FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

PETER M. YARBRO                               MARK J. PHILLIPOFF
FRED R. HAINS                                 Jones Obenchain, LLP
NICOLE B. MUIR-KIMMERLY                       South Bend, Indiana
Hains Law Firm, LLP
South Bend, Indiana
                                                                      Oct 22 2014, 9:52 am




                            IN THE
                  COURT OF APPEALS OF INDIANA

LARRACUENTA R. PANFIL,                        )
                                              )
     Appellant-Petitioner,                    )
                                              )
            vs.                               )       No. 71A04-1404-DR-183
                                              )
RALPH E. FELL,                                )
                                              )
     Appellee-Respondent.                     )


                  APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                    The Honorable Jenny Pitts Manier, Special Judge
                           Cause No. 71C01-0303-DR-189



                                   October 22, 2014


                             OPINION - FOR PUBLICATION


BROWN, Judge
       Larracuenta R. Panfil (“Mother”) appeals the trial court’s February 7, 2014 order

terminating the obligation of Ralph E. Fell (“Father”) to pay post-secondary educational

expenses for K.F. (“Daughter”) and the court’s denial of Mother’s motion to correct

errors. Mother raises two issues which we revise and restate as whether the court erred or

abused its discretion in entering the February 7, 2014 order and denying her motion to

correct errors. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       Mother and Father were married on June 3, 1989, and two children were born of the

marriage, Daughter, born December 16, 1993, and M.F., born October 18, 1995. On March

9, 2004, the St. Joseph Circuit Court entered a decree of dissolution of the marriage, and

the decree incorporated the terms of a settlement agreement entered by the parties. The

settlement agreement provided, among other things, that Daughter “shall be responsible

for payment of one-third (1/3) of her own college education expenses” and “that the

remaining two-thirds (2/3) of [Daughter’s] college education expenses should be paid by

the Parties with each party equally contributing Fifty percent (50%) of those expenses.”

Appellant’s Appendix at 21.

       On March 1, 2011, Mother filed a petition to modify child support. On July 12,

2012, Father filed a Petition for Finding of Repudiation of Relationship, alleging Daughter

wanted nothing to do with him and requesting the court to find Daughter had repudiated

her relationship with him. After a hearing, the court entered an order on July 30, 2012,

establishing Father’s weekly child support obligation and net arrearage, finding there had

not been a complete refusal by Daughter to engage in the parent-child relationship, and

                                            2
denying Father’s petition for a finding of repudiation. With respect to college expenses,

the court’s order provided:

       The parties shall share the expense of tuition, room and board, books and
       necessary fees as provided in Decree. Father’s obligation to pay post-
       secondary educational expenses is dependent upon [Daughter] maintaining a
       grade point average of 2.1 and not being placed on probation or being subject
       to any disciplinary action for violation of school rules or policies.

Id. at 38.

       On January 14, 2014, Father filed a Petition to Discontinue Paying for Daughter’s

Post-Secondary Educational Expenses, which referenced the court’s July 30, 2012 order

and alleged that Daughter “dropped one (1) three-hour course, Introduction to International

Relations, and was caught cheating in a three-hour history course, Introduction to the

Modern World” and that, “as a result of the cheating, she failed the course and received an

overall grade point average of 1.93.” Id. at 44.

       On February 4, 2014, the court held a hearing on the petition, at which the parties

appeared in person and Daughter participated by telephone. Father’s counsel referred to

the court’s July 30, 2012 order and argued that Daughter “was caught cheating in a history

class that she took. She committed -- apparently committed plagiarism. And she was

disciplined by getting an F in that class, a class that she otherwise would have passed.”

Transcript at 6. Father’s counsel also stated that Father “offered to have [Daughter] come

and live with him for this semester, he’d help her find a job, he’d help her get on the right

track . . . . She – she declined that.” Id. Father’s counsel requested the court to “enforce

the [July 30, 2012] order.” Id. at 6-7.



                                             3
       Mother’s counsel argued that Daughter had “not been disciplined, she’s not on

probation [and] in fact is still a member in good standing” and that Daughter’s overall GPA

was 2.34. Id. at 7. Mother’s counsel emphasized that Daughter “is in fact not on

probation,” that “the teacher did not turn this information in to [] Purdue University about

the cheating,” and that “[t]here’s nothing . . . other than the F on her records.” Id. at 8-9.

Mother also presented documentary evidence of Daughter’s transcript of grades at Purdue

University, Purdue University’s rules relating to academic probation, tuition information,

and Father’s income.

       Daughter testified “this is my second semester of my sophomore year” and that her

overall grade point average was 2.34. Id. at 11. When asked by Mother’s counsel to

describe what happened in her history course, Daughter testified:

       Throughout the course – it was an online class and every week in the class
       we had to submit a paper. And on those papers every week – like everyone
       in the class would submit them – you had to comment on everyone’s paper
       five times. And I cheated and I plagiarized some of my comments.

Id. at 11-12. When asked “[h]ow many times [she] cheat[ed] in the course,” Daughter

stated “[t]hree times.”    Id. at 12.    When Mother’s counsel asked, “[p]rior to your

plagiarizing the reviews of the other students what was you grade in that course,” Daughter

stated she had “an 84 percent.” Id. The court asked “[w]hat lesson did you learn,” and

Daughter stated “[t]o not plagiarize or get lazy like that again.” Id. at 13. She also testified

that she dropped a different course, international politics, in the fall semester because she

had “never been in any type of politics course and [she] felt like [she] was totally lost in

the class” and “knew that would affect [her] GPA.” Id. Additionally, Daughter testified


                                               4
that Father “offered for [her] to stay with him the last week of winter break.” Id. at 14.

When Mother’s counsel asked whether “he ever offer[ed] you to come down and live with

him and stay at his house and kind of get yourself reacclimated or refocused,” Daughter

responded, “[n]o.” Id. Daughter also stated that Father “said that if [she] didn’t go [to

Father’s house] for the last week of school,” he would not continue to support Daughter’s

college efforts. Id. Daughter testified that “over parents’ weekend [Father] gave [her]

$500 for books and other stuff.” Id. at 15.

       Father’s counsel then questioned Daughter about the incident, and Daughter

indicated she “ended up getting an F because of the plagiarism.” Id. at 17. When Father’s

counsel asked Daughter, “[w]asn’t it disciplined [sic] by Purdue to give you an F in the

class,” Daughter responded: “Yeah.” Id. at 18.

       Mother’s counsel asked Daughter if “the instructor was the one that gave [Daughter]

the F,” and Daughter responded “[y]es it was under her discretion.” Id. Daughter further

indicated that she had not been contacted by the University’s admission office or anyone

else concerning the incident. The court asked Daughter several questions about the

discussion she had with her instructor, and Daughter stated:

       I met with her. I had a meeting with her in her office and she -- we -- she
       explained the whole situation, like what she found, like me cheating and so
       on and so forth.

       And she said that she had the option to either fail me from the course or to
       admit me to the Dean of Students, which would then put me on academic
       probation and things like that.

       But she said that because of – I was doing well in the course and the
       plagiarism was minimal, that she was just going to fail me and give me a
       chance to retake it.

                                              5
Id. at 19.

       In response to questions posed by Father’s counsel, Daughter indicated she knew

that Father had attempted to contact her instructor to discuss the incident but was unable to

do so because he needed Daughter’s permission. Daughter testified that she did not give

Father her permission to talk with her instructor. Daughter explained:

       I just – I felt like I’ve already moved on from the situation and I’m working
       towards getting the F off my transcript and replacing it with a better grade.
       And I felt that he was just going to use it against me in court to make me look
       bad.

Id. at 20. With respect to an offer he gave Daughter, Father testified:

       I wanted her to figure out what she wanted to do with her life because she
       has no idea what – she’s changed majors two times now. She’s doing
       horrible in school.

       This isn’t the only semester she’s done bad. The first semester she withdrew,
       she had a D. She had an incomplete in psychology because she didn’t finish
       the requirements of the course. This is the second time she’s had a horrible
       semester. And she’s going down the wrong path.

Id. at 24. Father testified that Daughter “declined [his] offer.” Id.

       On February 7, 2014, the court entered an order which granted Father’s petition to

discontinue paying for Daughter’s post-secondary educational expenses. The court found

that Daughter’s “cumulative grade point average of 2.34 is sufficient to permit her to

remains [sic] in good academic standing with Purdue.” Appellant’s Appendix at 14. The

court further found:

       [Daughter] received a failing grade in the Fall, 2013 semester, having been
       discovered to have plagiarized the work of fellow students. [Daughter]
       readily admitted at the hearing that plagiarism was a violation of Purdue’s
       rules and policies and the “F” she received (when she appeared on track for

                                              6
       a better than passing grade) was a disciplinary action. This behavior is
       clearly the type she was put on notice as having the potential to relieve Father
       of an obligation to contribute to the cost of her college education.

Id. at 14-15.

       On March 7, 2014, Mother filed a motion to correct errors, in which she argued that

characterizing the response to Daughter’s actions as a “disciplinary action” was incorrect,

that, according to Purdue University’s regulations, plagiarism is an example of academic

dishonesty, that Daughter “never faced a case of alleged academic dishonesty,” and that

Daughter “was punitively graded.” Id. at 48-49. Mother also sought clarification as to

“when Father’s requirement to contribute to [Daughter’s] post-secondary educational

expense ended.” Id. at 53. Mother attached exhibits to her motion which included, among

other documents, Purdue University’s Regulations Governing Student Conduct,

Disciplinary Proceedings, and Appeals, a Purdue Dean of Students document titled

“Academic Integrity: A Guide for Students,” a copy of Daughter’s college transcript, and

Daughter’s Spring 2014 tuition bill. Id. at 105.

       On March 20, 2014, the court held a hearing on Mother’s motion to correct errors.

Mother’s counsel argued in part that the court had been unclear as to “whether the cessation

of Father’s contributions is just for the semester of spring 2014 or . . . the rest of

[Daughter’s] education.” Transcript at 34. Mother’s counsel further requested clarification

as to whether “ceasing Father’s contribution” would have “any sort of retroactive . . .

implementation.” Id. at 35. Mother’s counsel also argued that “Father owes those monies

for the spring semester that were due prior to the petition or prior to the order . . . .” Id.



                                               7
         On March 24, 2014, the court denied Mother’s motion to correct errors. The court

found:

         No error was committed in determining that the commission of this act by
         [Daughter], having been put on notice by the Court as to what was expected
         of her as a college student to secure Father’s obligation to contribute
         financially to the cost of her education, warranted relieving Father of this
         duty.

Appellant’s Appendix at 11. The court stated that it “affirms its decision and adds the

following clarification: Father’s obligation to contribute to [Daughter’s] college

educational expenses ends with the cost of the fall 2013 semester.” Id. at 12.

                                       DISCUSSION

         The issue is whether the trial court erred in entering its February 7, 2014 order

terminating Father’s post-secondary educational support obligation for Daughter and

denying Mother’s motion to correct errors. We generally review rulings on motions to

correct error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919

N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC v. Holmes, 885

N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. An abuse of discretion occurs if the trial

court’s decision is against the logic and effect of the facts and circumstances before it, or

the reasonable inferences drawn therefrom. Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind.

Ct. App. 2008), reh’g denied.

         “We place a ‘strong emphasis on trial court discretion in determining child support

obligations’ and regularly acknowledge ‘the principle that child support modifications will

not be set aside unless they are clearly erroneous.’” Lea v. Lea, 691 N.E.2d 1214, 1217

(Ind. 1998) (quoting Stultz v. Stultz, 659 N.E.2d 125, 128 (Ind. 1995)). “Findings are

                                              8
clearly erroneous only when the record contains no facts to support them either directly or

by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly

erroneous if it relies on an incorrect legal standard. Menard, Inc. v. Dage-MTI, Inc., 726

N.E.2d 1206, 1210 (Ind. 2000), reh’g denied. We give due regard to the trial court’s ability

to assess the credibility of witnesses. Id. While we defer substantially to findings of fact,

we do not do so to conclusions of law. Id. We do not reweigh the evidence; rather we

consider the evidence most favorable to the judgment with all reasonable inferences drawn

in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).

       Mother contends that the court erred in ordering that Father was no longer obligated

to pay for Daughter’s educational expenses. Mother argues that the failing grade Daughter

received in the course was not a disciplinary proceeding as defined in Purdue University’s

regulations or discipline as that term is commonly defined. Mother further claims that,

when the court relieved Father from his obligation to pay for Daughter’s educational

expenses, the result was punitive, unduly harsh, and inconsistent with the purposes of the

state’s educational support provisions.

       Father maintains that a punitive grade is a disciplinary action pursuant to Purdue’s

regulations and that Daughter was subject to an informal disciplinary action. He further

argues that, contrary to Mother’s claim, the trial court was not required to consider Purdue

University’s regulations when it first drafted the July 30, 2012 order. Father argues the

trial court properly enforced its order and that courts have the authority to set minimal

levels of acceptable behavior for college-age children receiving educational support. In

her reply brief, Mother argues that the steps the instructor took in response to Daughter’s

                                             9
actions were neither formal nor informal discipline, and she notes that Daughter was given

the opportunity to retake the class.

       The modification of a child support order is governed by Ind. Code § 31-16-8-1,

which provides:

       a)     Provisions of an order with respect to child support or an order for
              maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5-9(c) before
              their repeal) may be modified or revoked.

       b)     Except as provided in section 2 of this chapter, modification may be
              made only:

              1)     upon a showing of changed circumstances so substantial
                     and continuing as to make the terms unreasonable; or

              2)     upon a showing that:

                     (A)    a party has been ordered to pay an amount
                            in child support that differs by more than
                            twenty percent (20%) from the amount
                            that would be ordered by applying the
                            child support guidelines; and

                     (B)    the order requested to be modified or
                            revoked was issued at least twelve (12)
                            months before the petition requesting
                            modification was filed.

       We first note that a child support order and an educational expense order are separate

and distinct. Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007) (citing Sutton v.

Sutton, 773 N.E.2d 289, 294 (Ind. Ct. App. 2002) (educational expenses are addressed

separately from child support)), reh’g denied. Ind. Code § 31-16-6-2 governs educational

support and provides that an educational support order may include amounts for the child’s

education in institutions of higher learning. Ind. Code § 31-16-6-2(a) provides the support


                                             10
order may include amounts at post-secondary education institutions, “taking into account:

. . . the child’s aptitude and ability . . . .”

        “Although a parent is under no absolute legal duty to provide a college education

for his children, a court may nevertheless order a parent to pay part or all of such costs

when appropriate.” Gilbert v. Gilbert, 777 N.E.2d 785, 793 (Ind. Ct. App. 2002). Indiana

Child Support Guideline 8, under subsection b, provides in part that “[i]t is discretionary

with the court to award post-secondary educational expenses and in what amount” and that,

“[i]n making such a decision, the court should consider post-secondary education to be a

group effort, and 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.” Subsection b also

provides that “[t]he court should require that a student maintain a certain minimum level

of academic performance to remain eligible for parental assistance and should include such

a provision in its order.” See also Deckard v. Deckard, 841 N.E.2d 194, 202 n.6 (Ind. Ct.

App. 2006) (“We encourage trial courts to set a minimum level of academic performance

when appropriate. However, whether a minimum grade point average is appropriate and,

if so, the precise level of that grade point average, should be determined on a case-by-case

basis.”).

        We further note that court orders for the payment of college expenses are modifiable

because college expenses are in the nature of child support. Schacht v. Schacht, 892 N.E.2d

1271, 1275 (Ind. Ct. App. 2008). Support orders, including orders to pay post-secondary

expenses, may be modified even if the order is the result of an agreement between the



                                                  11
parties. Walters v. Walters, 901 N.E.2d 508, 511 (Ind. Ct. App. 2009) (citing Meehan v.

Meehan, 425 N.E.2d 157, 160 (Ind. 1981)).

       In this case, the record reveals that the dissolution decree incorporated an agreement

of the parties which established in part that Father would pay for one-third of Daughter’s

expenses for her college education. The court later modified its order to condition Father’s

educational support obligation on Daughter “maintaining a grade point average of 2.1 and

not being placed on probation or being subject to any disciplinary action for violation of

school rules or policies.” Appellant’s Appendix at 38. Daughter copied three comments

from other students in completing an assignment for an online course. The instructor for

the course elected to give Daughter a failing grade for the course rather than report her to

the Dean of Students. According to Daughter, the instructor elected this route because

Daughter “was doing well in the course and the plagiarism was minimal . . . .” Transcript

at 19. Clearly, the F she received was a disciplinary action for plagiarism.

       The fact that the instructor and University did not pursue a formal action against

Daughter is not dispositive. The court found that Daughter’s behavior was “clearly the

type she was put on notice as having the potential to relieve Father of an obligation to

contribute to the cost of her college education.” Appellant’s Appendix at 14-15. In

addition, the evidence includes an exhibit, submitted by Mother and titled “Academic

Integrity: A Guide for Students,” published by Purdue University’s Dean of Students, that

provided:

       CONSEQUENCES FOR ACADEMIC DISHONESTY
       Before any formal action is taken against a student who is suspected of
       committing academic dishonesty, the instructor is encouraged to meet with

                                             12
       the student to discuss the facts surrounding the suspicions. If the instructor
       concludes that the student is guilty, the matter may be resolved with the
       student through punitive grading. . . .

Id. at 106. Daughter was subject to punitive grading in this case. We will not disturb the

court’s determination that Daughter was subject to a disciplinary action for the purpose of,

or as contemplated by, the court’s July 30, 2012 order.

       Based upon the record and Support Guideline 8, and keeping in mind that we place

a strong emphasis on trial court discretion in determining child support obligations, we

cannot say that the trial court erred or abused its discretion in terminating Father’s

educational support obligation related to Daughter.

                                     CONCLUSION

       For the foregoing reasons, we affirm the trial court’s February 7, 2014 order and its

denial of Mother’s motion to correct errors.

       Affirmed.

BRADFORD, J., concurs.

BARNES, J., concurs with separate opinion.




                                               13
                              IN THE
                    COURT OF APPEALS OF INDIANA

LARRACUENTA R. PANFIL,                            )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )    No. 71A04-1404-DR-183
                                                  )
RALPH E. FELL,                                    )
                                                  )
       Appellee-Respondent.                       )


BARNES, Judge, concurring with separate opinion

       I write separately to concur with the outcome here, but I do so reluctantly and

begrudgingly. The fact is K.F. was disciplined by her professor pursuant to Purdue’s

academic guidelines. However, this transgression, while not insignificant, does not, in my

opinion, rise to the level of an offense that should serve to sever one’s educational support

obligation. Unfortunately for K.F., however, it does so because of the broad wording of

the trial court’s 2012 order and K.F.’s conduct, which she does not dispute. Although

Father’s apparent exuberance to get out from underneath his support obligation is

troublesome, I must agree with the majority that the result is legally mandated, but

practically repugnant.




                                             14
