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Kahn v. Baker

Court of Appeals of Indiana

June 23, 2015

Stanley Kahn, Appellant-Defendant,
Beverly (Kahn) Baker, Appellee-Plaintiff

Appeal from the Hamilton Superior Court. The Honorable Daniel J. Pfleging, Judge. Case No. 29D02-1003-DR-010248.

ATTORNEYS FOR APPELLANT: Deborah M. Agard, Daniel W. Kiehl, Law Office of Deborah M. Agard, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: Scott P. Wyatt, Campbell Kyle Proffitt LLP, Carmel, Indiana.

Vaidik, Chief Judge. Kirsch, J., and Bradford, J., concur.


Vaidik, Chief Judge.

Case Summary

[¶1] 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 e-mail 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.

[¶2] 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

[¶3] 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.

[¶4] 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.

[¶5] 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:

3. For the remainder of Madeline's undergraduate education at Emory University, which education shall be completed by December 31, 2012, . . . Father shall pay and be responsible for the following:
a. Tuition at the institution the child attends;
b. Room and board at the institution the child attends;
c. Reasonably necessary books, fees and supplies; and
d. Transportation to and from school at the beginning and the end of the school year or as otherwise agreed by the parties; provided, however, that in the event Mother agrees to provide transportation to and/or from school for a child (which Mother is not obligated to do), then Mother shall pay the expenses of providing the transportation.
Mother shall not have an obligation to contribute to each child's undergraduate educational expenses.
4. Neither party shall have a child support obligation to the other. . . .
* * * *
d. The children spend approximately half their time at the home of each parent when they are not at school.
* * * *
f. Father is responsible for the children's uninsured health care expenses.
g. Each parent shall pay for the care and maintenance of the children during any periods of time that the children shall be with that parent.

Appellant's App. p. 55-56.

[¶6] 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:

It was really about his presence and his voice. I was just really scared to hear him or see him because it just brought up too much, and I had physical reactions to it. I would shake and cry when I would listen to him because it would just kind of -- I know it sounds cliché, but just take me back. And I still wanted to talk to him and I miss him all the time. So, I would e-mail him or, you know, send him a paper that I was working on because I really wished that he could be included in some of the stuff that was going on with me, but I just couldn't hear him or see him. It just hurt me too much and it scared me too much.

Id. at 330.

[¶7] 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.

[¶8] 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.

[¶9] 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.

[¶10] 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.

[¶11] 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.

[¶12] 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:

Thanks dad for asking about my health but I have a doctors apt here tomorrow I need to stay here and get well so I can stay in school. But I need the new insurance number the card I have doesn't work.

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.

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

I was hoping that when I come back you would maybe want to go to counseling with me. We can do it in Atlanta or I can come home. I'm sorry that it has taken me this long to be ready. I feel like I just lost myself for so long . . . and I wasn't waiting for any specific amount of time to talk to you . . . I just know I feel more ready than I have before. I miss you, and want you to share in my life . . . . I hope you are well. I have been keeping tabs on you . . . . I hope this message finds you well, and that you know I am in no way trying to attack you or provoke you or hurt you. I really do want to work things out because I genuinely love and miss you . . . and I can't have one more dream about you, or look at the beach, or eat fruit and not talk to you. So, I love you. . . .

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:

I would like to meet you when I come home. I've been thinking a lot about you. Sorry it took me so long to e-mail you back. . . . I guess we both know the deposition is scheduled for that Monday I come home. Should we meet before then? I think it would be a good idea if Mom comes too to sort of help ease the transition. It's gonna be really hard. . . . I think we should keep ...

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