MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Nov 02 2018, 5:28 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Lee Money                                            Timothy S. Shelly
Greenwood, Indiana                                      Matthew W. Schramm
                                                        Warrick & Boyn, LLP
                                                        Elkhart, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael James Tollar,                                   November 2, 2018
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        18A-DR-849
        v.                                              Appeal from the Elkhart Superior
                                                        Court
Saige Marie Swank,                                      The Honorable David C.
Appellee-Petitioner                                     Bonfiglio, Judge
                                                        Trial Court Cause No.
                                                        20D06-0303-DR-137



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018                Page 1 of 7
                                          Case Summary
[1]   Michael James Tollar (“Father”) appeals the trial court’s order requiring him to

      pay his share of his son’s post-secondary education expenses. Father contends

      that the trial court erred in concluding that his son had not repudiated his

      relationship with Father. We affirm.



                            Facts and Procedural History
[2]   During the marriage of Father and Saige Swank (“Mother”), the parties had

      two children, including M.S.T. (“Son”), who was born in 1997. Son was later

      diagnosed with a sensory integration disorder that “require[d] significant and

      consistent care.” Appellant’s App. Vol. II p. 10. In 2004, Father and Mother’s

      marriage was dissolved by a Decree of Dissolution of Marriage which ordered

      post-secondary education expenses for the children to be divided as follows:


              . . . scholarships and grants shall first be deducted from the
              education expenses . . . [t]hereafter, the child shall be responsible
              for twenty-five percent (25%) of the remaining expenses, and the
              balance shall be divided between the parties in proportion to their
              respective weekly adjusted income.


      Id. at 14. In September 2016, after Mother received a bill for Son’s first

      semester of college, she filed a petition asking that Father be ordered to pay his

      share of Son’s post-secondary education expenses. In response, Father filed a

      petition to modify child support regarding post-secondary education expenses.

      Father asserted in his petition that Son had repudiated him and asked to be


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018   Page 2 of 7
      released from all financial obligations for post-secondary education expenses for

      Son. In February 2018, the trial court held a fact-finding hearing regarding

      post-secondary education expenses.


[3]   At the hearing, Mother testified that after her divorce from Father in 2004,

      Father visited Son “three or four times within [the] year following the divorce;

      and then, stopped visiting.” Tr. p. 14. Mother said that between 2005 and

      2017, Father never called Son or sent him birthday or holiday cards. Mother

      testified that she has had the same telephone number since 2004 and that she

      and Son lived in the home that she had shared with Father until 2015. Mother

      stated that after she filed the petition for post-secondary education expenses,

      Father sent Son a series of Facebook messages.


[4]   Father testified that he visited Son a couple of times in 2005 and had occasional

      visits with Son that ended in either 2008, 2012, or 2013. Father testified that he

      “sent a letter, a little card or something in the early years” but not “every

      birthday [or] every Christmas.” Id. at 33. Father stated that in February 2017,

      he and Son “had a limited exchange on Facebook” and that they “went back

      and forth for a week, ten days” and Son “refused to get on the phone.” Id. at

      38-39. Father said that after Son told him that he did not want to speak on the

      phone, “[Father] asked [Son] is it okay if we just keep . . . [using] Facebook”

      and Son said “sure.” Id. at 50. Father testified that eventually he and Son

      stopped communicating because Son blocked him on Facebook.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018   Page 3 of 7
[5]   Son testified that the last time he remembered Father visiting him was in 2008,

      and that Father’s visits were “really infrequent.” Id. at 70. Son said that he

      “never once remember[ed] receiving any sort of Christmas or birthday card

      [from Father].” Id. Son testified that he and Father had a “two-week long

      exchange” on Facebook in February 2017. Id. at 71. Son said that Father “was

      really insistent on trying to get [his] phone number. And [he] didn’t feel

      comfortable with that. [He] wanted to just work through Facebook[.]” Id. Son

      also testified that Father sent him “really, really, long drawn out YouTube

      videos” that “were around three hours each.” Id. at 72. Son said the YouTube

      videos “came across really creepy” and made him “really uncomfortable.” Id.

      Son testified that toward the end of their Facebook exchange Father told him

      that he was thinking of hiring a private investigator to find out Son’s

      information. Son stated:


              That really freaked me out. And I think toward the end, [Father]
              eventually said, look, I don’t want to talk anymore. I . . . want
              your phone number. That’s how we’re going to continue this
              conversation. And then, I was like, well, then, for now, we’re
              not . . . continuing this conversation. And then, I blocked
              [Father] on Facebook.


      Id. at 73. Son testified that “[he] would love to know [Father]” and “would be

      fine with [Father] sending [him] a letter.” Id. at 74, 77.


[6]   Following the hearing, the trial court took the matter under advisement and

      asked the parties to submit written final arguments. In March 2018, the trial



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018   Page 4 of 7
      court issued an order finding “that [Son] ha[d] not repudiated his [F]ather.”

      Appellant’s App. Vol. II p. 2. The trial court reasoned:


              [Son’s] behaviors in this matter are not ones of repudiation of his
              [F]ather, but rather simply protecting his mental health, his sense
              of well[-]being and concern for his personal safety. [Son’s]
              actions and those beliefs are absolutely reasonable based on the
              context for [F]ather’s contacts with [Son]. . . . Father’s aggressive
              manner of communications through their limited experience on
              Facebook; [F]ather’s three hour [You]-Tube videos to [Son]
              wherein [F]ather testifies to his unending love for [Son];
              [F]ather’s insistence on attaining [Son’s] phone number; [F]ather
              threatening to hire a private detective to track down [Son’s]
              personal information and [F]ather’s dictatorial questioning of
              [Son] all appear to be near stalking of [Son] by [F]ather, all justify
              [Son’s] guarded response to his [F]ather. [Son] was simply
              “freaked out” by his [F]ather’s behaviors and [Son] concluded
              that the behaviors were “creepy.” Rather than repudiation, [Son]
              had longed for a normal relationship with his [F]ather[.]


              Father has all but abandoned [Son] on an emotional level all of
              [Son’s] life, [F]ather’s brief communication with [Son] in which
              [F]ather assumed an imposing parental relationship did not play
              well with [Son] for good reason. It is unknown how [Son’s]
              Sensory Integration Disorder may have affected [Son’s] response
              which does not appear to have even been a consideration by
              [F]ather. Father’s behaviors were simply inappropriate[.]


      Id. at 2-3. The trial court therefore ordered Father to pay his share of Son’s

      post-secondary education expenses as required by the divorce decree.


[7]   Father now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018   Page 5 of 7
                                 Discussion and Decision
[8]    Father contends that “the evidence does not support the trial court’s finding

       that [Son] had not repudiated his relationship with [Father].” Appellant’s Br. p.

       4. On appeal, we do not reweigh the evidence; instead, we consider first

       whether the evidence supports the findings and then whether the findings

       support the judgment. Kahn v. Baker, 36 N.E.3d 1103, 1113 (Ind. Ct. App.

       2015), trans. denied. Findings are clearly erroneous when a review of the record

       leaves us firmly convinced that a mistake has been made. Id. But we do not

       defer to conclusions of law, and a judgment is clearly erroneous if it relies on an

       incorrect legal standard. Id. at 1112.


[9]    Repudiation is defined as a complete refusal to participate in a relationship with

       the parent. Id. Indiana law provides that a court may enter an educational

       support order for a child’s education at a post-secondary educational institution,

       but repudiation of a parent by a child is recognized as a complete defense to

       such an order. Id.; see also Ind. Code § 31-16-6-2(a)(1). When a child who is

       over eighteen repudiates a parent, that parent must be allowed to dictate what

       effect this will have on his contribution to college expenses for that child. Kahn,

       36 N.E.3d at 1113. A finding of repudiation is fact sensitive. Id.


[10]   As detailed above, the trial court was presented with significant evidence that

       contradicts Father’s claim that Son chose to end their relationship. The trial

       court made numerous findings regarding the aggressive way Father attempted

       to establish communication with Son after nearly a decade of mostly silence.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018   Page 6 of 7
       As the trial court noted, Son suffers from a sensory integration disorder and this

       may have caused him to perceive Father’s behaviors as “creepy.” Appellant’s

       App. p. 2. Even so, Son wanted to communicate but Father was “insistent on

       trying to get [Son’s] phone number” and told Son that they were only going to

       communicate by phone. Tr. p. 71. The trial court also found that Son was

       “freaked out” by Father’s threat to hire a private investigator and Son’s

       blocking Father on Facebook was a reasonable response to his Father’s threat.

       Id. at 73. Still, Son testified that “[he] would love to know Father” and is open

       to maintaining a relationship with Father. Id. at 74. There is ample evidence in

       the record that supports the trial court’s conclusion that Son’s behavior after

       turning eighteen did not constitute “a complete refusal to participate in a

       relationship” with Father. See Kahn, 36 N.E.3d at 1112. Accordingly, we find

       that the trial court did not err when it found that Son had not repudiated

       Father.


[11]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-849 | November 2, 2018   Page 7 of 7
