      MEMORANDUM DECISION
                                                                             FILED
      Pursuant to Ind. Appellate Rule 65(D), this                       Oct 14 2016, 8:57 am
      Memorandum Decision shall not be regarded as
                                                                             CLERK
      precedent or cited before any court except for the                 Indiana Supreme Court
                                                                            Court of Appeals
      purpose of establishing the defense of res judicata,                    and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Dan J. May                                               Matthew J. Elkin
      Kokomo, Indiana                                          Kokomo, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rachelle L. Purcell,                                     October 14, 2016

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               34A02-1602-DR-253
              v.                                               Appeal from the Howard Circuit
                                                               Court
                                                               The Honorable Lynn Murray, Judge
      Gary A. Purcell,
                                                               Cause No. 34C01-1005-DR-484
      Appellee-Respondent.




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Petitioner Rachelle Purcell (“Mother”) and Appellee-Respondent

      Gary Purcell (“Father”) were married in 1987 and have five children, including

      N.P., born on September 3, 1994. In May of 2010, Mother petitioned for

      dissolution of the marriage. For the academic year of 2012-13, N.P. attended

      Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016     Page 1 of 10
      Ball State University for one semester and resided on-campus before

      transferring to Indiana University-Kokomo (“IUK”), where she resided off-

      campus. In February of 2013, the parties entered into a settlement agreement

      (“the Agreement”), drafted by Mother’s counsel, in which they agreed, inter

      alia, that Father would pay $150 weekly child support and contribute $5000 per

      year to N.P.’s on-campus college expenses. The Agreement also provided that

      Father’s child support obligation for N.P. would apply to her IUK attendance

      while she resided off-campus. Father contributed $5000 for the 2012-13

      academic year.


[2]   In December of 2014, Father filed a petition to emancipate N.P., who had

      turned twenty years old. In his petition, Father requested that his child support

      obligation related to N.P. be terminated. In March of 2015, Mother filed an

      independent action for fraud, alleging that Father had entered into a scheme or

      plan to avoid his educational obligations to N.P. and his child support

      obligations to his other three minor children. In November of 2015, the trial

      court issued its order, ruling that pursuant to the Agreement, Father’s

      educational support obligation related to N.P. was satisfied by his weekly

      payments of $150, this same $150 payment satisfies his child support

      obligations related to his other three children, Mother’s allegations of fraud on

      the trial court failed, and neither party was in contempt of court.


[3]   Mother argues that the trial court erroneously denied her direct challenge to the

      Agreement, erroneously concluded that N.P.’s attendance at IUK is “off-

      campus” for purposes of the Agreement, and Father is estopped from arguing

      Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016   Page 2 of 10
      that he was not obligated to pay $5000 per year in N.P.’s sophomore through

      senior years at IUK. Because we conclude that the trial court erred in

      concluding that Father’s $5000 yearly educational support obligation to N.P.

      ceased when she transferred to IUK, we reverse and remand with instructions.



                            Facts and Procedural History
[4]   Mother and Father married in 1987 and their marriage produced five children,

      N.P., and four others. The oldest child is emancipated, N.P. was born on

      September 3, 1994, and the other three children are minors. On May 11, 2010,

      Mother filed a petition for dissolution. In the fall of 2012, N.P. matriculated at

      Ball State University in Muncie.


[5]   On February 11, 2013, the trial court issued a decree of dissolution, which

      incorporated the court-approved Agreement, which was drafted by Mother’s

      counsel and signed by both parties and their respective counsels. The

      Agreement provided, in part, as follows:


                      Section 2.1. Child Custody. The parties shall exercise
              joint legal custody of all of their children. With respect to [the
              three youngest], the Father shall exercise primary custody of, and
              the children shall primarily reside with the [Father]. Due to the
              [Father’s] non-traditional occupation work schedule, 48 hours on
              duty 48 hours off duty, the [Mother] shall have overnight
              parenting time of no less than 150 overnights per year, as
              [Mother] is exercising overnight parenting at all times that the
              [Father] is on duty at his occupation; and in addition and any
              and all time [sic] that the parties may agree.…



      Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016   Page 3 of 10
                With respect to [N.P.], [Mother] shall exercise primary
        physical custody.
                ….
                Section 2.2. Child Support. The parties agree that the
        Father should pay to the Mother $150.00 retroactive to February
        1, 2013 pursuant to the Worksheets attached…. Deviation of the
        child support amount is justified due to the agreement of the
        Father to pay college expenses for the child [N.P.] in the
        Mother’s custody.
                ….
                Section 2.10. Post-Secondary Education Expenses.
                With respect to [N.P.], the parties agree that [Father] shall
        contribute the sum of $5,000.00 per academic year to [N.P.’s] on
        campus college expenses for a total of no more than eight (8)
        semesters retroactive to the Ball State U. Fall of 2012 semester.
        His child support obligation to [Mother] as set forth in this
        agreement shall apply to [N.P.’s] I.U.K. attendance while the
        child resides off campus….
                However, upon [N.P.] reaching the age of 19, the Father’s
        support obligation shall not terminate and the educational
        support obligation in the above paragraph shall apply for a total
        of 8 semesters aggregate. The parties agree that [N.P.] and
        [Mother] will obtain loans and/or financial aid to cover
        remaining IUK college expenses. The parties agree that
        [Father’s] obligation for post-secondary education shall terminate
        upon [N.P.’s] failure to maintain a 2.0 cumulative GPA on a 4.0
        scale.
                With respect to [the younger children], the parties agree
        that it is premature to address the division of college expenses at
        this time. The parties agree to consult with each other
        concerning the division of post-secondary education expenses for
        each child as appropriate and if an agreement cannot be reached,
        either party may petition the Court for a ruling upon this issue.

Appellant’s App. pp. 40-41, 44 (emphases in original).



Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016   Page 4 of 10
[6]   On May 7, 2013, Mother filed a release and satisfaction with the trial court

      indicating that Father’s obligation relating to N.P.’s education had been

      satisfied in full for the academic year of 2012-13 when he made a payment of

      $5000. On December 23, 2014, Father petitioned the trial court to emancipate

      N.P. Father requested that his child support obligation related to N.P. be

      terminated because she was twenty years old. On January 26, 2016, Mother

      moved for a rule to show cause based on Father’s failure to pay $10,000

      allegedly owed for N.P.’s post-secondary education for the 2013-14 and 2014-15

      school years.


[7]   On March 23, 2015, Mother filed an independent action for fraud on the court

      and motions for relief from judgment, to construe the Agreement, and for a

      support order for the three minor children. In Mother’s filing, she alleged that

      Father and/or his attorney undertook a fraudulent scheme to avoid his post-

      secondary education obligations to N.P. and his child support to the younger

      children by failing to file Worksheets with the trial court, claiming that his sole

      obligation to support N.P. was $150 per week, and refusing to pay $5000 per

      year for N.P.’s educational expenses. On July 30, 2015, the trial court held a

      hearing on Mother’s motions.


[8]   On November 16, 2015, the trial court issued its findings of fact, conclusions of

      law, and order. In its order, the trial court concluded that Mother had failed to

      establish that Father or his attorney had perpetrated a fraud on the court; that,

      pursuant to the Agreement, Father’s obligation for N.P.’s post-secondary

      education expenses was satisfied by his weekly child-support payment of $150;

      Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016   Page 5 of 10
       that the weekly child-support payment was intended to and does include

       support for the younger children; and that neither Father nor Mother was in

       contempt of court.


                                  Discussion and Decision
[9]    Mother argues that the trial court abused its discretion in construing the

       Agreement attached to the dissolution decree, attendance at IUK is “on-

       campus” for purposes of the agreement, and Father is estopped from making

       any argument that he was not obligated to pay $5000 per year in N.P.’s

       sophomore through senior years at IUK. Father contends that because Mother

       has produced no evidence that Father committed fraud on the court, she cannot

       now challenge support provisions of the Agreement and that Mother has

       waived her argument that N.P.’s attendance at IUK is on-campus. We need

       only address Mother’s contention that the trial court erred in construing the

       Agreement.


                               Whether the Trial Court Erred
                               in Interpreting the Agreement
[10]   Mother argues that the Agreement obligates Father to pay $5000 per year for

       N.P.’s sophomore, junior, and senior years at IUK. Mother’s argument on

       appeal is that because N.P. is taking classes on IUK’s campus, she is therefore

       attending IUK “on campus.” As such, the argument continues, Father is still

       obligated to pay $5000 per year pursuant to Section 2.10 of the Agreement.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016   Page 6 of 10
[11]   As an initial matter, we conclude that Mother’s arguments were fully preserved

       below. On January 26, 2015, Mother filed a motion for rule to show cause

       based on Father’s alleged failure to pay the $5000 educational expense for two

       years. When mediation failed and Mother learned of Father’s interpretation of

       the Agreement, she filed another motion on March 20, 2015. In this motion,

       Mother expressly requested that the trial court construe the Agreement. At the

       hearing on these motions, the trial court indicated, “it’s a different

       interpretation between the two parties here but I’m going to have to decide.”

       Tr. p. 56. In its subsequent order, the trial court interpreted the Agreement in

       Father’s favor. To summarize, Mother objected to and responded to Father’s

       interpretation of the Agreement at the earliest opportunity to do so after he

       made it an issue.


[12]   Mother now appeals, and it is our duty to review the contract de novo to

       determine whether it was properly interpreted by the trial court. See Scott-

       LaRosa v. Lewis, 44 N.E.3d 89, 94 (Ind. Ct. App. 2015) (“[I]nterpretation of a

       contract is a pure legal question, and we review a trial court’s construction of

       contract provisions de novo.”). As previously mentioned, with respect to child

       support and post-secondary education expenses for Mother and Father’s four

       youngest children, the Agreement provided in relevant part:


                      Section 2.2. Child Support. The parties agree that the
               Father should pay to the Mother $150.00 retroactive to February
               1, 2013 pursuant to the Worksheets attached…. Deviation of the
               child support amount is justified due to the agreement of the



       Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016   Page 7 of 10
               Father to pay college expenses for the child [N.P.] in the
               Mother’s custody.[1]
                      ….
                      Section 2.10. Post-Secondary Education Expenses.
                      With respect to [N.P.], the parties agree that [Father] shall
               contribute the sum of $5,000.00 per academic year to [N.P.’s] on
               campus college expenses for a total of no more than eight (8)
               semesters retroactive to the Ball State U. Fall of 2012 semester.
               His child support obligation to [Mother] as set forth in this
               agreement shall apply to [N.P.’s] I.U.K. attendance while the
               child resides off campus….
                      However, upon [N.P.] reaching the age of 19, the Father’s
               support obligation shall not terminate and the educational
               support obligation in the above paragraph shall apply for a total
               of 8 semesters aggregate.

       Appellant’s App. pp. 41, 44 (emphases in original).

[13]   As noted by the trial court, while these provisions of the Agreement are not

       models of clarity, they are not ambiguous. We part ways, however, with the

       trial court’s reading of them. The provisions clearly provide for two types of

       support—child support and post-secondary educational support. Father’s $150

       weekly child support obligation applies to N.P. and the three minor children

       and is an expressed downward deviation due to his agreement to pay a portion

       of N.P.’s college expenses. The Agreement then provides that Father will pay

       $5000 per academic year (for a maximum of eight semesters) toward N.P.’s post-




       1
        This provision references more than one worksheet (due to the parties’ split-custody arrangement), but only
       one was apparently attached to the Agreement. The record establishes, however, that Father’s total support
       obligation at the time would have been $293.01 per week based on the worksheets ($133.27 for the three
       children in his custody and $159.74 for N.P. in mother’s custody). Thus, the $150 per week was a clear
       deviation.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016          Page 8 of 10
       secondary education expenses. We cannot agree with the trial court’s

       determination that Father’s educational support obligation hinges, under the

       terms of the Agreement, on whether N.P. resides on- or off-campus. The only

       reference to where N.P. resides while attending college is made with respect to

       Father’s support obligation—as opposed to his educational support

       obligation—and makes clear that Father’s $150 weekly support obligation shall

       continue to apply even when N.P. is residing off-campus, presumably with

       Mother.2 We conclude that the Agreement obligated Father to pay $5000 per

       year toward N.P.’s post-secondary educational expenses without regard to her

       residence.



                                                  Conclusion
[14]   Because we conclude that Mother preserved her argument regarding the

       construction of the Agreement and that the trial court erroneously concluded

       that Father’s educational support obligation only applied when N.P. lived on-

       campus, we reverse and remand with instructions to order Father to satisfy his

       remaining post-educational support obligations to N.P.


[15]   We reverse the judgment of the trial court and remand with instructions.




       2
         The commentary to the Ind. Child Support Guideline 8 provides in relevant part: “The impact of an award
       of post-secondary educational expenses is substantial … and a reduction of the Basic Child Support
       Obligation attributable to the child under the age of nineteen years will be required when the child does not
       reside with either parent.” In apparent recognition of this general rule, the Agreement provides that Father’s
       $150 support obligation will remain unaffected by N.P.’s living off-campus while attending IUK.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016            Page 9 of 10
[16]   Pyle, J., and Altice, J., concur.




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