      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                            Mar 16 2016, 8:53 am
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Katherine A. Sall-Matthews                              Bryan M. Truitt
      Law Office of Martin R. Ulferts &                       Bertig & Associates, LLC
      Associates                                              Valparaiso, Indiana
      Michigan City, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jeffery L. Nelson,                                      March 16, 2016
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              64A03-1506-DR-698
              v.                                              Appeal from the Porter Superior
                                                              Court
      Lorri M. Nelson, n/k/a Lorri M.                         The Honorable Roger V. Bradford,
      Miller                                                  Judge
      Appellee-Respondent.                                    The Honorable Mary A. DeBoer,
                                                              Magistrate
                                                              Trial Court Cause No.
                                                              64D01-1007-DR-7158



      Mathias, Judge.


[1]   Jeffery L. Nelson (“Father”) appeals the judgment of the Porter Superior Court

      ordering him to pay one-third of the college expenses incurred by his son, Cody

      Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 1 of 14
      Nelson (“Son”) and ordering him to pay $649.35 in attorney fees to his ex-wife,

      Lorri M. Miller (“Mother”). Father presents two issues for our review, which

      we restate as: (1) whether the trial court clearly erred in finding that Son had

      not repudiated his Father, and (2) whether the trial court abused its discretion in

      ordering Father to pay a portion of Mother’s attorney fees.


[2]   We affirm.

                                    Facts and Procedural History

[3]   Mother and Father were married in February 1998 and had one child, Son,

      who was born in August 1995. When Son was fifteen years old, he and his

      girlfriend were watching a mixed martial arts competition along with Mother

      and Father. Father began to tickle Son’s girlfriend, which prompted Son to

      playfully get his father into a wrestling hold. Son was unaware that he was

      actually choking Father. Mother told Son to let Father out of the hold, which

      he did. Father, who had been drinking, grabbed Son by the throat, pinned him

      against the wall, and said, “If you ever do that to me again, I’ll f**king kill

      you.” Tr. Vol. 1, p. 17.

[4]   Some time thereafter, on July 13, 2010, Mother filed a petition to dissolve her

      marriage with Father. The trial court’s provisional order placed restrictions on

      Father’s parenting time with Son due to Father’s continued use of alcohol.

      Father refused to quit drinking and never exercised any parenting time under

      the provisional order. During the dissolution proceedings, when Son was fifteen

      years old, Father asked Son to take a paternity test. This made Son feel as if


      Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 2 of 14
      Father did not want him as a child, but Son took the paternity test, which

      proved that he was Father’s biological child. When later asked why he asked

      Son to take a paternity test, Father explained, “I don’t feel I should be known as

      a paycheck.” Tr. Vol. 1, p. 51.

[5]   The parties participated in arbitration, which resulted in a recommended order

      being issued by the arbitrator and accepted by the trial court. This order noted

      that Father had not exercised his right to parenting time under the provisional

      order and therefore “there should be no visitation or parenting time pursuant to

      the Indiana Parenting Time Guidelines under the circumstances.” Appellant’s

      App. p. 10.

[6]   Subsequent to this order, Father made little effort to contact Son. He did not

      exercise any parenting time or petition the trial court to award him parenting

      time. Although Son played multiple sports while in high school (basketball,

      volleyball, track, and soccer), Father attended only two of Son’s basketball

      games after the divorce and attended none of the other sporting events. When

      Father did attend the basketball games, he sat on the side of the visiting team

      and did not speak with Son.

[7]   Although he knew Son’s mobile phone number, Father’s last call to his son was

      in 2012. Father sent Son one text on his birthday after the separation, but

      thereafter, Father has not sent Son a birthday card, birthday present, Christmas

      card, or Christmas present. In fact, following the divorce, Father had seen Son a

      total of five times. Two of these times were at the sporting events mentioned


      Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 3 of 14
       above, when he had no personal contact with Son. Another was a random

       encounter in a Subway restaurant, in which Father left without speaking to

       Son. Another encounter took place at Bass Lake when Son was sixteen years

       old. Father told Son to shake his hand “like a man” if he did not want to see

       Father again. Tr. Vol. 1., p. 60. Son shook Father’s hand.


[8]    The other encounter between Father and Son took place in the ICU of a

       hospital when Father’s own father had emergency heart surgery. Son has

       maintained a close relationship with his paternal grandparents and went to see

       his grandfather. Father, however, has been estranged from his parents since the

       divorce because he believes that they “sided” with his ex-wife. Tr. Vol. 1, p. 48.

       Father and Son spoke briefly, but politely, at the hospital. Father then went to

       another area of the ICU and made no further attempts to speak with Son.


[9]    Mother and Son invited Father to Son’s high school graduation and held the

       graduation party at a neutral site so that Father would feel welcome to come.

       Father did attend the graduation ceremony but left after Son’s name was

       announced and did not speak with Son. He also failed to attend the graduation

       party.

[10]   After high school, Son began to attend Indiana University in Bloomington.

       Father’s child support obligation terminated when Son turned nineteen.1




       1
        See Ind. Code § 31-16-6-6(a) (providing generally that “[t]he duty to support a child under this chapter,
       which does not include support for educational needs, ceases when the child becomes nineteen (19) years of
       age.”).

       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016       Page 4 of 14
       Thereafter, on May 13, 2014, Mother filed a petition requesting that Father be

       required to pay for a portion of Son’s college expenses. On September 3, 2014,

       Father filed a response to Mother’s petition in which he argued that he should

       not be required to contribute to Son’s college expenses because Son had

       repudiated his relationship with Father. The trial court held a hearing on the

       issue of repudiation on October 31, 2014, at which the prior deposition of Son

       was admitted into evidence.


[11]   In his deposition, Son emotionally and repeatedly stated that he wanted a

       relationship with his Father but that he felt as if Father wanted nothing to do

       with him. During cross-examination, Father’s counsel attempted to contest the

       sincerity of Son’s claims by asking if he would be willing to meet with Father

       that very day after the deposition. Son readily agreed, and Son met Father for

       lunch at a nearby restaurant after the deposition. However, Father took his

       girlfriend with him to act as a “witness.” Tr. Vol. 1, p. 53.


[12]   After the repudiation hearing, the trial court issued an order that same day

       finding that Son had not repudiated his relationship with Father. This order

       provided in relevant part:

               5.    On May 13, 2014, Mother filed a Petition for Modification
                     to address [Son]’s plans to attend Indiana University-
                     Bloomington.
               6.    On August 28, 2014, Mother filed an Amended Petition to
                     Modify and for Educational Support.




       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 5 of 14
        7.    Since the filing of Mother’s petitions, Father has been
              sending his child support obligation to his attorney to be
              held in trust until this matter could be ruled on by the Court.
        8.    [Son] turned nineteen years of age and Father’s obligation to
              pay child support terminated on August 31, 2014 and [Son]
              is emancipated as a matter of law.
        9.    Mother filed her petition seeking post-secondary education
              costs prior to [Son] turning 21 years of age.
        10. Father has raised the issue of repudiation. Therefore, the
            Court conducted a hearing on that issue alone prior to
            entering further Orders relating to Mother’s petitions.
        11. Father argues that [Son]’s failure to engage in contact with
            Father should relieve him of his legal duty to contribute to
            [Son]’s post-secondary education expenses.
        12. The Indiana Court of Appeals has held that a child’s
            repudiation of a parent—under certain circumstances—will
            obviate a parent’s obligation to pay for some expenses, such
            as college expenses. Staresnick v. Staresnick, 830 N.E.2d 127
            (2005).
        13. Repudiation becomes an issue when a child demonstrates a
            complete refusal to participate in a relationship with a
            parent.
        14. In this Cause, Father was initially limited in his ability to
            exercise parenting time with his son because of the Court’s
            concern with Father’s use of alcohol. However, the Court
            did not eliminate Father’s ability to engage in a relationship
            with [Son]. Father was only limited by not having overnight
            parenting time and by not being permitted to drink alcohol
            while [Son] was with him.
        15. However, between the entry of the Court’s Provisional
            Order on July 27, 2010 and the entry of the Decree on
            September 21, 2011, Father apparently opted to have no
            parenting time with [Son] which prompted the arbitrator to


Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 6 of 14
              deny Father parenting time until such time as their
              relationship could get back on track somehow.
        16. Father states that he could not afford to hire counsel to file
            contempt actions against Mother related to his lack of
            parenting time with [Son]. The Court finds that position
            weak at best. Father has always been free to file a pro se
            motion for modification of parenting time had he so chosen
            and which would have been no cost to him.
        17. It is clear to the Court that [Son] has been emotionally hurt
            by Father’s actions before and during the dissolution and by
            his lack of actions following the Decree.
        18. Unfortunately, Father does not seem to fathom how much
            his actions—threatening to f—g kill [Son] or requiring [Son]
            to take a paternity test to prove to Father he is in fact [Son]’s
            biological father—damaged his relationship with his son.
            Instead, Father opts to play the victim and throws up his
            hands with the attitude that “he knows where to find me.”
        19. This Court is not at all convinced that [Son], even when
            things were at their worst, would not have come around to
            the idea of rekindling his relationship with Father if Father
            had made even the slightest effort with [Son] himself rather
            than interjecting others into the equation.
        20. Father seems to place fault at Mother’s feet for not assisting
            him in his attempt to exercise parenting time. The Court
            does not consider Mother’s directive to Father to “fix things
            with [Son] yourself” to constitute her impeding Father’s
            ability to engage in a relationship with [Son].
        21. Father recruiting his girlfriend, who [Son] did not even
            know, to engage in a text dialogue with [Son] to encourage
            Father having parenting time was similarly misplaced.
            Father could have and should have communicated with
            [Son] directly.
        22. Father wants this Court to buy into the idea that [Son]
            washed his hands of him permanently because [Son]—at

Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 7 of 14
                      age 16 and during the most contentious period of the parties’
                      divorce—told Father he was not willing to have a
                      relationship with him at that time. The Court is not willing
                      to do so.
               23. The Court questions where the Father and [Son] could have
                   been had Father taken one simple step—to offer [Son] an
                   apology. Unfortunately, Father paints himself as the
                   “checkbook” or “paycheck” rather than making constructive
                   efforts to mend what he helped break.
               24. Ultimately, it is this Court’s hope that Father and [Son] find
                   a way back into each other’s lives. The lunch they shared
                   following [Son]’s deposition appeared to be a step in the
                   right direction. However, Father may have to abandon his
                   suspiciousness and need for witnesses to be present to enjoy
                   true quality time getting to know his now adult son again.
               25. The Court finds that [Son] did not repudiate his relationship
                   with Father and Father shall contribute to [Son]’s college
                   expenses.

       Appellant’s App. pp. 31-35.2


[13]   On May 20, 2015, the trial court held a hearing on the issue of the allocation of

       Son’s college expenses. The following day, the court entered an order requiring

       Mother, Father, and Son to each be responsible for one-third of Son’s college




       2
         Father filed a motion to correct error on November 24, 2014, which the trial court denied without a hearing
       on December 11, 2014. However, the order on the issue of repudiation was not a final order since the actual
       issue of the allocation of Son’s college expenses had not yet been decided by the trial court. Therefore,
       Father’s motion to correct error should have been treated as a motion to reconsider. See Keck v. Walker, 922
       N.E.2d 94, 98 (Ind. Ct. App. 2010) (noting that a motion to correct error filed after a non-final order was
       considered to be a motion to reconsider); see also Hubbard v. Hubbard, 690 N.E.2d 1219, 1220-21 (Ind. Ct.
       App. 1998) (considering motion to reconsider filed after final order to be a motion to correct error).

       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016         Page 8 of 14
       expenses. The court also ordered Father to pay $649.35 in attorney fees to

       Mother. Father now appeals.

                                               I. Repudiation

[14]   Father first argues that the trial court erred in determining that Son had not

       repudiated his relationship with Father. Indiana law provides that a court may

       enter an educational support order for a child’s education at a post-secondary

       educational institution. Kahn v. Baker, 36 N.E.3d 1103, 1112 (Ind. Ct. App.

       2015), trans. denied. However, repudiation of a parent by a child is recognized as

       a complete defense to such an order. Id. (citing McKay v. McKay, 644 N.E.2d

       164, 166 (Ind. Ct. App. 1994)). Repudiation is defined as a 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

       must be allowed to 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.


[15]   Here, the trial court found that Son did not repudiate Father. Upon review of

       such a finding, we neither reweigh the evidence nor assess the credibility of

       witnesses, but consider only the evidence most favorable to the judgment.

       Norris, 833 N.E.2d at 1032-33. The trial court’s findings and conclusions will be


       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 9 of 14
       set aside only if they are clearly erroneous, that is, if the record contains no facts

       or inferences supporting them. Id.


[16]   Considering only the evidence that supports the trial court’s decision, we

       cannot say that the trial court’s decision is clearly erroneous. To the contrary,

       the trial court’s decision is grounded in the fact that, after the divorce, Father

       made little to no effort to contact his son or have anything to do with him.

       Although there was evidence that, soon after the divorce, Son had little desire

       to see Father, this was when Son was still a minor. See Kahn, 36 N.E.3d at 1112

       (noting that repudiation occurs when an adult child of a party expresses a

       complete refusal to participate in a relationship with the parent). Indeed, much

       of Father’s claim centers on the incident at the lake where Son, who was sixteen

       at the time, shook Father’s hand. However, this was in response to Father’s

       own request to Son to shake his hand if he did not desire to see Father. We

       decline to consider an obviously emotional response by a teenager as conclusive

       proof that Son wanted nothing to do with Father. To the contrary, there was

       evidence that Father’s lack of contact with Son was emotionally upsetting to

       Son. Son believed that Father thought he was not “good enough” for Father,

       and wept during the deposition when asked why he thought Father did not

       want to see him. Moreover, Son clearly stated during the deposition that he did

       want a relationship with Father.

[17]   In contrast, Father had not telephoned or sent a text message to Son since 2012,

       sent him no birthday cards or presents, and sent no Christmas cards or presents.

       He came to only two athletic events, sat on the opposing team’s side, and did

       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 10 of 14
       not speak with Son afterwards. He did not exercise his parenting time under the

       provisional order and did not petition the trial court for parenting time

       following the divorce. He did not speak with Son after his graduation ceremony

       and did not attend the graduation party even though it was held at a neutral site

       to encourage his attendance. When he saw Son at a restaurant, he left without

       speaking to him. When Son agreed to meet Father immediately after the

       deposition, Father brought his girlfriend as a “witness.”


[18]   Father refers to evidence which does not support the trial court’s decision, such

       as his texting Mother to attempt to facilitate communication with Son. Mother

       responded that Father needed to contact Son himself. Father also points to a

       text message sent to Mother in which Son referred to Father as a “piece of shit”

       and Father’s girlfriend as a “bitch.” Appellant’s App. p. 48. However, this was

       shortly after the divorce, when Son was still a relatively young teenager. It was

       also in response to Father having his girlfriend attempt to contact Son, instead

       of contacting Son himself. More importantly, on appeal, we may not consider

       the evidence that does not favor the trial court’s judgment.


[19]   In short, the evidence favorable to the trial court’s judgment is sufficient to

       support the trial court’s conclusion that Son did not repudiate his relationship

       with Father. To the contrary, Father did almost nothing to repair his broken

       relationship with Son and now seeks to cast the blame on Son, who testified

       that he did want a relationship with Father. We therefore conclude that the trial

       court did not clearly err in concluding that Son did not repudiate his

       relationship with Father.

       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 11 of 14
[20]   Father’s citation to McKay, supra, is unavailing. In that case, the father had

       attempted to reconcile with his son, but the son rejected any such attempts by

       his father. 644 N.E.2d at 168. The father in McKay also sought the assistance of

       the courts in his attempts to reconcile with his son. Id. Also, the son testified

       that he had no interest in a relationship with his father and that nothing could

       be done to change his mind in this regard. Id. Therefore, in McKay, the court

       noted that “Father has stood with open arms to reestablish a father-son

       relationship with [son]. [Son], on the other hand, has rejected Father’s

       invitation and has instead obtained a court order requiring Father to stand with

       outstretched, open wallet.” Id. This is in stark contrast to the present case where

       Father did little to reconcile with Son and did not seek the trial court’s

       assistance in establishing visitation. Nor did Son reject Father as in McKay;

       instead, Son testified that he did want a relationship with Father.


[21]   We fully agree with the trial court that Son has not repudiated Father. To

       condone a finding of repudiation under these facts and circumstances would be

       to reward Father for his stubborn, angry, and immature behavior. However, we

       also hope, as did the trial court, that Father and Son can join each other on a

       path towards full reconciliation.

                                             II. Attorney Fees

[22]   Father also claims that the trial court erred in ordering him to pay $649.35 in

       attorney fees to his Mother. The award of attorney fees is committed to the

       sound discretion of the trial court. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.

       Ct. App. 2003). Thus, “in the absence of an affirmative showing of error or
       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 12 of 14
       abuse of discretion we must affirm the trial court’s order.” Campbell v. El Dee

       Apartments, 701 N.E.2d 616, 622 (Ind. Ct. App. 1998). Indiana follows the

       American Rule, whereby parties are required to pay their own attorney fees

       absent an agreement between the parties, statutory authority, or other rule to

       the contrary. Smyth v. Hester, 901 N.E.2d 25, 32 (Ind. Ct. App. 2009).


[23]   The trial court here appears to have awarded fees pursuant to Indiana Code

       section 34-52-1-1(b), which provides that a trial court in a civil case may award

       attorney fees to the prevailing party if the court finds that a party: (1) “brought

       the action or defense on a claim or defense that is frivolous, unreasonable, or

       groundless,” (2) “continued to litigate the action or defense after the party’s

       claim or defense clearly became frivolous, unreasonable, or groundless,” or (3)

       “litigated the action in bad faith.”


[24]   A claim is frivolous if it is taken primarily for the purpose of harassing or

       maliciously injuring a person, if the lawyer is unable to make a good faith and

       rational argument on the merits of the action, or if the lawyer is unable to

       support the action taken by a good faith and rational argument for the

       extension, modification, or reversal of existing law. Smyth, 901 N.E.2d at 33. A

       claim is unreasonable if, based on a totality of the circumstances, including the

       law and facts known at the time of the filing, no reasonable attorney would

       consider that the claim or defense was worthy of litigation. Id. A claim is

       groundless if no facts exist which support the legal claim relied on and

       presented by the losing party. Id. Of course, a claim or defense is not groundless

       or frivolous merely because the party loses on the merits. Id.

       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 13 of 14
[25]   Here, we cannot say that the trial court abused its discretion in concluding that

       Father’s claim that Son had repudiated their relationship was either groundless

       or frivolous. There was a complete dearth of evidence indicating that Son had

       repudiated his relationship with Father, especially after he reached the age of

       eighteen. Instead, the evidence showed that Father had made only a few small

       attempts to have any contact with his Son.The evidence shows that Son did

       want a relationship with Father, and that the reason for the breakdown in the

       relationship was almost exclusively due to Father’s actions and inaction. Under

       these facts and circumstances, the trial court did not abuse its discretion in

       awarding Mother $649.35 in attorney fees.

                                                  Conclusion

[26]   The trial court did not clearly err in concluding that Son did not repudiate his

       Father, nor did the trial court abuse its discretion in awarding Mother $649.35

       in attorney fees to counter Father’s groundless claim of repudiation.

[27]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 64A03-1506-DR-698 | March 16, 2016   Page 14 of 14
