Kurt R. Duncan v. Betsy J. Duncan (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as Jun 09 2017, 9:41 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata, CLERK
Indiana Supreme Court
collateral estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Thomas M. Barr Christopher T. Smith
Thomas M. Barr & Associates Smith Davis LLC
Nashville, Indiana Greenfield, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kurt R. Duncan, June 9, 2017
Appellant-Respondent, Court of Appeals Case No.
30A01-1611-DR-2608
v. Appeal from the Hancock Circuit
Court
Betsy J. Duncan, The Honorable Charles D.
O’Connor, Special Judge
Appellee-Petitioner.
Trial Court Cause No.
30C01-0709-DR-829
Bradford, Judge.
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Case Summary
[1] The marriage of Appellant-Respondent Kurt Duncan (“Father”) and Appellee-
Petitioner Betsy Duncan (“Mother”) was dissolved in 2009, having produced
two children, Brittany and Nattalee, born in 1993 and 1995, respectively
(collectively, “the Children”). In October of 2012, the trial court ordered
Father to pay a portion of Brittany’s college expenses, as she was a full-time
student at the time. The October of 2012 order made Father’s obligation
contingent on Brittany maintaining a certain grade point average (“GPA”).
[2] In 2014, Mother petitioned the trial court for a contribution from Father toward
college expenses for Nattalee, who had begun college in 2013. As with
Brittany, Father’s obligation for college expenses for Nattalee was made
contingent on her maintaining a certain GPA. After a hearing, the trial court
issued an order grating Mother’s petition (“the Order”), in which it ordered
Father to pay a portion of the Children’s college expenses dating back to 2013,
found Father in indirect contempt of court for failing to timely pay Brittany’s
college expenses, and ordered him to pay a portion of Mother’s attorney’s fees.
Father contends that the trial court erroneously concluded that (1) the Children
had not repudiated him, (2) he has any obligation to contribute to the
Children’s college expenses, (4) he was in contempt of court, and (4) he was
obligated to pay a portion of Mother’s attorney’s fees. We conclude that the
trial court did not err in concluding that the Children had not repudiated
Father. The trial court, however, erred in concluding that Father has any
current obligation for the Children’s college expenses, because neither has
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established that she has maintained the requisite GPA. Consequently, we also
reverse the trial court’s determination that Father is in contempt of court and
that he is currently obligated to pay a portion of Mother’s attorney’s fees. We
affirm in part, reverse in part, and remand for further proceedings.
Facts and Procedural History
[3] Father and Mother’s marriage was dissolved on April 28, 2009, and two
children were born of the marriage: Brittany, born June 3, 1993, and Nattalee,
Born March 30, 1995. On June 29, 2012, Mother petitioned for payment of
educational expenses. On October 24, 2012, the trial court found that Father
had a child support arrearage of $10,878.09 and ordered Father to pay 71% of
Brittany’s post-secondary educational expenses. The trial court also made the
following findings regarding Brittany’s college expenses:
The parties’ oldest child Brittany is a full-time college student.
Mother seeks an order on how college expenses are to be paid.
Brittany lives at home and commutes to Indiana University-
Purdue University in Indianapolis. Brittany spends some
overnights with her boyfriend. Brittany works approximately
thirty hours per week and earns $8.67 per hour. She uses her
earnings for her living expenses.
Based on the evidence, the Court orders that Brittany’s college
expenses to be paid 29% by the Mother and 71% by the Father
after Brittany has contributed $2,000 per year toward her costs.
Brittany’s contribution may come from grants, loans or her
wages. The Court notes Brittany received a Pell Grant her first
year of college in the amount of $9,662.00[] that satisfies her
obligation for the current school year. The Court defines
Brittany’s college expenses to be tuition, books, required fees,
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and on campus room and board. If Brittany elects to live off
campus, college expenses include $100 per week for
transportation and food expense for each week that Brittany
attends classes for a semester in which she is enrolled in at least
nine hours of credit. The parents’ financial obligation for
Brittany’s college expenses is limited to four years and Brittany
maintaining a cumulative [GPA] of 2.5. Brittany is directed to
insure that each parent has access to her grades and that she
applies for all available grants and financial aid.
Appellant’s App. Vol. II pp. 31-32.
[4] On March 10, 2014, Mother moved for a rule to show cause and petitioned for
a college expense contribution for Nattalee. On April 29, 2014, the trial court
issued the Order:
ENTRY ON PENDING MOTIONS
Hearing was held on April 25, 2014 on the Petitioner’s Verified
Motion For Rule To Show Cause And Petition For College
Expense Contribution and Respondent’s Request To Find
Daughter Emancipated. The Petitioner [Mother] appeared in
person and by counsel Christopher Smith. The Respondent
[Father] appeared in person. The Court, having taken the issues
under advisement, now makes the following Order.
1) The parties are the parents of Brittany Duncan, born June
3, 1993 and Nattalee Duncan, born March 30, 1995.
2) Brittany was previously found to be emancipated and the
parties agree that Nattalee became emancipated on her
nineteenth birthday on March 30, 2014. The Court vacates
Father’s child support for Nattalee effective March 30, 2014.
3) Father had a child support obligation for Nattalee of $143
per week. His child support arrearage was found to be
$10,878.08 as of October l9, 2012. From October 20, 2012
through March 30, 2014, Father should have paid current child
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support in the sum of $10,725. Since October 19, 2012, Father
has paid a total of $12,240 thereby reducing his arrearage by
$1,515 to $9,363.08. The Court orders Father to pay the
arrearage at the rate of $100 Per week. The Court instructs
Mother’s attorney to prepare an Amended Income Withholding
Order to Father’s employer.
4) The Court also ordered the parents to assist Brittany with
her college expenses. The evidence was that Father has not paid
any sums toward Brittany’s college expenses. The Court finds
Father owes Brittany the sum of $6,209.76 for his share of her
college expenses for the 2012-2013 school year and the 2013-2014
school year. The Court orders Father to pay Brittany $6,209.76
within sixty days and to timely pay Brittany’s college expenses as
they come due.
5) Mother seeks a college-expense order for Nattalee as she is
completing her first year of college. Nattalee lives with Mother
and commutes to IUPUI. The evidence presented indicated the
parties’ gross weekly income figures are $1,517 for Father and
$463 for Mother, or an income division of 77% for Father and
23% for Mother. The Court finds the parents should contribute
to Nattalee’s educational costs in much the same way as they
have contributed for Brittany’s post-secondary educational costs.
Nattalee will be required to contribute up to $2000 per year
toward her educational costs through grants, loans and wages.
The parents are ordered to contribute 23% from Mother and 77%
from Father for any educational costs after Nattalee’s
contribution. Since Nattalee is living with Mother, the Court
finds that an appropriate room and board cost to be imputed is
$140 per week for each week Nattalee is enrolled in and
attending school. This will most likely be thirty-six weeks per
year. The Court orders Father to pay to Mother $108 per week
for each week that Natallee [sic] is attending school and living
with Mother.
6) The Court finds that Nattalee’s school expenses for the
current year that the parents are responsible for is the sum of
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$1,414.51. Father’s share is $1,089.17. The Court orders Father
to pay this amount to Mother within sixty days.
7) The Court finds it appropriate to modify the college
expense order for Brittany given the new circumstances of a
second child in college, and the evidence that Brittany lives
predominately with her boyfriend. The Court continues to order
the parents to contribute to Brittany’s post-secondary college
expenses under the new 77/23 division after Brittany has
contributed $2000 per year toward her expenses. The Court
reduces the parents’ obligation for Brittany’s transportation and
food expense to the sum of $50 per week.
8) The Court continues the previous limitations on the
parent’s [sic] responsibility for Brittany as expressed in the
October 2012 Order and makes those limitations apply to
Nattalee as well.
9) The Father expressed a repudiation argument, that
because his daughters have rejected any type of relationship with
him, he should not be required to contribute to their college
expenses. The Court rejects Father’s repudiation argument
because the Court finds that Father has not made a reasonable
effort to have a positive relationship with his children after he
and Mother divorced. Father testified he had attempted to call
the girls a few times without success. Father admitted he did not
attempt to talk to Brittany at Nattalee’s graduation and did not
visit the girls at Christmas when they were at Father’s relatives.
10) The Court finds the Father in indirect contempt of Court
for his failure to honor the Court order with respect to payment
of his portion of Brittany’s college expenses. The Court
sentences Father to sixty days in jail and suspends it on the
condition he timely meets his financial obligations to Mother and
his children. The Court orders Father to pay partial attorney fees
to Mother’s counsel Christopher Smith in the amount of $1,000
in monthly installments of $200 beginning May 15, 2014.
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Appellant’s App. Vol. II pp. 23-26. On May 29, 2014, Father filed a motion to
correct error. On October 18, 2016, following a hearing, the trial court denied
Father’s motion to correct error.
Discussion and Decision
[5] Father appeals from the denial of his motion to correct error. “A trial court has
discretion to grant or deny a motion to correct error, and we reverse its decision
only for an abuse of that discretion. An abuse of discretion has occurred if the
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.” Bales
v. Bales, 801 N.E.2d 196, 198 (Ind. Ct. App. 2004) (citations omitted). In
issuing the Order, the trial court entered findings of fact and conclusions
thereon sua sponte. Sua sponte findings only control issues that they cover, while
a general judgment standard applies to issues upon which there are no findings.
Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations
omitted).
We may affirm a general judgment with findings on any legal
theory supported by the evidence. As for any findings that have
been made, they will be set aside only if they are clearly
erroneous. A finding is clearly erroneous if there are no facts in
the record to support it, either directly or by inference.
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I. Repudiation
[6] Father first claims that the trial court abused its discretion in declining to
eliminate his post-secondary obligations entirely on the basis that the Children
had repudiated him.
Repudiation is defined as a complete refusal to participate in a
relationship with the parent. [Lovold v. Ellis, 988 N.E.2d 1144,
1150 (Ind. Ct. App. 2013)] (citing Norris v. Pethe, 833 N.E.2d
1024, 1033 (Ind. Ct. App. 2005)). Indiana law provides that a
court may enter an educational support order for a child’s
education at a post-secondary educational institute, but
repudiation of a parent by a child is recognized as a complete
defense to such an order. See Ind. Code § 31-16-6-2(a)(1); 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 what
was Pennsylvania’s approach at that time, 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.” 644
N.E.2d at 166 (quoting Milne v. Milne, 383 Pa. Super. 177, 556
A.2d 854, 856 (1989)). A child’s repudiation of a parent—that is
a compete refusal to participate in a relationship with a parent—
may obviate a parent’s obligation to pay certain expenses,
including college expenses. See Bales v. Bales, 801 N.E.2d 196,
199 (Ind. Ct. App. 2004), reh’g denied, trans. denied. It is well
established that 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. See
Lovold, 988 N.E.2d at 1150. The appellant, for his part, must
establish that the trial court’s findings are clearly erroneous;
findings are clearly erroneous when a review of the record leaves
us firmly convinced that a mistake has been made. See id.
Kahn v. Baker, 36 N.E.3d 1103, 1112-13 (Ind. Ct. App. 2015), trans. denied.
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[7] We conclude that the record contains sufficient evidence to support the trial
court’s finding that the Children did not repudiate Father. In response to
questions by Father regarding the Children’s relationship with him, Mother
responded, “[m]y daughter had a … graduation party … that you chose not to
come to.” Tr. p. 26. Mother further testified that the Children have tried to
have a relationship with Father. Mother testified that the Children had
attended Father’s grandmother’s funeral and that Brittany had unsuccessfully
attempted to visit him at his home in Brown County. According to Father’s
testimony, he spoke to his mother about spending at least one Christmas at her
house with the Children but, in the end, did not go because he was working.
We conclude that this evidence is sufficient to support the trial court’s
determination that a repudiation did not occur based on attempts by the
Children to maintain a relationship with Father. While Father does point to
evidence that would tend to support a finding of repudiation, this is merely an
invitation to reweigh the evidence, which we will not do. See In re Paternity of
Pickett, 44 N.E.3d 756, 763 (Ind. Ct. App. 2015) (“Although the record contains
evidence that could have supported a finding that Child repudiated Father,
there is also evidence that would support a determination that Child did not
repudiate Father. And under our standard of review, we may consider only the
evidence favorable to the trial court’s judgment.”).
Standard of Review for Issues II, III, and IV
[8] Father also challenges the specific provisions of the Order relating to the
amount of post-secondary educational expenses he has been ordered to pay.
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We review the trial court’s apportionment of college expenses
under a clearly erroneous standard. Carr v. Carr, 600 N.E.2d 943,
945 (Ind. 1992); Winslow v. Fifer, 969 N.E.2d 1087, 1092 (Ind. Ct.
App. 2012), trans. denied (2013). Therefore, we will affirm the
trial court unless its order “‘is clearly against the logic and effect
of the facts and circumstances which were before’ the court.”
Marriage of Hensley v. Hensley, 868 N.E.2d 910, 913 (Ind. Ct. App.
2007) (quoting Carr, 600 N.E.2d at 945). In determining whether
the trial court’s decision is clearly erroneous, we consider only
the evidence and reasonable inferences favorable to the judgment
without reweighing evidence or judging witness credibility.
Winslow, 969 N.E.2d at 1092.
In re Paternity of Pickett, 44 N.E.3d at 764.
II. The Amount of Brittany’s College Expenses
[9] As mentioned, the trial court’s order issued in October of 2012 provides that
“[t]he parents’ financial obligation for Brittany’s college expenses is limited to
four years and Brittany maintaining a cumulative [GPA] of 2.5.” Appellant’s
App. Vol. II p. 32.1 Moreover, the Order specifically “continues the previous
limitations on the parent’s [sic] responsibility for Brittany as expressed in the
October 2012 Order and makes those limitations apply to Nattalee as well.”
Appellant’s App. Vol. II p. 25. Father correctly contends that the record
contains no evidence that Brittany ever maintained the required cumulative
GPA of 2.5. Consequently, Father is also correct that the record does not
1
Although the Children were also directed to ensure that both parents had access to their grades and apply
for all available grants and financial aid, the parents’ financial obligations to the Children were not
specifically tied to these directions.
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support the trial court’s order that he pay any of Brittany’s post-secondary
educational expenses. We vacate those portions of the Order requiring Father
to pay Brittany’s post-secondary education expenses, whether current or
accrued, and remand for an evidentiary hearing on whether she has satisfied the
GPA requirements. If the trial court determines that Father’s obligation has
been triggered, then an amount can be determined.
III. The Amount of Nattalee’s College Expenses
[10] Father contends that the same dearth of evidence that exists regarding
Brittany’s GPA also exists in Nattalee’s case. As with Brittany, we vacate those
portions of the Order requiring Father to pay Nattalee’s post-secondary
education expenses, whether current or accrued, and remand for an evidentiary
hearing on whether she has satisfied the GPA requirements. If so, the scale of
the obligation can then be determined.
[11] Father makes another claim that we choose to address, as it is likely to arise on
remand, which is that the trial court erroneously ordered him to pay for
Nattalee’s college expenses during a period when he was already paying child
support. Indiana Code subsection 31-16-6-2(b) provides that “[i]f the court
orders support for a child’s educational expenses at a postsecondary educational
institution under subsection (a), the court shall reduce other child support for
that child that … is duplicated by the educational support order [and] would
otherwise be paid to the custodial parent.” We have also noted that
“[d]uplicative support and college expense orders should be avoided.” Stover v.
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Stover, 645 N.E.2d 1109, 1110 (Ind. Ct. App. 1995) (citing Carr v. Carr, 600
N.E.2d 943, 946 (Ind. 1992)).
[12] The trial court issued the Order on April 29, 2014, and, inter alia, determined
that Nattalee was emancipated as of March 30, 2014, and terminated Father’s
child support obligation of $143.00 per week as of that date. The trial court also
found that Nattalee had incurred $1414.51 in school expenses for the 2013-14
school year and that Father was responsible for $1089.17 of that total, or 77%.
Finally, the trial court ordered that Father would pay $108.00 per week, or 77%
of Nattalee’s room, board, and transportation costs of $140.00 per week while
living with Mother but, significantly, did not order Father to pay these expenses
retroactively.
[13] Father’s argument is based on his contention that the trial court ordered him to
pay educational expenses that were duplicative of his child support payments.
The record does not support this contention. First, the $1089.17 that Father
was ordered to pay (for his share of expenses for books, fees, and an iPad) was
strictly for college-related purposes and not duplicative of his child support
obligations in any way. Moreover, the $108.00 weekly payment for expenses
incurred while Nattalee lives with Mother never overlapped with Father’s child
support payments, as the Order simultaneously established the former—without
making it retroactive—while eliminating the latter. The trial court did not err in
ordering post-secondary educational payments that were duplicative of Father’s
child support payments.
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IV. Father’s Ability to Pay
[14] In another issue likely to arise on remand, Father contends that the trial court
erroneously failed to consider his ability to pay a portion of Brittany’s and
Nattalee’s college expenses. Indiana Code subsection 31-16-6-2(a) provides, in
part, as follows:
(a) The child support order or an educational support order may
also include, where appropriate:
(1) amounts for the child’s education in elementary and
secondary schools and at postsecondary educational
institutions, taking into account:
(A) the child’s aptitude and ability;
(B) the child’s reasonable ability to contribute to
educational expenses through:
(i) work;
(ii) obtaining loans; and
(iii) obtaining other sources of financial aid reasonably
available to the child and each parent; and
(C) the ability of each parent to meet these expenses[.]
[15] Father essentially argues that the trial court abused its discretion in
apportioning college expenses based on the incomes of the parties, which it
found to be $1517.00 per week for Father and $463.00 per week for Mother, or
approximately $79,000.00 and $24,000.00 per year, respectively. While it is
true that the record contains no direct evidence that Father was able to pay a
proportionate share of the Children’s college expenses, we cannot say that the
trial court abused its discretion in drawing the inference that he could. Quite
simply, Father is making approximately $79,000.00 per year and presented no
evidence of extraordinary expenses, such as unexpected medical bills, that
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would hinder his ability to pay his fair share of the Children’s college expenses.
To the extent that Father points to evidence in the record of circumstances that
he argues hinder his ability to pay, the trial court was under no obligation to
credit it, and apparently did not. Father has failed to establish error in this
regard.
V. Contempt
[16] Father also challenges that portion of the Order finding him in indirect
contempt of court for failing to pay Brittany’s college expenses. We have
already concluded, however, that the trial court erred in concluding that Father
has a current obligation to pay any of Brittany’s or Nattalee’s college expenses.
Consequently, Father cannot be held in contempt for failure to pay them. We
therefore also vacate the provisions of the Order declaring Father to currently
be in contempt of court and ordering him to pay a portion of Mother’s
attorney’s fees.
Conclusion
[17] We conclude that Father failed to establish that the trial court erred in finding
that the Children have not repudiated Father. Father has established, however,
that the trial court erred in concluding that he had any current obligation to pay
the Children’s post-secondary educational expenses. Consequently, we also
vacate the trial court’s finding that Father is currently in indirect contempt of
court for failing to pay college expenses and a portion of Mother’s attorney’s
fees.
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[18] The judgment of the trial court is affirmed in part and reversed in part, and we
remand for further proceedings consistent with this memorandum decision.
[19] Najam, J., and Riley, J., concur.
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