Michael Trimnell v. Teri Trimnell (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 03 2017, 6:39 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Sean G. Thomasson
Thomasson, Thomasson, Long &
Guthrie, P.C.
Columbus, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Trimnell, March 3, 2017
Appellant-Petitioner, Court of Appeals Case No.
36A04-1610-DR-2362
v. Appeal from the Jackson Superior
Court
Teri Trimnell, The Honorable Bruce A.
Appellee-Respondent. MacTavish, Judge
Trial Court Cause No.
36D02-1110-DR-382
Bailey, Judge.
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Case Summary
[1] Michael Trimnell (“Father”) appeals the trial court’s order requiring him to pay
educational costs for his daughter, B.T. (“Child”).
[2] We affirm.
Issues
[3] Father raises three issues for our review, which we restate as the following two
issues:
I. Whether the trial court erred when it concluded that Child
had not repudiated Father, and
II. Whether the trial court erred when it admitted hearsay
evidence.
Facts and Procedural History
[4] Father and Teri Trimnell (“Mother”) were married, and the union produced
two children—Child, and child’s older brother M.T.1 At the time of the instant
proceedings, Child was twenty years of age.
[5] On August 1, 2016, Mother filed a petition with the trial court to modify
support, seeking an order that Father be required to contribute to Child’s
1
At the time of the instant proceedings, M.T. was twenty-four years of age and emancipated.
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college education expenses. An evidentiary hearing on the petition was
conducted on September 22, 2016. During the hearing, Mother and Father
presented evidence and argument concerning Child’s education and whether
Child had repudiated Father. Father objected at one point to testimony from
Mother that he characterized as hearsay.
[6] On October 6, 2016, the trial court entered an order granting Mother’s petition
for educational support. The court found that Father had not proved
repudiation as to Child. The court then ordered that Father, Mother, and Child
each cover one-third of Child’s educational expenses; that Father was not
obligated to pay for any educational expenses incurred prior to the August 1,
2016 petition; that Child was required to maintain a “C” average in her studies
in order to retain educational support; and that Father provide health insurance
coverage for Child while she continued her undergraduate education, but that
Child would be responsible for paying for uninsured medical expenses.
[7] This appeal ensued.
Discussion and Decision
Standard of Review
[8] Father contends that the trial court erred in ordering him to pay educational
and healthcare expenses for Child. We generally review such decisions for an
abuse of discretion, which occurs if the trial court’s decision is against the logic
and effect of the facts and circumstances before it or if the court has
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misinterpreted the law. Lovold v. Ellis, 988 N.E.2d 1144, 1149-50 (Ind. Ct. App.
2013). Father also argues that the trial court erred in admitting evidence; this,
too, is reviewed for an abuse of discretion. Bradford v. State, 960 N.E.2d 871,
874 (Ind. Ct. App. 2012).
[9] Mother did not submit an appellee’s brief in this appeal. In such cases, “we
need not undertake the burden of developing an argument for the appellee”
and, “[a]pplying a less stringent standard of review, we may reverse the trial
court if the appellant can establish prima facie error.” Kladis v. Nick’s Patio, Inc.,
735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). “However, we may in our
discretion decide the case on the merits.” Id. We choose to do so here.
Repudiation
[10] We turn to Father’s first contention on appeal, namely, that the trial court’s
conclusion that Father failed to establish repudiation was in error. A child
support or educational support order may include provision for payment of
expenses associated with postsecondary education. Ind. Code § 31-16-6-2(a)(1).
The duty to provide support for educational needs may persist beyond the point
when a child reaches nineteen years of age. I.C. § 31-16-6-6(a).
[11] There is no absolute legal duty for such support, however. Kahn v. Baker, 36
N.E.3d 1103, 1113 (Ind. Ct. App. 2015), trans. denied. “A child’s repudiation of
a parent—that is a complete refusal to participate in a relationship with a
parent—may obviate a parent’s obligation to pay certain expenses, including
college expenses.” Id. Whether repudiation has occurred is a fact-sensitive
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inquiry. Id. We do not reweigh evidence in such cases, and generally the
appellant must establish that the trial court’s findings were clearly erroneous.
Id.
[12] Father contends that the trial court erred because twenty-year-old B.T.’s
“repudiation of her Father started to occur when she was fourteen (14) years of
age and continues to this day.” (Appellant’s Br. at 10.) Father’s argument goes
on to cite evidence from the record concerning his having not been notified of
birthday parties, high school graduation, and B.T.’s college plans, and Father
argues that B.T. actively avoided Father by “de-friending” him on social media.
(Appellant’s Br. at 10.) Father also notes that he and Mother had never
discussed college plans, and states that he did not know B.T. was attending
college until Mother filed her petition to modify child support. Father argues
that B.T. and Mother believe “that Father should demonstrate his love” by
paying for college (Appellant’s Br. at 11), and that they should not be rewarded
for treating Father badly.
[13] This argument amounts to a request that we reweigh evidence, which we will
not do. The evidence that favors the trial court’s order indicates that Father
initiated the rift between himself and B.T. During Mother’s testimony, in
response to the question, “He [Father] is the one that quit talking to them [B.T.
and her older brother]?,” Mother answered, “Yes, sir.” (Tr. at 15.) Mother
testified that Father had not sent Christmas or birthday cards to B.T. and had
not called B.T. on her birthday for more than five years. Mother further
testified that Child wanted to continue to see Father, but that Father had
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“blocked us all” (Tr. at 24), meaning that Mother’s understanding was that
Father had prevented Mother’s and B.T.’s phone calls from reaching his phone.
Moreover, Father testified that communication with B.T. “slowly … just
dwindled” after B.T.’s birthday in 2010, but that B.T. had initiated efforts to
send him text messages “a couple of times on Father’s Day.” (Tr. at 36.)
[14] The evidence is not without conflict. Nevertheless, our review of the evidence
does not indicate that the trial court’s decision that repudiation had not been
proven—that is, that B.T. had not made “a complete refusal to participate in a
relationship with parent,” Kahn, 36 N.E.3d at 1113—was clearly erroneous.
We accordingly find no error on this point.2
Admission of Evidence
[15] We turn next to Father’s contention that the trial court impermissibly admitted
hearsay evidence and that this error warrants reversal of the support order.
[16] Our rules of evidence define hearsay as “a statement that: (1) is not made by the
declarant while testifying at the trial or hearing; and (2) is offered in evidence to
prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is
inadmissible “unless [the Rules of Evidence] or other law provides otherwise.”
Evid. R. 802.
2
Because we find no error in the order of educational support, we do not address Father’s request that the
health insurance portion of the order be vacated, as his request for relief on that point was premised upon our
reversal of the order for payment of a portion of B.T.’s tuition and living expenses.
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[17] During the hearing in the trial court, the following exchange occurred:
[Mother’s Counsel]: Was she [B.T.] told she wasn’t invited, and
wasn’t wanted there?
[Mother]: That’s what she told me, she said when she got out of
the car—
[Father’s Counsel]: Objection hearsay.
[Mother]: He looked at her and—
[Father’s Counsel]: Objection ma’am.
[Mother’s Counsel]: Okay, let me rephrase the question—
[Court]: Excuse me I am going to let her say what the statement
was made, and I am going to determine whether the fact the
statement was made was relevant, or not relevant so you can ask
what statement was made.
(Tr. at 27-28.) After the court’s statement, Mother’s counsel asked Mother,
“What statement was made?” Mother then said, “[B.T.] said when she got out
the car [at Father’s location] her dad looked at her and said what are you doing
here you were not invited.” (Tr. at 28.)
[18] Father’s counsel did not renew an objection at this point, and direct
examination of Mother continued. Mother testified that B.T. spent time with
Father that day, and, in response to counsel’s inquiry, “What kind?,” Mother
responded, “She [B.T.] said that that he [Father] put in her [sic] in truck and
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drove around for an hour and pretty much told her what a piece of cr*p she
was, and that she was never going to amount to anything.” (Tr. at 28.) Mother
then testified that this was B.T.’s last contact with Father. Again, Father raised
no objection to the questions or Mother’s answers. During testimony later in
the hearing, Father acknowledged that B.T. came to visit him and that they
drove in his truck on the day in question, but he denied insulting B.T.
[19] To the extent Father failed to renew any objection after Mother responded to
the initial question concerning what B.T. said, and to the extent Father failed to
raise any objection to subsequent questioning on these lines, we conclude that
Father has waived this matter for purposes of appeal. See Lehman v. State, 926
N.E.2d 35, 38 (noting that a contemporaneous objection is required to preserve
an issue on appeal), trans. denied. Further, trial judges are “presumed to know
the intricacies of the rules of evidence and to consider the evidence in that light,
ignoring the extraneous, incompetent, and irrelevant,” and thus the harm from
evidentiary error is lessened if not totally annulled when a case is tried without
a jury. Leisure v. Wheeler, 828 N.E.2d 409, 417 n.3 (Ind. Ct. App. 2005)
(citations and quotation marks omitted). The trial court’s order reveals no
suggestion that, in reaching its decisions on educational support and
repudiation, the court relied upon the statements Father identifies as
inadmissible. We accordingly find no error in the admission of Mother’s
statements.
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Conclusion
[20] The trial court did not err when it found that Father failed to prove repudiation.
There was no error in the admission of evidence.
[21] Affirmed.
Najam, J., and May, J., concur.
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