      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
      this Memorandum Decision shall not be                          Nov 15 2016, 8:02 am

      regarded as precedent or cited before any                          CLERK
                                                                     Indiana Supreme Court
      court except for the purpose of establishing                      Court of Appeals
                                                                          and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Patrick B. McEuen
      McEuen Law Office
      Portage, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Angela Crim n/k/a Angela                                November 15, 2016
      Domagalski,                                             Court of Appeals Case No.
      Appellant-Petitioner,                                   64A05-1603-DR-527
                                                              Appeal from the Porter Superior
              v.                                              Court
                                                              The Honorable Mary A. DeBoer,
      Elias Crim,                                             Special Judge
      Appellee-Respondent.                                    Trial Court Cause No.
                                                              64D02-0401-DR-537



      Najam, Judge.


                                       Statement of the Case
[1]   Angela Crim n/k/a Angela Domagalski (“Mother”) appeals the trial court’s

      post-secondary educational expenses order and attorney’s fee award following a


      Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 1 of 17
      bench trial on Elias Crim’s (“Father”) post-dissolution petition to modify child

      support. Mother raises five issues, which we consolidate and restate as the

      following three issues:


              1.    Whether the trial court erred when it ordered Mother to
              pay post-secondary educational expenses for her daughter, L.C.

              2.    Whether the trial court abused its discretion when it
              ordered Mother to pay Father’s attorney’s fees.

              3.      Whether the trial court was biased against Mother.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Mother and Father were married in 1996, and their marriage was dissolved on

      June 29, 2006. The parties have three children and, initially, they split

      parenting time equally between them. On July 10, 2013, Father filed a Petition

      for Modification of Custody seeking sole legal and physical custody of all three

      children. In September 2013, the court entered a Pre-Trial Order in which

      Mother did not contest Father having full custody of the parties’ oldest

      daughter, L.C. On March 31, 2014, Father filed a Supplemental Petition for

      Modification of Custody and Parenting Time because Mother had left the state

      of Indiana. Over the next several months, Father filed several more motions

      relating to child custody and support.


[4]   On February 23, 2015, Mother failed to appear for a status hearing as ordered.

      The Court entered a status order in which Mother was ordered to pay Father

      Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 2 of 17
      child support in the amount of $130.00 per week effective March 1, 2015. The

      court ordered the parties to attend mediation and noted it would set the matter

      for a hearing on all pending issues after the parties attended the mediation. The

      Court also acknowledged the newly ripe issue of L.C. attending college in the

      fall of 2015 and the need for post-secondary education orders.


[5]   Father filed a request for a hearing on the issue of post-secondary educational

      expenses for L.C., and the court set the cause for an April 14 status conference.

      Mother failed to appear for the status conference but appeared by counsel. The

      Court instructed Mother to notify her attorney as well as the court of her

      address and telephone number by April 20, and the court terminated the

      children’s parenting time with Mother until such time as she surrendered herself

      to the Court for a hearing.


[6]   The trial court held a status conference on June 10 at which Mother again failed

      to appear in person but was represented by counsel. The court ordered Mother

      to appear in person for all future hearings. The court also ordered both parties

      to provide each other with their financial information from 2011 through 2014,

      and the court set the matter for another hearing. On June 11, Mother filed her

      notice of intent to relocate to Arizona in which she provided her Arizona

      address and informed the court that her cellular telephone number was

      confidential pursuant to her participation in the Arizona Address




      Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 3 of 17
      Confidentiality Program for victims of domestic violence. Mother also

      requested parenting time with the parties’ children.1


[7]   On December 28, 2015, the parties filed their Agreed Stipulations and Orders in

      which they resolved all issues except for post-secondary educational expenses

      for L.C. and Father’s request for attorney’s fees. On January 6, 2016, the court

      held a hearing on all remaining issues. By that time, Mother had moved to

      Hawaii, and she again failed to appear for the hearing in person but appeared

      by counsel. On January 6, the court issued its final order adopting and

      incorporating the parties’ December 28 Stipulations and Orders and resolving

      all other pending issues as follows:

               5. As to the issue of contribution by the Parties to the post-
               secondary education expenses of the child L.C., the Court states
               as follows:


               A. Mother’s argument for a finding of repudiation is denied.


               B. Mother’s argument for a finding of non-affordability is denied.


               C. Father has saved $25,000 from a prior inheritance for child
               L.C. This shall be allocated at the rate of $6250 per year for four
               (4) years. It shall first benefit L.C. as toward her share, and then
               benefit Father if there is a spill-over of the benefit.




      1
        It is not clear from Mother’s brief or the record when Father obtained physical custody of all of the parties’
      children, but he apparently did so some time before Mother relocated to Arizona.

      Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016              Page 4 of 17
        D. L.C. shall apply for all reasonable grants, scholarship, and
        loans. L.C. may also have some nominal employment during
        times off from school, but contribution from the same is not
        presumed/required.


        E. The overall obligation for Indiana University Bloomington
        shall presumptively be the published “average student” obligation
        each academic year. For year 2015-16 this obligation is $24,538.


        This issue will require review each year, to adjust the obligations
        of the Parties relevant to the financial aid granted (for instance, a
        Pell Grant may be received in future years by L.C.). Thus,
        Counsel for the Parties is therefore ordered each summer, by July
        22nd for each of L.C.’s expected remaining three years (2016-17,
        2017-18 and 2018-19)[,] to review the upcoming academic year
        costs and attempt to submit a status report or stipulation to this
        Court for review.


        F. L.C.’s obligation shall be for 1/3 of the overall presumed
        obligation each academic year. She shall first utilize any grants,
        scholarships, and other “free” benefits toward her obligation, and
        then apply any of the $6250 savings as stated above toward her
        obligation—noting that any spill-over of the $6250 shall
        thereafter be credited against Father’s obligation.


        The Parties’ obligations shall be for 2/3 of the overall obligation,
        divided between them by income percentage. The current
        division is 61% to Father and 39% to Mother.


        Therefore, for academic year 2015-2016, the division of the
        $24,538 cost is allocated as follows:


        Child L.C.               $8,179
        Mother Angela            $6,380

Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 5 of 17
        Father Elias             $9,979


        As to her stated share of $6380 for academic year 2015-16,
        Mother shall begin payments toward her share of such cost at the
        rate of $200 per month, payable to Father, beginning February
        2016. Such payment shall be through the Clerk of this Court.


        It is noted as follows:

        As this amount of $6380 due from Mother to Father will be paid
        through the Clerk, it will be noted as an “arrearage” to be paid as
        a function of child support, in the manner of child support and
        thus[,] when possible[,] through a wage order. This is in addition
        to the prior arrears of $15,000 per the stipulation of the Parties.
        Therefore, Mother’s total “arrears” are $21,380. The Parties
        agreed that Mother would pay $30 per week toward the $15,000
        and now the Court order[s] Mother to pay $200 per month ($46
        per week) to the college expenses[. S]o at this time Mother will
        pay $76 per week toward arrears, to be adjusted in approximately
        139 weeks when Mother’s college-expense obligations are
        expected to be paid in full.


        6. Mother’s weekly obligation therefore toward support and
        arrears, to be paid through the Clerk and/or INSCCU, is as
        follows:


        $130 per week in base support to start January 1, 2016
        $30 per week toward [child support] arrears of $15,000 to start
        January 1, 2016
        $46 per week toward post-secondary arrears of $6,380 to start
        February 5, 2016
        ______
        $206 per week.




Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 6 of 17
               7. Mother is ordered to pay and/or to reimburse legal fees
               incurred by Father relevant to the issues of the December 28,
               2015 stipulations and orders, and issues resolved this date, in the
               total amount of $14,184.10, as follows:


               A. Mother shall pay to Father a total of $2,837.85 at the rate of
               $50 per month beginning with the month of July 2016 until paid
               in full.


                                                     ***


               B. A Judgment is entered against Mother, and in favor of
               Attorney Scott Wagenblast, in the amount of Fourteen Thousand
               Dollars ($14,000.00).


      Appellant’s App. at 23-24.This appeal ensued.


                                    Discussion and Decision
                                            Standard of Review

[8]   When a trial court issues findings, as the court did here, we will “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). We apply “a two-tiered standard of review by first

      determining whether the evidence supports the findings and then whether the

      findings support the judgment.” Masters v. Masters, 43 N.E.3d 570, 575 (Ind.

      2015).


               In evaluating whether the findings support the judgment, we will
               reverse “only upon a showing of ‘clear error’—that which leaves
               us with a definite and firm conviction that a mistake has been
      Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 7 of 17
               made.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d
               1232, 1235 (Ind. 1992). “[T]he reviewing court may affirm the
               judgment on any legal theory supported by the findings.”
               Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind. 1998).


       Id.


[9]    We also note that Father has not filed a brief. When an appellee fails to submit

       a brief, we do not undertake the burden of developing arguments for him, and

       we apply a less stringent standard of review with respect to showings of

       reversible error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). That

       is, we may reverse if Mother establishes prima facie error, which is an error at

       first sight, on first appearance, or on the face of it. Id.


                         Issue One: Post-Secondary Educational Expenses

[10]   Mother contends that the trial court should not have ordered her to pay post-

       secondary educational expenses at all because L.C. “repudiated” her

       relationship with Mother. She also asserts, apparently in the alternative, that

       the trial court erred in determining how much of those expenses she should pay

       in that the court failed to consider her own student loan debts and L.C.’s ability

       to obtain student loans.


[11]   Decisions to order the payment of post-secondary educational expenses are

       reviewed under an abuse of discretion standard, while apportionment of the

       expenses is reviewed under a clearly erroneous standard. Smith v. Weedman (In

       re Paternity of C.H.W.), 892 N.E.2d 166, 171 (Ind. Ct. App. 2008), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 8 of 17
       Additionally, the trial court has discretion to determine what is included in

       educational expenses. Id.


                                                  Repudiation


[12]   A court may order a parent to pay part or all of a child’s extraordinary

       educational costs when appropriate. Ind. Code § 31-16-6-2 (2016); In re

       Paternity of C.H.W., 892 N.E.2d at 171. However, repudiation of a parent by a

       child is recognized as a complete defense to such an order. Kahn v. Baker, 36

       N.E.3d 1103, 1112 (Ind. Ct. App. 2015) (citing McKay v. McKay, 644 N.E.2d

       164, 166 (Ind. Ct. App. 1994)), trans. denied. Repudiation is defined as a child’s

       complete refusal to participate in a relationship with the parent. Id. (citing

       Norris v. Pethe, 833 N.E.2d 1024, 1033 (Ind. Ct. App. 2005)). There is no

       absolute legal duty on parents to provide a college education for their children;

       therefore, where a child, as an adult over eighteen years of age, repudiates a

       parent, that parent may dictate what effect this will have on his or her

       contribution to college expenses for that child. Id. Accordingly, a child’s

       complete refusal to participate in a relationship with a parent may obviate a

       parent’s obligation to pay certain expenses, including college expenses. Id. A

       finding of repudiation is fact-sensitive. See Id. at 1113-14 (reviewing Indiana

       case law where repudiation was found) and cases cited therein.


[13]   In support of her assertion that L.C. has repudiated her, Mother notes that she

       and L.C. had a falling out in May 2013, and she contends that L.C. has not

       shown her “a minimum amount of respect and consideration” since then.


       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 9 of 17
       Appellant’s Br. at 25 (quoting McKay, 644 N.E.2d at 167). Mother points out

       that L.C. began living with Father around that time, but she also admits that

       L.C. still visited her. And Mother admits that L.C. calls her and sends her text

       messages on holidays and occasionally “to tell Mother about school or life

       events.” Id. at 26. That is not evidence of a complete refusal to participate in a

       relationship with mother. Rather, similar facts led us to conclude in Kahn that

       the discord between the parent and child “did not rise to the level of

       repudiation.” 36 N.E.3d at 1114 (holding daughter did not repudiate father,

       even though they had a falling out and did not see or talk to each other for over

       a year, where daughter continued to send father e-cards, texts, and email

       messages). Moreover, it was Mother’s choice to move to Arizona and then

       Hawaii, thus creating a great physical distance between her and L.C. The trial

       court did not err in holding L.C. has not repudiated her relationship with

       Mother, and Mother has failed to establish a prima facie case that the trial court

       abused its discretion in ordering her to pay a portion of L.C.’s college expenses.

                       Apportionment of L.C.’s post-secondary educational expenses


[14]   Nor did the trial court err in its apportionment of L.C.’s college expenses.

       Indiana Code Section 31-16-6-2 provides that a child support order may include

       amounts for the child’s education in elementary and secondary schools and at

       postsecondary educational institutions, taking into account: (A) the child’s

       aptitude and ability; (B) the child’s reasonable ability to contribute to

       educational expenses . . . and (C) the ability of each parent to meet these

       expenses. And Indiana Child Support Guideline 8(b) provides:

       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 10 of 17
               In making [a] decision [to award post-secondary educational
               expenses], the court should . . . weigh the ability of each parent to
               contribute to payment of the expense, as well as the ability of the
               student to pay a portion of the expense.


               When determining whether or not to award post-secondary
               educational expenses, the court should consider each parents’
               income, earning ability, financial assets and liabilities. . . . If the
               court determines an award of post-secondary educational
               expenses would impose a substantial financial burden, an award
               should not be ordered.


               If the court determines that an award of post-secondary
               educational expenses is appropriate, it should apportion the
               expenses between the parents and the child, taking into
               consideration the incomes and overall financial condition of the
               parties and the child, education gifts, education trust funds, and
               any other education savings program. The court should also take
               into consideration scholarships, grants, student loans, summer
               and school year employment and other cost-reducing programs
               available to the student.


[15]   Here, Mother asserts that the trial court erred in its apportionment of college

       expenses because it “ignor[ed] all evidence of the substantial financial burden

       occasioned by Mother’s own post-decree student loan debt” in the amount of

       approximately $60,000. Appellant’s Br. at 20. However, the record shows that

       the court considered all the parties’ financial information; it ordered the parties

       to provide such information for the years 2011 through 2014 and it adopted and

       incorporated the parties’ December 28, 2015 Stipulations and Orders that

       included both a child support worksheet and a post-secondary education

       worksheet that were completed by the parties. The trial court also specifically

       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 11 of 17
       considered Mother’s student loan debt, which was documented in Petitioner’s

       Exhibits 2 and 3, and it heard argument from Mother’s counsel on the issue of

       her ability to pay for college expenses. Having reviewed all of that information,

       the trial court issued a specific finding denying Mother’s argument of “non-

       affordability,” and Mother has not shown that that decision was clearly

       erroneous. Appellant’s App. at 23.


[16]   Mother also contends that the trial court erred in failing to consider L.C.’s

       ability to obtain student loans and/or work. However, Mother is mistaken.

       The trial court ordered L.C. to pay for one-third of her college expenses. Id.

       And the court’s finding 5(D) states “L.C. shall apply for all reasonable grants,

       scholarships, and loans,” and she “may also have some nominal employment,”

       though it is not required. Id. (emphasis added). There is nothing in the

       applicable statute or the child support guidelines that require the trial court to

       order the child to obtain loans and/or work; rather, the child’s ability to obtain

       loans and work is simply one of the factors the court must consider. The trial

       court did so here, and its decision that L.C. would be required to seek student

       loans but would not be required to work was not clearly erroneous. See, e.g.,

       Thompson v. Thompson, 811 N.E.2d 888, 927 (Ind. Ct. App. 2004) (holding child

       support order appropriating college expenses satisfied the requirement of

       making the child responsible for contributing to the cost of education, where the

       order required the child to apply for any and all scholarships or grants for which

       the child may qualify), trans. denied. Mother has failed to establish a prima facie




       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 12 of 17
       case that the trial court clearly erred in its apportionment of post-secondary

       educational expenses.


                                 Issue Two: Award of Attorney’s Fees

[17]   Mother contends that the trial court erred in awarding Father his attorney’s fees

       in the post-dissolution proceedings to modify custody and child support.


               A determination regarding attorney fees in proceedings to modify
               a child support award is within the sound discretion of the trial
               court and will be reversed only upon a showing of a clear abuse
               of that discretion. In determining whether to award attorney
               fees, the trial court must consider the parties’ resources, their
               economic condition, their ability to engage in gainful
               employment, and other factors that bear on the award’s
               reasonableness. The trial court, however, need not cite the
               reasons for its determination.


       Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007); see also I.C. § 31-16-11-1

       (allowing award of attorney’s fees in child support proceedings); D.B. v. M.B.V.,

       913 N.E.2d 1271, 1276 (Ind. Ct. App. 2000) (applying I.C. § 31-16-11-1 to

       proceedings to modify child custody). Moreover, the court may consider any

       misconduct on the part of one party that necessitated additional legal expenses

       for the other party. D.B., 913 N.E.2d at 1276.


[18]   The attorney fee award here totaled $14,000 for time spent and costs incurred

       by Father’s attorney from May 1, 2013 through January 6, 2016, the period of

       time during which Father’s post-dissolution petition for modification was

       pending. Respondent’s Ex. 4. This award was based on the Affidavit of

       Father’s attorney, which included an itemization for the relevant time period.
       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 13 of 17
       Id. Before Respondent’s Exhibit 4 was admitted into evidence, Mother’s

       attorney reviewed the twelve page itemization and had Father’s attorney

       remove $3,633.25 unrelated charges. Id.; Tr. at 35. The $14,000 attorney fee

       award does not include those unrelated charges.


[19]   Mother maintains that the trial court failed to consider “any factor bearing on

       the reasonableness of the [attorney’s fee] award.” Appellant’s Br. at 27

       (emphasis original). However, as noted above, the record shows that the trial

       court considered each party’s financial position as shown by the fact that it

       requested and received such evidence. Moreover, it is apparent that the trial

       court took into consideration Mother’s misconduct throughout the modification

       proceedings. Mother had failed to appear before the court as ordered on three

       separate occasions. On September 9, 2015, she had filed a Petition to Appear

       Electronically at the January 6 hearing, and that motion was denied; yet

       Mother still failed to appear in person for that hearing, as ordered. Thus, at the

       end of the hearing, in reference to Father’s request for attorney’s fees, the court

       noted that Mother gave “zero cooperation” in the proceedings until the

       December 2015 agreement of the parties, and the court noted that she made

       “no effort” to appear before the court, as ordered. Tr. at 91, 92, 94-95. The

       trial court did not abuse its discretion when it considered Mother’s failure to

       cooperate in the proceedings and failure to appear before the court as ordered

       when making its attorney’s fee determination, D.B., 913 N.E.2d at 1276, and

       the court was not required to cite its reasons for that determination, Whited, 859

       N.E.2d at 665.


       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 14 of 17
                             Issue Three: Alleged Bias of the Trial Court

[20]   Finally, Mother maintains that the January 6, 2015, order should be reversed

       and the case should be remanded for a new trial due to the trial court’s bias

       against her.


               The law presumes that a trial judge is unbiased. Carter v. Knox
               Cnty. Office of Family & Children, 761 N.E.2d 431, 435 (Ind. Ct.
               App. 2001). To overcome that presumption, the party asserting
               bias must establish that the trial judge has a personal prejudice
               for or against a party. Id. Clear bias or prejudice exists only
               where there is an undisputed claim or the judge has expressed an
               opinion on the merits of the controversy before him or her. Id.
               “Adverse rulings and findings by the trial judge do not constitute
               bias per se. Instead, prejudice must be shown by the judge’s trial
               conduct; it cannot be inferred from his [or her] subjective views.”
               Id. (citations omitted). Said differently, a party “must show that
               the trial judge’s action and demeanor crossed the barrier of
               impartiality and prejudiced” that party’s case. Flowers v. State,
               738 N.E.2d 1051, 1061 (Ind.2000).


       Richardson v. Richardson, 34 N.E.3d 696, 703-04 (Ind. Ct. App. 2015); see also

       Ind. Judicial Conduct Canon 2 (requiring a judge to perform the duties of

       judicial office impartially, competently, and diligently).


[21]   Mother bases her bias claim on several statements the trial judge made during

       the January 6, 2016 hearing. However, we note at the outset that Mother did

       not object to any of these comments at the hearing. Where a defendant fails to

       object to comments a trial judge makes during trial, the issue is waived for

       review. Flowers, 738 N.E.2d at 1061.



       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 15 of 17
[22]   Waiver notwithstanding, Mother’s claim fails. The trial court made some

       statements questioning Mother’s participation in a confidential address program

       for victims of domestic abuse. These statements did not show bias; rather, they

       are part of the court’s explanation for its finding that Mother failed to provide

       sufficient evidence to support her claim that she could not appear before the

       court, as ordered. Such an adverse finding, alone, is insufficient to show bias or

       prejudice. Dan Cristiani Excavating Co., Inc., v. Money, 941 N.E.2d 1072, 1082

       (Ind. App. Ct. 2011), trans. dismissed.


[23]   Nor did the trial court show bias against Mother when it observed that Mother

       was “elusive” and “enigmatic.” Those statements were merely the court’s view

       of a party who had failed to appear before the court as ordered. However,

       despite the trial court’s subjective view of Mother and her failure to appear, its

       actions on that issue were ultimately in her favor in that the court decided not

       to issue a bench warrant for Mother’s arrest for failure to appear. Prejudice

       must be shown by trial conduct of the judge and not inferred from his subjective

       view. Richardson, 34 N.E.3d at 703-04 (citing Carter, 761 N.E.2d at 435).

       Mother has failed to show that the conduct of the hearing on the merits was

       affected in any manner by the court’s alleged bias.


[24]   And, finally, the trial court did not, as Mother claims, call her a “degenerate

       river boat gambler” when it discussed her student loans. Appellant’s Br. at 30.

       Rather, the trial court used the analogy of a gambler to (1) point out that it was

       Mother’s choice to obtain student loans and (2) clarify its decision that

       Mother’s choice to go into debt would not affect the amount Mother was

       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 16 of 17
       required to pay for L.C.’s college expenses. While the trial court’s analogy to

       gambling may have been imperfect, it did not cross the barrier of impartiality

       and prejudice Mother’s case. Richardson, 34 N.E.3d at 704. Mother has failed

       to show that the trial court was biased against her.


[25]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A05-1603-DR-527| November 15, 2016   Page 17 of 17
