial court abused its discretion in valuing and dividing the marital estate when it: (A) failed to include the value of Wife’s ongoing law practice in the marital assets; (B) valued Wife’s jewelry at $1000; and (C) concluded that Husband had not rebutted the presumption that an equal division of the marital property between the parties was just and reasonable. The decision regarding the valuation and division of marital property lies within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion. Hartley v. Hartley, 862 N.E.2d 274, 285 (Ind.Ct.App.2007). We address each of Husband’s issues in turn.

Husband first contends that the trial court “misconstrued both the facts of this case and applicable law” when it failed to attribute goodwill to Wife’s “ongoing law practice as a marital asset or assign any value to it.” Appellant’s Br. at 15. Specifically, Husband maintains that Wife still retained goodwill in the law firm, Boeglin Troyer & Gerardot, P.C., and that the value of that goodwill should have been included in the marital assets.

Wife’s “claimed one-half interest in Boeglin Troyer & Gerardot Sub S Corporation” was listed as Item 17.2 on the Joint Marital Balance Sheet. Appellant’s App. at 92. Wife attributed no value to this asset. Husband, however, valued this asset as being worth $105,098. Id. at 98. Wife sold her shares in Boeglin Troyer & Gerardot, P.C. (“the Firm”), on June 29, 2010. Id. at 68. The Joint Marital Bal-anee Sheet was completed as of May 3, 2011 — eleven months after Wife sold her share of the Firm. In its Final Decree, the trial court made the following finding regarding this asset:

Id. at 19. Thus the trial court did not abuse its discretion in finding that the capital stock of the Firm was not a marital asset.

On appeal, however, Husband contends that Wife retains enterprise goodwill in her ongoing law practice that should have been included in the marital assets. As background, we add the following facts. Husband and Wife are both attorneys. In June 1999, Husband became a partner in the Firm, which previously consisted of Wife and Jim Boeglin.1 In 2000, Boeglin retired from the Firm, and pursuant to a stock purchase agreement, Husband and Wife purchased Boeglin’s interest in the firm for $70,000. This price was based on Boeglin’s goodwill contained in the extensive wills and trust files that he left with the Firm.

In the summer of 2002, Husband left the Firm to return to an in-house counsel position with an insurance company, and Jane Gerardot joined the Firm as a partner. Thereafter, Wife and Gerardot each owned fifty percent of the Firm. Wife and Gerar-dot entered into various agreements, in-

eluding a stock purchase agreement (“Agreement I”), dated September 15, 2006. Under Agreement I, Wife and Ger-ardot agreed that, in the event one of the partners completely retired from the practice of law in Indiana and surrendered her client files to the Firm, the retiring partner would be entitled to receive a “Goodwill Reimbursement” based upon her “contribution toward the [F]irm’s goodwill.” Id. at 49. This provision provided as follows:

Id. at 49 (emphasis added). Agreement I also included a formula for calculating the Goodwill Reimbursement. Id. at 50.

On June 29, 2010, Wife and Gerardot entered into a second stock purchase agreement (“Agreement II”) that replaced Agreement I. Id. at 68. Under Agreement II, Gerardot paid Wife $15,381.25 for her fifty-percent share of the Firm’s office contents, website domain, and cash reserve. Agreement II contained no provisions for the payment of Goodwill Reimbursement. Husband, however, contends that the value of the goodwill itself did not disappear. As such, Husband maintains that Wife retained goodwill in her client files that should have been considered an asset within the marital estate.

The trial court addressed the issue of goodwill reimbursement as follows:

Id. at 21. Although this finding was made in the context of whether Wife had dissipated the value of the marital assets, it also sheds light on the trial court’s determination that Wife had no goodwill invested in the Firm that should have been included as part of the couple’s marital assets.

In Yoon v. Yoon, 711 N.E.2d 1265 (Ind.1999), our supreme court analyzed the issue of goodwill as follows:

tion, or a variety of other factors depending on the business. Ultimately these factors must, in one way or another, contribute to the anticipated future profitability of the business. Enterprise goodwill is an asset of the business and accordingly is property that is divisible in a dissolution to the extent that it inheres in the business, independent of any single individual’s personal efforts and will outlast any person’s involvement in the business. It is not necessarily marketable in the sense that there is a ready and easily priced market for it, but it is in general transferrable to others and has a value to others.

Id. at 1268-69 (emphasis added) (citations omitted).

Wife and Gerardot, as sole shareholders of the Firm, included in Agreement I a formula for placing value on goodwill. This value, however, applied only in the event that a shareholder: (1) left the Firm; (2) no longer engaged in the private practice of law in Indiana; and (3) left all of her client files, documents, and data with the Firm. Appellant’s App. at 49. In such a case, the remaining partner would have been the sole beneficiary of “enterprise goodwill” — the intangible, but generally marketable, existence in the Firm of established relations with clients. Yoon, 711 N.E.2d at 1268.

In June 2010, by means of Agreement II, Gerardot purchased Wife’s fifty-percent share of the Firm’s office contents, website domain, and value of the Firm’s cash reserves. Wife, however, retained her “personal goodwill,” i.e., the interest in the Firm that depended on her continued presence in the practice of law. This was a personal asset that represented “nothing more than the future earning capacity of [Wife] and [was] not divisible.”2 Id. at 1269.

The trial court found that: (1) “goodwill reimbursement” did not apply to the sale of Wife’s capital stock to Gerardot; (2) Wife continued to be engaged in the private practice of law as an employee of the Firm; and (3) as an employee, Wife re-

eeived fifty-four percent of the income from her own clients. Appellant’s App. at 21. The trial court did not abuse its discretion in finding that Wife had no “enterprise goodwill” in the Firm that could be divisible as a marital asset.

During the dissolution proceedings, the parties disagreed on the valuation of the jewelry that Husband had given Wife during their marriage. Husband contends that the trial court abused its discretion in finding that Wife’s jewelry was worth only $1000.

“The trial court has broad discretion in ascertaining the value of property in a dissolution action, and its valuation will only be disturbed for an abuse of that discretion.” Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind.Ct.App.2011), trans. denied. Here, neither party offered receipts for the jewelry purchased or a professional appraisal of the value of Wife’s jewelry. Instead, the parties provided the trial court with their own valuation of the jewelry. In the Joint Marital Balance Sheet, Wife valued the jewelry at $1000, while Husband valued it at $13,500. Appellant’s App. at 92.

Wife was confident enough in her $1000 valuation that she was willing to let Husband have the jewelry for a $1000 setoff. Tr. at 319. Husband, by contrast, was willing to take the jewelry if it was valued at $1000 but would not take it if he would be charged a setoff of $2000. Id. at 716. Furthermore, Husband stated, “I don’t know how much it’s worth, it’s in her possession.” Id. When asked if he had ever asked to have the jewelry appraised, Husband answered, “Not in this case.” Id. Husband agreed to let Wife have the jewelry only if he was credited with a set off of $13,000. Id. at 717. When asked whether the $13,000 was based upon his valuation, Husband responded that the estimate was “Ejjust a complete guess.” Id. The trial court was within the bounds of the evidence presented and did not abuse its discretion in determining that Wife’s jewelry was worth $1000 for purposes of dividing the marital estate.3 See Trabucco, 944 N.E.2d at 558 (stating that trial court has broad discretion in determining value of property in dissolution action, and its valuation will not be disturbed absent abuse of discretion).

Husband contends that the trial court abused its discretion in finding that he failed to rebut the presumption of an equal distribution of the marital assets.4 Specifically, Husband contends that the presump

tion was rebutted because Wife dissipated the marital estate by selling her shares of the Firm for only $15,381.25 and because Husband received an inheritance of $50,000, of which about $20,000 was held in his personal bank account when Wife filed her final petition for dissolution. Our standard of review is well settled:

Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind.Ct.App.2006) (citations omitted).

Indiana law presumes that an equal division of the marital property between the parties is just and reasonable; however, that presumption may be rebutted by relevant evidence that an equal division would not be just and reasonable. Ind. Code § 31-15-7-5. The factors a court may consider include: the contribution of each spouse to the acquisition of the property; the extent to which the property was acquired by each spouse before the marriage or through inheritance or gifts; the economic circumstances of each spouse at the time of disposition; the conduct of the parties as it relates to the disposition or dissipation of their property; and the earnings or earning ability of each spouse. Id. “If the trial court deviates from this presumption, it must state why it did so.” Galloway, 855 N.E.2d at 305; Thompson v. Thompson, 811 N.E.2d 888, 912-13 (Ind.Ct.App.2004), trans. denied (2005).

Husband contends, “if the record proved any of these factors were present during the marriage, it would have rebutted the initial presumption that an equal distribution of the marital estate was just and reasonable.” Appellant’s Br. at 23. We disagree. “Marital property includes property owned by either spouse prior to the marriage, acquired by either spouse after the marriage and prior to final separation, or acquired by their joint efforts.” Swadner v. Swadner, 897 N.E.2d 966, 977 (Ind.Ct.App.2008). “The trial court’s disposition of the marital estate is to be considered as a whole, not item by item.” Eye v. Eye, 849 N.E.2d 698, 701 (Ind.Ct.App.2006).

We have said,

In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind.Ct.App.1996) (citations omitted).

Husband contends that the trial court abused its discretion in finding that Wife did not dissipate the marital assets. Specifically, Husband contends that Wife dissi

pated the value of her shares of the Firm. Husband contends that Wife’s interest in the Firm was worth $105,098, but that Wife sold her interest during the pendency of the marriage dissolution for just $15,381.25. Appellant’s App. at 93. Generally, our court reviews findings of dissipation under an abuse of discretion standard. Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind.Ct.App.2001). We will reverse only if the trial court’s judgment is clearly against the logic and effect of the facts and the reasonable inferences to be drawn from those facts. Id.

“Waste and misuse are the hallmarks of dissipation. Our legislature intended that the term carry its common meaning denoting ‘foolish’ or ‘aimless’ spending. Dissipation has also been described as the frivolous, unjustified spending of marital assets which includes the concealment and misuse of marital property.” Marriage of Coyle, 671 N.E.2d at 943. Factors to consider in determining whether dissipation has occurred include: (1) whether the expenditure benefited the marriage or was made for a purpose entirely unrelated to the marriage; (2) the timing of the transaction; (3) whether the expenditure was excessive or de minimis; and (4) whether the dissipating party intended to hide, deplete, or divert the marital asset. Goodman, 754 N.E.2d at 598. Following the final hearing, the trial court made the following findings that are pertinent to this issue on appeal:

Appellant’s App. at 21.

Wife sold her portion of the Firm to Gerardot in an “arm’s length transaction,” and did so almost a year before Husband placed a value on the Firm for purposes of inclusion in marital assets. Id. at 21. Gerardot testified that the price, in part, was based on independent appraisals of the Firm’s personal property and said that she was willing to sell her interest in the law firm to Wife for the same amount that Wife sold it to her. Tr. at 221. Additionally, Wife did not have a buyback option or any other arrangement to return to the Firm as a shareholder. Id. at 210-11. Wife knew that Gerardot was interested in retiring from the Firm in the near future. Wife also knew that when Gerardot retired and left her client files with the Firm, Wife would owe Gerardot a great deal of money under the terms of the “Goodwill Reimbursement” clause of Agreement I. Furthermore, if Gerardot retired prior to the settling of the marital estate, then the payment to Gerardot would have been a liability and could have been cited as marital debt. Wife’s sale of her interest in the Firm prior to the settling of the marital estate was neither wasteful nor foolish, but instead an arm’s-length business transaction that created certainty in the marital estate. The trial court did not abuse its discretion in finding that Wife did not dissipate marital assets.

Husband next contends that approximately $20,000 of his inheritance remained in his personal account on the date that Wife filed the instant petition for dissolution. As such, Husband argues that the trial court abused its discretion in determining that this personal bank account was marital property and that he had not rebutted the presumption that the marital property should be evenly divided.

Husband was left an inheritance of $50,000 by Grace and Ira Leer, a couple who treated Husband like a grandson. At the final hearing, the trial court learned the following about the inheritance. Husband testified that he had known about the inheritance since around 1995, two years after Husband and Wife married and almost sixteen years before they separated. In 1995, at the Leers’ request, Wife drafted the trust document that provided for Husband’s inheritance. Mrs. Leer died soon thereafter, and Mr. Leer died in late 2008. Husband received the inheritance in the spring of 2009, and on July 3, 2009, deposited the whole amount into Husband and Wife’s joint bank account (“joint account”).

On July 8, 2009, Husband withdrew $5000 from the joint account and, at Wife’s request, deposited that amount into KT.’s college savings account. Four months later, on November 4, 2009, Husband withdrew $30,000 from the joint account and deposited that money into his personal bank account. With Wife’s consent, Husband used $25,000 of that $30,000 as a contribution toward his own congressional campaign. On December 28, 2009, Husband withdrew an additional $15,000 from the joint account and deposited that money into his personal bank account. During the almost six months that Husband held some of his inheritance in the joint account, Husband and Wife deposited their respective salaries and paid their joint bills from that joint account. Although Wife filed various petitions for dissolution prior to filing the petition at issue, the couple did not officially separate until May 3, 2011, about two years after Husband received his inheritance.

In findings 55 through 78, the trial court specifically identified the assets and debts of the parties and the proposed distribution thereof consistent with the statutory presumption identified in Indiana Code Section 31-15-7-5. The parties had been married for eighteen years. Neither party claimed to have brought assets to the marriage. During their marriage, Husband and Wife were both practicing attorneys who made significant amounts of money. Husband spent $25,000 of his inheritance on a failed run for political office and deposited another $5000 into K.T.’s college fund. The remaining $20,000, which Husband received about two years before the Final Decree, was commingled in the joint account for six months — an account into which the parties deposited their salaries and from which they paid their joint bills. Viewing the evidence as a whole, we cannot say that the trial court abused its discretion in finding that nothing in the record had rebutted the presumption that an equal distribution of the marital estate was appropriate.

In its July 2011 Provisional Order, the trial court ordered Husband to pay $53 per week in child support and ordered Wife to maintain health insurance coverage for K.T. Wife did not petition to modify those provisions before the Final Decree was issued in June 2012. In finding 46 of the Final Decree, the trial court ordered Husband to pay $155 per week in child support, “with the first payment due

and payable on January 6, 2012” — more than six months before the Final Decree was issued. Appellant’s App. at 16. In finding 50, the trial court also ordered that as of January 1, 2012 — again, more than six months before the Final Decree was issued — Wife was to be responsible for the payment of the first $1089

Id. at 17.

Husband argues that the trial court exceeded its statutory authority by ordering a retroactive increase in his child support obligation and contribution toward uninsured healthcare expenses.5 Husband contends that, because the Provisional Order addressed both child support and healthcare expenses, and Wife never petitioned to modify those expenses before the Final Decree, the trial court’s authority in the Final Decree was limited to setting Husband’s obligations as to those expenses from the date of the Final Decree and beyond. We agree.

Indiana Code Section 31-15-4-14 states, “A provisional order terminates when: (1) the final decree is entered subject to right of appeal; or (2) the petition for dissolution or legal separation is dismissed.” Indiana Code Section 31-15-4-15 states, “The terms of a provisional order may be revoked or modified before the final decree on a showing of the facts appropriate to revocation or modification.” It logically follows, then, that the terms of a provisional order may not be revoked or modified before the final decree unless such a showing is made. Here, the practical effect of findings 46 and 50 of the Final Decree was to modify the terms of the Provisional Order as to child support and healthcare expenses, even though Wife made no request for such, much less a showing of the facts appropriate to such modifications before the hearing on the Final Decree.6 As such, we conclude that the trial court exceeded its statutory authority in ordering a retroactive increase of Husband’s child support and healthcare expenses in the Final Decree. Therefore, we reverse and remand with instructions to amend the Final Decree accordingly.

Husband also contends that the trial court abused its discretion in denying his petition for attorney fees. We review a trial court’s decision on attorney fees in connection with a dissolution decree for an abuse of discretion. Hartley, 862 N.E.2d at 286.

Pursuant to Indiana Code Section 31-15-10-1, a trial court may order a party in a marriage dissolution proceeding to pay a reasonable amount of the attorney fees of the other party. “When making such an award, the court must consider the resources of the parties, their economic condition, the ability of the parties to en

gage in gainful employment and to earn adequate income and other factors that bear on the reasonableness of the award.” Hendricks v. Hendricks, 784 N.E.2d 1024, 1028 (Ind.Ct.App.2003). “Consideration of these factors promotes the legislative purpose behind the award of attorney fees, which is to insure that a party in a dissolution proceeding, who would not otherwise be able to afford an attorney, is able to retain representation. Hartley, 862 N.E.2d at 286-87. “ ‘When one party is in a superior position to pay fees over the other party, an award of attorney fees is proper.’ ” Id. at 287 (quoting Ratliff v. Ratliff, 804 N.E.2d 287, 249 (Ind.Ct.App.2004)). Here, the trial court identified the parties’ incomes as an aspect of its Final Decree — Husband’s weekly gross income was $1715, and Wife’s was $2510. Appellant’s App. at 25. The trial court divided the marital estate equally. Because the parties’ resources are relatively on par with each other, the only basis for an award of attorney fees would have been the improper actions of one party necessitating the incurrence of attorney fees by the other party. See Hendricks, 784 N.E.2d at 1028 (stating that misconduct that directly results in additional litigation expenses may be properly taken into account in trial court’s decision to award attorney fees).

Husband contends that Wife engaged in the following misconduct: (1) selling her fifty-percent share in the Firm in direct violation of a temporary restraining order; (2) cashing out her Scottrade IRA in the amount of $53,486; and (3) refusing to let Husband have any involvement in her “initial response to Anthem’s coverage denial or her decision to issue a check for $46,200.00 to pre-pay for K.T.’s treatment.”7 Appellant’s Br. at 37. As such, Husband argues that the trial court abused its discretion when it denied his request for attorney fees.

We disagree. First, the trial court found that Wife’s sale of her interest in the Firm was an arm’s-length business transaction, which occurred eleven months before the instant filing and did not result in dissipation of marital assets. Second, Husband was not affected by Wife cashing out the Scottrade IRA account because the parties agreed that the account was worth $53,486, and the trial court granted that asset to Wife as part of her share of the marital estate. Finally, the trial court ordered Wife to “provide health insurance for the parties’ minor child through employment.” Appellant’s App. at 18. Wife was not engaging in misconduct when she dealt with her own health insurance company. The issues raised by Husband are not examples of Wife engaging in misconduct. The trial court did not abuse its discretion when it denied Husband’s petition for attorney fees.

Finally, Husband contends that the trial court failed to rule upon two issues. First, he claims that the trial court erred when it did not order Wife to reimburse him for her share of K.T.’s private school expenses — an obligation that was included in the Provisional Order. The Provisional Order provided in pertinent part as follows:

extra-curricular activities, and other reasonable and related school expenses.

Id. at 42^43. Wife admits that the trial court did not address Husband’s request in its Final Decree. Appellee’s Br. at 28.

“The duration of provisional support orders is committed to the sound discretion of the trial court.” Moore v. Moore, 695 N.E.2d 1004, 1009 (Ind.Ct.App.1998). However, there is no indication in the record that the trial court in this instance intended anything other than that its Provisional Order should terminate upon entry of the final decree. As such, we remand to the trial court so that it may amend its Final Decree to include an order directing Wife to pay Husband that amount, which, together with her prior payments, results in the parties having shared “equal responsibility” for the payment of KT.’s private school.

Second, Husband contends that the trial court did not address two healthcare issues: whether Husband should be allowed to intervene in Wife’s appeal of Anthem’s denial of coverage for residential treatment of KT.’s eating disorder; and the allocation between Husband and Wife of any non-reimbursed healthcare expenses. As to Husband’s first concern, the Anthem coverage belonged to Wife. Wife testified that she intended to process the administrative appeal of the Anthem denial and to hire an attorney to pursue the claim. Because Husband did not have a right to pursue the claim, the trial court did not abuse its discretion in failing to rule on this issue, which left the administrative appeal in the hands of Wife. Because Wife is responsible for the first $1089 of annual uninsured health care and for 59.4% of all uninsured expenses that rise about that amount, Wife has as much incentive as Husband, if not more, to successfully appeal the Anthem denial.

Husband also contends that, notwithstanding extensive arguments on the issue, the trial court failed to rule on each party’s obligation regarding the healthcare expenses that Anthem denied. We find that the trial court adequately addressed the payment of these expenses in finding 50 of the Final Decree, which is quoted in section II of this opinion, as well as in the following finding:

Appellant’s App. at 23-24.

On cross-appeal, Wife asserts that the trial court erred in awarding the parties joint legal custody of K.T. “ ‘Joint legal custody’ ... means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.” Ind.Code § 31-9-2-67. “In an initial custody determination there is no presumption favoring either parent.” Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind.Ct.App.2008) (citing Ind.Code § 31-17-2-8).

§ 31-17-2-13. And an award of joint legal custody does not require an equal division of physical custody of the child. Ind.Code § 31-17-2-14.

Id. (emphasis added).

Child custody determinations fall squarely within the discretion of the dissolution court and will not be disturbed except for an abuse of discretion. Blasius v. Wilhoff 863 N.E.2d 1223, 1229 (Ind.Ct.App.2007), trans. denied. “The trial court is in a position to see the parties, observe their conduct and demeanor, and hear their testimony; therefore, its decision receives considerable deference in an appellate court.” Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind.Ct.App.2002), trans. denied. We will not reverse the trial court’s decision unless it is against the logic and effect of the facts and circumstances before it or the reasonable inferences drawn therefrom. Id. “On review, we will not reweigh evidence, judge the credibility of the witnesses, or substitute our judgment for that of the trial court.” Farag v. DeLawter, 743 N.E.2d 366, 368 (Ind.Ct.App.2001).

Indiana Code Section 31-17-2-15 addresses the matters a court must consider in determining whether to award the parties joint legal custody:

“Therefore, trial courts must consider ‘whether the parents have the ability to work together for the best interests of their children.’” Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind.Ct.App.2008) (quoting Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind.Ct.App.2004)).

After presiding over a four-day hearing, which was transcribed in an eight-hundred-eleven-page transcript, the trial court made the following pertinent findings:

9.[K.T.]’s behaviors include violent outbursts and tantrums, panic attacks, self-mutilation, binging and purging.

significantly impair her emotional development.

Appellant’s App. at 11-18.

Notably, Wife does not challenge the factual correctness of any of the trial court’s findings. Rather, she contends that they militate toward the conclusion that she should be awarded sole legal custody of K.T. We have said that

Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind.Ct.App.1995) (citations omitted), trans. denied (1996).

Although Husband and Wife’s relationship is currently strained and KT.’s psychological condition is currently precarious, we do not believe that the trial court is attempting to impose an “intolerable situation upon the parties” in awarding joint legal custody here. The trial court found that Husband and Wife have occasionally been able to cooperate for KT.’s benefit, such as in making joint decisions regarding KT.’s therapy and treatment and extracurricular activities. Moreover, Husband asserts, and Wife does not dispute, that he had never “unreasonably refused to consent to: 1) a health care provider for their daughter; 2) a change in her schooling; or 3) change in her religious upbringing.” Appellant’s Reply Br. at 34. Some of these decisions may have been reached only after tense exchanges or extended negotiations between the parties, but such may be the case even in intact family situations. Wife highlights the areas and instances of conflict between the parties, but the fact remains that the trial court had some evidentiary basis for concluding that they could cooperate in making major decisions concerning K.T.’s

upbringing, such that awarding joint legal custody would be in her best interest.

Wife also emphasizes that she currently has primary physical custody of K.T. and that the trial court found that parenting time between Husband and K.T. “will endanger her health or significantly impair her emotional development.” We note, however, that Husband has acknowledged this and that the trial court has prescribed certain measures for monitoring and remedying this situation, which may ultimately lead to Husband’s reconciliation with K.T.8 Also, we reiterate that an award of joint legal custody does not require an equal division of physical custody. Ind.Code § 31-17-2-14. Wife does not challenge the trial court’s finding that she and Husband “share a common goal of helping [K.T.] mature and grow into a functioning, happy, and responsible person.” The trial court was in the best position to assess whether awarding the parties joint legal custody is in KT.’s best interest, and we will not second-guess that determination on appeal.

Finally, Wife contends that the “complete absence of merit to each and every aspect of [Husband’s] appellate effort” warrants the assessment of appellate attorney fees pursuant to Indiana Appellate Rule 66(E).9 Appellee’s Br. at 40.

Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App.2003) (citations omitted). “A strong showing is required to justify an award of appellate damages and the sanction is not imposed to punish mere lack of merit but something more egregious.” Ballaban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 340 (Ind.Ct.App.2013).

Wife contends that Husband’s pro se appeal required that she either represent herself or retain counsel and incur attorney fees. Wife also contends that Husband has failed to identify any legal support for his contentions, has repeatedly asked this court to reweigh the evidence, and has shown complete disregard for the trial court’s specific findings on the relevant issues as well as the testimony from the final hearings as a whole. Appellee’s Br. at 40. Contrary to Wife’s assertion, Husband has provided ample legal support for his arguments and in fact has prevailed on two of them. Husband’s remaining arguments may lack legal merit, but we can

not say that they are frivolous or made in bad faith. Accordingly, we deny Wife’s request for attorney fees.

We reverse the trial court’s retroactive modification of Husband’s child support and healthcare expenses and remand with instructions to amend the Final Decree accordingly. On remand, the trial court shall also amend the Final Decree to include an order directing Wife to reimburse Husband for her share of KT.’s private school expenses pursuant to the Provisional Order. In all other respects, we affirm the trial court.

Affirmed in part, reversed in part, and remanded.

BROWN, J., concurs.

KIRSCH, J., concurs in part and dissents in part with separate opinion.

KIRSCH, Judge,

concurring in part and dissenting in part.

I concur with my colleagues in Parts I, II, III, IV, and VI of the majority opinion. I respectfully dissent, however, from Part V regarding the order for joint custody.

The trial court, here, was correct that the best interest of K.T. would be served by “two parents working together in a consistent and unified manner.” Appellant’s App. at 13. Indeed, a similar statement could be made in every marital dissolution case involving children. There is nothing in the record before us, however, that reveals that the trial court’s statement was supported by the evidence or was a realistic expectation. Rather, the record repeatedly demonstrates that these parents cannot currently work together in such a manner.

Putting a child in jeopardy based only on the hope that her parents can work together is not in the child’s best interest and, indeed, could lead to significant harm.

Here, the trial court: determined, and Husband agreed, that no parenting time should be currently allocated to Husband because that would “endanger” KT.’s physical health or significantly impair her emotional development; “seriously considered” ordering parents to participate in classes for “high conflict parents” and in individual and joint counseling; considered therapeutic parenting time; and appointed a Parenting Coordinator to provide support, assistance, and guidance. Given these very real and very serious concerns, it was error to order joint custody.

Moreover, following the dissolution, Husband filed a grievance with the Indiana Supreme Court Disciplinary Commission against Wife ensuring that the adversarial nature of his relationship with the Wife will be continued.

Appellate courts are reluctant to reverse a trial court’s grant of joint legal custody. We will do so, however, when “ ‘the joint custody award constitutes an imposition of an intolerable situation upon two persons who have made child rearing a battleground.’ ” Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind.Ct.App.2008) (quoting Aylward v. Aylward, 592 N.E.2d 1247, 1251 (Ind.Ct.App.1992)). Nothing in the record before us and none of the trial court’s findings support the conclusion that, at the present time, these two parents can work together in a consistent and unified manner. I would reverse the trial court’s decision to grant parents joint legal custody, and I respectfully dissent from Part V of the majority opinion.