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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jun 18 2008, 9:10 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: ROBERTA L. ROSS Ross & Bruner Indianapolis, Indiana MARK SMALL Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ERIK H. CARTER Cordell & Cordell, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SHERYL CROWDER TAYLOR, Appellant-Petitioner, vs. DAVID TAYLOR, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A04-0712-CV-698

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather Welch, Judge Cause No. 49D10-0402-DR-230

June 18, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Sheryl Crowder Taylor ("Wife") challenges the trial court's denial of her motion for attorney's fees pursuant to the dissolution of her marriage to David Taylor ("Husband"). We affirm. ISSUES 1. Whether the trial court erred when it denied Wife's motion based upon the terms of the parties' mediation agreement. 2. Whether Wife's challenge to the trial court's bifurcation of the dissolution action is subject to appellate review. FACTS On January 8, 2004, Wife filed a petition for dissolution of marriage. On May 5, 2004, the trial court approved an order requiring Husband and Wife to attend mediation. On July 19, 2004, the mediator filed a report with the trial court. Husband and Wife had entered into a Mediated Agreement, wherein they agreed, in relevant part, to the following: Attorney/Mediation Fees. Husband shall pay $5,000.00 of Wife's attorney fees to Wife, which shall be paid in two installments, the first installment of $2,500.00 shall be due on August 15, 2004, and the second installment of $2,500.00 shall be due on September 15, 2004. Husband shall pay 100% of the fees incurred by the mediator for preparation and mediation on July 9, 2004 and any wrap up of said mediation session, minus the retainer amount paid by Husband and Wife prior to mediation. Future mediation sessions, if any, shall be paid by the parties individually. Future attorney fees shall be paid by each party. Husband shall have no liability for Wife's future legal expenses incurred through the date of the Decree of Dissolution of Marriage.

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(Wife's App. 32) (emphasis added). At the dissolution hearing scheduled for November 15, 2004, the trial court was faced with the issue of whether it could dissolve the marriage on that day, leaving certain contested issues to be resolved at the final hearing. The trial court would also address issues pertaining to the parties' children's schooling and child support expenses. Wife testified that although she had agreed, pursuant to the mediated agreement, to bear the cost of her attorney's fees incurred "for the duration of th[e] action until the dissolution of marriage," she wanted the trial court to revisit the issue of attorney's fees. (Husband's App. 57). When Wife's counsel asked her how her circumstances had changed since the parties' entry into the mediation agreement, Husband's counsel objected on the basis that the mediated agreement "indicate[d] clearly that [Husband] is to pay no more attorney fees beyond the mediated agreement and beyond what he ha[d] already paid." (Husband's App. 57). Wife's counsel responded that the costs associated with "new litigation [between the parties] . . . including the possibility of eleven depositions" had become "unduly burdensome" to Wife. (Husband's App. 57). Wife's counsel then asked the trial court to take the matter of revisiting attorney fees under advisement. Husband's counsel again objected, noting that there was no new pending litigation and that the parties' mediated agreement had already addressed the attorney's fees issue. The trial court then expressed its concern that dissolving the marriage on that date and leaving the issue of attorney's fees open to relitigation could defeat "the purpose or the spirit of the mediated agreement." (Tr. 104). The trial court then stated that it would 3

not dissolve the marriage unless the parties agreed that matters settled under the mediation agreement, such as attorney's fees, could not be relitigated. It stated, I mean, I don't think I have a choice based on the case law. I can either grant the dissolution today with the caveat that attorney's fees are each their own or they can stay married . . . . *** So I'll give you each the opportunity to talk to your clients but I think I'm violating the spirit of the mediated agreement because it's very clear. It says in essence

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