Robert Faulds v. Jennifer (Faulds) Lampke (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 21 2019, 8:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cody Cogswell David W. Stone IV
Cogswell & Associates Stone Law Office &
Fishers, Indiana Legal Research
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Faulds, May 21, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-DR-2489
v. Appeal from the Madison Circuit
Court
Jennifer (Faulds) Lampke, The Honorable G. George Pancol,
Appellee-Petitioner Judge
Trial Court Cause No.
48C02-9903-DR-369
Baker, Judge.
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[1] Robert Faulds (Father) appeals the trial court’s order vacating a previous order
requiring that Jennifer Lampke (Mother) pay 50% of their daughter’s college
expenses. The trial court found that it did not have jurisdiction to consider
Father’s request for college expenses because he had never filed a written
petition and that, accordingly, its original order was void. We agree with
Father that this reasoning was faulty and that the original order should not have
been voided. Therefore, we reverse and remand with instructions.
Facts
[2] This case has been here before. The underlying facts, as described by this Court
in the first appeal, are as follows:
Father and Mother were married on July 18, 1992. During the
marriage, one child, T.F., was born on July 16, 1996. Mother
filed a petition to dissolve the marriage on March 19, 1999. On
November 29, 1999, the trial court entered its order of
dissolution, awarding legal and physical custody of the minor
child to Mother, with Father receiving reasonable parenting time.
Father was ordered to pay child support in the amount of $105
per week.
On October 26, 2011, Father filed a verified petition for
emergency custody. By Order of November 4, 2011, the trial
court modified custody, granting physical custody of T.F. to
Father, with the parties to exercise joint legal custody. On
February 3, 2012, the parties filed an Agreed Entry, which was
adopted by the trial court, agreeing, in pertinent part, that:
2. The parties agree, given Mother’s current
financial circumstances, that being the fact that she
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is currently unemployed, that no support shall be
ordered for the remainder of the 2012 calendar year.
3. In the event that Mother becomes employed
before December 31, 2012, she shall immediately
notify Father of her employment.
4. Mother agrees to produce verification of her
income, i.e., W2’s, 1099’s, etc. to Father on or
before January 30, 2013 to determine whether or
not child support obligation should be modified at
that time.
Mother did not submit verification of her income to Father
pursuant to the Agreed Entry. On April 19, 2013, Mother filed
her notice of intent to relocate to Kentucky, as well as a motion
to modify parenting time. On June 26, 2013, Father filed a
petition to establish child support retroactive to January 1, 2013.
On July 30, 2013, the trial court granted Mother “all reasonable
visitation” with T.F. with respect to her relocation. The trial
court did not include a provision to cover the travel expenses
related to the visitation. A praecipe for a hearing on child
support was filed by Father on October 15, 2013, and again on
January 29, 2015. On August 12, 2015, the trial court conducted
a hearing on Father’s petition to establish child support. During
the hearing, Mother testified that
I have all my bank statements for the last since
thirteen (13)[sic] to now [ ] with every documented
time of me coming to Anderson and every bit of
money that I spent on [T.F.] which includes food [ ]
it includes clothing underwear garments personal
care items shoes school supplies and prom all of her
prom attire that she had for two proms [ ] plus
[Father] was supposed to provide [ ] a intermediate
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like meet me half way to expedite [ ] me seeing her
and [ ] he didn’t doesn’t do that [ ] so I drive here so
I have gas I have wear and tear on my car and I
have expenses every time I come back and forth.
[][I]f she comes to stay with me which she has on a
number of occasions I go get her and I bring her
straight back so I drive round trip six and a half
hours to do that. . . . I bought her a tire for her
car[.] . . . I have a list of monies that I have spent
over the last two and a half years on [T.S.] and it’s
quite a bit [ ] because I do give her I provide her
clothing and I provide her with school stuff I
provided her with all of her prom stuff I spent nearly
five to six hundred dollars ($600.00) on her prom
things each month . . . I feel like I should be given
credit for my parenting time I’ve had hotel expenses
coming to stay here so I could see her overnight[.]
That same day, the trial court issued its findings of fact and
conclusions thereon finding, in pertinent part,
The [c]ourt finds that pursuant to the [A]greed
[Entry] of 2012, the [c]ourt was to set support upon
the Mother obtaining employment, which she did in
January of 2013. The [c]ourt finds that based on the
Mother’s evidence that she was earning $74,000 a
year in 2013 and 2014 and still employed as a nurse
until June of 2015. The [c]ourt therefore bases the
Mother’s gross income on $74,000 per year divided
by 52 weeks, which equals $1,423.10. The [c]ourt
finds that the Father is on disability of
approximately $2,000.00 per month divided by 4.3
weeks equals $465.12. The Mother shall pay
$179.00 per week. This amount is retroactive to
[the] first Friday in January of 2013, continuing
through July 18th, 2015 when the parties’ daughter
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reached the age of nineteen and was emancipated
for the purposes of current support by law. The
[c]ourt shows that is equals 132 weeks at the rate of
$179.00 per week, for a total arrearage of
$23,628.00.
The [c]ourt does find that due to the fact that there
has been no support entered for such a long period
of time, that the [c]ourt will give Mother credit for
the itemized payments she has made on behalf of
the daughter. This leaves a total arrearage payable
by the Mother to the Father in the sum of $8,709.25,
which will be payable at a rate of $100.00 per week
until Mother obtains new employment, at which
time she is immediately [to] notify the [c]ourt and
the [c]ourt will consider an adjustment as to the
weekly amount to be paid.
Faulds v. Faulds, No. 48A02-1511-DR-1889 (Aug. 4, 2016) (“Faulds I”) (internal
citations omitted). Father appealed and this Court ruled in his favor, finding
that the trial court erred by crediting Mother’s child support arrearage for her
occasional provision of food, gifts, and personal items during her parenting
time. We reversed and remanded for further proceedings.
[3] In the August 2015 order evaluated by this Court in Faulds I, the trial court also
addressed T.F.’s higher education expenses:
On the issue of college expenses, the Court finds that the Mother
will have no responsibility of college expenses for the school year
2014-2015. Going forward in 2015 on, the Father is to provide
the Court with proof that the Twenty-First Century Scholarship
does not cover room and board, at which time the Court will
consider a weekly order requiring the Mother to assist to [sic] the
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living expenses for daughter as long as she is a full time student
in good standing.
Appellant’s App. Vol. II p. 32-33. Father had not filed a petition seeking to
have Mother contribute to T.F.’s higher education expenses, but it is apparent
from the order that the issue was addressed at the hearing. And indeed, the
transcript reveals that throughout the hearing, the parties discussed Mother’s
contribution to T.F.’s college expenses, with Mother agreeing that she would
pay for part of it. Trial Tr. p. 5, 11, 28-29, 35.1
[4] Father provided the trial court with the requested information about the
Twenty-First Century Scholarship. Thereafter, on March 4, 2016, the trial
court ordered Mother to pay 50% of T.F.’s college expenses.
[5] On October 21, 2016, Mother filed a motion to modify the trial court’s order
requiring her to contribute to T.F.’s higher education expenses, arguing that
T.F. had repudiated their relationship. Father objected to the motion to modify
and requested attorney fees. On February 3, 2017, Mother filed a motion to
void any order related to her contribution to higher education expenses, arguing
that the original order was void because Father had not filed a request before
T.F. reached the age of nineteen; Father objected. The parties continued to file
1
Mother argues that Father has waived all arguments related to the higher education expenses because he
failed to include the relevant transcript in the record on appeal. To the contrary, the transcript is included
and reviewable by this Court; therefore, we find no waiver of these arguments. We also note that the
transcript is not essential to our resolution of this appeal. Consequently, even if it had not been included, we
would have reached the same result.
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opposing motions, but the trial court took no action until October 2018. On
October 8, 2018, the trial court entered an order granting Mother’s motions
“due to the fact that the Father did not meet statutory conditions as no petition
for higher education expenses was timely filed.” Appealed Order p. 1.
[6] The trial court has never ruled on Father’s request for attorney fees. Mother
has not paid any of the arrearage that this Court found she owes, nor has the
trial court ordered her to do the same. Father filed a motion to correct error
pointing out those omissions and arguing that the ruling on higher education
expenses was erroneous; the trial court denied the motion. Father now appeals.
Discussion and Decision
[7] Father raises three arguments on appeal: (1) the trial court erred by vacating the
order requiring Mother to contribute to T.F.’s higher education expenses;
(2) the trial court erred by failing to rule on Father’s attorney fee request; and
(3) the trial court erred by failing to issue an order consistent with Faulds I
regarding the amount of Mother’s child support arrearage.
I. Higher Education Expenses
[8] Father argues that the trial court erroneously denied his motion to correct error.
We will reverse a trial court’s ruling on a motion to correct error if the decision
is against the logic and effect of the facts and circumstances before the court or
if the court has misinterpreted the law. Inman v. Inman, 898 N.E.2d 1281, 1284
(Ind. Ct. App. 2009).
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[9] Under Indiana law, there is no absolute duty on the part of parents to provide a
college education for their children. Hinesley-Petry v. Petry, 894 N.E.2d 277, 280
(Ind. Ct. App. 2008). But trial courts are authorized to order either or both
parents to contribute to their child’s education to enforce the expectation that
most families would encourage their qualified children to pursue a college
education consistent with individual family values. Id. at 280-81.
[10] Relevant here is Indiana Code section 31-6-6-6, which provides timelines for a
parent’s request that the other parent contribute to their child’s educational
expenses:
(c) If a court has established a duty to support a child in a
court order issued before July 1, 2012, the:
(1) parent or guardian of the child; or
(2) child;
may file a petition for educational needs until the child
becomes twenty-one (21) years of age.
Here, the original order establishing a duty to support T.F. was issued on
November 29, 1999. Therefore, a request for educational support must have
been made by July 16, 2017, the date on which T.F. turned twenty-one.
[11] It is undisputed that Father has never filed a written petition for Mother to
contribute to T.F.’s college expenses. The parties and the trial court have,
however, repeatedly addressed it.
• On August 12, 2015, the trial court held a hearing on Father’s petition to
establish child support. While the petition did not mention college
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expenses, the parties discussed it at the hearing and Mother agreed that
she would pay a portion of those expenses. Trial Tr. p. 5, 11, 28-29, 35.
Mother did not object to the issue being raised at this hearing.
• In the trial court’s order issued following that hearing, it indicated that
Mother did not have to contribute to expenses for the 2014-15 academic
year, but that it would consider a weekly support order after Father
provided information regarding T.F.’s scholarship. Mother did not
appeal this order.
• On March 4, 2016, the trial court ordered Mother to pay 50% of T.F.’s
college expenses. Mother did not appeal this order.
• Months later, on October 21, 2016, Mother filed a motion to modify the
higher education expenses order, arguing that T.F. had repudiated their
relationship.2
• Before the trial court ruled on that motion, on February 3, 2017, Mother
filed another motion asking the trial court to void the higher education
expenses order. For the first time, she argued that the original order was
void because Father had not filed a written petition seeking an order that
she contribute to T.F.’s college expenses.
[12] Mother argues that because Father failed to file a written petition, the March 4,
2016, order is void. Specifically, she maintains that without a written petition,
the trial court did not have subject matter jurisdiction to hear the issue. Mother
is mistaken. The question of subject matter jurisdiction “entails a
determination of whether a court has jurisdiction over the general class of
actions to which a particular case belongs.” Troxel v. Troxel, 737 N.E.2d 745,
749 (Ind. 2000). “Real jurisdictional problems would be, say, a juvenile
delinquency adjudication entered in a small claims court, or a judgment
rendered without any service of process. Thus, characterizing other sorts of
2
Mother does not address repudiation on appeal, nor was this issue litigated below.
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procedural defects as ‘jurisdictional’ misapprehends the concepts.” K.S. v. State,
849 N.E.2d 538, 540 (Ind. 2006) (emphasis original).
[13] Here, the trial court unquestionably has subject matter jurisdiction to hear all
matters of modification of child support and higher education expenses
pursuant to the Dissolution of Marriage Act. Ind. Code art. 31-15. The actual
substantive argument that Mother is making is a procedural one—that the trial
court erred by granting a request that had not been filed in writing. As such an
error is capable of correction, the order was only voidable—not void—and
Mother was required to lodge a timely objection or appeal raising the issue. See
In re Guardianship of A.J.A. and L.M.A., 991 N.E.2d 110, 115 (Ind. 2013) (noting
that K.S. was about a procedural error that was capable of correction; therefore,
the order was voidable and the appellant waived the argument by failing to
object).
[14] We will assume solely for argument’s sake that Father was, indeed, required to
file a written petition asking that Mother be ordered to contribute to T.F.’s
college expenses and that making an oral request was insufficient to meet the
requirements of Indiana Code section 31-6-6-6(c). Mother did not object to
consideration of the issue at the August 2015 hearing, and even agreed that she
would contribute a portion of the college expenses. When the trial court issued
the order in March 2016 requiring Mother to pay 50% of T.F.’s college
expenses, she did not file a motion to correct error or appeal the order. And
when she first sought to modify the order, the basis of her argument was
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repudiation of the relationship by T.F. rather than Father’s failure to file a
written petition.
[15] It is readily apparent that Mother has waived this argument many times over.
Therefore, the trial court erred by voiding the March 2016 order rendering her
responsible for 50% of T.F.’s college expenses. We reverse and remand with
instructions to calculate the amount of Mother’s higher education expense
arrearage and to enter an order requiring her to pay the same. The order must
indicate that Mother will be required to continue to contribute 50% of T.F.’s
college expenses until T.F. finishes college and/or Mother seeks to modify the
order—prospectively, rather than retroactively—and the trial court agrees that
modification is warranted.
II. Attorney Fees
[16] Next, Father argues that the trial court should have ruled on his request for
attorney fees. We agree, and remand with instructions to consider and rule on
the issue.
III. Arrearage
[17] Finally, Father alleges that Mother has not yet begun paying the $23,628
arrearage found by this Court in Faulds I. 3 That amount is not an ongoing child
3
Mother argues that Father should raise this issue in “the prior appeal case,” insisting that “that case” is the
appropriate venue for the issue of her arrearage. Appellee’s Br. p. 21. “That case” and “this case” are one
and the same. All of these matters fall under their dissolution cause. Therefore, Father correctly raises this
issue under that cause number.
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support obligation but has instead been reduced to a judgment. We remand so
that the parties and the trial court may proceed accordingly.
[18] The judgment of the trial court is reversed and remanded with instructions to
(1) reinstate the March 2016 order requiring that Mother pay 50% of T.F.’s
college expenses; (2) consider and rule on Father’s attorney fee request; and
(3) proceed regarding the $23,628 judgment against Mother.
May, J., and Tavitas, J., concur.
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