KAHN v. BAKER

VAIDIK, Chief Judge.

Case Summary

Father, following divorce, was ordered to pay the remainder of his college-aged daughter's post-secondary educational expenses — including tuition and room and board — and medical expenses. The father and daughter had a serious dispute the month before the court's order, however, and thereafter the daughter engaged in limited contact with her father — she sent him text and email messages but did not speak to him on the telephone or meet with him in person for over a year. The father stopped paying his daughter's expenses. Mother filed a motion for rule to show cause in an effort to get the father to comply with the court order, and the father filed a petition to modify the court order, alleging change in circumstances — specifically, that he was relieved from paying his daughter's expenses because she had repudiated him. Following a hearing, the trial court found that the daughter had not repudiated her father, found him in contempt for failing to pay the daughter's educational and medical expenses, and awarded attorney fees to the mother. The trial court also found, however, that under the "doctrine of unclean hands" the mother was to be held liable for her daughter's room and board.

On appeal, we consolidate the father's issues into the following: (1) whether the trial court erred in finding that the daughter did not repudiate her father, and that he was not, therefore, relieved of his obligation to pay the expenses specified in the Agreed Entry; (2) whether the trial court erred by holding the father in contempt for failing to pay the daughter's post-secondary educational and medical expenses; and (3) whether the trial court erred in awarding the mother attorney fees. Mother cross-appeals, presenting one issue for our review: whether the trial court erred in ordering her to pay the daughter's room and board expenses. Ultimately, we affirm the trial court's order on all of the issues challenged by the father, and reverse on the issue raised by the mother.

Facts and Procedural History

Madeline, the eldest child of Stanley Kahn ("Father") and Beverly (Kahn) Baker ("Mother"), began attending Emory University in Atlanta, Georgia, in the fall of 2009, intending to graduate with honors in December 2012.1 In 2010, after twenty-one years of marriage, Father and Mother — who both reside in central Indiana — divorced and reached a settlement agreement ("the Settlement Agreement"), approved by the trial court on June 10, 2010. This Settlement Agreement required Father to pay Madeline's tuition for the 2010-11 school year at Emory. The Settlement Agreement also provided that Father would pay for health insurance for the parties' two children, and that all uninsured medical costs and expenses of the children were to be divided equally between the parties.

In December 2011, when Madeline was home in Indianapolis for Christmas break, she and Father had a heated dispute over whether Madeline could take her car back to Atlanta.2 Thereafter, Father went to Mother's house, where Madeline was staying, and took away the car. Madeline then went to the bank where she and Father had a joint account to withdraw funds so she could buy a new car.3 While Madeline was at the bank, Father suddenly arrived, and Madeline, who was "terrified," quickly left the bank to evade Father. Tr. p. 278.

The next month, in January 2012, the parties entered into an agreed entry ("the Agreed Entry"), approved by the trial court, which modified Father's obligations for Madeline's post-secondary education expenses. Specifically, the Agreed Entry provided in pertinent part as follows:

Appellant's App. p. 55-56.

Following the dispute over the car, Madeline and Father did not speak in person or on the telephone for all of 2012 — Madeline had made a "conscious decision" that she could not see or talk to Father for the time being. Tr. p. 329. As she explained:

Id. at 330.

Madeline came home to Indianapolis on multiple occasions in 2012 but did not see or contact Father during these visits. She did, however, send Father numerous e-cards, and e-mail and text messages. In these, she told Father that she loved him and missed him, wished him a happy birthday, shared the first paper she had ever written on a legal case, sent photos of her new apartment, and sent news about her induction into a philosophy honors society, her involvement in a play, and a new job. She also asked Father about a wedding he had attended, his new apartment, and his eye surgery. According to Father, however, "[s]ending an occasional text message or an e-mail is not a relationship." Id. at 144. Regarding a February 2012 e-mail in which Madeline wrote "I really love you[,]" Father testified that those were "hollow words because there's nothing behind it. There's no action behind it." Id. at 186.

Father, Mother, and Madeline all intended for her to graduate with honors, which required her to take part in a two-semester honors course. Madeline's original plan was to take the first part of this course in the spring semester of her junior year and the second part in the fall semester of her senior year. To that end, in the spring semester — early 2012 — Madeline was attending meetings with her professor in the belief that she was working toward her honors credit, but "there was a problem with [her] registration in the spring that [she] was unaware of, and [she] didn't receive credit for it." Id. at 58. Therefore, she decided to take the first part of the course in the summer of 2012 and the second part, as originally planned, during the fall semester.

But Father, who had paid Madeline's tuition, room and board, and other required fees through the spring 2012 semester, simply did not pay for any of Madeline's post-secondary educational expenses thereafter — including, most significantly, any costs associated with the summer 2012 semester. And because Madeline was not able to register for the summer semester, she needed to take the two-semester honors course in the fall 2012 semester and the spring 2013 semester in order to fulfill her plan of graduating with honors — meaning, she had to attend school beyond the December 2012 endpoint specified in the Agreed Entry. In spring 2012, Madeline also withdrew from an Introduction to Astronomy class because it appeared that she was going to receive a lower grade in the class than she would have liked; she then took Meteorology in the fall 2012 semester in order to fulfill her science requirement. So, in spring 2013, Madeline was registered for the second part of her honors requirement and a P.E. class; but if she had been able to register for summer classes, she would have taken both of these during the fall 2012 semester and could still have graduated in December 2012.

In terms of room and board expenses, Father had paid for Madeline to live in a sorority house for the spring 2012 semester; however, toward the end of the spring semester Madeline decided to leave the sorority and move into an off-campus apartment, for which Father would not pay. Madeline testified that while there was one "on[-]campus" housing option, it "wasn't the type of housing [she] was looking for at all[,]" id. at 62, and it was more expensive than the off-campus apartment. Madeline e-mailed Father photos of the new off-campus apartment at the end of May, and Father responded by e-mail, saying the apartment looked "so nice" and was "[d]ef[initely] something [he] would like." Appellee's App. p. 63. However, Father did not pay for Madeline to live in this apartment, claiming that the language of the Agreed Entry — "Room and board at the Institution the child attends[,]" Appellant's App. p. 55 — only obligated Father to pay for an on-campus residence. See Tr. p. 173.

In August 2012, Mother, pro se, filed a motion for contempt and emergency hearing regarding Father's failure to comply with the Agreed Entry, with respect to Madeline's educational expenses, in particular. Five days later, Father filed a petition requesting modification of the order with regard to Madeline's educational expenses, alleging the occurrence of "[a] significant change in circumstances" that rendered Father's obligation to pay for Madeline's post-secondary education "unreasonable[.]" Appellant's App. p. 63. In October 2012, Mother, now represented by counsel, filed her amended motion for rule to show cause, alleging that Father had failed to pay for Madeline's educational expenses since the spring 2012 semester in willful violation of the Agreed Entry.

In August and September, Madeline had medical problems. On August 29, Mother sent Father an e-mail requesting Father's insurance information in anticipation of a scheduled medical appointment. On September 4, Madeline sent Father a text message that read as follows:

Appellee's App. p. 118. Father responded by text message: "The insurance is not new. It works. Call me so that we can talk." Id. at 119. On September 5, Mother was in Atlanta with Madeline, and when they attempted to use Father's insurance information at the doctor's office, the insurance card was declined. Mother texted Father to notify him that the card was declined. Mother also called Father from the doctor's office to notify him of the situation and ask that he try to figure out the problem with the insurance. Mother then paid for the appointment herself. Father did not see an actual copy of the medical bill until two weeks before trial, at Mother's deposition.

In December 2012, Madeline sent an e-mail to Father that read as follows:

Id. at 115. In response, Father sent an e-mail that concluded, "When you move home in the summer, we can go to counseling. Love, Daddy[.]" Id. at 111. On February 10, 2013, Father sent an e-mail to Madeline that read: "I saw this and thought of you. Lets [sic] meet when you come to town for spring break. Love, Daddy[.]" Id. at 100. Attached to this e-mail was a photo of a sign that read "COMING TOGETHER IS A BEGINNING..." Id. at 101. Later that month, Madeline sent another e-mail to Father that read in part as follows:

Id. at 99. On February 26, Madeline in an e-mail again stated that she would meet with Father but "would feel more comfortable if mom was there too for emotional support." Id. at 93. Father responded in a February 27 e-mail in part as follows: "Madeline, I will meet with you, not with your mother present. Whatever needs to be discussed, will be discussed between you and I." Id.

In May, Father attended Madeline's graduation from Emory without notifying her in advance that he was planning to do so. Following the graduation, Father stood approximately twenty feet away from Madeline, who was standing and talking with a group of people, and Madeline looked at him and then turned away. A flurry of text messages between Mother and Father followed:

Pet. Ex. 9, Ex. Vol. 1

At the end of May, Father e-mailed Madeline to notify her of a June 4 appointment he had scheduled with a therapist. Appellee's App. p. 87. Madeline texted back, "Yes, I'll be there." Tr. p. 137. Ultimately, Father and Madeline attended three counseling sessions together.

A hearing was held on June 10, 2013, and February 11, 2014. Between those two dates, Madeline traveled to New York for five days with Father, her brother, and Father's girlfriend. Appellant's App. p. 18. Following the hearing, the trial court entered its findings of fact and conclusions of law, which provided in pertinent part as follows:

Appellant's App. p. 18-25 (formatting altered).

Father now appeals the denial of his August 29, 2013 petition to modify, his motion to correct error, and his motion for relief from judgment. Mother cross-appeals, challenging specifically the trial court's conclusion that Mother remains responsible for Madeline's room and board for summer and fall 2012, and spring 2013.

Discussion and Decision

Father raises five issues on appeal, which we consolidate and restate as follows: (1) whether the trial court erred in finding that Madeline did not repudiate Father, and that he was not, therefore, relieved of his obligation to pay the expenses specified in the Agreed Entry; (2) whether the trial court erred by holding Father in contempt for failing to pay Madeline's post-secondary educational and medical expenses; and (3) whether the trial court erred in awarding Mother attorney fees.4 Mother cross-appeals, presenting one issue for our review: whether the trial court erred in ordering her to pay Madeline's room and board expenses. We consider each issue below.

But at the outset, we note that the trial court entered Trial Rule 52(A) findings of fact and conclusions of law.5 As such, we use a two-tiered standard of review: we determine whether the evidence supports the findings, and whether the findings support the judgment. Lovold v. Ellis, 988 N.E.2d 1144, 1150 (Ind.Ct.App. 2013). We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind.Ct.App.2011). The appellant must establish that the trial court's findings are clearly erroneous. Lovold, 988 N.E.2d at 1150. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. But we do not defer to conclusions of law, and a judgment is clearly erroneous if it relies on an incorrect legal standard. Id.

1. Repudiation

Father argues first that the trial court erred in "denying Father's request that the trial court relieve him of his education expense obligation based on [M.K.]'s repudiation." Appellant's Br. p. 13. Repudiation is defined as a complete refusal to participate in a relationship with the parent. Lovold, 988 N.E.2d at 1150 (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.

In determining what constitutes repudiation, we review Indiana caselaw on this issue. A finding of repudiation is fact sensitive. In McKay, this Court held that a twenty-year-old son had repudiated his father such that his father was relieved of the responsibility to pay his son's college expenses where the son consulted with his mother and stepfather on all of his college-related decisions, rejected all of his father's efforts to reconcile their relationship, and testified at trial that he "was electing not to have a relationship with [his] Father, that he did not want a relationship or contact with [his] Father, and there was nothing that could be done to change his mind." 644 N.E.2d at 166. In Norris, this Court affirmed the trial court's finding of repudiation where a daughter admitted she "d[idn]'t want anything to do with [her father]," declined to accept birthday and special occasion cards in general, asked her father to leave a school activity, and discarded flowers and a check the father had sent to her, informing him, "You're wasting your time and money. The flowers are in a trash can at school, just like our relationship.... No matter what the judge orders, he can't order my heart." 833 N.E.2d at 1034, 1033. In Scales v. Scales, we affirmed repudiation of a Mother where the last time she had seen her daughter was six months before the hearing in a meeting that had been confrontational and intimidating to the mother, and in a telephone conversation a few days before the hearing, her son had told her, "I hate you you f* * *ing b* * * *. I hope you die." 891 N.E.2d 1116, 1120 (Ind.Ct.App.2008). In Lechien v. Wren, this Court affirmed the trial court's finding of repudiation in the case of a son whose only communication with his father for over a year was when he went to his father's workplace to ask for money, who had not acknowledged Father's Day or his father's birthday for several years, and had as an adult petitioned to have his last name changed to his mother's maiden name, even after acknowledging at the hearing on the name-change petition that by changing his name a judge could later decide that he had repudiated his father and did not want any help from his father. 950 N.E.2d 838 (Ind. Ct.App.2011). And in Lovold, we affirmed the trial court's determination of repudiation where a son and his father became estranged post-divorce and had no contact for eight years, the son had never sent Father's Day or birthday cards or kept his father abreast of his grades, activities, or progress, and the son's claim in an in-camera interview that he was interested in having a relationship with his father "r[ang] hollow" and appeared "chiefly motivated by the fact Mother is now requesting Father to pay [the son's] college expenses." 988 N.E.2d at 1147.

In this case, by contrast, the findings showed that Father and Madeline had a close relationship for most of Madeline's life and that Father was complying with the order to pay for all of Madeline's post-secondary education expenses, but that the two had a falling out in December 2011 when Madeline wanted to take her car back to Atlanta after her Christmas break. See Appellant's App. p. 13, 14. Thereafter Madeline and Father did not see one another or speak on the telephone for over a year, but Madeline sent numerous e-cards, texts, and email messages telling Father she loved and missed him, sharing updates about her life, and asking Father about developments in his life. See id. at 15. Father continued paying Madeline's expenses through the Spring 2012 semester. See id. at 16. In December 2012, Madeline expressed an interest in going to counseling with Father. See id. at 17. In February 2013, Madeline said she would meet with Father in person but would feel more comfortable if Mother was present for emotional support; Father responded that he would not meet with Madeline if Mother was there as well. See id. The trial court found that Madeline and Father attended three counseling sessions together and traveled to New York for five days after the first hearing on the pending motions. See id. at 18. Given this evidence, we find that the trial court's findings amply support the conclusion that the discord that existed between Madeline and Father did not rise to the level of repudiation so as to obviate Father's obligation to pay the expenses specified in the Agreed Order. See id. at 21.

2. Father's Contempt and Madeline's Expenses

Father next contends that the trial court erred by holding him in contempt for failing to pay Madeline's college and medical expenses. The determination of whether a party is in contempt of court is generally a matter within the sound discretion of the trial court. See Hancz v. City of S. Bend, 691 N.E.2d 1322, 1324 (Ind.Ct.App.1998). Here, again, the trial court entered findings of fact and conclusions of law thereon; thus, we must determine whether the findings and conclusions are sufficient to support the judgment that Father was in contempt of the Agreed Entry. See id. Indirect contempt, or civil contempt, is the willful disobedience of any lawfully entered court order of which the offender has notice. Winslow v. Fifer, 969 N.E.2d 1087, 1093 (Ind.Ct.App.2012), reh'g denied. The objective of a contempt citation is not to punish but to coerce action for the benefit of the aggrieved party. Id. Thus, any type of remedy in civil contempt proceedings must be coercive or remedial in nature. Id.

First, Father contends that the trial court's sanction of ordering him to pay Madeline's expenses for the spring 2013 semester was an impermissible modification of the parties' agreement, which "required Madeline to finish her undergraduate degree by December 31, 2012." Appellant's Br. p. 25. But the evidence showed, and the trial court found, that Father had failed to pay Madeline's post-secondary educational expenses for both the summer and fall semesters of 2012, in willful violation of the Agreed Entry. Specifically, the trial court set forth the following conclusions of law:

Appellant's App. p. 20-24.

Father's argument that "the trial court impermissibly modified [the Agreed Entry] to carry forward Father's obligation for an additional semester" is unavailing for two reasons. Appellant's Br. p. 27. The first is that this does not address the fact that Father failed to pay for Madeline's summer 2012 semester — meaning she was not able to register and receive credit for summer-semester classes, see Tr. p. 59 — although that was well within the timeframe contemplated in the Agreed Entry and before Father filed his Petition to Modify; and the second reason, which follows from the first, is that if he had paid for the summer 2012 semester, Madeline would have been able to graduate in December 2012, as originally planned. Thus, we find that the trial court did not err in finding Father in contempt for failing to pay Madeline's education expenses for the summer and fall 2012 and spring 2013 semesters.

Father also disputes the trial court's finding that he was in contempt for failing to pay Madeline's medical expenses. Although the trial court did not make any findings of fact on the issue of Madeline's unpaid medical expenses, the court nonetheless concluded that "[a]s a sanction for Father's contempt, and to bring Father into compliance with the Court's order, Father shall reimburse Mother the sum of $542.54 for Madeline's medical expenses paid by Mother...." Appellant's App. p. 24. It is undisputed that the Agreed Entry provides: "Father is responsible for the children's uninsured health care expenses." Id. at 56. In his brief Father insists that he received the medical bill only a few weeks before trial; but there is evidence in the record that both Mother and Madeline contacted Father for updated insurance information at or around the time the medical bill was incurred, as his insurance card had been declined. See, e.g., Appellant's App. p. 367; Appellee's App. p. 84, 118. However, we do not reweigh the evidence on appeal. Given that Father concedes that he is ordered to pay all of the children's uninsured medical expenses, we find that the trial court did not err in holding Father responsible for this expense.

3. Mother's Attorney's Fees

Next Father contends that the trial court erred in ordering Father to pay 77% of Mother's attorney's fees. Here the trial court made the following findings and conclusions on the issue of attorney's fees:

Appellant's App. p. 19. Ultimately, the trial court ordered "that as a sanction for Father's contempt, Father shall be responsible for $35,836.01, or 77% of attorney fees Mother incurred due to Father's contempt and in defense of Father's Petition to Modify...." Id. at 26.

The trial court has inherent authority to award attorney's fees for civil contempt. Winslow, 969 N.E.2d at 1093. In other words, no statutory sanction is needed, as a court's power to enforce compliance with its orders and decrees duly entered is inherent. Crowl v. Berryhill, 678 N.E.2d 828, 831 (Ind.Ct. App.1997). Accordingly, apart from any statutory authority, a court has the inherent authority to enforce its orders and to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions. Id. at 832.

Here, Father argues that the trial court erred by failing to consider evidence of the parties' resources, ability to pay, and employment. But given that Mother's request for attorney's fees was based on Father's misconduct for failure to comply with the Agreed Entry, and given the trial court's inherent authority to award attorney's fees for civil contempt, Winslow, 969 N.E.2d at 1093, we cannot say the trial court erred in ordering Father to pay a percentage of Mother's attorney's fees.

4. Madeline's Room and Board Expenses

Last, Mother raises one issue on cross-appeal, which is whether the trial court erred in finding that it would be inequitable for Father to be responsible for Madeline's room and board after she moved out of the sorority house. Mother does not challenge the trial court's findings of fact; instead, she asserts that the trial court clearly erred by concluding that Mother should be responsible for Madeline's room and board expenses for the 2012 summer and fall semesters and the 2013 spring semester on purely equitable grounds, namely that she "did not come to Court with clean hands." Appellant's App. p. 24. On appeal, we will not reweigh the evidence nor assess the credibility of the witnesses; instead, we determine whether the evidence supports the findings, and whether the findings support the judgment. Lovold, 988 N.E.2d at 1150. We do not defer to conclusions of law. Id.

The unclean-hands doctrine is an equitable tenet that demands one who seeks equitable relief to be free of wrongdoing in the matter before the court. Coppolillo v. Cort, 947 N.E.2d 994, 1000 (Ind.Ct.App.2011) (citing Fairway Developers, Inc. v. Marcum, 832 N.E.2d 581, 584 (Ind.Ct.App.2005), trans. denied.). The purpose of the unclean-hands doctrine is to prevent a party from reaping benefits from his or her misconduct. Id. For the doctrine of unclean hands to apply, the alleged wrongdoing must be intentional and must have an immediate and necessary relation to the matter being litigated. Id. The doctrine of unclean hands is not favored by the courts and must be applied with reluctance and scrutiny. Id. (citing Wagner v. Estate of Fox, 717 N.E.2d 195, 202 (Ind.Ct.App.1999)).

With respect to this issue, the trial court issued the following conclusions of law:

Appellant's App. p. 22-25.

Here, Mother asserts, and we agree, that the trial court made no specific findings about any intentional misconduct on Mother's part. And indeed, we can find nothing in the record that supports the conclusion that Mother committed any acts of intentional misconduct. We acknowledge that Mother visited Madeline in Atlanta and that Madeline stayed exclusively with Mother when she was home in Indianapolis. But we cannot imagine faulting Mother for the fact that Madeline preferred to spend time with her rather than with Father, and we find no evidence to support the conclusion that Mother bore "some of the fault for the deteriorating relationship between Madeline and Father." Appellant's App. p. 24.

As to Father's knowledge of Madeline's housing: we acknowledge that Madeline did not invite Father to visit her off-campus apartment, and that she was not entirely forthcoming with information about her housing. But she did notify Father that she was moving out of the sorority house to an off-campus apartment, and she sent photos of the apartment to Father. See Appellee's App. p. 149, 163-66. Father, for his part, responded that "[t]he apt. looks so nice. The faucet looks very hot and cool (LOL)[.] Def something I would like." Id. at 149. There is no evidence that Father ever questioned her housing choice or communicated to her that he would not pay for her to live in off-campus housing.

The Agreed Entry clearly states that Father is responsible for housing. There is no distinction made in the language of the Agreed Entry between on- vs. off-campus housing, as Father contends. Given that the trial court found — and we affirm — that Madeline's behavior did not rise to the level of repudiation, we conclude that Father remains liable for that expense. And because we find no evidence whatsoever that Mother engaged in any acts of intentional misconduct regarding Father's knowledge of or access to Madeline's housing, we respectfully disagree with the trial court's use of the equitable doctrine of unclean hands in this context. We conclude that Father remains liable for Madeline's room and board for the summer and fall semesters of 2012, and the spring 2013 semester.

Affirmed in part and reversed in part.

KIRSCH, J., and BRADFORD, J., concur.