Michael James Tollar v. Saige Marie Swank (mem. dec.) ( 2018 )

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.
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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
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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.
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[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
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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.
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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.
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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.
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