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Cunningham v. Barton

Court of Appeals of Indiana

December 26, 2019

David Cunningham, Appellant-Respondent,
Penney (Cunningham) Barton, Appellee-Petitioner.

          Appeal from the Vermillion Circuit Court The Honorable Robert M. Hall, Special Judge, Trial Court Cause No. 83C01-0104-DR-41

          Attorney for Appellant Angela Field Trapp Indianapolis, Indiana.

          Attorney for Appellee Tracy M. Weber Wilkinson Goeller Modesitt Wilkinson & Drummy, LLP Terre Haute, Indiana.

          RILEY, JUDGE.


         [¶1] Appellant-Respondent, David Cunningham (Father) appeals the trial court's award of post-secondary educational expenses (Educational Order) in favor of Appellee-Petitioner, Penney Barton (Mother).

         [¶2] We affirm.


         [¶3] Father presents four issues on appeal, which we restate as:

(1) Whether the trial court's findings of fact and conclusions of law supporting its determination that Children had not repudiated Father were clearly erroneous;
(2) Whether the trial court's implicit conclusion that Children had adequate aptitude for post-secondary education was clearly erroneous;
(3) Whether the trial court abused its discretion by ordering Father to contribute to Children's educational expenses during a period when Father also had a child support obligation; and
(4) Whether the trial court erred when it failed to impute the income of Mother's boyfriend (Boyfriend) to Mother.


         [¶4] Mother and Father married on December 31, 1997. Two children, twin boys Clayton and Colton (collectively, Children), were born of the marriage on December 5, 1999. Mother and Father separated in January 2001. On June 26, 2001, the trial court entered a decree of dissolution of marriage awarding Mother custody of Children and ordering Father to pay child support. Father voluntarily ceased exercising parenting time with Children in 2004 when they were five years old. Father remarried and had two additional children. On September 26, 2009, by agreement of the parties, Father's child support obligation was increased to $220 per week and was not modified afterwards.

         [¶5] When Children were ten years old, their paternal great-grandmother died. Children were emotionally hurt when Father disallowed them from their great-grandmother's funeral. At the age of ten, Children requested that their surname be changed from Father's to Mother's. There was no contact of any kind between Father and Children until December 31, 2013, when Father telephoned Children seeking to re-establish contact with them. Children, who were then fourteen years old, returned Father's telephone call on January 1, 2014, and told Father that he should not contact them any further and that they wished to have nothing to do with him. Thereafter, there was no communication between Father and Children. Children turned eighteen years old on December 5, 2017.

         [¶6] Children planned to attend Indiana State University (ISU). On February 6, 2018, Mother filed a petition for contribution to post-secondary educational expenses from Father. Both Children had contacts with the criminal justice system prior to graduating high school: Clayton was detained for eighty days for resisting law enforcement, and Colton was placed on probation for spitting on a law enforcement vehicle. Children were either suspended or expelled from high school in October of their senior year but completed their degrees through online courses. Although they were not permitted to participate in graduation activities, Colton graduated with a GPA of 3.80, and Clayton graduated with a GPA of 3.30.

         [¶7] On May 24, 2018, Father filed a motion for emancipation and termination of child support. On May 29, 2018, the trial court held the first of three hearings on the parties' motions. Clayton testified that he was open to the possibility of a relationship with Father, but that some amends needed to be made by Father. On June 29, 2018, Father filed his Motion to Dismiss Mother's petition for educational expenses.

         [¶8] On August 2, 2018, the trial court held a second hearing on the parties' motions. Clayton had his probation revoked due to a new arrest and served nine days as a result. Colton testified at this second hearing that he would be open to having a relationship with Father, speaking with Father, and meeting his half-siblings. Father testified that he had never had any difficulty in his relationship with Children prior to breaking off contact with them when they were five years old; rather, all his problems had involved Mother. After the conclusion of the August 2, 2018, hearing as the parties were exiting the building, Colton extended his hand to Father and introduced himself. The two shook hands. Father also introduced himself and explained that Mother, not Children, had caused his actions at the time of their great-grandmother's funeral.

         [¶9] On October 12, 2018, the trial court held a third hearing. The Fall 2018 college semester had commenced. Colton was attending Vincennes University (VU) full-time and was living off-campus in an apartment. Clayton was attending Danville Area Community College (DACC) full-time and continued to live at home with Mother. Mother requested that Father contribute $350 per month for Colton's room and board while he attended VU, starting January 2019, after Father's child support obligation was discontinued due to Children turning nineteen years old on December 5, 2018. Mother sought a reimbursement of $254.42 from Father for textbooks she had purchased for Colton from the VU bookstore for use during the Fall 2018 semester. Mother requested a $350 contribution per month from Father for Clayton's room, board, and incidentals also beginning in January 2019 to offset her expenses as Clayton continued to live in her home while attending DACC. Mother requested that, after Children's share of their educational expenses was deducted, based on the parties' respective weekly adjusted incomes as calculated on a child support obligation worksheet, Father pay 66% of the remaining expenses, and Mother pay 34%. On November 2, 2018, the parties submitted proposed findings of fact and conclusions of law to the trial court.

         [¶10] On November 19, 2018, the trial court entered its Order granting Mother's petition for post-secondary educational expenses. The trial court found that Father had abandoned Children voluntarily when they were five years old, never sent Children birthday cards or gifts, only called Children once on the telephone in January 2014, never pursued any parenting time with Children despite being in court on multiple occasions for child support issues, and had "intentionally not been a part of their lives." (Appellant's App. Vol. II, p. 23). The trial court noted that, even after Colton had shaken his hand after the second hearing, Father had not reached out to Children for additional contact. The trial court made the following additional relevant findings:

8. It is clear from the testimony at trial that Father abandoned his children when they were five years old . . . Father is now requesting that this court excuse him from paying for his Children's post-secondary educational expenses due to their nonexistent relationship which appears to ...

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