author: ROBB, Chief Judge.

text:
    Robert KUNTZ, Kunodu, Inc., and BK Interests, LLC., Appellants, Defendants, v. EVI, LLC, Appellee-Plaintiff.
    No. 02A03-1301-PL-14.
    Court of Appeals of Indiana.
    Nov. 13, 2013.

      Eric E. Snouffer, Snouffer & Snouffer, Fort Wayne, IN, Attorney for Appellants.
    Daniel D. Bobilya, Daniel J. Holden, Bo-bilya Law Group, LLC, Fort Wayne, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Appellants Robert Kuntz, Kunodu, Inc., and B-K Interests, LLC (collectively, "Kuntz") appeal the trial court's issuance of a preliminary injunction and award of attorney fees in favor of EVI, LLC ("EVI"). Kuntz raises the following issues for our review: (1) whether the trial court erred in granting a preliminary injunction prohibiting Kuntz from competing against EVI; (2) whether the trial court improperly modified the terms of the parties' covenant not to compete in conjunction with its grant of a preliminary injunction; @) whether the trial court abused its discretion by awarding attorney fees to EVI; and (4) whether the trial court erred by entering a nune pro tune entry modifying its award of attorney fees for EVI.

We conclude that the trial court did not abuse its discretion by granting a preliminary injunction against Kuntz; however, the trial court improperly extended the duration of the parties' eovenant not to compete. Further, we conclude that the trial court erred by awarding attorney fees to EVI at this stage of the proceedings. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

Kuntz had been in the business of selling, repairing, and rebuilding electric automobile parts, such as alternators and starters, since 1976. Beginning in 1991, Kuntz owned and operated Kunodu, Inc. d/b/a Auto Electric ("Kunodu"), which was located at 709 East Washington Street in Fort Wayne, Indiana. In April of 2007, Kuntz sold the assets of Kunodu to JS Hare, Inc. ("JS Hare"). In connection with that asset sale, JS Hare and Kuntz, as an individual or through his solely owned company B-K Interests, LLC, entered into multiple contractual agreements. Those agreements included an asset purchase agreement, a covenant not to compete ("Noncompete Agreement"), a security agreement, -a promissory note, and a lease agreement. The lease agreement ("the Lease") between Kuntz and JS Hare provided that JS Hare would lease the property at 709 East Washington for a five-year term and granted JS Hare an option to purchase the property at the expiration of the Lease.

On November 22, 2011, JS Hare entered into an agreement with EVI whereby EVI was authorized to manage all aspects of JS Hare's business. And on December 12, 2011, JS Hare sold its assets to EVI, including its goodwill and assets which JS Hare had acquired in the asset purchase from Kuntz. As part of that asset sale, JS Hare assigned its rights under the Lease and the Noncompete Agreement to EVI.

Sometime in late 2011, Kuntz became aware that EVI was managing JS Hare and doing business at 709 East Washington. Between late 2011 and early 2012, Kuntz had multiple conversations with EVI during which the parties attempted to negotiate an extension of the Lease or sale of the property to EVI. However, these negotiations were unsuccessful, and the Lease expired, according to its terms, on March 31, 2012. Although Kuntz knew that EVI had been managing JS Hare, he was not aware of the asset sale between JS Hare and EVI until March or April of 2012.

At some time prior to April 30, 2012, EVI became concerned that Kuntz had been engaged in certain activities in violation of the Noncompete Agreement and sent a letter to Kuntz voicing those concerns. On July 18, 2012, EVI filed suit against Kuntz and requested a preliminary injunetion. The trial court held a hearing on the request for preliminary injunction on October 18, October 30, and November 7, 2012. On December 17, 2012, the trial court entered its findings of fact and conclusions of law and issued an order granting EVI's request for preliminary injunetion and entered a judgment for attorney fees against Kuntz. On January 3, 2018, the trial court amended its judgment for attorney fees nunc pro tunc, increasing the award from $11,351.50 to $34,808. Kuntz now appeals. Additional facts will be provided below.

Discussion and Decision

I. The Preliminary Injunction

Kuntz's primary contention on appeal is that the trial court erred by granting EVI's request for a preliminary injunction. For the reasons discussed below, we conclude that the trial court did not abuse its discretion by granting the preliminary injunction against Kuntz.

A. Standard of Review

The grant or denial of a preliminary injunction rests within the sound discretion of the trial court, and our review of that decision is limited to whether there was a clear abuse of discretion. Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d 484, 487 (Ind.2003). When granting or refusing to grant a preliminary injunction, the trial court must make special findings of fact and conclusions of law. Ind. Trial Rule 52(A)(1). The reviewing court determines whether the findings support the judgment. Am. Arbitration Ass'n v. N. Miami Cmty. Schs., 866 N.E.2d 296, 300 (Ind.Ct.App.2007). The trial court's findings or judg ment will be reversed only if they are clearly erroneous. Id. A finding of fact is clearly erroneous if the record lacks evidence or reasonable inferences from the evidence to support it. Id.

To obtain a preliminary injunction, the moving party must show by a preponderance of the evidence: (1) a reasonable likelihood of success on the merits by establishing a prima facie case, (2) remedies at law are inadequate, resulting in irreparable harm pending resolution of the substantive action if a preliminary injunction is not granted, (8) the balance of harms favors preliminary injunction such that the threatened injury to the movant outweighs the injunction's potential harm to the non-movant, and (4) the public interest would not be disserved. Apple Glen Crossing, 784 N.E.2d at 487-88.

B. Kuntz's Breach of the Noncompete Agreement

The trial court's issuance of the preliminary injunction was founded upon its determination that EVI demonstrated a pri-ma facie case that Kuntz was in violation of the Noncompete Agreement. The Non-compete Agreement states in pertinent part:

For purposes of this Agreement, "Non-compete Period" shall mean the period that begins on the effective date of this Agreement and ends on October 7, 2014, except that the "Non-Compete Period" shall be extended by the duration of any violation - by [Kuntz] of the terms of Paragraph 2 of this Agreement.
# ok
Noncompetition and Nonsolicitation.
[Kuntz] will not at any time, directly or indirectly, on [his] own behalf or on behalf of any third party, whether as an agent, employee, employer, officer, director, shareholder, member, consultant, independent contractor, lender, investor, ereditor, partner, principal or in any other competitive capacity:
(a) Employ or seek to employ any person who was an employee of the Buyer during the Non-compete Period; or
*ok k
(c) "compete" (as hereinafter defined) with Buyer within the Market Area during the Non-compete Period.... For purposes of this Agreement, "compete," "competes," and "competing" shall mean to engage or seek to engage in activities or the provision of products or services in the Market Area that are identical or substantially similar to those activities engaged in or products or services provided by the Seller during the Service Period including, without limitation, the sale, rebuilding, refurbishing, and distribution of automotive starter [sic], alternators, and batteries. For the purpose of this Agreement, "competitor" shall mean any person, business or entity that "competes," as defined above. Seller and Kuntz acknowledge that Seller is selling to Buyer the goodwill of a business and make the preceding covenants in consideration for and as a nee-essary condition of that transaction and for other good and valuable consideration received or to be received by them.

Appellant's Appendix at 198-94.

At the hearing, EVI presented evidence of Kuntz's breach of the Noncompete Agreement. Specifically, the trial court found that Kuntz engaged in activities prohibited by the Noncompete Agreement on at least thirty separate occasions during the noncompetition period and that he had personally repaired or rebuilt starters or alternators for persons whom he considered friends on at least a half-dozen occasions. Further, the trial court found that there was evidence to support the position that Kuntz violated the terms of the Non-compete Agreement by leasing the 709 East Washington Street property to a competitor of EVI, after EVI vacated the premises on March 31, 2012. The evidence contained in the record supports these findings, which are sufficient to constitute a prima facie showing that Kuntz acted contrary to the Noncompete Agreement. However, Kuntz maintains that the trial court's findings as to his violation of the Noncompete Agreement are clearly erroneous or the result of an improper interpretation and application of the Non-compete Agreement. We disagree.

First, Kuntz claims that because the Nonecompete Agreement was between Kuntz and JS Hare, competition with EVI could not constitute a violation of the agreement. Essentially, Kuntz argues that the term "Buyer" in the agreement is defined as JS Hare and does not include the successors or assigns of JS Hare, and therefore, the Noncompete Agreement cannot be enforced by EVI, We find this argument unavailing. Section 10 of the Noncompete Agreement provides: "All the terms, covenants and conditions of this Agreement shall be binding upon, and inure to the benefit of, and be enforceable by the parties hereto and their respective successors, heirs, personal representatives, executors and assigns." Appellant's App. at 195. This provision clearly demonstrates that the parties to the agreement, including Kuntz, anticipated the possibility that the contract may be assigned. Indeed, JS Hare's rights under the agreement were assigned to EVI after EVI purchased assets from JS Hare. There fore, EVI may enforce the Noncompete Agreement against Kuntz.

Second, Kuntz argues that the trial court erred by finding that Kuntz's lease agreement with a competitor of EVI's violates the Noncompete Agreement. Particularly, Kuntz takes issue with the trial court's determination that his role as a lessor amounts to him competing as a "creditor" under the terms of the agreement. Kuntz cites Wineteer v. Kite, 397 SW.2d 752 (Mo.Ct.App.1965), for the proposition that leasing to a competitor is not a violation of a covenant not to compete absent an express provision restricting such leasing. We note first that Wineteer is not binding and acts only as persuasive authority for this court. That said, we believe that Kuntz reads the Wineteer decision too broadly, and it can be distinguished from this case. In Wine-teer, the court dealt with a non-competition provision stating that the parties "agree[d] not to compete directly or indirectly." Id. at 754. The court noted that the parties made no effort to amplify the provision and that the brevity of the provision rendered it only a generalized restriction. Id. at 755. In the absence of evidence that the parties had considered a more expansive application of their agreement, the court declined to extend it to prevent leasing to a competitor. Id. By contrast, the Noncompete Agreement at issue here contains a nearly exhaustive list of roles in which Kuntz is prohibited from acting as a competitor: "Seller and Kuntz will not at any time [compete], directly or indirectly, on their own behalf or on behalf of any third party, whether as an agent, employee, employer, officer, director, shareholder, member, consultant, independent contractor, lender, investor, creditor, partner, principal or in any other competitive capacity[.]" Appellant's App. at 198. Considering the broad seope of this provision and the inclusion of language prohibiting competition "in any other competitive capacity," it is apparent that the intent and legal effect of the provision is to restrict all competitive activity in any capacity. We believe that Kuntz's role as lessor for a competitor of EVI is prohibited competition under the terms of the Noncom-pete Agreement.

In addition to establishing a reasonable likelihood of success on the merits, the remaining requirements for a preliminary injunction have also been met, and Kuntz does not specifically challenge the court's determination on the remaining elements. With respect to a showing of irreparable harm, the parties agreed that a breach of the Noncompete Agreement "would cause irreparable harm to the Buyer, and that such damage would be incapable of precise measurement, that no adequate remedy at law would exist for such breach...." Appellant's App. at 194. Although such an agreement is not dispositive, it is persuasive in determining that a preliminary injunction is appropriate. Moreover, EVI directs us to a number of decisions in which this court has found injunctive relief as an appropriate remedy for violation of a covenant not to compete. See, eg., Robert's Hair Designers, Inc. v. Pearson, 780 N.E.2d 858, 870 (Ind.Ct.App.2002); Norlund v. Faust, 675 N.E.2d 1142, 1149-50 (Ind.Ct.App.1997), trans. denied. Regarding the balance of harms, the court did not abuse its discretion by concluding that the harm to EVI of continued violation of the Noncompete Agreement by Kuntz outweighs any potential harm to Kuntz by issuing a preliminary injunction. And, lastly, we agfee that the public interest is not disserved by the issuance of a preliminary injunction under these cireumstances.

In sum, we conclude that the trial court did not abuse its discretion by granting EVI's request for preliminary injunction.

C. Pre-existing Breach

Kuntz contends that even if his conduct would have constituted a breach of the Noncompete Agreement, he was no longer bound to that agreement due to pre-exist-ing breaches by JS Hare. Kuntz maintains that several pre-existing breaches oc-eurred, including defaults under both the security agreement and the Lease. In response, EVI maintains that Kuntz failed to properly plead an affirmative defense, and even if he had preserved the defense of pre-existing breach, Kuntz failed to prove default or waived any claim of previous default by failing to enforce his rights under the agreements.

First, we address EVI's contention that Kuntz failed to properly plead an affirmative defense regarding pre-existing breach by JS Hare or EVI. We recognize the trial court's findings indicate that it, too, believed that arguments concerning pre-ex-isting defaults were not properly before the court. We disagree. Kuntz's Answer to Plaintiff's Complaint, Affirmative Defenses, and Countercelaims ("Kuntz's Answer") states in Paragraph 11 of the Coun-terelaims section:

Even if EVI was a party to the Non-Compete Agreement or had other rights to enforce same, neither Kunodu nor Kuntz are bound by the restrictions in the Non-Compete Agreement as JS Hare is and has been in default of the Asset Purchase Agreement ... since at least December 12, 2011. Under the plain language of the Non-Compete Agreement, the restrictive terms are not enforceable in the event of a default.

Appellant's App. at 185. Indiana Trial Rule 8(C) states that "[if the pleading mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleading as if there had been a proper designation." Thus, the fact that Kuntz asserted a prior default by JS Hare as a counterclaim, rather than a defense, is of no great import. We believe Kuntz's Answer is sufficient to satisfy the requirements of notice pleading and preservation of an affirmative defense, Lafary v. Lafary, 476 N.E.2d 155, 158-59 (Ind.Ct.App.1985), and to allow Kuntz to defend on a theory of pre-exist-ing breach. See Ind. Trial Rule 8(F) ("All pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points."). To the extent the trial court's findings and judgment sought to preclude Kuntz from presenting an affirmative defense concerning prior default by JS Hare, we find that determination to be clearly erroneous.

Although we conclude that Kuntz has preserved his affirmative defense, we do not believe that those arguments, at this juncture, are sufficient to render the trial court's preliminary injunction an abuse of discretion. EVI need only show a reasonable likelihood of success by establishing a prima facie case. Apple Glen Crossing, 784 N.E2d at 488. EVI has made this showing, and the facts necessary to determine whether JS Hare previously defaulted and whether Kuntz waived any prior default are unclear, undeveloped, and disputed among the parties.

Preliminary injunctions protect the rights of the. parties by "maintaining the status quo as it existed prior to the controversy, until the issues and equities in a case can be determined after a full examination and hearing" and "prevents harm to the moving party that could not be corrected by a final judgment." AGS Capital Corp., Inc. v. Prod. Action Int'l, LLC, 884 N.E.2d 294, 314 (Ind.Ct.App.2008), trams. denied. We believe that these goals are best achieved in this case by maintaining the preliminary injunction until the issues of pre-existing default and waiver are fully developed and vetted in the first instance by the trial court.

It is important to note that our analysis at the preliminary injunction stage is confined to the question of whether there has been a prima facie showing and the moving party has demonstrated a reasonable likelihood of success on the merits. This has been done, so our inquiry is at its end. Neither our decision nor the trial court's issuance of a preliminary injunction is an indicator of which party is entitled to ultimate success on the merits. It remains to be seen whether the scales may be tipped by the parties' additional arguments regarding default, waiver, and estoppel.

II. Extension of Time Period in Covenant Not to Compete

Kuntz contends that the trial court erred by entering a judgment "modify[ing] the terms of the Non-Compete Agreement at the preliminary injunction stage." Appellant's Brief at 24. He asserts that the trial court's determination subverts the purpose of the preliminary injunction, which is merely to maintain the status quo until the case can be heard and decided on the merits.

In fact, the trial court concluded "[Kuntz's] violations of the Non-compete commenced on approximately at [sic] the beginning of April, 2012; until the date of this Order enjoining [Kuntz] from violating the Non-compete, or about eight (8) months. The Non-compete is, hereby, extended from October 7, 2014, until June 7, 2015." Appellant's App. at 44. The trial court's conclusion is based upon a provision of the Nonecompete Agreement, which provides that its restrictions "shall be extended by the duration of any violation by [Kuntz] of the terms of Paragraph 2 of this Agreement." Appellant's App. at 198.

We disagree with Kuntz's characterization of the trial court's judgment as a "modification" of the Noncompete Agreement, because the agreement itself already contemplates an extension of the agreement for the term of any violation. That said, we understand Kuntz's concern, as the trial court's order granting preliminary injunction is neither a declaratory judgment nor a permanent injunction occurring as a final disposition on the merits. The purpose of a preliminary injunction is to "preserve the status guo as it existed before a controversy, pending a full determination on the merits of the dispute." Stoffel v. Damiels, 908 N.E.2d 1260, 1272 (Ind.Ct.App.2009). The status quo is the "last, actual, peaceful and non-contested status which preceded the pending controversy." N. Ind. Pub. Serv. Co. v. Dozier, 674 N.E.2d 977, 987 (Ind.Ct.App.1996) (citation omitted). In our view, the last uncontested position of the parties was the Noncompete Agreement as it existed prior to litigation; that is, the Noncompete Agreement was enforceable until October 7, 2014.

The trial court's conclusion that the period of the Noncompete Agreement should be extended beyond October 7, 2014 due to a violation by Kuntz is premature at this stage of the litigation and goes beyond the purpose of a preliminary injunetion. Any court-ordered extension of the Noncompete Agreement would be appropriate only after a full examination of the case on the merits and a final determination that a violation occurred. Therefore, we conclude that the trial court abused its discretion by extending the duration of the Noncompete Agreement as part of the preliminary injunction.

III. Attorney Fees after Preliminary Injunction

Finally, Kuntz argues that the trial court erred by awarding attorney fees to EVI in conjunction with its entry of the preliminary injunction. We agree.

Indiana follows the "American Rule," which requires that generally "a party must pay his own attorneys' fees absent an agreement between the parties, a statute, or other rule to the contrary." RL Turmer Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind.2012). Here, there is an agreement between the parties regarding attorney fees. The Noncompete Agreement states: "In any action brought to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in that action or proceeding and in any appellate proceedings relating thereto from the other party or parties...." Appellant's App. at 194 (emphasis added). A "prevailing party" is

[tlhe party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention.... To be such does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, has sue-cessfully maintained it.

Brack's Law Dictionary 1188 (6th ed. 1990). A party prevails by "a judgment following a full trial of the merits or by consent decree or settlement that grants them the relief sought." AGS Capital Corp., 884 N.E.2d at 316. "Inherent in the definition of preliminary judgment is the fact that a judgment on the merits has yet to be made" and "the prevailing party is yet to be determined." Id.

EVI's attainment of a preliminary injunction marks only a suceess at one stage of the litigation and does not afford it prevailing party status. Therefore, we conclude that the trial court erred by awarding attorney fees to EVI after entry of the preliminary injunction.

Conclusion

We conclude that the trial court's decision to grant a preliminary injunction against Kuntz was not an abuse of discretion; however, the trial court improperly extended the duration of the Noncompete Agreement. Further, we conclude that the trial court erred by awarding attorney fees to EVI upon entry of the preliminary injunction. Accordingly, we affirm in part, reverse in part, and remand for further proceedings

Affirmed in part, reversed in part, and remanded.

NAJAM, J., and RILEY, J., concur.

      . We heard oral argument in this case on October 22, 2013, at Purdue University. We commend counsel for their advocacy and thank the faculty, staff, and Executive MBA students at Purdue for their participation and hospitality.

      . At this point, the facts are unclear as to when exactly Kuntz learned of the asset sale between JS Hare and EVI. Kuntz's brief indicates that he knew of the asset sale in "March or April, 2012," Appellant's Brief at 3, and EVI states that Kuntz was "officially made aware" in April of 2012. Appellee's Brief at 4. The trial court's findings of fact do not state the time at which Kuntz first had knowledge of the asset sale.

      . Additionally, the trial court found that Kuntz violated the Noncompete Agreement by employing a former employee of JS Hare and by using a commercial account to purchase automotive parts from a wholesale vendor and provide those parts to other people.

      . Kuntz also argues that certain findings made by the trial court were impermissibly based upon hearsay testimony, which was admitted by the trial court over Kuntz's objection. The trial court admitted the testimony on the grounds that the declarant was the person testifying at the hearing. Although this evidence was unnecessary to make EVI's prima facie showing, we note for the benefit of the parties and the trial court that the availability of the declarant as a testifying witness does not in and of itself exempt his out-of-court statements from the rule barring hearsay. See K.F. v. State, 961 N.E.2d 501, 513-15 (Ind.Ct.App.2012), trans. denied; see also Ind. Evidence Rule 801 & 803; Modesitt v. State, 578 N.E.2d 649, 652-54 (Ind.1991).

      . As a general matter, Indiana common law allows for the assignment of contractual rights absent an expression of contrary intent by the parties. See Chrysler Fin. Co., LLC v. Indiana Dep't of State Revenue, 761 N.E.2d 909, 912 (Ind. T.C.2002). The Noncompete Agreement does not countenance any clear intent to avoid assignment. Further, Kuntz does not argue that the contract was not-or could not be-validly assigned and thus has forfeited that issue.

      . We emphasize that our determination that ' the Noncompete Agreement prohibits leasing to a competitor is based on the overall scope and language of the agreement, rather than the singular restriction that Kuntz refrain from competing as a "creditor."

      . Alleged defaults of the security agreement include assigning, moving, and selling collateral without Kuntz's written consent and failing to keep the collateral in good repair. Alleged defaults of the Lease include assigning the Lease without Kuntz's written consent, surrendering the property in poor condition, and failing to pay real estate taxes called for under the Lease.

      . Ironically, Kuntz points out that EVI failed to plead waiver as an affirmative defense in its Answer to Counterclaims and contends that EVI should be precluded from arguing Kuntz either waived or is estopped from making any claim of pre-existing default by JS Hare. Waiver and estoppel are affirmative defenses. Ind. Trial Rule 8(C). Ordinarily, an affirmative defense is waived if not specifically pled in the answer or raised at trial. Nelson v. Gurley, 673 N.E.2d 497, 500 n. 3 (Ind.Ct.App.1996). Here, evidence relating to these arguments was presented by EVI without objection, and the trial court considered the arguments in its findings. Therefore, EVI's arguments as to waiver and estoppel have not been forfeited. See Ind. Trial Rule 15(B) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."); Warner v. Riddell Nat'l Bank, 482 N.E.2d 772, 776 (Ind.Ct.App.1985), trans. denied. Moreover, we do not believe that Kuntz will suffer any unfair prejudice by allowing EVI to continue to argue waiver or estoppel going forward.

      . Because we conclude that the trial court's award of attorney fees was inappropriate, we need not address the issue of whether the trial court erred by entering a nune pro tunc entry modifying its award of attorney fees for EVI.


source: Caselaw Access Project

author: PYLE, Judge.

license: Public Domain

text:
    Kelley L. KELLY, Appellant-Respondent, v. Tiffany L. KRAVEC, Appellee-Petitioner.
    No. 02A05-1304-DR-158.
    Court of Appeals of Indiana.
    Nov. 26, 2013.

      Timothy M. Pape, Jamie C. Woenker, Carson Boxberger LLP, Fort Wayne, IN, Attorneys for Appellant.
    Robert W. Eherenman, Haller & Colvin, P.C., Fort Wayne, IN, Attorney for Appel-lee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Kelley L. Kelly ("Father") appeals the denial of his motion to correct error following the entry of the trial court's post-dissolution order awarding $5,000.00 in attorney fees to his former wife, Tiffany Kravec ("Mother") in a proceeding involving parenting time.

We affirm.

ISSUE

Whether the trial court abused its discretion by ordering Father to pay a portion of Mother's attorney fees.

FACTS

During Father and Mother's marriage, they had one child, TK., who was born in 2003. The parties dissolved their marriage in September 2006 and entered into a settlement agreement regarding child eustody, support, and visitation. Under their agreement, Father and Mother shared legal custody of T.K., with Father having primary physical custody.

Following their dissolution, both parties remarried. Father married Tammy Kelly ("Stepmother"), who had two adult children from a previous marriage. Mother married John Kravee ("Stepfather"), who had a child, N.K., who was close in age to TK. Father, Mother, and Stepfather were employed by or had served in the military.

In 2007, a petition to modify custody was filed. As part of the custody proceedings, Father, Mother, and their respective spouses underwent psychological evaluations. The psychologist who conducted the evaluations questioned the validity of Stepfather's evaluation and the veracity of his responses. Given this questioned validity and an allegation that Stepfather had 39 used "abusive punishment" with his own child, N.K., the psychologist recommended that TK. have contact with Stepfather only when supervised by Mother. (App. 81).

On August 11, 2009, the parties entered an Agreed Stipulation ("2009 Agreed Stipulation") to resolve all pending custody matters. In relevant part, paragraph 4(J) provided:

In the process of this custody action,] both parties, as well as their spouses, underwent psychological testing. The psychological testing for the parties, as well as [Father's] spouse [Stepmother], was valid. Due to [Mother's] spouse, [Stepfather] having invalid psychological testing, it is agreed that until such time as he completes an independent evaluation by Dr. Stephen Ross, with the results to be shared with opposing counsel, that [TK.] shall not be left alone with [Stepfather] without [Mother] being present. In the event the parties are unable to reach an agreement on this issue following Dr. Ross's evaluation, said issue shall be submitted to the Court.

(App. 63). In the 2009 Agreed Stipulation, the parties also agreed that each party was responsible for his or her own attorney fees. The trial court entered a nune pro tune order accepting the 2009 Agreed Stipulation, including the provision that Stepfather's contact with TK. be supervised until he completed the additional psychological evaluation.

Thereafter, on September 14, 2009, Stepfather completed a psychological evaluation with clinical psychologist, Dr. Stephen Ross ("Dr. Ross"). Dr. Ross noted that the allegation of abuse against Stepfather was determined to be unfounded. Dr. Ross opined that Stepfather did "not pose a risk of abuse to either his own daughter [N.K.], or his step-daughter [ (TK.) ]." (App. 83) (emphasis in original).

Following Stepfather's evaluation with Dr. Ross, Father and Mother were unable to resolve the issue of removing the prohibition on Stepfather's contact with TK. Therefore, on October 283, 2009, Mother filed a Petition to Modify Court Order, seeking to remove the provision that Stepfather's contact with T.K. be supervised. In her petition, Mother asserted that Father was "unwilling to reach an agreement on this issue" and requested that Father be ordered to pay her attorney fees incurred in relation to the matter. (App. 85). In February 2010, following a case management conference regarding Mother's petition, the trial court scheduled a trial on Mother's petition for September 27, 2010 and appointed a guardian ad li-tem.

Thereafter, in May 2010, Father issued non-party requests for documents and subpoenas duces tecum, seeking to obtain Stepfather's employment and health care records as well as the health care records of Stepfather's daughter. Mother then filed an objection to Father's non-party discovery requests. In her objection, Mother asserted that Father's non-party requests sent to Stepfather's employers, Ball State University Army ROTC and IPFW University Army ROTC, were a "witch hunt" and "could unnecessarily harm [Stepfather's] military career." (App. 98). Mother also sought to recover attorney fees in connection with the matter. Additionally, the Army notified Father that it could not release the requested information without a written release authorization or a court order. Stepfather refused to sign a release for his and his daughter's medical records.

On September 9, 2010, Father filed a motion to continue the September 27, 2010 trial on Mother's Petition to Modify Court Order. On September 24, 2010, after holding a hearing, the trial court issued an order on Mother's objection to Father's non-party discovery and on Father's motion to continue the trial. The trial court ruled that Father's non-party requests for Stepfather's employment and health care records were relevant to the trial issue, which was "what restrictions, if any, should be placed on [Stepfather's] contact with [T.K.] during [Mother's] parenting time." (App. 118). The trial court, however, ruled that Father's request for Stepfather's daughter's health care records was not relevant. The trial court also granted Father's continuance motion and rescheduled the trial to June 6 and 7, 2011.

In May 2011, the parties filed a stipulation for a continuance of the June 2011 trial due to the fact that Stepfather's employment required him to be in Afghanistan from May 22, 2011 to August 31, 2011. The trial court granted the parties' stipulated continuance and reset the trial for February 24, 2012.

In October 2011, the parties agreed to mediate, and the trial court entered an order granting their stipulation for mediation. Prior to attending mediation, both parties filed a motion to modify parenting time, with Mother filing her motion on November 8, 2011 and Father filing his motion on December 7, 2011. In Mother's motion, she requested additional parenting time during the occasions when Father was out of town or needed child care, and she requested that Father be responsible for her attorney fees. Father's motion generally requested "to have the parenting time Order modified." (App. 185).

On January 18, 2012, the parties filed an Agreed Stipulation ("2012 Agreed Stipulation"). In relevant part, the parties agreed that "the requirement that [TK.] not be left alone with [Stepfather] without [Mother] being present, pursuant to the Court's Order of September 9, 2009, shall be terminated[.]J" (App. 1838). The 2012 Agreed Stipulation did not contain any provisions regarding Mother's request for attorney fees and noted that a hearing was scheduled for all pending matters. That same day, trial court entered an order granting the parties' 2012 Agreed Stipulation.

The trial court held hearings on the parties' pending matters on February 24, 2012, March 26, 2012, and July 12, 2012. At the beginning of the February hearing, Mother's counsel asked the trial court to award attorney fees to Mother for the fees she incurred to resolve the issue regarding Stepfather's contact with TK. during Mother's parenting time. Father argued that the attorney fee issue was not preserved and had been resolved by the 2012 Stipulated Agreement. Father also argued that the attorney fee issue was barred by "res judicata as a result of the order adopting [the parties'] agreement." (Tr. 14).

On the day of the March 26, 2012 hearing, Father filed a memorandum in opposition to Mother's request for attorney fees. Specifically, Father argued that Mother could not seek attorney fees because the 2012 Agreed Stipulation did not include any provision regarding the recovery of attorney fees. Father alleged that Mother's request for attorney fees was a request for the trial court to modify or set aside its order accepting the 2012 Stipulated Agreement, and he argued that Mother had failed to allege any grounds under Indiana Trial Rule 60(B) to set aside that order.

On the day of the July 12, 2012 hearing, Mother filed a response to Father's objection and a memorandum in spipport of her attorney fee request. In her memorandum, Mother argued that the omission of an attorney fee provision in the 2012 Agreed Stipulation neither resolved the attorney fee claim nor precluded her from raising the issue. During the hearing, Mother offered into evidence Respondent's Exhibit V, which was an attorney fee affidavit with an itemization of fees attached that revealed that Mother had incurred attorney fees totaling $49,020.34 from September 2009 to July 2012. Father specifically stated that he had "[njo objection" to the admission of Mother's attorney fee affidavit, and he did not challenge the amount of fees. (Tr. 477). Father also offered into evidence his attorney fee affidavit as Petitioner's Exhibit 17, which revealed that Father had incurred attorney fees totaling $38,829.32 from September 2009 to July 2012 and had estimated fees of $5,000.00 for the three hearing dates. Also during that July hearing, the guardian ad litem testified that she had recommended to Father that Stepfather be allowed to have unsupervised time with TK. but that Father disagreed and had persisted with the issue.

On December 7, 2012, the trial court issued an order, which, in relevant part, awarded $5,000 in attorney fees to Mother. The trial court issued the following findings and conclusions regarding the attorney fee issue:

[Findings ]
* # * # "s *#
8. On August 11, 2009, the parties' mediated agreement was adopted (correct ed by a nune pro tune order of September, 2009). ...
9. In addition, the above referenced order required that the Mother's current spouse, [Stepfather], have no unsupervised contact with the child until (a) he completed a valid psychological evaluation; and (b) the parties agreed to lifting the restriction or further order of court. In 2009 he completed a second evaluation with psychologist Dr. Stephen Ross. Dr. Ross found that [there was] no basis to require the continuation of [Stepfather's] supervised contact with [TK.].
10. Notwithstanding a favorable report, the Father did not agree to lift the restriction. Accordingly, on October 23, 2009, the Respondent Mother filed her "Petition to Modify Court Order["] and requested that the order restricting [Stepfather's] contact with the child be vacated. A hearing on the petition was set for September 27, 2010. It was subsequently continued to June, 2011. It was again reset by agreement of the parties. The Guardian ad Litem confirmed in her testimony that the Father would not "drop the issue".
# % # #
12. On January 18, 2012, the parties filed an "Agreed Stipulation" in which the parties acknowledged that [Stepfather] was evaluated by psychologist Dr. Stephen Ross. The parties then agreed, and the court ordered, [Stepfather's] contact restrictions vacated. The agreed order also provided at paragraph (4) that "A hearing is scheduled on all pending matters for February 24, 2012(.]"
* *
[Conclusions ]
# % # # #: #
9. Indiana Code [§ ] 31-17-4-3 provides that the Court may consider an award of reasonable attorney fees for any action to modify a parenting time order. In making the determination the Court may consider, among other factors, whether a party substantially prevailed.
10. [Father's] argument that [Mother's] claim for fees arising over the order restricting [Stepfather's]l contact with the child is precluded[.] However, as noted in the above findings all issues other than the lifting of the restriction were preserved for trial. Thus the Court may reasonably conclude that attorney fees related to the parenting time issue and the [Stepfather] issue are matters for the Court to resolve in this order.
11. The Court finds and concludes that both parties have responsibility for the long standing parenting time dispute. However, the Court finds that the costs associated to [Father's] delay in lifting the restriction on [Stepfather's] contact with the child was unreasonable and an attorney fee award for [Mother] and against [Father] in the sum of Five Thousand Dollars ($5,000.00) is warrant ed.

(App. 83, 36-37). Aside from the award of $5,000.00 in attorney fees to Mother, the trial court ordered that the parties were responsible for their own respective attorney fees.

Father then filed a motion to correct error, arguing, in relevant part, that the trial court had erred by ordering Father to pay Mother $5,000.00 for attorney fees that she incurred regarding Father's delay in removing the restriction on Stepfather's contact with TK. Father alleged that Mother had resolved the issue of Stepfather's contact in the 2012 Stipulated Agreement but had failed to obtain an agreement regarding attorney fees. Father also alleged that Mother had failed to present evidence of the specific fees that she would not have incurred but for Father's delay. The trial court denied Father's motion in regard to the attorney fee issue, finding that Mother was not precluded from seeking attorney fees by the parties 2012 Stipulated Agreement; that Mother submitted evidence of her attorney fees via her attorney's fee affidavit; and that award of attorney fees was reasonable. Father now appeals.

DECISION

The sole issue in this appeal is attorney fees. Father argues that the trial court abused its discretion by ordering him to pay $5,000.00 of Mother's attorney fees. We have set forth our review of a trial court's decision to award attorney fees as follows:

In post-dissolution proceedings, the trial court may order a party to pay a reasonable amount for attorney's fees. The trial court has broad discretion in awarding attorney's fees. 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. In assessing attorney's fees, the trial court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors bearing on the reasonableness of the award. In addition, any misconduct on the part of a party that directly results in the other party incurring additional fees may be taken into consideration. Further, the trial court need not give its reasons for its decision to award attorney's fees.

Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind.Ct.App.2012) (internal citations and quotation marks omitted), trans. denied. Additionally, where, as here, the trial court entered findings of fact and conclusions of law, we will not set aside the findings or judgment unless clearly erroneous, and we will not reweigh the evidence or reconsider the credibility of witnesses. Best v. Best, 941 N.E.2d 499, 502 (Ind.2011).

Generally, Indiana observes the American rule that a party must pay his or her own attorney's fees absent an agreement between the parties, a statute, or other rule to the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind.2012). Here, the trial court awarded attorney fees under Indiana Code § 31-17-4-3, which provides:

(a) In any action filed to enforce or modify an order granting or denying parenting time rights, a court may award:
(1) reasonable attorney's fees;
(2) court costs; and
(3) other reasonable expenses of litigation.
(b) In determining whether to award reasonable attorney's fees, court costs, and other reasonable expenses of litigation, the court may consider among other factors:
(1) whether the petitioner substantially prevailed and whether the court found that the respondent knowingly or intentionally violated an order granting or denying rights; and
(2) whether the respondent substantially prevailed and the court found that the action was frivolous or vexatious.

Father argues that the trial court's award of attorney fees was erroneous because: (a) Mother's conduct was the cause of her attorney fees; (b) Mother's attorney fee request was barred by res judicata; and (c) the trial court did not hold a separate hearing on the reasonableness of Mother's attorney fees.

A. Mother's Conduct

Father first argues that the trial court erred by awarding attorney fees to Mother because her attorney fees were a result of her own misconduct and failure to cooperate, not his.

The record before us reveals that in August 2009, Father and Mother signed the 2009 Stipulated Agreement with a provision that Stepfather's contact with TK. would be supervised by Mother during Mother's parenting time until Stepfather was able to complete an evaluation with Dr. Ross. Stepfather immediately obtained the evaluation with Dr. Ross, who opined that Stepfather posed no danger to TK. Nevertheless, Father refused to remove the restriction on Stepfather's contact with TK. In October 2009, Mother filed a petition seeking removal of the restriction and requesting attorney fees in relation to the matter, and the trial court set the matter for trial in September 2010. Despite a recommendation from the guardian ad litem that Stepfather should have unsupervised contact, Father continued to challenge whether the restriction on Stepfather should remain. Father then issued non-party discovery requests, which resulted in a need to continue the September 2010 trial. Thereafter, the parties stipulated to another continuance due to Stepfather's overseas employment, and the trial court set the trial for February 2012. Ultimately, in January 2012-more than two years after Mother filed her petition to remove the restriction on Stepfather's contact-Father agreed to remove the restriction on Stepfather's contact with TK. The trial court acknowledged that both Father and Mother had responsibility in the parenting time dispute, but the trial court determined that Father's "delay in lifting the restriction on [Stepfather's]l contact" with TK. was "unreasonable" and ordered Father to pay $5,000.00 of Mother's $49,000.00 attorney fees incurred. (App. 37).

Father's argument that the trial court's award of attorney fees was improper because Mother's misconduct was responsible for the delay in resolving the supervised contact issue is nothing more than a request that we reweigh the evidence and witness credibility, which we will not do. See Best, 941 N.E.2d at 502. Upon review of the record, we conclude that the trial court did not abuse its discretion by ordering Father to pay a portion of Mother's attorney fees. See Hanson v. Spolnik, 685 N.E.2d 71, 80 (Ind.Ct.App.1997) (affirming the trial court's award of attorney fees and explaining that "misconduct that directly results in additional litigation expenses may be properly taken into account in the trial court's decision to award attorney's fees"), trans. denied.

B. Res Judicata

Father also argues that Mother's attorney fee request was barred by res judicata, specifically by claim preclusion. Father contends that the parties' 2012 Agreed Stipulation precluded Mother from seeking attorney fees during the parenting time hearing because the stipulation did not address the attorney fee issue.

"The doctrine of res judicata prevents the repetitious litigation of disputes that are essentially the same." Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind.Ct.App.2005), trans. denied. Claim preclusion applies when a "final judgment" on the merits has been rendered in a prior action, and it acts to bar a subsequent action on the same claim between the same parties Id. A "final judgment" is one which "disposes of all claims as to all parties[.]" App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App.2002) (explaining that a final judgment is one that "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues" and "reserves no further question or direction for future determination" (citations and internal quotations omitted)).

Here, at the time the parties entered into the 2012 Agreed Stipulation to resolve the Stepfather contact issue, they also each had a motion to modify parenting time pending before the trial court. The 2012 Agreed Stipulation did not contain any provision regarding attorney fees but noted that all pending matters were scheduled for a future hearing. The trial court entered an order approving the parties' 2012 Agreed Stipulation, but that order was not a final judgment because there were still matters pending before the trial court and because it did not dispose of all issues. Accordingly, claim preclusion does not apply because the 2012 Stipulated Agreement was not a final judgment. See, e.g., Pond v. MceNellis, 845 N.E.2d 1043, 1054 (Ind.Ct.App.2006) (holding that res judicata did not apply where a trial court's order was not a final judgment), trans. denied. Thus, the attorney fee issue was not barred by res judicata.

C. Hearing

Lastly, Father argues that the trial court's award of attorney fees to Mother was erroneous because the trial court did not hold a separate evidentiary hearing on the reasonableness of Mother's attorney fees.

Here, the record reveals that during the July parenting time modification hearing, Mother submitted her attorney's fee affidavit to show the amount of attorney fees that she had incurred. The affidavit showed the hourly billing rates for the attorney and paralegal, and attached to the affidavit was a detailed bill that explained the time spent, amount charged, and the specific description of the work done. Father, however, did not challenge the reasonableness of the fees or request an evidentiary hearing relating to attorney fees. Instead, Father specifically stated that he had no objection to Mother's attorney fee affidavit.

"When a party fails to make an objection to the trial court, it cannot raise the objection on appeal." Wilcox Lumber Co., Inc. v. The Andersons, Inc., 848 N.E.2d 1169, 1171 (Ind.Ct.App.2006). Because Father did not object to the admission of the fee affidavit, the reasonableness of the fees, or the lack of a separate evi-dentiary hearing, he has waived appellate review of any argument challenging the lack of separate hearing or reasonableness of the fees.

Affirmed.

BARNES, J., and CRONE, J., concur.

      . The chronological case summary indicates that Mother filed a motion to modify custody in February 2007, but an order from the trial court indicates that Father filed a motion to modify custody sometime after April 2007.

      . Both parties filed an appendix. We will refer to Father's Appellant's Appendix as "(App.)" and to Mother's Appellee's Appendix as "(Appellee's App.)."

      . The parties also agreed that Father would have sole legal custody and primary physical custody of T.K., while Mother would have parenting time as set forth in the Indiana Parenting Time Guidelines with certain modifications as set forth in the stipulation.

      . The Transcript does not indicate that the trial court was able to make an official ruling that Mother's attorney fee exhibit was admitted into evidence. After Mother's attorney offered the attorney fee exhibit and Father's attorney stated there was no objection to the exhibit, the two attorneys discussed witnesses and then asked the trial court for a break. The trial court granted the request for a break but did not specifically state that the exhibit was admitted. Nevertheless, it is.clear from a review of the record on appeal that the trial court and the parties intended for the exhibit to be admitted into evidence and are operating under the presumption that the exhibit was properly admitted. Accordingly, we will operate under that same presumption.

      . The trial court also denied Father's motion to modify parenting time and granted, in part, Mother's parenting time motion.

      . The trial court granted, in part, Father's motion to correct error on a parenting time issue not related to the attorney fee issue.

      . In his appellate brief, Father erroneously refers to the restriction imposed as a restriction on Stepfather's parenting time with T.K. We would clarify, however, that it is Mother who has parenting time, not Stepfather.

      , In his reply brief, Father alternatively argues that Mother was precluded from seeking attorney fees because silence on the attorney fee issue in the 2012 Agreed Stipulation disposed of the claim. In support of his argument, Father's cites to Stenger v. LLC Corp., 819 N.E.2d 480 (Ind.Ct.App.2004), trans. denied and Reuille v. E.E. Brandenberger Const., Inc., 873 N.E.2d 116 (Ind.Ct.App.2007), reh'g denied, trans. granted and opinion vacated by Reuille v. EE. Brandenberger Const., Inc., 888 N.E.2d 770 (Ind.2008). However, this argument, which differs from his res judicata/ claim preclusion argument, was not raised in his initial brief. Thus, he has waived it on appeal. See Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n. 6 (Ind.2001); see also Ind.App. R. 46(C) ("No new issues shall be raised in the reply brief.").
      Waiver notwithstanding, we note that one of the cases upon which Father relies, Reuille, has been vacated by our Indiana Supreme Court's grant of transfer. Additionally, Father's reliance on Stenger is misplaced. In that case, we held that when an offer of judgment under Indiana Trial Rule 68, and acceptance of that offer, and resulting judgment are "completely silent on the issue of attorney's fees and appear to otherwise settle all claims between the parties, the judgment cannot be interpreted to leave the issue of attorney fees open." Stenger, 819 N.E.2d at 484. Unlike Stenger, here, there was no offer of judgment under Indiana Trial Rule 68 and the 2012 Agreed Stipulation did not settle all claims between the parties.


author: BAKER, Judge.

text:
    Barbara J. POHL, Appellant-Respondent, v. Michael G. POHL, Appellee-Petitioner.
    No. 32A04-1304-DR-163.
    Court of Appeals of Indiana.
    Nov. 26, 2013.

      Deborah M. Agard, Daniel W. Kiehl, Law Office of Deborah M. Agard, Indianapolis, IN, Attorneys for Appellant.
    Robert C. Rothkopf, Thomas L. Land-werlen, Landwerlen & Rothkopf, LLP., Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, appellant-respondent Barbara Pohl appeals the trial court's order denying her Petition to Terminate Post-Dissolution Spousal Maintenance. Barbara argues that because appellee-petitioner Michael Pohl's disability was a basis on which the court has the authority to issue spousal maintenance without the agreement of the parties, the trial court had the authority to modify the spousal agreement if cireumstances have changed in such a manner as to render the original agreement unreasonable. Barbara contends that the trial court used the incorrect legal standard when it required her to show fraud, duress, or mistake at the time the spousal maintenance Addendum was signed.

We conclude that, in considering the evidence, the trial court could have refused to modify the agreement under a standard requiring a showing of fraud, duress, or mistake or a standard requiring a substantial and continuing change of circumstances. We therefore affirm the decision of the trial court.

FACTS

In March 2009, Barbara and Michael Pohl ended their eighteen-year marriage, which resulted in one son, M.P., a minor. The parties entered into a Custody, Support, and Property Settlement Agreement, which was approved and incorporated into the parties' dissolution of marriage decree. This Agreement made no mention of spousal maintenance. During the marriage Michael had been receiving social security income payments for a disability caused by a back injury. Barbara testified that to ensure Michael's financial security despite his disability and to keep the peace in the house in which they were currently cohabitating, she agreed to sign an Addendum to provide Michael with spousal support. On May 11, 2009, the parties submitted an Addendum to the Custody, Support, and Property Settlement Agreement to provide for spousal maintenance. That Addendum stated:

the parties herein stipulate and agree that the Wife shall pay to the Husband the sum of Four Thousand Dollars ($4,000.00) per month as post-dissolution spousal maintenance, commencing the 5th day of June, 2018, and continuing on the 5th day of each successive month thereafter until further order of the court or agreement of the parties.

Appellant's App. p. 33. Those payments have been stayed pending the outcome of this appeal.

On October 26, 2012, Barbara filed a Petition to Terminate Post-Dissolution Spousal Maintenance. She later clarified that she was asking the trial court to modify, rather than terminate, her spousal maintenance obligation. She argued that there had been a substantial and continuing change in cireumstances that made it unreasonable for her to pay $4,000 a month in spousal maintenance. Barbara testified that, while her income had risen from approximately $127,000 to $182,783.64 since the Addendum providing for spousal maintenance was filed in 2009 because she began a new career as a pharmacist, Michael's circumstances had also changed, in that his social security income had increased substantially and that his fiancée now pays the couples' rent. Michael's fiancée testified that he pays approximately $500 to $1000 dollars a month in utilities, helps pay for the family's groceries, and also pays her $700 monthly car payment. Barbara argued that, based on these changed cireumstances, the amount of spousal maintenance should be modified. She requested that spousal maintenance be reduced to $1,000 per month, to begin when child support for M.P. ceases.

The trial court found that Barbara failed to present evidence of fraud, duress or mistake at the time the Addendum was signed. The trial court also stated that Barbara had knowingly declined representation by counsel at the time she signed the Addendum, and that she was not an unsophisticated party. In addition, the trial court noted the basis for the maintenance payments: "There is a basis in evidence to support maintenance. The evidence established that Petitioner is disabled and his only source of income is from social security disability. Respondent did not dispute his disability." Appellant's App. p. 5. Based on its findings, the trial court refused to modify the order.

Barbara now appeals.

DISCUSSION AND DECISION

I. Standard of Review

Where, as here, the trial court issues findings of fact and conclusion of law sua sponte, the specific findings control only the conclusions they cover, while a general judgment standard applied to any issue on which the court has not entered findings. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind.Ct.App.2002). In reviewing the judgment, we will determine if the evidence supports the findings, and then, whether those findings support the conclusion and judgment. Id. This Court will only reverse a judgment when it is shown to be clearly erroneous. Dewbrew v. Dewbrew, 849 N.E.2d 636, 640 (Ind.Ct.App.2006). In determining the validity 'of the findings or judgment, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn from that evidence; we do not reweigh the evidence or assess the eredibility of witnesses. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. A general judgment may be affirmed on any theory supported by the evidence presented at trial. Id.

II. Modification of Spousal Maintenance

There are two ways in which a party to a dissolution of marriage may be obligated to make spousal maintenance payments. Either the trial court may order the payments, or the two parties may provide for maintenance payments in a negotiated settlement agreement. Zan v. Zan, 820 NE.2d 1284, 1287 (Ind.Ct.App.2005). A trial court's authority to order spousal maintenance is limited to three types of post-dissolution maintenance: 1) spousal incapacity maintenance,. 2) caregiver maintenance, and 3) rehabilitative maintenance. Id. See also Ind.Code § 31-15-7-2. The parties may choose to provide for spousal maintenance in situations where the court could not order it. Id.

Where the parties have contractually agreed to spousal maintenance, our Supreme Court has made it clear that courts should exercise authority to review settlement agreements with "great restraint," so as not to interfere with contractual freedom. Voigt v. Voigt, 670 N.E.2d 1271, 1277 (Ind.1996). Indeed, the Court went so far as to determine that "[wlhere a court had no authority to impose the kind of maintenance award that the parties forged in a settlement agreement, the court cannot subsequently modify the maintenance obligation without the consent of the parties." Id. at 1279-1280. However, the Court explicitly reserved the question as to whether the court had the authority to modify a spousal maintenance agreement that rested on one of the three grounds above: incapacity maintenance, rehabilitative maintenance, or caregiver maintenance. Id. at 1280 n. 13. In Zan, this Court determined that, where a settlement agreement rested on a ground on which the trial court could have ordered the maintenance in the absence of an agreement, a trial court may modify the agreement. 820 N.E.2d at 1288.

Here, spousal maintenance was agreed to by the parties in an addendum, and, because the trial court found that Michael's disability "materially affected" his ability to support himself, a trial court would also have had the authority to award Michael spousal incapacity maintenance under Indiana Code section 31-15-7-2(1). Therefore, the trial court had the authority to modify the agreement under a standard that required her to show fraud, duress, or mistake or a substantial and continuing change in cireumstances. Lowes v. Lowes, 650 NE.2d 1171, 1174 (Ind.Ct.App.1995).

However, while Barbara is correet in her assertion that the court could have modified the agreement under a standard that required to her to show fraud, duress, or mistake or a substantial and continuing change in cireumstances, the trial court's findings show that she failed to meet either burden. The burden of showing a substantial and continuing change in cireumstances such as to render the previous maintenance unreasonable is on the moving party, Barbara. Id. In considering whether there has been a substantial and continuing change in circumstances, the trial court should consider the factors underlying the original award. Id. Here, as Barbara concedes, she signed the Addendum because Michael was disabled and living on social security. Tr. p. 85. The trial court found that Michael was presently disabled, and that his only source of income was social security. Appellant's app. p. 14. The trial court's determination that there was "a basis in evidence to support maintenance" is supported by the evidence.

III. Conclusion

We have determined that the trial court's findings support its decision to deny modification of the Pohls' spousal maintenance Addendum. The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.

      . Michael did not provide a verified financial declaration, and the record does not contain exact information concerning his income. Michael did testify that he received $22,392 as yearly income. Tr. p. 109. It is unclear what other income or expenses may exist.


author: MAY, Judge.

text:
    Sally THOMPSON, Widow of Dennis Thompson, Appellant-Plaintiff, v. YORK CHRYSLER, Appellee-Defendant.
    No. 93A02-1302-EX-153.
    Court of Appeals of Indiana.
    Nov. 26, 2013.

      James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, IN, Attorney for Appellant.
    Van A. Nation, Nation Schoening Moll, Fortville, IN, Attorney for Appellee.
   OPINION

MAY, Judge.

Sally Thompson, widow of Dennis Thompson, appeals the determination by the Indiana Worker's Compensation Board ("Board") that Dennis did not prove his injury was compensable. Sally raises two issues, which we restate as whether evidence supported the Board's findings of fact and whether the findings supported its conclusions of law. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In 2007, Dennis was a parts clerk at York Chrysler, a car dealership. Dennis had preexisting medical conditions including a long-standing cardiac condition that required a pacemaker.

On August 2, 2007, a service technician at the dealership, Dan Blackford, went to the parts department to obtain a part. Dennis advised him it was unavailable. Blackford began verbally attacking Dennis, which Dennis believed affected his heart, and he obtained authorization to leave work. As Dennis walked through the shop to his truck, Blackford approached him again and continued the verbal altercation. According to Dennis, Blackford placed both of his hands on Dennis's chest, knocking him backwards onto the cement floor. Blackford, on the other hand, told police he was headed back to the parts department when he passed Dennis, the two argued, and Dennis turned towards him "flailing" his hands. (Appel-lee's App. at 26.) Blackford stated that he backed away, but when Dennis came within "reaching distance," Blackford blocked Dennis's hand with his right hand and extended his left arm causing Dennis to fall. (Id.)

Dennis was taken to St. Clare Medical Center where he complained of a headache and pain in his left flank and shoulder. Following diagnostic tests, he was discharged with instructions to follow up with his family physician as needed. Dennis sought no further treatment for any condition related to the altercation for eight months, but then on April 22, 2008, he was evaluated at HOPE. counseling services.

Dennis filed an Application for Adjustment with the Worker's Compensation Board of Indiana on October 10, 2007. He claimed Blackford assaulted and injured him. He requested medical expenses for his emergency room visit with St. Clare Medical Center, temporary total disability until his completion of treatment at HOPE Counseling Services, permanent partial impairment, and permanent total disability. Dennis claimed Blackford's assault caused or aggravated his mood disorder and depression.

Sally filed an Amended Application for Adjustment of Claim on July 6, 2011, notifying the Board that Dennis was deceased and she was pursuing benefits on his behalf, A hearing before a single member of the Board was held on April 16, 2012. The single member denied Sally's amended claim on May 9, 2012. Sally filed an Application for Review by Full Board on June 5, 2012.

After a hearing, the Board adopted and revised the findings of the single member and affirmed the denial of Sally's Amended Application for Adjustment. The Board determined Sally had not met her burden to show Dennis's injuries arose out of and occurred in the course of his employment:

1. The Board is not persuaded that the altercation that occurred on August 7, 2007 arose out of [Dennis's] employment with [York]. In other words, the Board finds it equally likely [Dennis] was the initial aggressor in the altercation that occurred.
2. [Sally on behalf of Dennis] has further not met [the] burden of proof of establishing that the conduct occurred in the course of employment. The initial exchange between the parties occurred over parts and the evidence is equivocal on the relationship to employment. The later exchange clearly did not occur in the course of employment and stemmed from no duty owed the employer.
3. As a result, the medical care and treatment [Dennis] received at the emergency room that day are found not to be statutory medical expenses.
4. Even if there were a sufficient nexus between [Dennis's] employment and the injuries he alleges he received on that day, the psychological injuries he later claims appear to be too remote from the occurrence to be related to his employment.
5. [Sally on behalf of Dennis] should take nothing by [her] Application for Adjustment of Claim filed October 10, 2007.

(Appellant's App. at 42.)

DISCUSSION AND DECISION

In Triplett v. USX Corp., 898 N.E.2d 1107, 1116 (Ind.Ct.App.2008), we explained: -

When reviewing a negative judgment, we will not disturb the Board's findings of fact unless we conclude that the evidence is undisputed and leads inescapably to a contrary result, considering only the evidence that tends to support the Board's determination together with any uncontradicted adverse evidence. Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 1233, 1239 (Ind.Ct.App.2003). The Board is not obligated to make findings demonstrating that a elaimant is not entitled to benefits; rather, the Board need only determine that the claimant has failed to prove entitlement to benefits. Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 26 (Ind.Ct.App.2002)
(citing Hill v. Worldmark Corp./Mid America Extrusions Corp., 651 N.E.2d 785, 786 (Ind.1995)), trans. denied (2003). "While this court is not bound by the Board's interpretations of law, we should reverse only if the Board incorrectly interpreted the Worker's Compensation Act." Luz v. Hart Schaffner & Marx, 771 N.E2d 12830, 1232 (Ind.Ct.App.2002). "We will construe the Work er's Compensation Act liberally in favor of the employee." Id.

The Board's findings of fact must be sufficiently specific to enable the reader to understand the Board's reasoning and the supporting evidence it used to reach the ultimate finding of fact. Outlaw, 777 N.E.2d at 26. We first review the Board's findings to determine if there is any competent evidence of probative value in the record to support them. Triplett, 893 N.E.2d at 1116. We then determine whether "those findings are sufficient to Id. We may not support the judgment." reweigh evidence or assess witness credibility. Id.

Employers are required by the Indiana Worker's Compensation Act ("IWCA") to "provide their employees with compensation for personal injuries caused by an accident arising out of and in the course of employment." Outlaw, 777 N.E.2d at 25. To receive worker's compensation benefits, a plaintiff must prove both elements. Metro. Sch. Dist. v. Carter, 803 N.E.2d 695, 697 (Ind.Ct.App.2004). We review first the Board's finding Dennis's injuries did not occur in the course of employment. "An accident occurs 'in the course of employment' when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is fulfilling the duties of employment or while engaged in doing something incidental thereto." Id. (quoting Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind.2003)). An employer-controlled parking lot is an extension of the employer's premises. Lawhead v. Brown, 653 N.E.2d 527, 529 (Ind.Ct.App.1995). For purposes of IWCA coverage, an employee is within his period of employment and at a reasonable place for an employee when in the employer's parking lot directly after leaving work. See id. at 528 (the period of employment includes a reasonable time after the employee engages in work and is leaving the workplace).

The verbal confrontation between Dennis and Blackford began when Black-ford discovered a part he sought was unavailable, and this same confrontation continued in the employer's shop as Dennis was leaving work. The record contains no suggestion the shop was not in a "reasonable place" for Dennis to be as he was leaving work, such that at all relevant times, Dennis was "within his period of employment." Furthermore, the physical interaction stemmed from and was part of the work-related verbal altercation, as evidenced by the parties' stipulation there was only one altercation or incident. Thus, the uncontroverted evidence leads inescapably to the conclusion that this al-tereation occurred in the course of Dennis's employment, and the Board's finding to the contrary must be overturned. See Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 1233, 1239 (we will not disturb the Board's findings unless the undisputed evidence leads to a contrary result).

Next, we review the Board's finding the injury did not arise out of Dennis's employment. An accident "arises out of" employment when "a causal nexus exists between the injury sustained and the duties or services performed by the injured employee." Metro. Sch. Dist., 808 N.E.2d at 697 (quoting Milledge, 784 N.E.2d at 929). Injury from an assault by a co-worker may be compensable under the IWCA. Global Constr., Inc. v. March, 813 N.E.2d 1163, 1165 (Ind.2004). "In determining whether decedent's injuries ... arose out of his employment, it is necessary to determine whether or not the decedent was the aggressor." Armstead v. Sommer, 126 Ind.App. 278, 278, 131 N.E.2d 340, 343 (Ind.Ct.App.1956). "An employee injured in a fight with a fellow employee in which the employee is found to be the aggressor cannot have compensation." Berryman v. Fettig Canning Corp., 399 N.E.2d 840, 843 (Ind.Ct.App.1980).

The claimant, here Sally, bears the burden to show the "injury arose out of" Dennis' employment. See A Plus Home Health Care, Inc. v. Mieczenikowski, 983 N.E.2d 140, 148 (Ind.Ct.App.2012) (claimant bears the burden of demonstrating injury arose out of and in the course of his employment). The uncontradicted evidence shows the confrontation between Dennis and Blackford stemmed from their work relationship.

The Board found: "The initial exchange between the parties occurred over parts and the evidence is equivocal on the relationship to employment. The later exchange clearly did not occur in the course of employment and stemmed from no duty owed the employer." (Appellant's App. at 42.) However, the Board could not find there were two altercations because the parties stipulated there was only one altercation, calling it the "oral altercation," (id. at 5), or "the altercation[.]" (Id. at 6.) The Board's parsing of the altercation into the "initial exchange" and the "later exchange," (id. at 42), was improper as a matter of law because the "Board cannot permit a stipulation to stand and then find contrary to it." Princeton Mining Co. v. Earley, 114 Ind.App. 343, 51 N.E.2d 382, 383 (1943).

The evidence regarding who initiated the single altercation was that Blackford "started into [a] real bad verbal rampage to [Dennis]." (Tr. at 71.) That indicates Blackford was the initial aggressor, and the evidence presented does not support the conclusions to the contrary by the Single Board Member or the Board. An injury from an assault by a co-worker may be compensable under the IWCA, Global Constr., Inc. v. March, 813 N.E.2d 1163, 1165 (Ind.2004), and the only evidence presented was that Black-ford was the aggressor. Thus we must overturn the Board's finding to the contrary. See Cavazos, 783 N.E.2d at 1239 (we will not disturb the Board's findings unless the undisputed evidence leads to a eontrary result).

For these reasons, we hold the Board's findings did not support its conclusion Dennis' injuries did not arise out of or occur in the course of his employment. Sally demonstrated Dennis was entitled to benefits. We accordingly reverse and remand for determination of the benefits she should receive on his behalf.

Reversed and remanded.

BAILEY, J., and BRADFORD, J., concur.

      . Dennis sought counseling services to determine his need for treatment of depression, disability, and past assault at his workplace.

      . Dennis died on March 22, 2011, from causes unrelated to the incident.

      . The parties argue at length about whether Dennis could obtain worker's compensation benefits when the Board found Dennis was "equally likely" as Blackford to be the aggres- , sor. (Appellant's App. at 42). As we hold that finding rests on other findings that im-permissibly contradicts the parties' stipulations, we must also overturn the finding that Dennis was equally likely to be the aggressor. Therefore, we need not decide whether the ambiguous finding that the parties were equally likely to be the aggressor would justify denial of benefits. See Berryman, 399 N.E.2d at 843 (employee cannot have compensation if "employee is found to be the aggressor").


text:
    Jason DEATON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A02-1303-CR-282.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      Daniel J. Moore, Laszynski & Moore, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Jason Deaton appeals his conviction of two counts of Class A felony child molesting. He presents two issues for our re-

1. Whether alleged misconduct by the prosecutor was fundamental error; and
2. Whether the State presented sufficient evidence to convict Deaton.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 17, 2011, E.D. revealed to her sister that their father, Deaton, had been forcing E.D. to perform oral sex for approximately one year. The State charged Deaton with two counts of Class A felony child molesting.

Deaton's jury trial commenced on November 27, 2012. E.D. testified Deaton forced her to perform oral sex on him on multiple occasions, she identified unique marks on his genitalia, and she described his post-molestation practices, which were similar to things Deaton did after engaging in sexual activity with E.D.'s mother. The jury found Deaton guilty as charged, and the trial court sentenced Deaton to thirty years, with twenty-eight years executed and two years on supervised probation.

DISCUSSION AND DECISION

1. Prosecutorial Misconduct

Deaton claims certain comments by the prosecutor during voir dire and closing argument were misconduct. In reviewing a claim of prosecutorial misconduct, we must determine whether the prosecutor engaged in misconduct, and if so, whether the misconduct had a probable persuasive effect on the jury. Ritchie v. State, 809 N.E.2d 258, 268 (Ind.2004), reh'g denied, cert. denied, 546 U.S. 828, 126 S.Ct. 42, 163 LEd.2d 76 (2005). A claim of improper argument to the jury is measured by the probable persuasive effect of any misconduct on the jury's decision and whether there were repeated occurrences of misconduct, which would evidence a deliberate attempt to improperly prejudice the defendant. Id. at 269.

Deaton did not object to the statements he now alleges were error. Failure to object to alleged misconduct precludes appellate review of the claim, Booher v. State, 773 N.E.2d 814, 817 (Ind.2002), unless the alleged misconduct amounts to fundamental error. Id. To demonstrate fundamental error, the defendant must establish not only prosecutorial misconduct but also the additional grounds for fundamental error. Id. at 818. To be fundamental error, the misconduct must have made a fair trial impossible or been a clearly blatant violation of basic and elementary principles of due process that presents an undeniable and substantial potential for harm. Id. at 817.

a. Voir Dire

The function of voir dire is to ascertain whether jurors can render "a fair and impartial verdict in accordance with law and the evidence." Von Almen v. State, 496 N.E.2d 55, 59 (Ind.1986). Jurors may be asked questions to eliminate bias but "not to condition them to be receptive to the questioner's position." Id. "Questions that seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are therefore improper." Id.

During voir dire, the State engaged in this dialogue with a potential juror in front of the other potential jurors:

[State]: Does anyone watch CSI? I watch it. It's a good show,
[Potential Juror], right?
[Potential Juror]: Um-hum.
[State]: Do you agree that it's not reality?
[Potential Juror]: It's so not reality.
[State]: The police don't solve crimes in an hour. Would you need DNA evidence in a case like this to be able to consider-
[Potential Juror]: Hard and fast DNA? No.
[State]: Does-anyone would anyone need DNA evidence in a case like this?
Would anyone need fingerprint evidence in a case like this? Is anyone going to hold me to a CSI standard? Make me bring in all sorts of forensic evidence and fingerprints and DNA and do the light shows that they do on that show? Is anyone expecting that?

(Tr. at 48.) Deaton argues that, through these comments, the State sought to "reduce its burden by eliminating any negative inferences to be drawn from any lack of evidence on the State's side." (Br. of Appellant at 9.)

As Deaton did not object to the State's questions during voir dire, he must demonstrate the alleged prosecutorial misconduct rose to the level of fundamental error, that is, the State's comments made a fair trial impossible. Deaton has not demonstrated the State's comments deprived him of a fair trial. The court reminded the jury of the State's burden of proof six times, including twice before voir dire and four times during final instrue-tions. The State also reminded the jurors of its burden two times, once right after the exchange Deaton challenges. Any error was cured by the multiple reminders of the proper burden of proof and any error was therefore not fundamental. See Emerson v. State, 952 N.E.2d 832, 838 (Ind.Ct.App.2011) (any misconduct in prosecutor's statement cured by court's general instruction regarding prosecutor's comment).

b. Closing Argument

As part of its closing argument, the State may argue both law and fact, and "propound conclusions based upon his analysis of the evidence." Poling v. State, 938 N.E.2d 1212, 1217 (Ind.Ct.App.2010). However, it is improper for the State to comment on the credibility of a witness unless "the assertions are based on reasons which arise from the evidence." Gaby v. State, 949 N.E.2d 870, 881 (Ind.Ct.App.2011). It is also misconduct for the State to suggest the burden of proof shifts to the defendant during a criminal case. Dobbins v. State, 721 N.E.2d 867, 874 (Ind.1999).

Deaton argues the State made comments during closing argument vouching for E.D.'s credibility and suggesting the burden of proof rested with Deaton. As Deaton did not object to the statements, he must demonstrate fundamental error. See Booher, 773 N.E.2d at 817 (Gf appellant does not make objection at trial, issue of prosecutorial misconduct is waived unless appellant demonstrates fundamental error). He has not met that burden.

During closing argument, the prosecutor said:

[E.D.'s] testimony alone is sufficient to support a conviction for child molest. We don't need an eyewitness. We don't need any physical evidence. We don't need anybody else's testimony or anything else to corroborate her statement, okay? According to the Indiana Supreme Court and the Indiana Court of Appeals, the uncorroborated testimony of a victim is enough for a conviction in child molesting. However, as we already talked about, we have more than just hers. However, you need to know that her testimony is [sic] alone-is enough to conviet him.

(Tr. at 302.) The State went on to describe the evidence presented supporting the crime, and then during its rebuttal argument, it stated, "Again, [E.D.'s] testimony is enough. Her testimony alone is enough to convict the defendant for two counts of A-felony child molesting. But you have more than that." (Id. at 317.)

The State's comment that E.D.'s testimony was sufficient evidence to con-viet Deaton is a correct statement of law; this court and our Indiana Supreme Court have upheld child molesting convictions on the uncorroborated testimony of the victim on many occasions. Seq, e.g., Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind.2012), reh'g denied; Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.2000); Brooks v. State, 560 N.E.2d 49, 53 (Ind.1990), reh'g denied, Young v. State, 973 N.E.2d 1225, 1227 (Ind.Ct.App.2012), reh'g denied, Baber v. State, 870 N.E.2d 486, 490 (Ind.Ct.App.2007), reh'g denied, trans. denied. Deci sions holding the State committed prosecu-torial misconduct because of a statement during closing arguments vouching for the victim are distinguishable. See Gaby, 949 N.E.2d at 881 (prosecutor improperly vouched for victim when telling the jury the prosecutor and the police believed the victim, and the jury should too); Ryan v. State, 992 N.E.2d 776, 789 (Ind.Ct.App.2013) (prosecutor's comment that victim was telling the truth and had "never been dishonest" were improper vouching comments), trans. pending. Deaton has not directed us to any decision where a statement that a victim's testimony alone is sufficient to support a conviction was held to be prosecutorial misconduct.

The jury was reminded multiple times of the State's burden of proof and that Deaton was innocent until proven guilty. These instructions and reminders are sufficient to cure any allegedly improper comments. See Emerson, 952 N.E.2d at 838 (any misconduct in prosecutor's statement cured by court's general instruction.)

2. Sufficiency of the Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder's role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the decision. Id. at 147.

To prove Deaton committed Class A felony child molesting, the State had to present evidence Deaton "perform[ed] or submitted] to sexual intercourse or deviate sexual conduct" with a child under the age of fourteen, when Dea-ton was over twenty-one years old. Ind. Code § 35-42-4-3(a)(1). Deaton argues, "[the insufficiency in this case comes primarily from the complete lack of believability of the victim's testimony." (Br. of Appellant at 13.) However, we may not reweigh evidence or judge witness eredibility. See Drane, 867 N.E.2d at 146. E.D testified Deaton foreed her to perform oral sex on multiple occasions when he was over twenty-one years old and she was under fourteen years old, and a a convietion of child molesting may be based on the uncorroborated testimony of the vice-tim, Hoglund, 962 N.E.2d at 1239. Thus, the State presented sufficient evidence to convict Deaton of two counts of Class A felony child molesting.

CONCLUSION

Deaton has not demonstrated fundamental error in the State's comments during voir dire regarding the "CSI effect" and the State's comments during closing arguments regarding the evidence presented. Further, the State presented sufficient evidence to convict Deaton of two counts of Class A felony child molesting. Accordingly, we affirm.

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.

      . Ind.Code § 35-42-4-3(a)(1).

      . The record on appeal in this case was prepared pursuant to the Indiana Supreme Court's "Order for the Indiana Court Reporting Pilot Project by Using Professional Transcription Experts on Appeal [,]" issued on November 8, 2012, and effective on November 1, 2012. See Ind. Supreme Court Case No. 94800-1209-MS522. We are grateful for the ongoing cooperation of the Honorable Thomas H. Busch of Tippecanoe Superior Court, the Tippecanoe County Public Defender Agency, and the Office of the Indiana Attorney General in the execution of this pilot project.

      . ED.'s mother and Deaton married when E.D. was ten or eleven years old, and shortly thereafter, Deaton adopted ED. and her brother W.D. K.D. is Deaton's daughter from a previous relationship.