author: CRONE, Judge. KIRSCH, Judge,

text:
    Phillip J. TROYER, Appellant/Cross-Appellee-Respondent, v. Tracy L. TROYER, Appellee/Cross-Appellant-Petitioner.
    No. 02A03-1207-DR-319.
    Court of Appeals of Indiana.
    April 30, 2013.
    Rehearing Denied June 27, 2013.

      Phillip J. Troyer, Fort Wayne, IN, Appellant Pro Se.
    Perry D. Shilts, Fort Wayne, IN, Attorney for Appellee.
   OPINION

CRONE, Judge.

Case Summary

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

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

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

Facts and Procedural History

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

The attempted reconciliation failed, and Wife filed a third petition for dissolution on May 3, 2011, which was deemed to be “the legal date of the parties’ separation.” Appellant’s App. at 37. On July 15, 2011, the trial court entered a Provisional Order, which provided in pertinent part as follows: (1) at KT.’s request, Wife requested that Husband’s parenting time with K.T. be limited, reduced, or restricted; however, there was no evidence that the exercise of Husband’s parenting time would endanger the emotional or physical well-being of the child; (2) the trial court took judicial notice that Indiana caselaw prevents a child from dictating when, and in what fashion, a parent will exercise his or her parenting time; if the child has emotional issues that are interfering with parenting time, the solution is not to bow to the child, but instead to seek appropriate treatment for the child; (3) absent evidence to the contrary, there is an established presumption that each parent is a fit and proper person to have the care, custody, and control of K.T.; (4) the trial court recognized the sincerity of love and devotion by both parents toward K.T., and awarded joint legal custody; however, historical involvement with K.T. warranted Wife having primary physical custody and Husband exercising parenting rights under the Indiana Supreme Court’s Parenting Time Guidelines; (5) by agreement of the parties, Wife was ordered to maintain health insurance for K.T., and Husband was ordered to pay $53 a week, effective May 3, 2011 (a $530 arrearage was to be satisfied with Husband making extra payments of $20 per week until the arrearage was paid); (6) each parent was responsible for his or her respective indebtedness incurred since the separation; and (7) each party was restrained from transferring, encumbering, concealing, selling, or otherwise disposing of joint marital property.

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

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

Discussion and Decision

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

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Challengers must establish that the trial court’s findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions.

Thalheimer v. Halum, 973 N.E.2d 1145, 1149-50 (Ind.Ct.App.2012) (quoting McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010), trims, denied (2011)). On appeal, we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A).

I. Valuation and Division of Marital Property

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

A. Wife’s Ongoing Law Practice

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

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

59. On or about June 29, 2010, [Wife] sold her fifty (50) shares of capital stock in Boeglin Troyer & Gerar-dot, P.C. to Jane M. Gerardot for Fifteen Thousand Three Hundred Eighty One Dollars and Twenty Five Cents ($15,381.25). This transaction took place approximately one (1) year prior to the filing of this case, and therefore the capital stock is not a marital asset.

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

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

In the summer of 2002, Husband left the Firm to return to an in-house counsel position with an insurance company, and Jane Gerardot joined the Firm as a partner. Thereafter, Wife and Gerardot each owned fifty percent of the Firm. Wife and Gerar-dot entered into various agreements, in-eluding a stock purchase agreement (“Agreement I”), dated September 15, 2006. Under Agreement I, Wife and Ger-ardot agreed that, in the event one of the partners completely retired from the practice of law in Indiana and surrendered her client files to the Firm, the retiring partner would be entitled to receive a “Goodwill Reimbursement” based upon her “contribution toward the [F]irm’s goodwill.” Id. at 49. This provision provided as follows:

Goodwill Reimbursement. It is understood and agreed that, in addition to the Sale Price, upon the occurrence of any Triggering Event other than death, a departing Shareholder who is no longer engaged in the private practice of law in the State of Indiana and who leaves all of his or her client files, documents, and data with the firm, shall be entitled to receive additional consideration based upon his or her contribution toward the firm’s goodwill (“hereinafter referred to as the “Goodwill Reimbursement”).

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

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

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

68. The “Goodwill Reimbursement” clause of the September 15, 2006 Stock Purchase Agreement ... was not applicable to the sale of [Wife]’s capital stock to Jane M. Gerardot. [Wife] continued to be engaged in the private practice of law as an employee of Boeglin Troyer & Ger-ardot, PC. As an employee of the law firm, [Wife] received fifty-four (54%) of the income from her client files.

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

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

Goodwill has been described as the value of a business or practice that exceeds the combined value of the net assets used in the business. Goodwill in a professional practice may be attributable to the business enterprise itself by virtue of its existing arrangements with suppliers, customers or others, and its anticipated future customer base due to factors attributable to the business. It may also be attributable to the individual owner’s personal skill, training or reputation. This distinction is sometimes reflected in the use of the term “enterprise goodwill,” as opposed to “personal goodwill.”
Enterprise goodwill “is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers.” Factors affecting this goodwill may include a business’s location, its name recognition, its business reputation, or a variety of other factors depending on the business. Ultimately these factors must, in one way or another, contribute to the anticipated future profitability of the business. Enterprise goodwill is an asset of the business and accordingly is property that is divisible in a dissolution to the extent that it inheres in the business, independent of any single individual’s personal efforts and will outlast any person’s involvement in the business. It is not necessarily marketable in the sense that there is a ready and easily priced market for it, but it is in general transferrable to others and has a value to others.
In contrast, the goodwill that depends on the continued presence of a particular individual is a personal asset, and any value that attaches to a business as a result of this “personal goodwill” represents nothing more than the future earning capacity of the individual and is not divisible. Professional goodwill as a divisible marital asset has received a variety of treatments in different jurisdictions, some distinguishing divisible enterprise goodwill from nondivisible personal goodwill and some not.
Indiana’s dissolution law opts for recognition of this distinction. The General Assembly has determined that the “relative earning power” of the parties is not a divisible asset because it is not property, but may be considered in determining the percentage of property to be given to each. Accordingly, we join the states that exclude goodwill based on the personal attributes of the individual from the marital estate.

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

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

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

The trial court found that: (1) “goodwill reimbursement” did not apply to the sale of Wife’s capital stock to Gerardot; (2) Wife continued to be engaged in the private practice of law as an employee of the Firm; and (3) as an employee, Wife re-eeived fifty-four percent of the income from her own clients. Appellant’s App. at 21. The trial court did not abuse its discretion in finding that Wife had no “enterprise goodwill” in the Firm that could be divisible as a marital asset.

B. Valuation of Jewelry

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

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

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

C. Division of Marital Property

Husband contends that the trial court abused its discretion in finding that he failed to rebut the presumption of an equal distribution of the marital assets. Specifically, Husband contends that the presumption was rebutted because Wife dissipated the marital estate by selling her shares of the Firm for only $15,381.25 and because Husband received an inheritance of $50,000, of which about $20,000 was held in his personal bank account when Wife filed her final petition for dissolution. Our standard of review is well settled:

The division of marital assets lies within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. When a party challenges the trial court’s division of marital property, he must overcome a strong presumption that the court considered and complied with the applicable statute, and that presumption is one of the strongest presumptions applicable to our consideration on appeal. We may not reweigh the evidence or assess the credibility of the witnesses, and we will consider only the evidence most favorable to the trial court’s disposition of the marital property. Although the facts and reasonable inferences might allow for a different conclusion, we will not substitute our judgment for that of the trial court.

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

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

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

1. Dissipation of Marital Assets

We have said,

Fault is not relevant in dissolution proceedings except as related to the disposition or dissipation of marital assets. One spouse’s claim of improvident spending by the other spouse can be a powerful weapon in an attempt to secure a larger share of the marital estate. However, a trial court presiding over a dissolution proceeding in which dissipation is an issue should not be required to perform an audit of expenditures made during the marriage in order to determine which spouse was the more prudent investor and spender.

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

Husband contends that the trial court abused its discretion in finding that Wife did not dissipate the marital assets. Specifically, Husband contends that Wife dissipated the value of her shares of the Firm. Husband contends that Wife’s interest in the Firm was worth $105,098, but that Wife sold her interest during the pendency of the marriage dissolution for just $15,381.25. Appellant’s App. at 93. Generally, our court reviews findings of dissipation under an abuse of discretion standard. Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind.Ct.App.2001). We will reverse only if the trial court’s judgment is clearly against the logic and effect of the facts and the reasonable inferences to be drawn from those facts. Id.

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

67. The sale of the capital stock by [Wife] to Jane M. Gerardot on June 29, 2010 for ... $15,381.25 was an “arm[’]s length transaction.” Ms. Gerardot was willing to sell her interest in the law firm to [Wife] for the same amount.
68. The “Goodwill Reimbursement” clause of the September 15, 2006 Stock Purchase Agreement is not evidence of a dissipation of assets by [Wife]. This clause was not applicable to the sale of [Wife]’s capital stock to Jane M. Gerardot. [Wife] continued to be engaged in the private practice of law as an employee of [the Firm], As an employee of the law firm, [Wife] received fifty-four percent (54%) of the income from her client files.

Appellant’s App. at 21.

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

2. Husband’s Inheritance

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

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

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

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

II. Retroactive Modification of Child Support and Healthcare Expenses

In its July 2011 Provisional Order, the trial court ordered Husband to pay $53 per week in child support and ordered Wife to maintain health insurance coverage for K.T. Wife did not petition to modify those provisions before the Final Decree was issued in June 2012. In finding 46 of the Final Decree, the trial court ordered Husband to pay $155 per week in child support, “with the first payment due and payable on January 6, 2012” — more than six months before the Final Decree was issued. Appellant’s App. at 16. In finding 50, the trial court also ordered that as of January 1, 2012 — again, more than six months before the Final Decree was issued — Wife was to be responsible for the payment of the first $1089

of uninsured medical, dental, optical, pharmaceutical, orthodontia, counseling and therapy expense for [K.T.] each year, and thereafter, [Wife] shall be responsible for the payment of fifty-nine percent (59%) and [Husband] shall be responsible for the payment of forty-one percent (41%) of the aforesaid uninsured health care expenses for [K.T.] each year.

Id. at 17.

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

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

III. Husband’s Attorney Fees

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

Pursuant to Indiana Code Section 31-15-10-1, a trial court may order a party in a marriage dissolution proceeding to pay a reasonable amount of the attorney fees of the other party. “When making such an award, the court must consider the resources of the parties, their economic condition, the ability of the parties to engage in gainful employment and to earn adequate income and other factors that bear on the reasonableness of the award.” Hendricks v. Hendricks, 784 N.E.2d 1024, 1028 (Ind.Ct.App.2003). “Consideration of these factors promotes the legislative purpose behind the award of attorney fees, which is to insure that a party in a dissolution proceeding, who would not otherwise be able to afford an attorney, is able to retain representation. Hartley, 862 N.E.2d at 286-87. “ ‘When one party is in a superior position to pay fees over the other party, an award of attorney fees is proper.’ ” Id. at 287 (quoting Ratliff v. Ratliff, 804 N.E.2d 287, 249 (Ind.Ct.App.2004)). Here, the trial court identified the parties’ incomes as an aspect of its Final Decree — Husband’s weekly gross income was $1715, and Wife’s was $2510. Appellant’s App. at 25. The trial court divided the marital estate equally. Because the parties’ resources are relatively on par with each other, the only basis for an award of attorney fees would have been the improper actions of one party necessitating the incurrence of attorney fees by the other party. See Hendricks, 784 N.E.2d at 1028 (stating that misconduct that directly results in additional litigation expenses may be properly taken into account in trial court’s decision to award attorney fees).

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

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

IV. Issues Without Trial Court Ruling

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

12.The parties are ordered to continue sharing equal responsibility for payment of their child’s attendance at [the private school], the same to include tuition, books, fees, extra-curricular activities, and other reasonable and related school expenses.

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

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

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

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

80. The order entered at Paragraph 50 herein includes [K.T.] ’s treatment at the Eating Recovery Center and travel expenses (airline and lodging) for [K.T., Wife, and Husband] with respect to KT.’s treatment. As noted at Paragraph 50, this is a family problem and requires a family resolution. The attendance and participation by [Wife] and [Husband] at the Eating Recovery Center along with the education and information provided to [Wife] and [Husband] are important components to [K.T.] ’s recovery.

Appellant’s App. at 23-24.

V. Joint Legal Custody

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

The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child. Ind.Code § 31-17-2-13. And an award of joint legal custody does not require an equal division of physical custody of the child. Ind.Code § 31-17-2-14.

Id. (emphasis added).

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

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

In determining whether an award of joint legal custody ... would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

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

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

5. [K.T.] received treatment at the Eating Recovery Center ... from January 18, 2012 to March 21, 2012.
6. [K.T.] suffers from anorexia nervo-sa and major depressive disorder (Exhibit 38).
7. [K.T.] has been involved in counseling since age seven (7) for behavioral issues.
8. [K.T.] has been diagnosed in the past with oppositional defiance disorder. It has also been suggested that [K.T.] may have some form of sensory integration disorder (Exhibit L).
9.[K.T.]’s behaviors include violent outbursts and tantrums, panic attacks, self-mutilation, binging and purging.
10. [K.T.] ’s violent outbursts include attempts to assault [Wife] and [Husband]. There have been no reports that [K.T.] has attempted to assault anyone other than her parents.
11. [K.T.] is an intelligent child, but [K.T.] ’s intelligence does not necessarily correlate with rational thinking and emotional maturity.
12. The divorce process for [Wife] and [Husband] began in May of 2010, and has taken a toll on [Wife], [Husband], and [K.T.].
18.[Wife] and [Husband] have different parenting styles. [Wife] tends to be lenient and [Husband] tends to be a disciplinarian. [K.T.] needs structure and consistency from her parents.
14. There have been times when [Wife] and [Husband] have been able to cooperate and work together for the benefit of [K.T.]. Examples include cooperation and assistance following [Wife]’s automobile accident, the selection of Brooke Far-rington as a therapist for [K.T.], the selection of the Eating Recovery Center for [K.T.] ’s treatment, and agreement by [Wife] and [Husband] regarding extra-curricular activities for [K.T.].
15. There have been times when [Wife] and [Husband] have not cooperated and communicated effectively for the benefit of [K.T.] (Exhibits 5, 7, 8,13, 25, 26, G, H and R).
16. [Wife] has provided [K.T.] with too much information regarding the parties’ divorce and allowing [sic] [K.T.] to have too much involvement (Exhibit 18).
17. [Husband’s] communication with [K.T.] regarding parenting time and her cat have caused [K.T.] emotional distress (Exhibits 7, 10, 11,13 and 39).
18. The entire process of her parents’ divorce has been very stressful for [K.T.], and stress is frequently a trigger for someone with an eating disorder.
19. [Wife] and [Husband] both love [K.T.] and want what is best for her. Unfortunately, for a multitude of reasons, [Wife] and [Husband] have not always acted in [K.T.] ’s best interest, individually and collectively.
20. [K.T.] is twelve (12) years old and [Wife] and [Husband] will be parenting [K.T.] for many more years. [K.T.] ’s physical and mental health issues are very serious and potentially life threatening.
21. Granting [Wife] or [Husband] sole legal custody of [K.T.] is not in her best interest. What is in [K.T.] ’s best interest is two (2) parents working together in a consistent and unified manner. This requires a sharing of information and joint decisions regarding [K.T.] ’s care, treatment and overall upbringing.
22. Despite their differences, [Wife] and [Husband] share a common goal of helping [K.T.] mature and grow into a functioning, happy, and responsible person.
23. [Wife] and [Husband] are granted joint legal custody of [K.T.].
24. [Wife] is granted primary physical custody of [K.T.],
25. At this time parenting time between [Husband] and [K.T.] will endanger her physical health or significantly impair her emotional development.
26. [Husband] has acknowledged that parenting time with [K.T.] is not in her best interest at this time. [Husband] is prepared and willing to work with mental health professionals to facilitate parenting time and his relationship with [K.T.].
27. [Husband] is granted parenting time with [K.T.] consistent with the recommendations of her treating therapists and psychiatrist. [Wife] is ordered to be cooperative and supportive of [Husband]’s parenting time with [K.T.].
28. Either party may request a Status Hearing regarding parenting time.
29. The Court has seriously considered ordering [Wife] and [Husband] to participate in classes for high conflict parents at Family Connections or Right Relations. The Court has also given serious consideration to ordering [Wife] and [Husband] to participate in individual and joint counseling along with therapeutic parenting time for [Husband] and [K.T.],
30. [Wife] and [Husband] need support, assistance and guidance in their co-parenting of [K.T.].
31. The Court finds that it is necessary and appropriate to appoint a Parenting Coordinator to provide support, assistance, and guidance for [Wife] and [Husband] in co-parenting [K.T.]. The Court further finds that the appointment of a Parenting Coordinator is in [K.T.] ’s best interest. In Re: the Paternity of C.H., 936 N.E.2d 1270 (Ind.App.2010) [, trans. denied (2011) ].

Appellant’s App. at 11-18.

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

[o]rders of joint custody will not be reversed unless the court is attempting to impose an intolerable situation upon the parties. If the parties demonstrate a willingness and ability to communicate concerning the child, then joint custody is appropriate even against the wishes of one parent. However, if the parties have made child-rearing a battleground, then joint custody is not appropriate.

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

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

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

VI. Wife’s Attorney Fees

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

Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he Court may assess damages if an appeal ... is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorney fees.” Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Additionally, while Indiana Appellate Rule 66(E) provides this Court with discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal.

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

Wife contends that Husband’s pro se appeal required that she either represent herself or retain counsel and incur attorney fees. Wife also contends that Husband has failed to identify any legal support for his contentions, has repeatedly asked this court to reweigh the evidence, and has shown complete disregard for the trial court’s specific findings on the relevant issues as well as the testimony from the final hearings as a whole. Appellee’s Br. at 40. Contrary to Wife’s assertion, Husband has provided ample legal support for his arguments and in fact has prevailed on two of them. Husband’s remaining arguments may lack legal merit, but we cannot say that they are frivolous or made in bad faith. Accordingly, we deny Wife’s request for attorney fees.

Conclusion

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

Affirmed in part, reversed in part, and remanded.

BROWN, J., concurs.

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

KIRSCH, Judge,

concurring in part and dissenting in part.

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

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

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

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

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

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

      . Initially, the Firm was called Boeglin & Troyer, P.C. When Gerardot joined the Firm in 2002, the name was changed to Boeglin Troyer & Gerardot, P.C.

      . Husband contends that Wife could sell her client files at any time based on the expectation that the attorney who purchases the records could use them to solicit more business. While these files would presumably be valuable to an attorney who chose to purchase them, we are not convinced that the subsequent sale would reflect "enterprise goodwill.” As the Yoon court explained, enterprise goodwill "is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers.” 711 N.E.2d at 1268. Here, a future sale of Wife's client files will not convey to the buyer the long-term business relationships that Wife has forged with her clients or any of the other trappings that bring value to Wife’s files.

      . During the final hearing, Wife admitted that Husband "may have spent $13,000.00 on Wife's jewelry.” Tr. at 319. On appeal, Husband cites to this admission and urges us to "take judicial notice that prices for gold, diamonds, and other precious metals and stones have not depreciated in recent years.” Appellant’s Br. at 22. "Indiana Evidence Rule 201(f) provides that ‘[¡judicial notice may be taken at any stage of the proceeding,’ which includes appeals.” Banks v. Banks, 980 N.E.2d 423, 426 (Ind.Ct.App.2012). However, we have held that “judicial notice may not be used on appeal to fill evidentiary gaps in the trial record.’ ” Id. (quoting Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind.Ct.App.1998), trans. denied). Here, Husband essentially is asking us to fill the evidentiary gaps he created by failing to present this evidence, or request judicial notice, at trial. This we will not do.

      . At the final hearing, Wife argued that Husband dissipated marital assets when he spent approximately $25,000 in an unsuccessful run for the U.S. Congress. The trial court found that Husband did not dissipate the marital assets because ”[t]he expenditure was not excessive for a congressional campaign, and [Wife] was supportive of Husband’s decision to run for Congress.” Appellant’s App. at 20. Wife does not appeal this issue.

      . We note that Husband does not claim that the trial court abused its discretion in calculating his child support obligation.

      . We note that “court ordered modifications normally speak only prospectively.” Talarico v. Smithson, 579 N.E.2d 671, 673 (Ind.Ct.App.1991). "The modification of a support obligation may only relate back to the date the petition to modify was filed, and not an earlier date, subject to two exceptions not applicable here.” Becker v. Becker, 902 N.E.2d 818, 820 (Ind.2009). Again, Wife filed no petition to modify here.

      . Husband also cites to Wife’s misconduct in claiming that she has a right to some of his inheritance when that claim "contradices] the expressed intent of her former clients,” the Leers. Appellant’s Br. at 37-38. In light of our finding that the inheritance was properly deemed to be a divisible marital asset, we find this argument unpersuasive.

      . Wife does not dispute the trial court’s finding that she provided K.T. with too much information regarding the divorce and allowed her to have too much involvement. We remind Wife that "[a] parent may not sow seeds of discord and reap improved custody rights.” Pierce v. Pierce, 620 N.E.2d 726, 731 (Ind.Ct.App.1993), trans. denied (1994).

      . In the alternative, Wife asks us to remand this issue to the trial court for an award of appellate attorney fees under Indiana Code Section 31-15-10-1. Following the same reasoning used in section III above to deny Husband’s request for attorney fees, we deny Wife's request for attorney fees pursuant to Indiana Code Section 31-15-10-1.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    In the Matter of the Termination of the Parent-Child Relationship of A.D.S. & A.S. (Minor Children) and L.S. (Mother), Appellant-Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner.
    No. 49A02-1207-JT-604.
    Court of Appeals of Indiana.
    May 7, 2013.

      Lilaberdia Batties, Batties & Associates, Patricia McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.
    Patrick M. Rhodes, Indiana Department of Child Services, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellees.
   OPINION

MATHIAS, Judge.

L.S. (“Mother”) appeals the involuntary termination of her parental rights to her children, A.D.S. and A.S., (collectively, “the Children”) and raises two issues, which we restate as whether there was sufficient evidence to support the trial court’s order terminating Mother’s parental rights to the Children.

We affirm.

Facts and Procedural History

Mother is the biological mother of A.D.S., born November 10, 2007, and A.S., born August 27, 2009. On July 8, 2009, Father contacted the police after Mother repeatedly called him at work and threatened to harm herself if he did not come home. The Indiana Department of Child Services local office in Marion County (“MCDCS”) was subsequently called to the home.

The following day, MCDCS filed a petition alleging that A.D.S. was a child in need of services (“CHINS”) because the child’s parents had “failed to provide the child with a safe, stable, and appropriate living environment free from substance abuse.” Ex. Vol., Petitioner’s Ex. 1. Mother was pregnant with A.S. at the time of the petition, tested positive for cocaine, and admitted to a prior history of substance abuse, although she denied that she was currently using cocaine. Father informed the Family Case Manager that Mother was engaging in self-harming behavior by cutting herself and that he suspected that she was using cocaine again. He expressed concern regarding A.D.S.’s safety when he left her alone with Mother. Thus, due to concerns regarding Mother’s mental health issues and substance abuse, and Father’s inability to protect the child, MCDCS filed the CHINS petition regarding A.D.S.

On August 20, 2009, Mother admitted A.D.S. was a CHINS, and under the participation decree, she was required to submit to random urine screens and complete a Psychological Evaluation. Mother was granted temporary in-home trial visitation with A.D.S. at this time.

Mother gave birth to A.S. on August 27, 2009. On November 9, 2009, MCDCS filed a CHINS petition regarding A.S., alleging that Mother was not obtaining services to address her mental health and substance abuse issues in the open case regarding A.D.S. Ex. Vol.; Petitioner’s Ex. 2. A.S. was removed from Mother’s home. MCDCS also filed a Motion For Authorization For Removal From Temporary In-Home Trial Visitation And Placement in Relative Care/Therapeutic Foster Care requesting that A.D.S. be placed in relative placement/foster care. Ex. Vol.; Petitioner’s Ex. 2A. The trial court granted the motion to remove A.D.S. from Mother’s care and authorized Mother to have supervised parenting time with the Children. Ex. Vol.; Petitioner’s Ex. 3. Since the Children’s removal from the home, they have not been placed back into the home with Mother.

On January 21, 2010, Mother admitted to the allegations in the CHINS petition regarding A.S. The trial court determined that A.S. was a CHINS and formally removed A.S. from Mother’s care. Under the participation decree, the trial court ordered, among other requirements, that Mother participate in home-based counseling, random drug screens, a mental health evaluation, and an intensive outpatient treatment program (“TOP”).

In January and February 2010, Mother tested positive for cocaine. Ex. Vol.; Petitioner’s Ex. 8. Mother later testified that, around this time, she used cocaine for forty days. Tr. p. 64. On February 3, 2010, the trial court suspended visitation between Mother and the Children. On March 8, 2010, the trial court authorized Mother to have supervised parenting time once she completed IOP and a drug screen.

In March 2010, Mother completed inpatient treatment at Harbor Lights, and then she self-referred to Emberwoods for IOP. Although Mother missed six out of eight classes in a six-week period, Ember-woods reported that she completed the service. Tr. p. 145. However, MCDCS was concerned with Emberwoods’s report of completion due to the multiple missed sessions and inconsistent urine screens; therefore, the court allowed MCDCS to make another referral to a different agency for assessment. Mother was then referred to Families First, but Mother missed multiple sessions there and was discharged for not successfully participating. Tr. pp. 160,179.

Up until October 2010, the permanency plan for the Children remained reunification with the parents. However, following missed drug screens and concern that Mother was tampering with her completed drug screens, in October 2010 the court ordered the permanency plan for the Children to be changed to adoption, rather than reunification. The court also found that the services offered to Mother had not been effective or had not been completed by Mother and thus directed that MCDCS was not required to provide Mother any more services. Shortly thereafter, MCDCS filed a petition for termination of parental rights. However, the trial court dismissed the petition when the Children’s placement at the time was disrupted, and there was no stable, sound placement for the Children. Tr. p. 242. As a result of the dismissal, in or around June 2011, MCDCS made a second referral for home-based services for Mother.

Throughout the pendency of the case, Mother engaged in criminal activity. Mother was arrested for prostitution in August 2010 and was subsequently convicted for the offense. Moreover, on February 16, 2011, Mother was arrested after a domestic altercation with Father, and she subsequently pleaded guilty to criminal recklessness and domestic battery. Her plea agreement contained a no contact order prohibiting contact with Father, and she was placed on probation and ordered to undergo domestic violence treatment. However, shortly thereafter,- Mother violated the no contact order, and she was arrested, and later convicted, for invasion of privacy. As a result of this violation of her probation terms, she was placed on home detention.

In December 2011, Mother violated home detention by testing positive for cocaine, and she was arrested. As a result, home-based counseling was again terminated. Mother testified she last used cocaine in December 2011 and January 2012. And since March 2012, when she was again referred for drug testing, she has tested negative seventeen times. However, she also missed several drug screens, including a drug screen the week prior to the termination hearing. Tr. p. 10. Mother also failed to complete her domestic violence classes ordered by the court pursuant to her plea agreement for criminal recklessness and domestic battery. In addition, at the time of the termination hearing, Mother still resided with Father, who had also failed to complete the domestic violence classes.

Throughout the pendency of this case, the Children have been placed in multiple foster homes. However, since October 2011, the Children have resided with their current caregivers, and both the Family Case Manager, Jessica Lee (“Lee”), and Guardian ad Litem, Carolyn Thurston (“Thurston”), have remarked that the Children are improving in this home. Lee testified that this placement is pre-adop-tive and that the Children are “thriving” and have bonded with their foster mother. Tr. p. 154.

On January 25, 2012, the MCDCS filed a second Petition for Involuntary Termination of the Parent-Child Relationship noting that the Children had been adjudicated as CHINS and had been removed from Mother’s custody for six months following a disposition order. On June 18-19, 2012, the trial court conducted an evi-dentiary hearing and then took the matter under advisement. On June 27, 2012, the trial court terminated the parent-child relationship between Children and Mother.

Mother now appeals. Additional facts will be provided as necessary.

Discussion and Decision

The Fourteenth Amendment of the United States Constitution protects “the traditional right of parents to establish a home and raise their children[.]” In re C.G., 954 N.E.2d 910, 923 (Ind.2011). However, when evaluating the circumstances surrounding a request to terminate parental rights, a trial court must “subordinate the interests of the parents to those of the child[.]” See In re K.S., 750 N.E.2d 832, 837 (Ind.Ct.App.2001). “Termination of a parent-child relationship is proper where the child’s emotional and physical development is threatened.” Id. Although the right to raise one’s own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is “unable or unwilling” to meet his or her parental responsibilities. Id. at 836-37.

Before parental rights may be involuntarily terminated, the State must allege and prove, in relevant part:

(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside of the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

Ind.Code § Sl-35-2-4(b)(2). “The State’s burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.2009) (quoting Ind.Code § 31-87-14-2). If the trial court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship. Ind.Code § 31-35-2-8(a).

“When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.” In re D.D., 804 N.E.2d 258, 265 (Ind.Ct.App.2004), trans. denied. Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Moreover, “[i]n deference to the trial court’s unique position to assess the evidence, we set aside the judgment terminating a parent-child relationship only if it is clearly erroneous.” In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trans. denied.

Where, as here, the trial court enters findings of fact and conclusions of law in its termination of parental rights, we apply a two-tiered standard of review. In re J.H., 911 N.E.2d 69, 73 (Ind.Ct.App.2009), trans. denied. First, we determine “whether the evidence supports the findings, and second we determine whether the findings support the judgment.” C.G., 954 N.E.2d at 923. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). “If the evidence and inferences support the trial court’s decision,” we must affirm. C.G., 954 N.E.2d at 923. Here, Mother challenges whether there was sufficient evidence to support the trial court’s determination that her parental rights should be terminated.

I. Conditions Remedied

Mother argues that MCDCS failed to prove that at the time of the hearing (i) the conditions that caused the removal of the children are likely to reoccur or (ii) continuation of the parent-child relationship poses a threat to the well being of the children. Under Indiana Code section 31-35-2-4(b)(2)(B), a trial court is only required to find that one of the three elements of subsection (b)(2)(B) has been established by clear and convincing evidence before properly terminating parental rights. See L.S., 717 N.E.2d at 209.

Here, the trial court first concluded that “[tjhere is a reasonable probability that the conditions that resulted in the children’s removal and . continued placement outside the home will not be remedied by their mother.” Appellant’s Br. at 22. When making a determination as to whether there is a reasonable probability that the conditions resulting in a child’s removal or continued placement outside of a parent’s care will not be remedied, a trial court must judge a parent’s fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed circumstances. In re J.T., 742 N.E.2d 509, 512 (Ind.Ct.App.2001), trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child.” Id. The court may consider “evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment.” A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind.Ct.App.2002), trans. denied. The trial court may also consider services offered to the parent by MCDCS and the parent’s response to those services, as evidence of whether conditions will be remedied. Id. MCDCS is not required to provide evidence ruling out all possibilities of change; rather, it need only establish “that there is a reasonable probability that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind.Ct.App.2007).

The trial court made detailed findings regarding Mother’s long struggle with substance abuse and her failure to complete rehabilitation services. The court specifically found that Mother “has a long history of cocaine abuse, starting at age eighteen or twenty[;]” that she has undergone inpatient treatments twice, in 2006 and 2010, but has relapsed both times; that her past cocaine usage and instability resulted in her rights being terminated to two other children and her voluntary relinquishment of her rights to a third child; that she testified to last using cocaine in January 2012; and that her “sobriety cannot be monitored with inconsistent urine screens.” Appellant’s Br. at 21-22.

The trial court acknowledged that Mother self-referred to Emberwoods for substance abuse treatment and completed an inpatient program at Harbor Lights, but the court noted that “[d]ue to inconsistent urine screens and court ordered swabs, concerns of a substituted urine sample, and the lax procedure at Emberwoods,” Mother was referred to an additional substance abuse assessment that she failed to adequately complete. Id. The trial court also acknowledged that Mother “may have had another recent display of sobriety for five months” but found that without “consecutive monitoring this is not a given.” Appellant’s Br. at 22. Based on these findings and others, the trial court concluded that Mother has “failed to demonstrate the capacity to remain sober on a consistent and permanent basis.” Id. at 21-22 (emphasis added).

The court also noted Mother’s issues with domestic violence, including her convictions for criminal recklessness and domestic battery in March 7, 2011 and her violation of a no contact order with Father in March of 2011. The court found that Mother had failed to complete her court-ordered domestic violence classes and that she still resided with Father, who also failed to complete his domestic violence classes. As a result, the trial court concluded that since Mother has not successfully addressed her issues with domestic violence, she could not offer a safe environment for the children. Based on these and other findings, the trial court concluded that there is a reasonable probability that the conditions that resulted in the Children’s removal and placement outside Mother’s care will not be remedied.

Mother argues that the trial court erred in its conclusion, because at the time of the termination hearing, she was employed, tested negative on the recent drug screens, and was not engaging in domestic violence. Yet, Mother’s argument is simply a request to reweigh the evidence, which we will not do on appeal. See In re D.D., 804 N.E.2d at 265. Furthermore, the evidence clearly supports the trial court’s findings.

While Mother has tested negative on recent drug screens, she has also missed several recent drug screens, including a screen the week prior to the termination hearing, and she tested positive for cocaine four times during the pendency of this case. Furthermore, Mother has a long history of substance abuse and has an equally long history of seeking treatment but then relapsing, including a relapse in December 2011 and January 2012. For all these reasons, we agree with the trial court’s finding that “without consecutive monitoring” her sobriety is not given, and she “has failed to demonstrate the capacity to remain sober on a consistent and permanent basis.” Appellant’s Br. at. 22.

The evidence also clearly supports the trial court’s finding that Mother has not addressed her issues with domestic violence. Mother failed to complete the domestic violence classes that she was ordered to complete pursuant to her plea agreement, and she still resided with Father, who also failed to complete the domestic violence classes. She also violated the no contact order that prohibited her from contacting Father.

Thus, based on the record, we are satisfied that clear and convincing evidence supports the trial court’s findings, and these findings in turn support its conclusion that there is a reasonable probability that the reasons for the Children’s placement outside the home will not be remedied.

II. Best Interests

Mother also argues that there was insufficient evidence to support the trial court’s conclusion that termination of the parent-child relationship was in the Children’s best interests. In determining what is in the best interests of the Children, the trial court is required to look beyond the factors identified by the Indiana Department of Child Services and to look to the totality of the evidence. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind.Ct.App.2003). In so doing, the court must subordinate the interests of the parent to those of the children. Id. The court need not wait until the children are irreversibly harmed before terminating the parent-child relationship. Id. Moreover, we have previously held that the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child’s best interests. In re M.M., 733 N.E.2d 6, 13 (Ind.Ct.App.2000).

Here, Lee, the Family Case Manager, and Thurston, the Guardian ad Litem, both supported termination of Mother’s parental rights and supported adoption by the Children’s current caregivers. Tr. pp. 180, 248. Moreover, as we noted above, Mother’s issues with substance abuse and domestic violence have not been remedied and pose a risk to the safety of the Children if they were to be returned to her care. While this evidence alone is sufficient to support the trial court’s conclusion that the best interests of the Children are served by terminating parental rights, we also note that “[permanency is a central consideration in determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind.2009).

The record further reflects that the Children have suffered from a lack of permanency and that the Children have improved while residing with their current, pre-adoptive caregivers since October 2011. The Children have bonded and attached with their caregivers and “[t]ermi-nation, allowing for a subsequent adoption, would provide them with the opportunity to be adopted into a safe, stable, consistent and permanent environment where all their needs will continue to be met, and where they can grow.” Appellant’s Br. at 22.

For all these reasons, we conclude that the totality of the evidence supports the trial court’s determination that termination of Mother’s parental rights is in the Children’s best interest.

Conclusion

We conclude there was sufficient evidence that there is a reasonable probability that the reasons for the Children’s placement outside the home will not be remedied and conclude that the totality of the evidence supports the trial court’s conclusion that termination of Mother’s parental rights is in the Children’s best interest.

Affirmed.

CRONE, J., and BRADFORD, J., concur.

      . We held oral argument on this matter on April 12, 2013 at Taylor University. We thank faculty, staff, and students for their hospitality. Additionally, we commend counsel on the quality of their oral and written advocacy.

      . We note that Mother has three other, older children. Her parental rights to her first two children were terminated in March 2001 due to her cocaine use and instability, and she voluntarily terminated the rights to her third child in 2006.

      .Father, also named A.S., signed adoption consents for the Children and is not party to this appeal.

      . Mother broadly argues that the MCDCS failed to prove by clear and convincing evidence the requirements under Indiana Code section 3 l-35-2-4(b)(2). However, Mother fails to make any specific arguments challenging the trial court’s conclusions that the Children had been removed from Mother’s care for the requisite time period and that there was a satisfactory plan in place for the care and treatment of the Children. Therefore, to the extent Mother was challenging the sufficiency of said conclusions under subsections (b)(2)(A) and (b)(2)(D), we find she waived these arguments on appeal because she failed to support them with cogent argument. Ind. App. Rule 46(A)(8)(a); see also City of Whiting v. City of East Chicago, 266 Ind. 12, 359 N.E.2d 536, 540 (1977).

      . Mother attended the oral argument in this case and introduced herself to Judge Mathias afterward. Later, Mother asked a student to deliver documentation of her "clean” urine screen dated April 11, 2013, to Judge Mathias. Although the documentation was received, its receipt and surrounding circumstances were disclosed to counsel in a conference call the following business day, and the results were not considered in this opinion, as it was evidence outside the record.

      . The trial court also concluded that continuation of the parent-child relationship poses a threat to the Children’s well being. However, because there was sufficient evidence for the trial court to conclude that "[t]here is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied[,]” we need not address whether there was sufficient evidence that a continuation of the parent-child relationship is a threat to the Children’s well being. Ind. Code § 31 — 35—2—4(b)(2)(B)(i); see also L.S., 717 N.E.2d at 209 ("The statute is written in the disjunctive[.]").


author: BAKER, Judge.

text:
    Bonnie MORYL, as Surviving Spouse and Personal Representative of the Estate of Richard A. Moryl, Deceased, Appellant-Plaintiff, v. Carey B. RANSONE, M.D., La Porte Hospital, Dawn Forney, RN, Wanda Wakeman, RN BSBA, B. Prast, RN, and Carol Cutter, in her capacity as Commissioner of the Indiana Department of Insurance, Appellees-Defendants.
    No. 46A04-1112-CT-710.
    Court of Appeals of Indiana.
    May 9, 2013.
    Rehearing Denied Aug. 16, 2013.

      Doug A. Bernacchi, Michigan City, IN, Attorney for Appellant.
    Michael E. O’Neill, Kelly K. McFadden, Kathleen M. Rose, O’Neill McFadden & Willett LLP, Dyer, IN, Mark A. Lienhoop, Newby, Lewis, Kaminski & Jones, LLP, La Porte, IN, Attorneys for Appellees.
   OPINION

BAKER, Judge.

In this case of first impression, the appellant-plaintiff Bonnie Moryl, the widow of the deceased, Richard A. Moryl (Richard), appeals the trial court’s grant of summary judgment in favor of the appellees-defendants, La Porte Hospital, Dawn For-ney, RN, Wanda Wakeman, RN, B. Prast, RN, and Dr. Carey B. Ransone (collectively, the appellees), when it determined as a matter of law that Moryl’s proposed complaint for medical malpractice was not timely filed with the Indiana Department of Insurance (Department).

Moryl claims that because the Indiana Rules of Trial Procedure and the Indiana Rules of Appellate Procedure consider a pleading filed on the date that it was deposited with a third-party carrier, such as Fed Express (FedEx), the Medical Malpractice Act should also permit a proposed complaint to be considered filed with the Department on the day it was sent via FedEx Priority Overnight. Moryl suggests that the best “common sense resolution of this matter is for us to construe the Medical Malpractice statute to include the use of third party private carriers for filing.” Appellant’s App. p. 9.

Notwithstanding Moryl’s contentions, Trial Rule 5(F) makes it clear that mailing by registered or certified mail is not the same as depositing it with a third-party commercial carrier such as FedEx. And Indiana Code section 34-18-7-8(b) provides that a proposed complaint is considered filed when it is delivered to the Department or mailed by registered or certified mail to the Department.

In this case, the trial court properly found that Moryl’s complaint sent to the Department by FedEx was filed one day late under the two-year statute of limitations. Thus, the trial court properly entered summary judgment in the appellees’ favor.

FACTS

Richard died on April 20, 2007, in the La Porte Hospital while he was under the appellees’ care. On Sunday, April 19, 2009, Moryl sent her proposed medical malpractice complaint to the Department via FedEx. The complaint alleged, among other things, that the appellees were negligent in their care and treatment of Richard on April 19 and 20, 2007, and that their negligence was the proximate cause of Richard’s death. The Department received the complaint on Tuesday, April 21, 2009, and file-stamped it that same day. April 21st was one day after the expiration of the two-year statute of limitations.

Thereafter, the appellees filed a motion for summary judgment, claiming that Mo-ryl did not file her proposed complaint in a timely fashion. More specifically, the ap-pellees asserted that under Indiana Code section 34-18-7-1 (b), the statute of limitations is two years from the date of the alleged act, omission, or neglect.- Also, Indiana Code section 34-23-1-1 provides that a wrongful death claim must be filed within two years of the date of death.

Because Richard died on April 20, 2007, and Moryl’s complaint was not filed until April 21, 2009, the appellees contended that Moryl’s complaint was filed one day late. Following a hearing on August 15, 2011, the trial court granted the appellees’ motion for summary judgment. The trial court’s order provided in relevant part that:

14. When reviewing the rules surrounding the timing of the filing of the complaint with the Indiana Department of Insurance, the court must look to the rules and statutes governing that particular agency.
15. Although the trial rules specifically provide for the filing date of a complaint through the United States Postal Service, or a third party commercial carrier, IC 34-18-7-3(b) only allows filings by registered or certified mail.
16. No case law or precedent appears to exist which addresses the exact issue before the court, and although common sense would seem to suggest that in today’s world the utilization of a third party commercial carrier should suffice, the statute governing the subject matter involved in this case does not provide for it and therefore a strict reading of IC 34-18-7-3(b) requires the court to find that, as a matter of law, the complaint was not timely filed.

Moryl now appeals.

DISCUSSION AND DECISION

I. Cross-Appeal

Before considering the merits of Moryl’s arguments, we initially address the appellees’ cross-appeal where they assert that Moryl’s appeal should be dismissed because of her “flagrant disregard of the Appellate rules and of this Court’s prior orders [as to] when the Appellant’s Brief and Appendix were due.” Appellees’ Br. p. 11.

The appellees assert that Moryl did not correct the defects in her appellate brief as she was ordered to do — within the prescribed time limits that our motions panel had prescribed. Thus, the appellees maintain that Moryl’s appeal must be dismissed.

Although we are reluctant to overrule prior orders entered by this court, we have the inherent authority to reconsider any decision while an appeal is pending. Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind.Ct.App.2007). Also, “we prefer to decide a case upon the merits whenever possible.” United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1067 (Ind.Ct.App.2004). We will deem alleged errors waived where an appellant’s noncompliance with the rules of appellate procedure is so substantial that it impedes our ability to consider the errors. Ramsey v. Review Bd. of Ind. Dep’t. of Workforce Dev., 789 N.E.2d 486, 487 (Ind.Ct.App.2003).

In this case, we cannot say that Moryl’s failure to follow our appellate rules was substantial to the extent that our ability to consider the issues presented on appeal has been hindered. Thus, we reject the appellees’ motion to dismiss Moryl’s appeal, and we will address her claims on the merits.

II. Standard of Review

Our standard of review with regard to the grant or denial of summary judgment is well settled:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court.' Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment a matter of law.” [We] construe all factual inferences in the non-moving party’s favor and resolve all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009).

The issue of when a cause of action accrues is generally a question of law for the courts to determine. Strauser v. Westfield Ins. Co., 827 N.E.2d 1181, 1185 (Ind.Ct.App.2005). Thus, a statute of limitations defense is particularly suitable as a basis for summary judgment. McGill v. Ling, 801 N.E.2d 678, 682 (Ind.Ct.App.2004). The failure to file a proposed complaint with the Department within two years of the date of the alleged malpractice is ordinarily fatal to a medical malpractice action. Id.

III. Moryl’s Contentions

In addressing Moryl’s argument that the trial court erred in granting the appellees’ motion for summary judgment, we initially observe that a medical malpractice claim must be filed within two years of the date of the alleged act, omission, or neglect. Ind.Code § 34-18-7-1(b). And we have previously determined that the filing of a complaint occurs in one of three (3) ways: personal delivery, registered mail, or certified mail. Wallis v. Marshall Cnty. Comm’rs, 546 N.E.2d 843, 844 (Ind.1989). In accordance with Indiana Code section 34-18-7-3(b), a proposed complaint is considered filed when a copy of the complaint is delivered or mailed by registered or certified mail to the Department. Specifically, the statute provides that “[a] proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” (Emphasis added).

As noted above, Richard died on April 20, 2007. Supp. App. 16-20. Moryl did not send her proposed complaint to the Department by registered or certified mail. Rather, she sent it via third-party carrier, FedEx, and “regular” mail was marked on the Department’s receipt. Id. at 1-3, 29-34. According to the Department’s file stamp, Moryl’s complaint was filed on April 21, 2009, which was the date of delivery. Id. As a result, under Indiana Code section 34-18-7-l(b), Moryl’s action was filed outside the statute of limitations.

Notwithstanding these provisions, Moryl attempts to avoid the appellees’ statute of limitations defense by claiming that her proposed complaint should have been considered filed with the Department when it was deposited with FedEx. In support of this argument, Moryl directs us to Trial Rule 5(F)(4), which provides that

(F) Filing With the Court Defined. The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods:
(4) Depositing with any third-party commercial carrier for delivery to the clerk within three (3) calendar days, cost prepaid, properly addressed;
Filing by registered or certified mail and by third-party commercial carrier shall be complete upon mailing or deposit.

(Emphasis added).

Moryl correctly observes that this rule and Appellate Rule 23 deem various documents filed when they are deposited with a third-party carrier. However, Moryl fails to demonstrate that these rules extend to Indiana Code section 34-18-7-3(b). As the trial court pointed out in the summary judgment order, the issue here does not involve a filing in this court or with the trial court. Rather, the case involves a filing with Department, which is an administrative agency.

There are no provisions suggesting that a proposed complaint is considered filed with the Department — an administrative agency — when it is deposited with a third party commercial carrier. And contrary to Moryl’s argument that the statutes are ambiguous regarding the use of a third-party carrier, Indiana Code section 34-18-7-3(b) provides that a proposed complaint is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the Department. The use of other methods such as first class mail, a third-party carrier, or messenger, commands that filing a medical malpractice complaint under Indiana Code section 34 — 18—7—1(b) occurs on the date that the pleadings or complaint is received.

We note that our Supreme Court has made it clear that the trial rules do not govern the operations of administrative agencies, or even conditions precedent to the judicial review of administrative decisions:

Each of the several administrative agencies is a creature of the Legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. The rules of trial procedure, which, as stated in Trial Rule 1, govern the procedure and practice in all courts of the state of Indiana are not applicable to proceedings before the administrative agencies nor to the proceedings requisite to invoking the jurisdiction of reviewing judicial authority.

Clary v. Nat’l Friction Prods., 259 Ind. 581, 584-85, 290 N.E.2d 53, 55 (1972).

In light of the above, while Trial Rule 5 and Appellate Rule 23 permit pleadings, motions, and other papers that are sent by a third-party carrier to be deemed filed on the date of deposit with the carrier, these rules to not apply to proposed complaints filed with the Department, an administrative agency. And because Indiana Code section 34 — 18—7—3(b) expressly states that registered and certified mail are the only two types of mailings by which a proposed complaint will be considered filed as of the date of mailing, a third-party carrier is not included, because that method is not expressly named in the statute. See Januchowski v. N. Ind. Commuter Trnsp. Dist., 905 N.E.2d 1041, 1049 (Ind.Ct.App.2009) (observing that under the doctrine of expression unius est exclusion alterious, the enumeration of certain things in a statute necessarily implies the exclusion of others).

In sum, we conclude that Moryl did not file her medical malpractice complaint within the applicable two-year statute of limitations. Thus, we affirm the trial court’s grant of summary judgment in the appellees’ favor.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . Indiana Code section 34-18-7-l(b) provides that:
      [a] claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file.

      . Appellate Rule 23, entitled "time for filing,” provides:
      All papers will be deemed filed with the Clerk when they are:
      (1) personally delivered to the Clerk (which, when the Clerk’s Office is open for business, shall mean personally tendering the papers to the Clerk or the Clerk’s designee; and at all other times (unless the Clerk specifies otherwise) shall mean properly depositing the papers into the "rotunda filing drop box” located in the vestibule of the east second-floor entrance to the State House);
      (2) deposited in the United States Mail, postage prepaid, properly addressed to the Clerk; or
      (3) deposited with any third-party commercial carrier for delivery to the Clerk within three (3) calendar days, cost prepaid, properly addressed.