MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               FILED
Memorandum Decision shall not be regarded as                         Jun 09 2017, 9:41 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                      CLERK
                                                                      Indiana Supreme Court
collateral estoppel, or the law of the case.                             Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Thomas M. Barr                                           Christopher T. Smith
Thomas M. Barr & Associates                              Smith Davis LLC
Nashville, Indiana                                       Greenfield, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kurt R. Duncan,                                          June 9, 2017

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         30A01-1611-DR-2608
        v.                                               Appeal from the Hancock Circuit
                                                         Court

Betsy J. Duncan,                                         The Honorable Charles D.
                                                         O’Connor, Special Judge
Appellee-Petitioner.
                                                         Trial Court Cause No.
                                                         30C01-0709-DR-829




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017           Page 1 of 15
                                          Case Summary
[1]   The marriage of Appellant-Respondent Kurt Duncan (“Father”) and Appellee-

      Petitioner Betsy Duncan (“Mother”) was dissolved in 2009, having produced

      two children, Brittany and Nattalee, born in 1993 and 1995, respectively

      (collectively, “the Children”). In October of 2012, the trial court ordered

      Father to pay a portion of Brittany’s college expenses, as she was a full-time

      student at the time. The October of 2012 order made Father’s obligation

      contingent on Brittany maintaining a certain grade point average (“GPA”).


[2]   In 2014, Mother petitioned the trial court for a contribution from Father toward

      college expenses for Nattalee, who had begun college in 2013. As with

      Brittany, Father’s obligation for college expenses for Nattalee was made

      contingent on her maintaining a certain GPA. After a hearing, the trial court

      issued an order grating Mother’s petition (“the Order”), in which it ordered

      Father to pay a portion of the Children’s college expenses dating back to 2013,

      found Father in indirect contempt of court for failing to timely pay Brittany’s

      college expenses, and ordered him to pay a portion of Mother’s attorney’s fees.

      Father contends that the trial court erroneously concluded that (1) the Children

      had not repudiated him, (2) he has any obligation to contribute to the

      Children’s college expenses, (4) he was in contempt of court, and (4) he was

      obligated to pay a portion of Mother’s attorney’s fees. We conclude that the

      trial court did not err in concluding that the Children had not repudiated

      Father. The trial court, however, erred in concluding that Father has any

      current obligation for the Children’s college expenses, because neither has


      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 2 of 15
      established that she has maintained the requisite GPA. Consequently, we also

      reverse the trial court’s determination that Father is in contempt of court and

      that he is currently obligated to pay a portion of Mother’s attorney’s fees. We

      affirm in part, reverse in part, and remand for further proceedings.



                            Facts and Procedural History
[3]   Father and Mother’s marriage was dissolved on April 28, 2009, and two

      children were born of the marriage: Brittany, born June 3, 1993, and Nattalee,

      Born March 30, 1995. On June 29, 2012, Mother petitioned for payment of

      educational expenses. On October 24, 2012, the trial court found that Father

      had a child support arrearage of $10,878.09 and ordered Father to pay 71% of

      Brittany’s post-secondary educational expenses. The trial court also made the

      following findings regarding Brittany’s college expenses:


              The parties’ oldest child Brittany is a full-time college student.
              Mother seeks an order on how college expenses are to be paid.
              Brittany lives at home and commutes to Indiana University-
              Purdue University in Indianapolis. Brittany spends some
              overnights with her boyfriend. Brittany works approximately
              thirty hours per week and earns $8.67 per hour. She uses her
              earnings for her living expenses.
              Based on the evidence, the Court orders that Brittany’s college
              expenses to be paid 29% by the Mother and 71% by the Father
              after Brittany has contributed $2,000 per year toward her costs.
              Brittany’s contribution may come from grants, loans or her
              wages. The Court notes Brittany received a Pell Grant her first
              year of college in the amount of $9,662.00[] that satisfies her
              obligation for the current school year. The Court defines
              Brittany’s college expenses to be tuition, books, required fees,


      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 3 of 15
              and on campus room and board. If Brittany elects to live off
              campus, college expenses include $100 per week for
              transportation and food expense for each week that Brittany
              attends classes for a semester in which she is enrolled in at least
              nine hours of credit. The parents’ financial obligation for
              Brittany’s college expenses is limited to four years and Brittany
              maintaining a cumulative [GPA] of 2.5. Brittany is directed to
              insure that each parent has access to her grades and that she
              applies for all available grants and financial aid.
      Appellant’s App. Vol. II pp. 31-32.


[4]   On March 10, 2014, Mother moved for a rule to show cause and petitioned for

      a college expense contribution for Nattalee. On April 29, 2014, the trial court

      issued the Order:

                                ENTRY ON PENDING MOTIONS
              Hearing was held on April 25, 2014 on the Petitioner’s Verified
              Motion For Rule To Show Cause And Petition For College
              Expense Contribution and Respondent’s Request To Find
              Daughter Emancipated. The Petitioner [Mother] appeared in
              person and by counsel Christopher Smith. The Respondent
              [Father] appeared in person. The Court, having taken the issues
              under advisement, now makes the following Order.
              1)    The parties are the parents of Brittany Duncan, born June
              3, 1993 and Nattalee Duncan, born March 30, 1995.
              2)     Brittany was previously found to be emancipated and the
              parties agree that Nattalee became emancipated on her
              nineteenth birthday on March 30, 2014. The Court vacates
              Father’s child support for Nattalee effective March 30, 2014.
              3)    Father had a child support obligation for Nattalee of $143
              per week. His child support arrearage was found to be
              $10,878.08 as of October l9, 2012. From October 20, 2012
              through March 30, 2014, Father should have paid current child


      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 4 of 15
        support in the sum of $10,725. Since October 19, 2012, Father
        has paid a total of $12,240 thereby reducing his arrearage by
        $1,515 to $9,363.08. The Court orders Father to pay the
        arrearage at the rate of $100 Per week. The Court instructs
        Mother’s attorney to prepare an Amended Income Withholding
        Order to Father’s employer.
        4)     The Court also ordered the parents to assist Brittany with
        her college expenses. The evidence was that Father has not paid
        any sums toward Brittany’s college expenses. The Court finds
        Father owes Brittany the sum of $6,209.76 for his share of her
        college expenses for the 2012-2013 school year and the 2013-2014
        school year. The Court orders Father to pay Brittany $6,209.76
        within sixty days and to timely pay Brittany’s college expenses as
        they come due.
        5)     Mother seeks a college-expense order for Nattalee as she is
        completing her first year of college. Nattalee lives with Mother
        and commutes to IUPUI. The evidence presented indicated the
        parties’ gross weekly income figures are $1,517 for Father and
        $463 for Mother, or an income division of 77% for Father and
        23% for Mother. The Court finds the parents should contribute
        to Nattalee’s educational costs in much the same way as they
        have contributed for Brittany’s post-secondary educational costs.
        Nattalee will be required to contribute up to $2000 per year
        toward her educational costs through grants, loans and wages.
        The parents are ordered to contribute 23% from Mother and 77%
        from Father for any educational costs after Nattalee’s
        contribution. Since Nattalee is living with Mother, the Court
        finds that an appropriate room and board cost to be imputed is
        $140 per week for each week Nattalee is enrolled in and
        attending school. This will most likely be thirty-six weeks per
        year. The Court orders Father to pay to Mother $108 per week
        for each week that Natallee [sic] is attending school and living
        with Mother.
        6)    The Court finds that Nattalee’s school expenses for the
        current year that the parents are responsible for is the sum of



Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 5 of 15
        $1,414.51. Father’s share is $1,089.17. The Court orders Father
        to pay this amount to Mother within sixty days.
        7)     The Court finds it appropriate to modify the college
        expense order for Brittany given the new circumstances of a
        second child in college, and the evidence that Brittany lives
        predominately with her boyfriend. The Court continues to order
        the parents to contribute to Brittany’s post-secondary college
        expenses under the new 77/23 division after Brittany has
        contributed $2000 per year toward her expenses. The Court
        reduces the parents’ obligation for Brittany’s transportation and
        food expense to the sum of $50 per week.
        8)    The Court continues the previous limitations on the
        parent’s [sic] responsibility for Brittany as expressed in the
        October 2012 Order and makes those limitations apply to
        Nattalee as well.
        9)      The Father expressed a repudiation argument, that
        because his daughters have rejected any type of relationship with
        him, he should not be required to contribute to their college
        expenses. The Court rejects Father’s repudiation argument
        because the Court finds that Father has not made a reasonable
        effort to have a positive relationship with his children after he
        and Mother divorced. Father testified he had attempted to call
        the girls a few times without success. Father admitted he did not
        attempt to talk to Brittany at Nattalee’s graduation and did not
        visit the girls at Christmas when they were at Father’s relatives.
        10) The Court finds the Father in indirect contempt of Court
        for his failure to honor the Court order with respect to payment
        of his portion of Brittany’s college expenses. The Court
        sentences Father to sixty days in jail and suspends it on the
        condition he timely meets his financial obligations to Mother and
        his children. The Court orders Father to pay partial attorney fees
        to Mother’s counsel Christopher Smith in the amount of $1,000
        in monthly installments of $200 beginning May 15, 2014.




Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 6 of 15
      Appellant’s App. Vol. II pp. 23-26. On May 29, 2014, Father filed a motion to

      correct error. On October 18, 2016, following a hearing, the trial court denied

      Father’s motion to correct error.


                                 Discussion and Decision
[5]   Father appeals from the denial of his motion to correct error. “A trial court has

      discretion to grant or deny a motion to correct error, and we reverse its decision

      only for an abuse of that discretion. An abuse of discretion has occurred if the

      trial court’s decision is against the logic and effect of the facts and

      circumstances before the court or if the court has misinterpreted the law.” Bales

      v. Bales, 801 N.E.2d 196, 198 (Ind. Ct. App. 2004) (citations omitted). In

      issuing the Order, the trial court entered findings of fact and conclusions

      thereon sua sponte. Sua sponte findings only control issues that they cover, while

      a general judgment standard applies to issues upon which there are no findings.

      Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations

      omitted).

              We may affirm a general judgment with findings on any legal
              theory supported by the evidence. As for any findings that have
              been made, they will be set aside only if they are clearly
              erroneous. A finding is clearly erroneous if there are no facts in
              the record to support it, either directly or by inference.
      Id.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 7 of 15
                                            I. Repudiation
[6]   Father first claims that the trial court abused its discretion in declining to

      eliminate his post-secondary obligations entirely on the basis that the Children

      had repudiated him.

              Repudiation is defined as a complete refusal to participate in a
              relationship with the parent. [Lovold v. Ellis, 988 N.E.2d 1144,
              1150 (Ind. Ct. App. 2013)] (citing Norris v. Pethe, 833 N.E.2d
              1024, 1033 (Ind. Ct. App. 2005)). Indiana law provides that a
              court may enter an educational support order for a child’s
              education at a post-secondary educational institute, but
              repudiation of a parent by a child is recognized as a complete
              defense to such an order. See Ind. Code § 31-16-6-2(a)(1); McKay
              v. McKay, 644 N.E.2d 164, 166 (Ind. Ct. App. 1994). In McKay,
              the Court noted that there is no absolute legal duty on parents to
              provide a college education for their children, and adopted what
              was Pennsylvania’s approach at that time, stating “where a child,
              as an adult over eighteen years of age, repudiates a parent, that
              parent must be allowed to dictate what effect this will have on his
              or her contribution to college expenses for that child.” 644
              N.E.2d at 166 (quoting Milne v. Milne, 383 Pa. Super. 177, 556
              A.2d 854, 856 (1989)). A child’s repudiation of a parent—that is
              a compete refusal to participate in a relationship with a parent—
              may obviate a parent’s obligation to pay certain expenses,
              including college expenses. See Bales v. Bales, 801 N.E.2d 196,
              199 (Ind. Ct. App. 2004), reh’g denied, trans. denied. It is well
              established that 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. See
              Lovold, 988 N.E.2d at 1150. The appellant, for his part, must
              establish that the trial court’s findings are clearly erroneous;
              findings are clearly erroneous when a review of the record leaves
              us firmly convinced that a mistake has been made. See id.
      Kahn v. Baker, 36 N.E.3d 1103, 1112-13 (Ind. Ct. App. 2015), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 8 of 15
[7]   We conclude that the record contains sufficient evidence to support the trial

      court’s finding that the Children did not repudiate Father. In response to

      questions by Father regarding the Children’s relationship with him, Mother

      responded, “[m]y daughter had a … graduation party … that you chose not to

      come to.” Tr. p. 26. Mother further testified that the Children have tried to

      have a relationship with Father. Mother testified that the Children had

      attended Father’s grandmother’s funeral and that Brittany had unsuccessfully

      attempted to visit him at his home in Brown County. According to Father’s

      testimony, he spoke to his mother about spending at least one Christmas at her

      house with the Children but, in the end, did not go because he was working.

      We conclude that this evidence is sufficient to support the trial court’s

      determination that a repudiation did not occur based on attempts by the

      Children to maintain a relationship with Father. While Father does point to

      evidence that would tend to support a finding of repudiation, this is merely an

      invitation to reweigh the evidence, which we will not do. See In re Paternity of

      Pickett, 44 N.E.3d 756, 763 (Ind. Ct. App. 2015) (“Although the record contains

      evidence that could have supported a finding that Child repudiated Father,

      there is also evidence that would support a determination that Child did not

      repudiate Father. And under our standard of review, we may consider only the

      evidence favorable to the trial court’s judgment.”).


                            Standard of Review for Issues II, III, and IV

[8]   Father also challenges the specific provisions of the Order relating to the

      amount of post-secondary educational expenses he has been ordered to pay.


      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 9 of 15
              We review the trial court’s apportionment of college expenses
              under a clearly erroneous standard. Carr v. Carr, 600 N.E.2d 943,
              945 (Ind. 1992); Winslow v. Fifer, 969 N.E.2d 1087, 1092 (Ind. Ct.
              App. 2012), trans. denied (2013). Therefore, we will affirm the
              trial court unless its order “‘is clearly against the logic and effect
              of the facts and circumstances which were before’ the court.”
              Marriage of Hensley v. Hensley, 868 N.E.2d 910, 913 (Ind. Ct. App.
              2007) (quoting Carr, 600 N.E.2d at 945). In determining whether
              the trial court’s decision is clearly erroneous, we consider only
              the evidence and reasonable inferences favorable to the judgment
              without reweighing evidence or judging witness credibility.
              Winslow, 969 N.E.2d at 1092.
      In re Paternity of Pickett, 44 N.E.3d at 764.


               II. The Amount of Brittany’s College Expenses
[9]   As mentioned, the trial court’s order issued in October of 2012 provides that

      “[t]he parents’ financial obligation for Brittany’s college expenses is limited to

      four years and Brittany maintaining a cumulative [GPA] of 2.5.” Appellant’s

      App. Vol. II p. 32.1 Moreover, the Order specifically “continues the previous

      limitations on the parent’s [sic] responsibility for Brittany as expressed in the

      October 2012 Order and makes those limitations apply to Nattalee as well.”

      Appellant’s App. Vol. II p. 25. Father correctly contends that the record

      contains no evidence that Brittany ever maintained the required cumulative

      GPA of 2.5. Consequently, Father is also correct that the record does not




      1
        Although the Children were also directed to ensure that both parents had access to their grades and apply
      for all available grants and financial aid, the parents’ financial obligations to the Children were not
      specifically tied to these directions.



      Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017            Page 10 of 15
       support the trial court’s order that he pay any of Brittany’s post-secondary

       educational expenses. We vacate those portions of the Order requiring Father

       to pay Brittany’s post-secondary education expenses, whether current or

       accrued, and remand for an evidentiary hearing on whether she has satisfied the

       GPA requirements. If the trial court determines that Father’s obligation has

       been triggered, then an amount can be determined.


              III. The Amount of Nattalee’s College Expenses
[10]   Father contends that the same dearth of evidence that exists regarding

       Brittany’s GPA also exists in Nattalee’s case. As with Brittany, we vacate those

       portions of the Order requiring Father to pay Nattalee’s post-secondary

       education expenses, whether current or accrued, and remand for an evidentiary

       hearing on whether she has satisfied the GPA requirements. If so, the scale of

       the obligation can then be determined.


[11]   Father makes another claim that we choose to address, as it is likely to arise on

       remand, which is that the trial court erroneously ordered him to pay for

       Nattalee’s college expenses during a period when he was already paying child

       support. Indiana Code subsection 31-16-6-2(b) provides that “[i]f the court

       orders support for a child’s educational expenses at a postsecondary educational

       institution under subsection (a), the court shall reduce other child support for

       that child that … is duplicated by the educational support order [and] would

       otherwise be paid to the custodial parent.” We have also noted that

       “[d]uplicative support and college expense orders should be avoided.” Stover v.



       Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 11 of 15
       Stover, 645 N.E.2d 1109, 1110 (Ind. Ct. App. 1995) (citing Carr v. Carr, 600

       N.E.2d 943, 946 (Ind. 1992)).


[12]   The trial court issued the Order on April 29, 2014, and, inter alia, determined

       that Nattalee was emancipated as of March 30, 2014, and terminated Father’s

       child support obligation of $143.00 per week as of that date. The trial court also

       found that Nattalee had incurred $1414.51 in school expenses for the 2013-14

       school year and that Father was responsible for $1089.17 of that total, or 77%.

       Finally, the trial court ordered that Father would pay $108.00 per week, or 77%

       of Nattalee’s room, board, and transportation costs of $140.00 per week while

       living with Mother but, significantly, did not order Father to pay these expenses

       retroactively.


[13]   Father’s argument is based on his contention that the trial court ordered him to

       pay educational expenses that were duplicative of his child support payments.

       The record does not support this contention. First, the $1089.17 that Father

       was ordered to pay (for his share of expenses for books, fees, and an iPad) was

       strictly for college-related purposes and not duplicative of his child support

       obligations in any way. Moreover, the $108.00 weekly payment for expenses

       incurred while Nattalee lives with Mother never overlapped with Father’s child

       support payments, as the Order simultaneously established the former—without

       making it retroactive—while eliminating the latter. The trial court did not err in

       ordering post-secondary educational payments that were duplicative of Father’s

       child support payments.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 12 of 15
                                  IV. Father’s Ability to Pay
[14]   In another issue likely to arise on remand, Father contends that the trial court

       erroneously failed to consider his ability to pay a portion of Brittany’s and

       Nattalee’s college expenses. Indiana Code subsection 31-16-6-2(a) provides, in

       part, as follows:

               (a) The child support order or an educational support order may
               also include, where appropriate:
                   (1) 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 through:
                          (i) work;
                          (ii) obtaining loans; and
                          (iii) obtaining other sources of financial aid reasonably
                          available to the child and each parent; and
                       (C) the ability of each parent to meet these expenses[.]

[15]   Father essentially argues that the trial court abused its discretion in

       apportioning college expenses based on the incomes of the parties, which it

       found to be $1517.00 per week for Father and $463.00 per week for Mother, or

       approximately $79,000.00 and $24,000.00 per year, respectively. While it is

       true that the record contains no direct evidence that Father was able to pay a

       proportionate share of the Children’s college expenses, we cannot say that the

       trial court abused its discretion in drawing the inference that he could. Quite

       simply, Father is making approximately $79,000.00 per year and presented no

       evidence of extraordinary expenses, such as unexpected medical bills, that


       Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 13 of 15
       would hinder his ability to pay his fair share of the Children’s college expenses.

       To the extent that Father points to evidence in the record of circumstances that

       he argues hinder his ability to pay, the trial court was under no obligation to

       credit it, and apparently did not. Father has failed to establish error in this

       regard.


                                              V. Contempt
[16]   Father also challenges that portion of the Order finding him in indirect

       contempt of court for failing to pay Brittany’s college expenses. We have

       already concluded, however, that the trial court erred in concluding that Father

       has a current obligation to pay any of Brittany’s or Nattalee’s college expenses.

       Consequently, Father cannot be held in contempt for failure to pay them. We

       therefore also vacate the provisions of the Order declaring Father to currently

       be in contempt of court and ordering him to pay a portion of Mother’s

       attorney’s fees.



                                               Conclusion
[17]   We conclude that Father failed to establish that the trial court erred in finding

       that the Children have not repudiated Father. Father has established, however,

       that the trial court erred in concluding that he had any current obligation to pay

       the Children’s post-secondary educational expenses. Consequently, we also

       vacate the trial court’s finding that Father is currently in indirect contempt of

       court for failing to pay college expenses and a portion of Mother’s attorney’s

       fees.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 14 of 15
[18]   The judgment of the trial court is affirmed in part and reversed in part, and we

       remand for further proceedings consistent with this memorandum decision.


[19]   Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017   Page 15 of 15
