Shari (Ellis) Lovold v. Clifford Scott Ellis , 2013 Ind. App. LEXIS 190 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM A. GOEBEL MONTY K. WOOLSEY
Goebel Law Office JONATHAN R. DEENIK
Crawfordsville, Indiana Cross, Pennamped, Woolsey & Glazier, P.C.
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA Apr 26 2013, 9:28 am
SHARI (ELLIS) LOVOLD, )
)
Appellant/Cross-Appellee, )
)
vs. ) No. 54A01-1209-DR-410
)
CLIFFORD SCOTT ELLIS, )
)
Appellee/ Cross-Appellant. )
APPEAL FROM THE MONTGOMERY SUPERIOR COURT
The Honorable Justin H. Hunter, Special Judge
Cause No. 54D01-0301-DR-00015
April 26, 2013
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Shari (Ellis) Lovold (“Mother”) appeals the trial court’s order denying her request for
contribution from Clifford Ellis (“Father”) towards the college expenses of their son, C.E.
She raises the issue of whether the trial court abused its discretion by finding that C.E.
repudiated his relationship with Father. On cross-appeal, Father appeals the trial court’s
order modifying child support. He raises the issue of whether the trial court erred in its child
support calculation by requiring him to pay child support for the time C.E. lived on campus.
Concluding that the trial court did not abuse its discretion with regard to the repudiation
finding but that it erred in the child support calculation, we affirm in part, reverse in part, and
remand.
Facts and Procedural History
Father and Mother were divorced in 2003. Mother was granted custody of C.E., who
was eleven years old at the time, and Father was granted reasonable visitation and ordered to
pay child support. In 2004, child support was modified to $150 per week. Father
consistently paid child support throughout the years.
In 2011, Mother filed a petition for contribution to post-secondary education expenses
against Father. In turn, Father filed a petition for emancipation and for modification of child
support. Mother later filed her own petition to modify child support.1 Mother agreed that
she would not file an affidavit for contempt if Father paid $60 per week in child support
while C.E. was away from home for college until the court issued its ruling on the motions.
1
Both parties also filed affidavits for contempt. However, the trial court’s ruling on those affidavits is
2
A hearing was conducted on November 16, 2011, an in camera interview took place
with C.E. on November 23, 2011, and, several months later, after Father filed a verified
motion to re-open evidence and request for hearing, a second hearing took place on May 17,
2012. On June 26, 2012, the trial court issued its order denying Mother’s request for
contribution to post-secondary education expenses because it found C.E. had repudiated his
relationship with Father. The trial court based its repudiation finding, in pertinent part, on
the following findings of fact:
3. The October 27, 2004 Order directed the parties to attend one counseling
session with the minor child to attempt to work out any differences, to
reinstitute a positive parenting time experience for the minor child, and
improve communication between the parties. Mother, as the custodial
parent, has never scheduled this ordered counseling session.
4. Father exercised post-Decree visitation with [C.E.] for approximately nine
months, though parenting time exchanges became increasingly more hostile
and difficult over time. [C.E.] was having difficulty adjusting to the post-
divorce changes, including parenting time and a new Step-Mother.
5. This culminated during a visit on March 31, 2004, during which [C.E.] began
crying and told his Father that he wanted to go home. Father complied and,
at the exchange, he told [C.E.], in the presence of his Mother, “If you want
to see me, call me, you know where I am”. [C.E.] agreed this is basically
what happened.
6. Father has not seen [C.E.] for more than eight years. After the divorce,
Mother moved in with her mother. Then, after the 2004 Order was entered,
she moved again without providing Father her and [C.E.]’s new address and
contact information despite Father’s repeated unanswered calls requesting
this information. Neither Mother nor [C.E.] communicated with Father
about anything during the past 8 years and Father has been precluded from
doing so with them by their failure to respond.
7. Father was surprised to learn for the first time, in Court, that [C.E.] has
undergone eleven surgeries over time for his congenital cleft palate. Mother
never advised him of this. [C.E] has never sent a Father’s Day or birthday
card to his Father nor has he ever called him to say hello or to wish him well
on special occasions, despite knowing Father’s address and contact
not at issue on appeal.
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information. Father did not see [C.E.] at either of the funerals for [C.E.]’s
paternal grandparents.
8. Father has not been kept abreast of [C.E]’s grades, activities, or his progress
during the past seven years. As of the hearing on 11/16/11, Father still had
not received any contact information for [C.E.], required by the Decree, the
Order on October 27, 2004 and the Parenting Time Guidelines.
9. Although [C.E.] turned 18 in May, 2010, he has continued to choose not to
communicate with his Father or send him a single card, call him, or
otherwise treat him as his Father. [C.E.] confirmed that he saw his Father at
a Culver’s restaurant, where [C.E.] worked, but that he chose not to
approach him or talk to him, even though [C.E.] was not working at the
time. Instead, [C.E.] walked the other way.
10. Despite Father’s willingness for years to maintain a relationship with
[C.E.], all [C.E.] appears to be requesting is his Father’s payment of college
expenses. At the same time, neither [C.E.] nor his Mother ever discussed
with Father the college [C.E.] would attend, nor how it will be paid (though
it appears [C.E.] could have accepted financial aid covering almost all of his
expenses).
11. During the In Camera interview on November 23, 2011, [C.E.] told the
Court he is interested in having a relationship with his Father. This rings
hollow and is highly suspect in light of the one and one-half years that had
then passed since [C.E.] turned 18, and the prior five and one-half years,
without any attempts by [C.E.] to visit his Father. This purported change of
heart by [C.E.] appears chiefly motivated by the fact Mother is now
requesting Father to pay [C.E.]’s college expenses and because [C.E.] is
likely aware of the consequences that follow a finding of repudiation. [C.E]
testified on May 17, 2012, that he had spoken with Mother’s Counsel prior
to coming to Court.
12. [C.E.]’s professed desire to now have a relationship with his Father also
rings hollow in light of what transpired after the In Camera Interview.
13. On December 6, 2011, Father was advised by his counsel that the Judge
relayed to Counsel what transpired during the In Camera Interview and that
[C.E.] expressed a desire to have a relationship with his Father. As a result,
Father sent a certified letter to Mother requesting contact information.
14. Because Mother never responded to Father, his Counsel sent an e-mail to
Mother’s Counsel on December 20th requesting the same information. On
January 3, 2012, Mother’s counsel advised, by e-mail, that since [C.E.] is 19
years old, Mother feels she should step out of this matter and allow [C.E.] to
communicate directly with Father and that Mother had given [C.E.] Father’s
request for contact information.
15. Despite this, [C.E.] did not provide contact information to his Father until
January 2, 2012, when he also advised that he is home on some weekends.
4
[C.E.]’s college, ISU, is only about an hour away from his Father’s
residence, but he has been unable to manage to spend any time with his
Father, even over his extended break during Christmas.
16. [C.E.] testified during the hearing on May 17, 2012, that he did not contact
his Father after the November 23, 2011 In Camera interview until January 2,
2012, because he did not want to meet with his Father until a decision was
first entered by the Judge.
17. [C.E.] testified that he was home on 5 different weekends during the second
semester. In contradiction, he also testified that he has not been able to
arrange contact with his Father because he was too busy with his part-time
work, starting up a fraternity, his studies, school projects, and other stuff.
Though Father was not informed, as usual, a statement from his medical
insurance provider covering [C.E.] shows that [C.E.] was home for a doctor
appointment on December 22, 2011.
18. A review of the multiple e-mails between Father and [C.E.] from January 4
through February 26, 2012, establish that Father did arrange on several
occasions to meet and have contact but [C.E.] always ultimately had an
excuse, after the fact, for not having been able to do so, even after having
agreed to the arrangements made by his Father. They also establish that
[C.E.] was very vague in his e-mails, promising to “possibly meet this
weekend” while also advising that he would let his Father know when he
would be home and available to meet with him. This pattern was repeated
by [C.E.] over and over again. It is for this reason Father only found it
necessary to initiate the e-mails on three occasions.
19. Father testified that he did not respond to [C.E.]’s e-mails about spring
break (March 5-9) because by that time he had it with [C.E.]’s repetitive
false promises and excuses and he felt that “he had been played.”
20. As of the hearing on May 17, 2012, six months after telling the Judge he
wanted to have a relationship with his Father, [C.E.] still had not met with
his Father even one time. Despite Father’s wishes, he and [C.E.] have not
spent any time together since March 31, 2004.
21. [C.E.], as an adult child has voluntarily made choices about the priorities in
his life precluding him from purportedly being available to visit with his
Father. [C.E.] should been [sic] held accountable for the consequences of
his own actions.
Appellant’s Appendix at 18-23 (internal citations omitted).2 The trial court also addressed
the modification of child support issue in its order:
2
The trial court also noted that even if it had not found that C.E. repudiated his Father, it would
5
Attached is a worksheet using $2,308 per week as Father’s income and $330
per week for Mother . . . . This results in a child support obligation while
[C.E.] is in college in the amount of $177.46 per week. Mother has submitted a
worksheet showing her belief that [C.E.] will be home for 16 weeks out of the
year.
Id. at 26. Because the child support calculation of $177.46 did not significantly deviate from
the $150 ordered in 2004, the trial court did not modify child support.3
Father filed a motion to correct error. The only aspect of the trial court’s order he
challenged was the child support calculation. He did not dispute the court’s determination of
the parties’ incomes, but noted that while the trial court stated that C.E. would only be home
sixteen weeks out of the year in its order, the post-secondary education worksheet used in the
calculation actually included thirty-six as the number of weeks C.E. would be at home. In
light of the fact that Father had been paying only $60 per week since the time C.E. started
college, as agreed upon by the parties, he requested that the court correct this error to
preclude Mother from later claiming that Father owed her the difference between $150 and
$60 in arrearage. If the thirty-six weeks were changed to sixteen weeks, the resulting child
support calculation would be approximately $79 per week and Father would only owe the
difference between $79 and $60 in arrearage. Mother filed her own motion to correct error,
arguing that in light of the repudiation finding, the court should not have used a post-
secondary education worksheet. She proposed using a child support obligation worksheet
exercise its discretionary authority and deny the request for Father to contribute towards C.E.’s college
expenses under the facts of this case.
3
The court also found that the child support obligation terminated on July 1, 2012. Neither party takes
issue with this date.
6
and calculating child support as if C.E. would be home year round, which would result in a
child support calculation of $202.84 per week and an arrearage in the amount of $5,999.28
owed to her.4 The trial court issued an order denying Father’s motion to correct error and
granting Mother’s motion to correct error with regard to the child support calculation.
Mother now appeals and Father cross-appeals. Additional facts will be provided as
necessary.
Discussion and Decision
I. Standard of Review
A trial court’s decision to deny college expenses is reviewed for an abuse of
discretion. Boruff v. Boruff, 602 N.E.2d 180, 182 (Ind. Ct. App. 1992). A decision to grant
or deny a motion to correct error and decisions regarding child support, such as modification
of child support, are also reviewed for an abuse of that discretion. Bales v. Bales, 801
N.E.2d 196, 198 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion occurs when a
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. Id. When reviewing a decision for an abuse
of discretion, we consider only the evidence and reasonable inferences favorable to the
judgment. Id.Also, when a trial court enters findings of fact and conclusions of law, we determine
whether the evidence supports the findings, and whether the findings support the judgment.
4
This sum is the difference between $202.84 and $60 over the course of forty-two weeks—from
September 16, 2011, (the date Father started paying the reduced amount of $60) until July 1, 2012, (the date
the court found child support terminated).
7
Freese v. Burns, 771 N.E.2d 697, 700 (Ind. Ct. App. 2002), trans. denied. The appellant must
establish that the trial court’s findings are clearly erroneous. Id. at 701. Findings are clearly
erroneous when a review of the record leaves us firmly convinced a mistake has been made.
Id. However, we do not defer to conclusions of law, and a judgment is clearly erroneous if it
relies on an incorrect legal standard. Id.II. Repudiation
Indiana law provides that a court may enter an educational support order for a child’s
education at a post-secondary educational institute. Ind. Code § 31-16-6-2(a)(1).
Repudiation of a parent by the child, however, is recognized as a complete defense to such an
order. 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 Pennsylvania’s approach, 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.” Id. Repudiation
is defined as a complete refusal to participate in a relationship with the parent. Norris v.
Pethe, 833 N.E.2d 1024, 1033 (Ind. Ct. App. 2005). The focus should be on the child’s
behavior as an adult:
we certainly will not consider pre-majority attitudes and behavior, as we all
recognize that the maturity and restraint which can be expected of adults is not
appropriately applied to evaluate children. But to extend this parental amnesty
beyond the age of majority would be irresponsible.
By college age, children of divorced parents must be expected to begin
to come to terms with the reality of their family’s situation. They must begin to
realize that their attitudes and actions are their individual responsibilities.
8
Whatever their biases and resentments, while one can understand how they got
that way, when they become adults it is no longer appropriate to allow them to
stay that way without consequence.
McKay, 644 N.E.2d at 167 (quoting Milne v. Milne, 556 A.2d 854, 861 (Pa. Super. Ct.
1989), appeal denied, abrogated on other grounds by Blue v. Blue, 616 A.2d 628, 633 (Pa.
1992)). Thus, because the father in McKay had “stood with open arms” to reestablish a
relationship with his son, and all his son wanted was “a court order requiring Father to stand
with [an] outstretched, open wallet,” the court relieved the father of the responsibility of
contributing to his son’s college education. Id. at 168.
Mother challenges the trial court’s finding that C.E. repudiated his relationship with
Father. She claims the trial court relied on erroneous findings of fact. In essence, she argues
that it was Father who did not schedule a court ordered counseling session, it was Father who
refused to take Mother’s calls, and it was Father who failed to exercise his right to see C.E.
and not the other way around. This is essentially an attempt to re-argue her case and an
invitation for us to re-weigh the evidence, which we cannot do on appeal. See Staresnick v.
Staresnick, 830 N.E.2d 127, 131 (Ind. Ct. App. 2005). Even if there is evidence in the record
supporting her contentions, there is also evidence supporting the trial court’s findings in
favor of Father, and thus those findings are not clearly erroneous. We also note that Mother
only points to four allegedly erroneous findings, and does not contend that the remaining
findings are not supported by the evidence. The remaining findings of fact are sufficient to
support the trial court’s judgment.
9
A review of the evidence most favorable to the judgment in this case indicates that
after an unpleasant visit in 2004, when C.E. was eleven years old, Father did not see C.E. for
eight years. C.E. did not contact Father in any way nor did he inform him of his grades,
activities, or health issues. The trial court found that this behavior continued after C.E.
turned eighteen in May 2010. C.E. confirmed that he saw Father at a Culver’s restaurant but
chose not to approach him and walked the other way. C.E. did not discuss his plans to go to
college with Father. While C.E. claimed he was interested in having a relationship with
Father during the in camera interview, the trial court found that “[t]his rings hollow and is
highly suspect.” Appellant’s App. at 20. We cannot reassess the credibility of the witnesses.
See Staresnick, 830 N.E.2d at 134. Also, the evidence indicates that after C.E. made this
claim and Father responded by sending C.E. a certified letter with his contact information,
C.E. made numerous excuses and did not follow through with plans to meet Father. This
evidence is sufficient to support a finding that C.E. refused to participate in a relationship
with Father.
Mother also contends that other cases that have found repudiation involved behavior
“far more egregious.” Appellant’s Brief at 19. However, a review of the cases cited by
Mother reveals that this court will affirm a trial court’s decision regarding repudiation as long
as there is evidence in the record that supports it. See Lechien v. Wren, 950 N.E.2d 838, 844
(Ind. Ct. App. 2011) (affirming the trial court’s finding that the son had repudiated his
relationship with his father based upon a review of the evidence and testimony most
favorable to the judgment); Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008)
10
(finding that the trial court did not abuse its discretion when it found that two children had
repudiated their relationship with their mother because the evidence presented was sufficient
to support the trial court’s decision); Norris, 833 N.E.2d at 1033-35 (holding that the
evidence supported the trial court’s finding that the child had repudiated her relationship with
her father; even though the repudiation commenced when she was a minor, “it continued
uninterrupted after she reached majority”); Staresnick, 830 N.E.2d at 134 (affirming the trial
court’s finding that the son had not repudiated his father); cf. Redd v. Redd, 901 N.E.2d 545,
552 (Ind. Ct. App. 2009) (finding that the trial court’s finding concerning repudiation was not
supported by the evidence). Because there is evidence in the record that supports the trial
court’s judgment, any factual differences between the case here and other cases are
irrelevant.
As Mother indicates, Father may not have been very diligent in attempting to
reestablish a relationship with C.E. throughout the years. However, there is evidence in the
record that C.E. did not want such a relationship. In recognizing repudiation as a defense to
the payment of college expenses, this court has noted that there is no absolute duty on a
parent to send his or her child to college and that this must ordinarily be earned by the child
himself. McKay, 644 N.E.2d at 167 (quoting Milne, 556 A.2d at 865) (adult children who
have abandoned a parent “may decide that the time is ripe for reconciliation. They will not,
in any event, be allowed to enlist the aid of the court in compelling that parent to support
their educational efforts unless and until they demonstrate a minimum amount of respect and
consideration for that parent.”). And while the bad feelings between C.E. and Father began
11
when C.E. was eleven years old and may have started with Mother and then filtered through
to C.E., see id. at 167 (quoting Milne, 556 A.2d at 861) (noting that “one can understand”
how a child of divorced parents’ biases and resentments “got that way”), considering the
evidence most favorable to the judgment, we cannot say the trial court abused its discretion
by finding that C.E., now over eighteen years of age, repudiated his relationship with Father.
Thus, the trial court did not err when it denied Mother’s request for contribution from Father
towards C.E.’s college expenses.
III. Child Support Calculation
In Indiana, a child support order and an educational support order are separate and
distinct. Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007). Here, the trial court
refused to enter an educational support order for college expenses due to C.E.’s repudiation
of Father. Repudiation is not a defense, however, to an order for child support, Bales, 801
N.E.2d at 199, and the trial court found that Father was obligated to pay child support
through July 1, 2012.5 The trial court’s child support calculation for the time C.E. was in
college required Father to pay child support throughout the year, even though C.E. only lived
with Mother for sixteen weeks of the year. Father argues that this vitiates the trial court’s
repudiation ruling, because by requiring him to pay child support for the time his son was
living on campus, he was in essence contributing to his son’s college expenses. Whether a
child support order should be reduced for the time a child is living on campus when a court
5
Under current Indiana law, a parent, generally, has a duty to support his or her child until the child
reaches nineteen years of age. Ind. Code § 31-16-6-6(a). Until 2012, however, the presumptive age of
termination of child support was twenty-one years. July 1, 2012, was the date the new law, changing the age
12
has found that the child has repudiated the non-custodial parent, and on that basis refused to
enter an educational support order, is an issue of first impression.
When a trial court enters both an educational support order and a child support order,
as it has the discretion to do, child support must be reduced for the expenses that are
“duplicated by the educational support order.” Ind. Code § 31-16-6-2(b)(1). When both
orders are entered, the Indiana Child Support Guidelines specifically require a reduction in
child support for the time the child is living away from home for college. See Support
Guideline 8(b) (“The impact of an award of post-secondary educational expenses is
substantial upon the custodial and non-custodial parent and a reduction of the Basic Child
Support Obligation attributable to the child in question will be required when [t]he child
resides on campus or otherwise is not with the custodial parent.”). The post-secondary
education worksheet takes into account how many weeks during the year the child is living
with the custodial parent and holds the non-custodial parent responsible for child support for
only that number of weeks. See Support Guideline 8(c). The amount is then annualized to
avoid weekly variations. Id. Thus, it is clear that while a court may order college expenses
and child support, living expenses for a child living on campus should be included in the
educational support order and not in the child support order.
We hold that living expenses for a child living on campus should similarly not be
included in the child support order when, as here, the child has repudiated the parent and the
parent is therefore not required to contribute to the child’s post-secondary education. To hold
from twenty-one to nineteen, took effect. At the time, C.E. was twenty years old.
13
otherwise would render repudiation no longer a complete defense to the payment of college
expenses. We do not adopt a bright-line rule requiring the filing of both a child support
obligation worksheet and a post-secondary education support worksheet because no
educational support order has been entered. Cf. Child Support Guideline 8(c) (the post-
secondary education worksheet along with the child support obligation worksheet “must be
filed with the court” when both a child support order and educational support order are
entered). But the trial court must reduce child support for the time the child will be living
away from home for college. Cf. Lechien, 950 N.E.2d at 847 (holding that the non-custodial
parent was required to pay child support year round, despite the child’s repudiation, because
the child lived at home and not on campus). Because the trial court erred in its child support
calculation, we reverse its order modifying child support and remand with instructions to re-
calculate child support so that Father does not pay child support for the time C.E. was living
on campus.
Conclusion
The trial court did not abuse its discretion by denying Mother’s request for
contribution from Father towards C.E.’s college expenses based on its finding that C.E.
repudiated Father. However, the court erred in its child support calculation by requiring
Father to pay child support for the time C.E. was living on campus. Accordingly, we affirm
in part, reverse in part, and remand with instructions to the trial court to re-calculate child
support in a manner consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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FRIEDLANDER, J., and CRONE, J., concur.
15