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Panfil v. Fell

Court of Appeals of Indiana

October 22, 2014

LARRACUENTA R. PANFIL, Appellant-Petitioner,
v.
RALPH E. FELL, Appellee-Respondent

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT. The Honorable Jenny Pitts Manier, Special Judge. Cause No. 71C01-0303-DR-189.

ATTORNEYS FOR APPELLANT: PETER M. YARBRO, FRED R. HAINS, NICOLE B. MUIR-KIMMERLY, Hains Law Firm, LLP, South Bend, Indiana.

ATTORNEY FOR APPELLEE: MARK J. PHILLIPOFF, Jones Obenchain, LLP, South Bend, Indiana.

BROWN, Judge. BRADFORD, J., concurs. BARNES, J., concurs with separate opinion.

OPINION

Page 773

BROWN, Judge

Larracuenta R. Panfil (" Mother" ) appeals the trial court's February 7, 2014 order terminating the obligation of Ralph E. Fell (" Father" ) to pay post-secondary educational expenses for K.F. (" Daughter" ) and the court's denial of Mother's motion to correct errors. Mother raises two issues which we revise and restate as whether the court erred or abused its discretion in entering the February 7, 2014 order and denying her motion to correct errors. We affirm.

FACTS AND PROCEDURAL HISTORY

Mother and Father were married on June 3, 1989, and two children were born of the marriage, Daughter, born December 16, 1993, and M.F., born October 18, 1995. On March 9, 2004, the St. Joseph Circuit Court entered a decree of dissolution of the marriage, and the decree incorporated the terms of a settlement agreement entered by the parties. The settlement agreement provided, among other things, that Daughter " shall be responsible for payment of one-third (1/3) of her own college education expenses" and " that the remaining two-thirds (2/3) of [Daughter's] college education expenses should be paid by the Parties with each party equally contributing Fifty percent (50%) of those expenses." Appellant's Appendix at 21.

On March 1, 2011, Mother filed a petition to modify child support. On July 12, 2012, Father filed a Petition for Finding of Repudiation of Relationship, alleging Daughter wanted nothing to do with him and requesting the court to find Daughter had repudiated her relationship with him. After a hearing, the court entered an order on July 30, 2012, establishing Father's weekly child support obligation and net arrearage, finding there had not been a complete refusal by Daughter to engage in the parent-child relationship, and denying Father's petition for a finding of repudiation. With respect to college expenses, the court's order provided:

The parties shall share the expense of tuition, room and board, books and necessary fees as provided in Decree. Father's obligation to pay post-secondary educational expenses is dependent upon [Daughter] maintaining a grade point average of 2.1 and not being placed on probation or being subject to any disciplinary action for violation of school rules or policies.

Id. at 38.

On January 14, 2014, Father filed a Petition to Discontinue Paying for Daughter's Post-Secondary Educational Expenses, which referenced the court's July 30, 2012 order and alleged that Daughter " dropped one (1) three-hour course, Introduction to International Relations, and was caught cheating in a three-hour history course, Introduction to the Modern World" and that, " as a result of the cheating, she failed the course and received an overall grade point average of 1.93." Id. at 44.

On February 4, 2014, the court held a hearing on the petition, at which the parties appeared in person and Daughter participated by telephone. Father's counsel

Page 774

referred to the court's July 30, 2012 order and argued that Daughter " was caught cheating in a history class that she took. She committed -- apparently committed plagiarism. And she was disciplined by getting an F in that class, a class that she otherwise would have passed." Transcript at 6. Father's counsel also stated that Father " offered to have [Daughter] come and live with him for this semester, he'd help her find a job, he'd help her get on the right track . . . . She -- she declined that." Id. Father's counsel requested the court to " enforce the [July 30, 2012] order." Id. at 6-7.

Mother's counsel argued that Daughter had " not been disciplined, she's not on probation [and] in fact is still a member in good standing" and that Daughter's overall GPA was 2.34. Id. at 7. Mother's counsel emphasized that Daughter " is in fact not on probation," that " the teacher did not turn this information in to [] Purdue University about the cheating," and that " [t]here's nothing . . . other than the F on her records." Id. at 8-9. Mother also presented documentary evidence of Daughter's transcript of grades at Purdue University, Purdue University's rules relating to academic probation, tuition information, and Father's income.

Daughter testified " this is my second semester of my sophomore year" and that her overall grade point average was 2.34. Id. at 11. When asked by Mother's counsel to describe what happened in her history course, Daughter testified:

Throughout the course -- it was an online class and every week in the class we had to submit a paper. And on those papers every week -- like everyone in the class would submit them -- you had to comment on everyone's paper five times. And I cheated and I plagiarized some of my comments.

Id. at 11-12. When asked " [h]ow many times [she] cheat[ed] in the course," Daughter stated " [t]hree times." Id. at 12. When Mother's counsel asked, " [p]rior to your plagiarizing the reviews of the other students what was you grade in that course," Daughter stated she had " an 84 percent." Id. The court asked " [w]hat lesson did you learn," and Daughter stated " [t]o not plagiarize or get lazy like that again." Id. at 13. She also testified that she dropped a different course, international politics, in the fall semester because she had " never been in any type of politics course and [she] felt like [she] was totally lost in the class" and " knew that would affect [her] GPA." Id. Additionally, Daughter testified that Father " offered for [her] to stay with him the last week of winter break." Id. at 14. When Mother's counsel asked whether " he ever offer[ed] you to come down and live with him and stay at his house and kind of get yourself reacclimated or refocused," Daughter responded, " [n]o." Id. Daughter also stated that Father " said that if [she] didn't go [to Father's house] for the last week of school," he would not continue to support Daughter's college efforts. Id. Daughter testified that " over parents' weekend [Father] gave [her] $500 for books and other stuff." Id. at 15.

Father's counsel then questioned Daughter about the incident, and Daughter indicated she " ended up getting an F because of the plagiarism." Id. at 17. When Father's counsel asked Daughter, " [w]asn't it disciplined [sic] by Purdue to give you an F in the class," Daughter responded: " Yeah." Id. at 18.

Mother's counsel asked Daughter if " the instructor was the one that gave [Daughter] the F," and Daughter responded " [y]es it was under her discretion." Id. Daughter further indicated that she had not been ...


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