*1 Marriage Virginia HAW M. In re The

BLITZEL, Respondent-Appellant, HAWBLITZEL,

Stanley J.

Petitioner-Appellee.

No. 3-482A61. Appeals

Third District.

April21,

1157 *2 Charles W. Lahey, Bend, South for re- The trial on petition husband's for dissolu- spondent-appellant. tion was scheduled to begin at 2:00 p.m. on that day. The wife did Arthur not appear J. Perry, for the Bend, South for petition- deposition. Her er-appellee. counsel received a message to the effect that the wife ill, but no GARRARD, Judge. verification of such a fact was offered to the court or counsel. Counsel then request- The wife appeals from a judgment ren- ed of the court that he be dered allowed to on the with- husband's petition for dissolu- draw from the case. The tion of court granted that motion. Consequently, the wife was parties The were married in December of without counsel of record on the day 1978. The marriage was the second for was to be held. both. Each spouse entered the marriage owning a residence in South court made Bend. Hus- considerable effort band's house was located at locate W. wife Dice before proceeding to trial. Street and wife's was at 1823 Longfellow Directory assistance was consulted but did Drive. parties resided in the wife's have a number for her. The friend who residence during their marriage. The resi- relayed the message to her attorney dence on W. Dice Street was sold in 1977 was telephoned but did not answer. Area and a house was purchased at hospitals were also called but none had the 200 Michigan Street in Argos, Indiana. The wife as a patient. When these attempts to parties were remodelling the Argos resi- contact the proved wife futile, the court dence when petition for dissolution was proceeded with the trial. Also, filed. each spouse brought sundry The wife has not addressed in separate personal possessions into the marriage, in- arguments what we have denoted as issues cluding household and an goods automobile. 1 and Rather, argues she the combined Husband filed his petition for dissolution acts of the trial court in that it of marriage on July 1980. A trial was counsel's request to withdraw and denied held on March 18 and 19 of 1981 and final the subsequent motion reopen the case judgment was entered on petition on constituted a denial of a fair trial. We August 14, 1981. choose to consider the propriety of the trial We find the wife raises four court's actions separately in determining contentions error, which for the sake of clarity we whether error occurred. state as: The wife's attorney orally moved for 1. Did the trial court abuse its discretion leave to withdraw on the morning of March in allowing the wife's counsel to with- 18, 1981. He filed with the court a copy draw from the case on the morning of a letter which he had hand delivered to the the trial? wife's residence on March 17. Whether or Did the trial court err in denying the not she personally accepted the letter is not wife's motion to reopen the case for disclosed by the record. As therein, stated

the introduction of additional evi- the letter was intended as a memorializa- tion of a telephone conversation which the dence? Did the trial court abuse its had with the wife in the morning discretion in making the property on division? March 17. He had advised her that she was under subpoena thus obligated Did trial abuse its discretion appear at the deposition in its and trial on award of March attorney fees to the 18. He also had warned her that a body husband's counsel? attachment for her arrest could be issued if ISSUE 1: she failed appear.

The wife had been subpoenaed to attend We find this excerpt from the letter to a deposition at 9:00 a.m. on March 1981. particularly relevant as to whether coun- However, consti- with leave of court

sel's withdrawal before trial commenced. did the wife in the point tuted error: at no to me- or other- request a continuance letter further serve "May this appear and Counsel from the court. tele- seek relief the fact that our wise morialize March conversation, accused me of phone you of intent to withdraw gave notice *3 a your motor vehicle deed removing from 18 the court morning of March 17. On the then, and which I did property to certain In the leave to withdraw. counsel now, Consider- categorically deny. I do proceeded the court of March 18 afternoon I have taken ing accusation that your the dissolution trial on with the scheduled I you I advised your property you, from made on be- being appearance without an your as my appearance withdraw would argues error occurred the wife. half of She case, would you in this and that counsel to withdraw allowed counsel when the court of obtain the service immediately have to We do not these circumstances. under counsel, which counsel should substitute agree. deposition present you be with at the that but essence, asserting the wife is In 18, 1981 Wednesday, for March scheduled counsel, she of her the withdrawal for at 9:00 a.m. and at the trial scheduled True, the fair trial. have received a would Thurs- Wednesday, March and when representation was without wife 19, 1981, at 2:00 day, beginning March trial, but absence proceeded with the court p.m. day." on each necessarily precipitate not of counsel does veracity of dispute The does not wife Marriage of In re reversible error. See these statements. 509, 858 Robbins Thus, that the wife the evidence discloses 153,2 grounds on other overruled exercising unau- had accused her counsel (1983). Ind., 446 N.E.2d and property thorized control over her he to this has not demonstrated The wife to withdraw. had advised her'of his intent effort to a reasonable that she made to continue expected could not be Counsel date. Fur new counsel obtain had, she of the wife after representation appearance ther, not make an the wife did essence, The trust accused him of theft. a case or to seek trial, plead to her at either viability essential to the and confidence Notwithstanding appar longer no continuance. any attorney-client relationship a "men she contends diligence, her coun- lack of between the wife and ent was counsel, her fail seeking the have excused infirmity" sel. We believe should tal withdraw, appear a pursuing personally to counsel or court's leave ure to obtain under arguing that was reasonable In so course of action the action. trial to defend the circumstances. 151 Ind. Binford cites Duncan v. she Duncan we 591. In App. the fact that cognizant We are did note: day's notice gave only counsel the wife one will ex- infirmity Jhysical or mental short to On such "[P of his intent withdraw.1 to defend party's failure cuse under sub notice the wife could have been infirmity prevented where such new action employing time constraints in stantial not acceptable did to the court." Counsel rule be makes reference to a court 1. The wife required Indiana requiring days' as before withdrawal for a continuance notice move developed Procedure, granted. Trial was has not Trial Rule 53.4. Rules of any noncompli- any argument regard ab- with date in the scheduled on the commenced issue rule and we consider appellant's ance with this found no counsel. We sence of waived. appellant's had failed counsel error since showing comply Without with TR 53.4. did not we found the trial court In Robbins neglect the fact surprise, mistake or excusable refusing vacate a abuse its discretion appear not at trial did that counsel failed judgment appellant's had failed where judg- appellant to a vacation entitle appear notified therein had at trial. Counsel ment. secretary judge's a continuance about replied allegedly "would a continuance she had

the party's timely appearance in court yet asserts error because the record does prevented the party from engaging not contain what she asserts to be critical counsel to either appear in the absent evidence. Each party is responsible for his party's behalf or to request a continuance or her own representation, whether they until the party is able appear." engage legal counsel or appear on their own 278 N.E.2d at 597. behalf. In the civil context defendant is so informed at the initiation of a suit by wife has not put forth any evidence the terms of the summons. The wife had substantiates her allegations of infir- five counsel of record mity. between the filing She sent a message through a friend petition dissolution and the she was ill trial. on the day of but this record does not why, disclose second but hand each was communication alone does granted leave to necessarily withdraw. Nevertheless, establish grounds for relief. by having such a Furthermore, multitude of wife avail- had demonstrated able during the course of considerable lack of regard proceedings, for the court in *4 the wife was surely apprised of leading up conse- to the trial. quences of During the not period being represented between at an ad- petition and versarial the wife's proceeding. behavior was uncooperative and, times, at intransigent. She refused to The trial court's granting of coun submit to the request husband's for a depo- sel's motion to withdraw is subject to re sition. When ordered to do so by the court view only for an abuse of discretion. We she failed to appear. Consequently, a body believe the evidence viewed a light in most attachment for her arrest was issued and favorable to the judgment amply supports she was taken into custody by the sheriff. the trial court. The wife's recalcitrant be The court ordered the wife held for four havior in general and her accusations of days in order that her deposition could be theft particular in precipitated her counsel's taken. The sheriff also escorted the wife to motion for leave to withdraw before trial a bank where she opened a safety deposit commenced. box. The box contained in cash which the wife had drawn from An various attorney who is severing his rela financial accounts after the parties separat- tionship with a client has a professional ed. The sheriff took the contents of obligation protect the interests of the box into his custody and the body attach- client. Ashbrook v. Ashbrook (1977), 174 ment was vacated. However, App. 134, Ind. the wife 366 N.E.2d 667. As our Code still under subpoena appear at a deposi- of Professional Responsibility requires: tion scheduled for the morning of March 18. "Even when he justifiably withdraws, a As above, detailed the wife failed appear lawyer should protect the welfare of his for that deposition or the trial. client by giving due notice of his with- We find in the above drawal, facts evidence suggesting employment of other the wife held the counsel, entire proceedings delivering dis- the client all papers dain. She refused to comply and property with court to which the client is enti- orders; orders made tled, necessary by her cooperating obsti- with counsel subse- nate behavior general. quently She took employed, obvious and otherwise endeav- efforts to conceal the cash oring to assets in her minimize the possibility of possession. Thus, complex harm." and expensive discovery was required to ferret out the Code of Professional Responsibility, Ethical assets held by her. She unnecessarily, and Consideration 2-32. certainly unjustifiably, burdened the al- However, in light of the circumstances ready heavily taxed judicial system. counsel give did due notice and adequately We need not countenance such behavior forewarned the wife she would be without and are not sympathetic representation toward a party on the trial date. Being

who fails to make an appearance on notice, such the wife was sufficiently on cross-examination evidence admitted would not

apprised of the fact that she 230 N.E.2d at defendant-appellee." at trial. Concomitant- representation have have been aware of the conse- the case ly, reopen she should moved to appellant ° or at quences defending of not the action in. The the evidence get he failed to after Clearly, the seeking least a continuance. We affirmed the motion. trial court denied obligation pro- trial court was under no discretion because such an exercise of voluntarily the wife had rights tect chosen deliberately counsel appellant's forego by appearing. chosen case-in- evidence in his introduce the not to we stated: deciding, In so chief. granting err in The trial court did not the ab- implies term 'discretion' "The counsel's motion to withdraw. fast rule or a manda- of a hard and sence ISSUE 2: varying cir- regardless tory procedure the trial court We next consider whether of a court is 'Discretion' cumstances. to re- denying the wife's motion erred con- judge within the allowed a privilege for the introduction of addi- open the case in ac- and act justice fines of to decide tional evidence. equitable. fair and with what is cordance appearance New entered involves dis- Thus, action which judicial April subsequent the wife on 1981. He be set aside is final and cannot cretion ly reopen filed a motion to the case is an abuse of except when there appeal evidence, along introduction of additional discretion." supporting with a affidavit.3 Other than at 792. "belief," of counsel's no evi assertion *5 alleged dence of the wife's emotional state herein are of a similar The facts presented was to the court. The trial court put forth in proffered evidence vein. The en judgment denied the motion when was to was not of record due the wife's motion 14, August tered on 1981. the action. her failure to defend her failure to persuaded us that has not reopened for Whether a case shall be than an inten appear anything was other the of additional evidence lies introduction part. decision on her voluntary tional and within that realm of discretion vested the in Pruess bore the evidentia- appellant Utopia Corp. trial court. v. Weath Coach acts, and of his deliberate ry consequences 321, erwax 177 upon the impose find no reason not to we v. McWilliams 141 Ind. Pruess for her responsibility the same wife herein App. 789. actions. appellant's In Pruess the counsel did oppor- should be afforded party Each particular introduce evidence in his case-in- on matters in evidence hoped get tunity present chief because he "had this Respondent's Testimony In these aver- c. relative the affidavit counsel made employment ability gainful or oth- to obtain ments: following provide dissolu- for herself erwise "4. That it is his belief that at the time of tion of the Respondent incapable appreciating concerning Testimony the fair market d. necessity appearance said at during antiques acquired of certain value precluded and was in an emotional state which relationship which are course of the marital Respondent appearing from the trial and possession the Petitioner. in the giving testimony on her own behalf. Testimony concerning the sum of Ten e. neces- 5. That certain additional evidence ($10,000.00) Re- Thousand Dollars sary just for a resolution of this matter should brought spondent into the mari- indicates she part a the trial Such addi- be made record. relationship by insurance virtue of a life tal being tional evidence as follows: policy husband. on her former of cer- a. An accurate fair market value opportunity given 6. That Michi- tain real estate located at 200 North into the rec- items of evidence aforementioned gan Argos, Indiana. Street Respondent furnish this will be able to ord Respondent's Testimony concerning b. evidence, provide this with such Court contribution as a homemaker complete on which record with a full and relationship. course of the marital dissolution decree." to base a final contention. Utopia See Coach Corporation 3: ISSUE Weatherwax, supra. However, a party We interpret the wife's challenge of the

cannot later show error if she fails to avail property division to be twofold. She as- herself of the opportunity to introduce evi- serts the evidence on the value of the resi- dence. dence in Argos was not sufficient to enable A trial was held on petition for disso- the trial court to make a reasonable and lution. If the wife appeared she could just distribution of marital as- proffered have for admission that evidence Also, sets. she contends the judgment as it which she later moved to introduce. As it stands was disproportionately in favor of stands, the record contains sufficient evi- the husband. upon dence which a reasonable and just Considerable discussion has been expend property division could be made. pur- ed on the issue of constitutes ade what ported evidence enumerated in the affidavit quate valuation of record purposes is not of a nature which leads us to conclude making a fair equitable property divi the trial court abused its discretion in mak- sion. Two cases giving attention to recent ing the property division without that evi- the issue are Dean v. Dean Ind.App., dence being of Therefore, record. 439 N.E.2d 1378 and Church v. Church court did not abuse its discretion in denying (1981), App., 424 N.E.2d 1078. the motion to reopen the case for the intro- duction of additional evidence. In Church the husband asserted the trial court abused its discretion in distributing We pause to clarify point raised certain assets without making a determina wife's contentions She analogizes her tion as to their value. We claim one for relief from a default judg- reviewed the law in Indiana and noted cases which ment. The trial court so denoted the ac- hold it is an abuse of discretion for tion. We call a trial attention to In re distribute property Marriage without apprising of Robbins itself (1976), 171 Ind.App. of the value of property. 154. The husband failed to appear for the trial on the merits. However, in Church we concluded the A judgment dissolving the marriage was burden of valuation should be upon the *6 entered. The husband then filed a motion parties, not the trial court: with the trial court to vacate the judgment. now recognize that any party "[Wle We noted in a footnote: fails to introduce evidence as to the who "When a trial court proceeds to hear a specific value of the marital property at divorce action on the merits even though the dissolution hearing is estopped from one of the parties absent, is the resulting appealing the distribution on the ground judgment is on the merits The judg- of trial court abuse of discretion based on ment is not a default judgment. Indiana that absence of evidence. This rule Rules of Procedure, Trial 55(B) Rule places the burden of producing evidence would not be applicable." as to the value of the marital property 358 N.E.2d at n. 1. See also Aetna where it belongs-on parties, the rather Securities Company v. (1949), Sickels than on the trial court. It is appropriate App. 300, 88 N.E.2d 789.4 to require the parties to bear the burden of gathering and presenting to the trial action is one on the merits and should not be confused with a court evidence as to the value of the default judgment. marital property rather than to place only 4. Here the appear- withdrew his 5. See (1975), Howland v. Howland 166 Ind. ance, which equivalent is not the App. withdraw- 337 N.E.2d Hardiman v. Hardi ing the party. appearance of the See State ex Ind.App. 675, man 284 N.E.2d 820. rel. Durham v. Marion Cir. Ct. 240 Ind. 505; Kelly Reynolds v. Bank of Ind.App. 515, 358 N.E.2d 146. they the time were mar- if she had owned at court the risk of reversal upon the trial made purchases account for the ried and to with- property it distributes the marital the husband by the prop- evidence of value. The specific out dividing property er role of a court in challenging presented No evidence review pursuant to a dissolution is to valuations or the husband's accuracy carefully all the evidence and then brought relating to who his statements based on a considera- property divide marriage. Based into the possessions what tion of the factors listed in IC 81-1-11.5- at trial the court the evidence adduced Ed., 11(b) (Buras Repl.1980). Code reasonable distribution just made a parties they proceeding introduce burden of value of where it allowed a second chance if In % general introduce at trial and sum, and their belongs-on the marital # crucial evidence. We see no we do no producing are bound rule is that ^[*] attorneys. more than the shoulders evidence property squarely u parties the evidence they they # After as to the place are fail to of the ^[*] all, given made en lenge ues into is stated, appear, she Dean limited, on the basis of by the husband. (1982), Ind.App., our review evidence if she found as it should husband. property is property. As now the burden of of a distribution, which was ill credible evidence be. property positioned 439 N.E.2d 1378. Having failed See, we have often error in those e.g., placing distribution to chal- Dean giv- val- failed make dissolution the trial court reason to The wife also asserts a homemak- rule." contributions as exception to this to consider her er, earning pow- manager and financial 424 N.E.2d at 1081-82. We property. making the division er The husband received the real estate memo- court in its agree. do not The trial Plymouth, a 1969 all funds Argos, judgment dis- support randum Savings at Tower Federal and Loan Associ- factors, we believe the cussed these ation, personal property, various articles of 81-1-11.5- the dictates of IC court followed $40,150.57. and cash of just and reasonable arriving 11 in at a The wife was the house at 1823 personal parties' real and division of the Street, Longfellow Plymouth, a 1975 a dia- property. posses- ring, personal property mond in her alleges the wife Finally, $20,298.73. sion, and cash of awarding over 75% of erred in Argos, the house in husband testified find no the husband. We marital assets to $23,500and that acquired Indiana was prop in the overall distribution error $5,000 was to make it spent an additional to the most favorable erty. The evidence its fair market val- habitable. He assessed income discloses that division *7 $28,000. The the house off ue at court set retirement wages, was from the husband's him in We note the husband had to kind. was benefits, an inheritance. and $19,000, in 1977 for and sold his residence during the employed not living in the wife's during marriage the the house on to the wife trial court awarded say Longfellow house at Drive. We cannot Drive, Plymouth auto a 1975 Longfellow court, Argos prop- the by awarding that the and during marriage, the purchased mobile the erty Longfellow to the husband and $20,000 IC 31-1- in cash. Under more than wife, clearly Drive residence to the failed to 'just and reasonable' the "words 11.5-11 just achieve a and reasonable division a rational there must be simply mean that property. real disposition." court's basis for place did not values on The trial court a Dean, at 1382. Such supra, ac exist in property. rational basis does particular personal items of the its was within the court Rather, Accordingly, to return tion. the division was intended assets. dividing the marital he or discretion in so party possessions to each those which ISSUE 4: punitive division should be visited upon a party for that conduct.

The trial court ordered the wife to pay $10,288.20to husband's counsel for Her services conduct during these proceedings pursuant rendered to the dissolution pro- has, however, dramatically increased the ceedings. The wife contends the trial court legal expenses in connection with this abused its discretion in so doing because the proceeding. Because she would not dis- fees against assessed her were more than close her financial holdings petitioner's to one half the amount her, awarded to and counsel, because her course of conduct because they were beyond the per $60 hour prior to the separation prevented peti- which the husband agreed had pay his tioner from knowing his own financial counsel. holdings, and because her conduct at the time separation effectively argues husband 'erased attorney fees tracks,' it has been awarded to necessary for petition- counsel were proper, primar- er's ily counsel to proceed because of along lines which extraordinary effort to are highly which counsel extraordinary had to resort a domestic ascertain and discover relations assets case: requesting which the and wife delivering had con- cealed. countless orders produce directed to multitudinous banking institutions within The trial gave a thorough explana- area; repeated discovery attempts tion as to why it $10,000 awarded over culminating in examination of a custodial attorney fees against the wife: deponent; a remarkable eleventh-hour "As a matter prefatory to the discus- excursion Wabash, to rum- sion of the award of attorney fees, it mage through a theretofore undisclosed should first be that, noted while the "His- safety box; deposit and trips several tory of the Case' portion of the Memoran- occasioned respon- courtroom dum makes extensive reference to the dent's conduct with respect to both the evasiveness of the respondent during the course of these proceedings and the cov- court and her own counsel. It is well that, settled ert although manner a par in which she handled par- ty's obstreperousness funds, ties' pretrial the 'Division of Assets' section proceedings may is not be largely considered in silent to ar this issue. To the riving at just extent her reasonable division conduct is discussed with ref- the marital property, erence to a party division be held assets, impact its answer for expenses incurred by is minimized. This is as be; it should the adversary as a IND.CODE result of that obstrep Section _ 31-1-11.5-11(b) - See, erousness. eg., Finley Finley, leaves no room consideration, in divid- ing assets, (Ind.App., Dist., 4th 1981); of the cooperation Finley a party in v. Finley the proceedings [174 lead 362] to the division. 1126 (Ind.App., Dist., 3rd 1977). Nor is the Court entirely trial, At sym- without petitioner's counsel testified pathy for the respondent in had, this case. he through the time of Her actions are consistent with a person expended 147.57 hours case, on this who frightened is by the prospective loss incurred ex- out-of-pocket of those things which give her security. penses. He estimated that seventy-five Such motivation would permit to eighty percent of that time had been *8 Court to condone actions, her spent in ascertaining the assets of the but would permit the Court to view her as some- parties. Following trial, petitioner's - thing less than malevolent. This consti- counsel submitted a twenty-page post-tri- tutes another reason why a party's con- brief, al most of it unhappily single- duct during litigation, short of dissi- spaced, and thereafter he filed a four- pation of assets, should not be considered page response to the respondent's Motion in division of assets, to Reopen and a four-page reply brief. and that no 1164 light and in of all of judicial that N.E.2d 400

The Court now takes notice of eight not less than additional hours considerations, these concludes expended counsel's time have been pay petitioner's would should coun respondent post-trial pleadings. time, on these In Re The or eighty percent of his sel for (Ind. Marriage Gray, of 422 N.E.2d 696 hours, hourly at an rate of $75.00 124.376 App.1981). $9,828.20, and in addition for a total of applied In his trial of his out- testimony, pay eighty percent thereto hourly expended an rate of to his Accord expenses, or of-pocket $60.00 $960.00. arriving time in at this for fees. request pay is ordered to ingly, respondent hourly appears an rate to the Court Such record the sum of petitioner's counsel of to be well below that to which counsel is $10,288.20 petitioner's of the as share entitled in view of the respondent actions legal fees." necessary higher made in this case. A By empowered statute the trial court is amply justified rate is by per counsel's ac- to award fees in dissolution formance greater of 'services of a far tion. IC 31-1-11.5-16 states: variety usually than are involved in a "Costs.-Attorney's fees.-The court marriage Finley dissolution of case.' v. may party to time order a from time 289, Finley, (Ind. App., 293 4th amount for the cost to pay a reasonable Dist., 1981). The trial court is limited party maintaining or defend- other by counsel's testimony in its determina chapter under this ing any proceeding be; tion of what a reasonable fee would fees, including sums attorney's and for may judicial take notice of services rendered and costs in- attorney's what a reasonable fee would curred to the commencement of the prior be, any even absent evidence in the rec entry judgment. or after proceedings evidence, conflicting ord or in the face of to be may The court order the amount because the trial court is familiar with who paid directly attorney, to the the action and the amount and nature of (Empha- in name." enforce the order required. Marriage the work In Re The Added) sis Gray, supra, v. Geberin Gebe rin, 255, 41, Ind.App. 172 47 360 affords the trial court The statute (1977). fees. assessing attorney broad discretion performance

"Petitioner's counsel's Marriage Gray App., In re keeping high- this cause was in with the est practice traditions of the of law. the course of the Through Counsel had to have been aware that of the where- the wife refused to disclose every dollar he uncovered in his resolute assets, thus necessi- abouts of the search, some portion of that dollar would discovery, expense and the tating complex go adversary, to his who was bent thereof, part on the of the husband. preventing discovery. ably its Counsel "obstreperous" uncooperative wife's be- performed the function of an officer of expenditure havior caused considerable Court, that he might bring before the it is reasonable that time and resources and panoply Court the full responsibility for such she should bear the assets for the divide. costs. circumstances, hourly Under most fees complains reasonable; might rate of un $60.00 greater not be assessed at a rate should circumstances, der might other it be ex hour, initially agreed the rate per than $60 cessive. Under these circumstances it is and his counsel. to between the husband inadequate. The Court is constrained are not agree. We do not Reasonable fees the award of fees the respondent's determined the terms of ability pay, DeLong DeLong, necessarily employment. contract of Ind.App. (1975); attorney-client 315 N.E.2d 412 Brown, Ind.App. Brown v. v. Burkhart 301 Burkhart *9 588, STATON, DeLong DeLong v. Judge, concurring in result. 275, 412. I concur in result. The trial court abused Finley Finley (1981), We found in v. Ind. its when it granted discretion the motion to App., 422 N.E.2d 289: provided withdraw. Its own rules that the

"The award of reasonable attorneys' motion would not be granted unless ten fees under IC 81-1-11.5-16 is left to the Here, days given. notice had been court, broad discretion eg., day motion the after it Waitt v. Waitt 172 Ind.App. had been filed and the morning before 360 N.E.2d 268. In determining what trial was to commence on the merits. This sum, if any, is reasonable the trial court is an abuse of Unfortunately, discretion. is not limited to considering only an hour this abuse of discretion is waived in this ly rate. appeal. 'Although an hourly rate is a factor to be assessing attorney considered in fees, it is not the sole factor. Tradi estate,

tionally, the size of the marital

the length necessary of time to obtain result, possibility desired and the

appeal are other aspects weighed. to be Burkhart v. Burkhart Ind. [169 REDI-MIX, MARSHALL COUNTY INC. App. 588], 349 N.E.2d 707. Wright-Denaut Co., Construction Johnson v. (1979), Ind.App., Johnson Plymouth, Indiana, Appellants (Plain- addition, 722. In in deter tiffs), mining types reasonable fees in other cases we have allowed consideration of quality of services. Matter of Estate of Laverne MATTHEW and Martha P. Ind.App., Kingseed (1980), 13 N.E.2d 917 4 Matthew, (Defendants). Appellees issues, and difficulty of [Transfer Den.] No. 3-682 A 110. First Valley Bank v. Savings and First Loan Association of Central Indiana of Appeals (1980), App., 412 N.E.2d 1237." Third District. 422 N.E.2d at 202. "factors Additionally, present weigh in favor of an April award in excess of the customary hourly 7, 1983. Rehearing Denied June rate." Finley, supra, 422 N.E.2d at 293. Such is the situation in the case. expertise

Considerable required to fer

ret out the assets which the wife had at

tempted away. to hide Due to the complex matter,

ity most of which was caused wife, the recalcitrant behavior of the

trial court was within its discretion in

awarding the fee based on an hour

ly per rate of fully hour. We are $75

accord with the reasoning trial court's

judgment on this issue.

For the foregoing reasons we affirm.

HOFFMAN, P.J., concurs.

STATON, J., concurs in result and files

separate opinion.