Jeffery L. Nelson v. Lorri M. Nelson, n/k/a Lorri M. Miller (mem. dec.)

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
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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
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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
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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.”).
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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.
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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
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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
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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).
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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
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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
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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.
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[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
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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.
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