Julie Winslow v. Larry D. Fifer

• Court: Indiana Court of Appeals
• Decided: July 3, 2012
• Docket: 84A04-1109-DR-518
• Status: Published

Opinion

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JAMES R. RECKER MARY LOU REYNOLDS Indianapolis, Indiana Terre Haute, Indiana

EDWARD A. McGLONE Terre Haute, Indiana

FILED Jul 03 2012, 9:37 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court

JULIE WINSLOW, ) ) Appellant-Respondent, ) ) vs. ) No. 84A04-1109-DR-518 ) LARRY D. FIFER, ) ) Appellee-Petitioner. )

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Matthew L. Headley, Special Judge Cause No. 84D02-0107-DR-5524

July 3, 2012

OPINION FOR PUBLICATION

BAKER, Judge Julie Winslow (Mother) and Larry Fifer (Father) are the parents of two

academically gifted daughters, twenty-one year-old J.F., who attends Indiana State

University and nineteen-year-old A.F., who attends Purdue University. Both girls have

received scholarships which have left the balance of their tuition and other fees to less

than $2,000 per year. Nevertheless, Mother, who took A.F. to Harry Potter’s World at

Universal Studios in Florida for a week to celebrate her SAT scores, refused to comply

with a court order requiring her to reimburse Father $1500 for her oldest daughter’s

college tuition for the 2010-2011 academic year. Mother refused to do so because she did

not know where her oldest daughter was living and apparently did not pick up the phone

to contact Father or their daughter to ask. Had she done so, Mother would have learned

that Father required J.F. to live at home because of a prior court order. After sending

Mother J.F.’s class list, grades, and an itemized list of expenses, and after asking her to

reimburse him $1,500 for the academic year with no response, Father eventually filed a

contempt action against Mother seeking $750 in attorney fees and asked the trial court to

order her to pay a proportionate share of A.F.’s college expenses.

The trial court found Mother in contempt for failing to reimburse Father $1,455.48

for J.F.’s college expenses for the 2010-11 academic year and ordered her to pay said

sum within twenty days of the date of the trial court’s order. The trial court further

advised Mother that there were several sanctions available to it and that it was electing to

require Mother to pay Father’s attorney fees. Lastly, the trial court ordered Mother to

2 pay the same percentage of A.F.’s educational expenses as she had been ordered to pay

for J.F.’s education expenses. The trial court noted that A.F. was potentially saving her

parents $90,000 over the following four years.

Mother now appeals the trial court’s judgment. Specifically, Mother contends that

the trial court erred in 1) computing her proportionate share of educational expenses, 2)

holding her in contempt, and 3) ordering her to pay Father’s attorney $750 as a contempt

remedy. Finding no error, we affirm the judgment of the trial court.

FACTS

Mother and Father’s marriage was dissolved in February 2002. They have two

daughters, J.F., born on March 2, 1991, and A.F., born on May 5, 1993. In February

2009, the trial court held a hearing on Mother’s Petition to Modify Child Support and

Declare [J.F.] an Adult and Father’s Petition for Post-High School Educational

Assistance for Minor Children and to Modify Child Support. In March 2009, the trial

court denied Mother’s request to emancipate J.F. Rather, the trial court concluded that

J.F. had the aptitude and ability to attend Indiana State University (ISU) and that an order

for post secondary educational expenses was proper. Specifically, the trial court ordered

J.F. to pay one-third of her college expenses. The trial court further ordered both parents

to divide the remaining two-thirds of J.F.’s educational expenses, with Father to pay

62.81% and Mother to pay 37.19%. Father apparently agreed to pay the parents’ two-

thirds share to the university, and Mother was ordered to then reimburse Father for her

37.19% contribution.

3 In July 2010, the parties mediated a modification of child support. In August

2010, the trial court entered an order approving a mediated modification of child support.

Specifically, the mediated modification agreement provided that J.F. was emancipated for

the purposes of weekly child support, but that the parties would still be obligated to pay

J.F.’s college expenses pursuant to the trial court’s March 2009 order. Mother was also

still obligated to pay $45.00 per week in child support for her younger daughter, A.F.

In the fall of 2010, J.F. registered for classes at ISU, where she received an Honors

Scholarship. The total cost for her first semester, including the scholarship, was $2,227.

Father paid for parents’ share of the expenses and requested that Mother reimburse him

$801.72 pursuant to the trial court’s March 2009 order. Father provided Mother with

supporting documentation, including a list of J.F.’s courses and receipts for all payments.

Mother did not respond to Father’s request.

In December 2010, Father sent another written request for reimbursement to

Mother. Father also sent Mother a copy of J.F.’s fall semester grades and advised Mother

that J.F. had maintained a 3.64 grade point average. In addition, Father sent Mother a

copy of J.F.’s spring 2011 courses. Father asked Mother if there was a reason that she

was not paying him, but Mother did not reply.

In February 2011, Father asked Mother when he could expect to receive payment

for J.F.’s fall 2010 college expenses. He also included an itemized list of J.F.’s spring

2011 college expenses, and asked Mother to reimburse him $653.76 for the spring

4 semester. Father sought a total reimbursement of $1455.48 for J.F.’s first year at ISU.

Again, Mother did not reply.

When Mother failed to respond to Father’s requests for payment, Father filed in

May 2011 an “Affidavit for Rule to Show Cause” wherein he asked the trial court to enter

an order requiring Mother to appear and show cause why she should not be punished for

contempt of court for failing to comply with the trial court’s March 2009 order. Father

also asked the court to order Mother to pay the $750.00 in legal fees he incurred for the

prosecution of the Affidavit for Rule to Show Cause. In addition, Father filed a “Petition

for Post Secondary Educational Expenses” for A.F., who was graduating from high

school with honors. Father asked the trial court to order Mother to pay the same

percentage of A.F.’s educational expenses as she had been ordered to pay for J.F.’s

educational expenses.

A hearing on the petition and affidavit revealed that Father works at a steel factory

in Terre Haute where he earns $120,000 per year, and Mother works for an engineering

firm at the University of Cincinnati where she earns $71,000 per year. The evidence

further revealed that J.F. signed a lease to rent an apartment with her boyfriend in April

2010. J.F. explained that she signed the lease because the apartment was only $410 per

month, which was a “ridiculously great price,” and she and her boyfriend did not want to

lose it. Tr. p. 45. When J.F. told Father what she had done, Father told her that she was

not allowed to move into the apartment until he discussed it with his lawyer because he

was under a court order that included child support. J.F.’s boyfriend moved into the

5 apartment, and J.F. lived at Father’s house until the trial court issued its order

emancipating J.F. for the purpose of weekly child support.

Testimony at the hearing further revealed that A.F. graduated from West Vigo

High School as class valedictorian in 2011, missed only one math question and two

English questions on the SAT, and planned to study engineering at Purdue University.

She received substantial and prestigious scholarships, including a $10,000 Trustee

Scholarship, a $10,000 Stamps Scholarship, and a $2500 National Merit Scholarship for

her freshman year. A.F. testified that the scholarships did not cover the entire cost of her

freshman year, and there would be an additional cost for orientation, chemistry lab fees,

and the engineering program.

Mother testified when she received the bill from Father for J.F.’s educational

expenses, she sent it to her attorney because she did not see room and board fees on the

bill. Mother did not believe that J.F. was living with Father. According to Mother, she

did not reimburse Father for J.F.’s educational expenses because she did not know where

J.F. was living. She apparently did not telephone Father to see where J.F. was living

because she has not talked to Father in five years. Mother also apparently did not

telephone J.F. because there is no evidence in the transcript that Mother maintains any

type of contract with her oldest daughter. Mother further testified that she recognized

A.F.’s SAT results with the “trip of a lifetime,” which was a one-week stay at Harry

Potter World at Universal Studios in Florida during the 2010 holidays. Mother also

6 attempted to introduce into evidence a photograph of Mother and A. F. together in the

Bahamas.

Following the hearing, the trial court issued an order finding Mother in contempt

for failing to pay her proportionate share of J.F.’s educational expenses, which was

$801.72 for the fall 2010 semester at ISU and $653.76 for the spring 2011 semester, for a

total of $1,455.48. The trial court ordered Mother to pay this sum to Father within

twenty days of the date of the order. The court also ordered Mother to pay $750 of

Father’s attorney fees as a contempt remedy. Lastly, the trial court found that A.F. was

planning to attend Purdue University and that her $24,000 per year tuition and room and

board would only cost $1,500 because of A.F.’s exceptional academic achievements and

scholarships. The court ordered Mother to pay $575.70 of A.F.’s fall 2011 tuition, and

Father to pay $972.30. Mother appeals.

DISCUSSION AND DECISION

I. Computing the Proportionate Share of Educational Expenses

Mother first argues that the trial court erred in computing her proportionate share

of educational expenses for her daughters. In reviewing orders for apportionment of

college expenses, we do not weigh the evidence or determine credibility. Warner v.

Warner, 725 N.E.2d 975, 978 (Ind. Ct. App. 2000). Rather, we consider only the

evidence most favorable to the judgment. Id. We will affirm the trial court unless its

order is clearly erroneous. Id. The decision is clearly erroneous if it is clearly against the

logic and effect of the facts and circumstances which were before the trial court. Id.

7 Pursuant to Indiana Code section 31-16-6-2, the trial court has the authority and

discretion to award post-secondary educational expenses and to determine the amount of

such an award. See id. The trial court should consider post-secondary education to be a

group effort and should weigh the ability of each parent to contribute to payment of the

expense as well as the ability of the student to pay some part. Id. The trial court must

determine what constitutes educational expenses, and the guidelines state that this will

generally constitute tuition, books, lab fees, supplies, student activity fees, and the like.

Id. Room and board are also included when the student lives away from the custodial

parent during the school year. Id.

Further, a “rough proportionality” has been required in the apportionment of

college expenses between parents and children. Id. A requirement of rough

proportionality is not a requirement of precise parity, but deviations from rough

proportionality require a finding that such an apportionment would be unjust. Id. Absent

such specific findings, we have found that an apportionment of college expenses which

was not roughly proportionate to parental resources was clearly erroneous. Id.

Here, Mother specifically argues that the trial court erred in computing her

proportionate share of educational expenses for her daughters because it “improperly

refused to consider the effect of educational tax credits obtained by Father . . . .”

Appellant’s Br. p. 3. However, Mother offered no evidence or offer of proof at the

hearing concerning an educational tax credit benefiting Father. Because Mother did not

make an offer of proof, this issue was not properly preserved and is waived. Dowdell v.

8 State, 720 N.E.2d 1146, 1150 (Ind. 1999) (concluding that the failure to make an offer of

proof resulted in waiver of the alleged error).

Waiver notwithstanding, we note that a trial court may consider the consequences

of an educational tax credit if such evidence is tendered. In this case, however, even if

Mother had tendered such evidence, the credit might have been de minimis based on her

daughters’ minimal educational expenses. Under such circumstances, the trial court

would not have abused its discretion in failing to consider it.

Mother also argues that the trial court erred in computing her share of educational

expenses because the court placed no limitations on A.F. For example, according to

Mother, the trial court did not place a limit on the number of semesters A.F. may attend

school at her parents’ expense. Further, Mother points out that there is no mention of the

level of academic performance required by A.F. to remain eligible for her parents’

assistance. However, as Father points out, Mother did not raise these limitations at the

hearing. This issue is therefore waived as well. See Benton Cnty. Remonstrators v. Bd.

of Zoning Appeals of Benton Cnty., 905 N.E.2d 1090, 1096 (Ind. Ct. App. 2009)

(holding that a party waives appellate review of an issue unless the party raises the issue

before the trial court). Further, we agree with Father that the trial court may have found

such limitations unnecessary where A.G. was the West Vigo High School class

valedictorian, missed only one math question and two English questions on the SAT, and

received three scholarships to Purdue. The trial court did not err in computing Mother’s

proportionate share of educational expenses for her daughter.

9 II. Contempt

Mother also argues that the trial court erred in holding her in contempt. The

determination of whether a party is in contempt of court is a matter within the sound

discretion of the trial court. Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006).

We will reverse the trial court’s determination only if the court has abused its discretion.

Id. A court has abused its discretion when its decision is against the logic and effect of

the facts and circumstances before the court or is contrary to law. Id.

Indirect contempt, or civil contempt, is the willful disobedience of any lawfully

entered court order of which the offender has notice. City of Gary v. Major, 822 N.E.2d

165, 169 (Ind. 2005). The objective of a contempt citation is not to punish but to coerce

action for the benefit of the aggrieved party. Mossner v. Mossner, 729 N.E.2d 197, 199-

200 (Ind. Ct. App. 2000). Thus, any type of remedy in civil contempt proceedings must

be coercive or remedial in nature. Id. at 200.

Here, the trial court ordered Mother to reimburse Father her proportionate share of

J.F.’s educational expenses and Mother failed to comply with the order. She does not

argue that the order was not lawful or that she had no notice of it. Rather, she contends

that she disregarded it because Father enjoyed a tax credit and she did not know where

J.F. was living. These are not valid reasons for disregarding the trial court’s order. In

short, the trial court did not abuse its discretion in finding Mother in contempt.

III. Attorney Fees

10 Lastly, Mother argues that the trial court erred in ordering her to pay $750 of

Father’s attorney fees as a remedy for her contempt. The trial court has inherent

authority to award attorney fees for civil contempt. Crowl v. Berryhill, 678 N.E.2d 828,

831 (Ind. Ct. App. 1997).

Mother first contends that the finding of contempt was not supported by the

evidence and the subsequent award of attorney fees for that contempt was an abuse of

discretion. This argument fails, however, because we affirmed the finding of contempt.

Mother further contends that the trial court erred because it awarded “the entire

cost of the [attorney] fees for all matters heard at the hearing of August 5, 2011 to Father

without proportioning [attorney] fees which were particular to the contempt proceeding

only.” Appellant’s Br. p. 8. However, our review of the evidence reveals that in his

Affidavit for Rule to Show Cause, Father averred that “due to the willful failure and

refusal of [Mother] to comply with the terms of the Court’s Order of March . . . 1999 . . .

Father has incurred fees of $750.00 for the prosecution of this Affidavit for Rule to Show

Cause, in order to require the [Mother] to comply with the Court’s Order as pertains to

the payment of post secondary educational expenses . . . .” Appellant’s App. p. 53.

Clearly, the $750 was proportioned to the contempt proceeding. The trial court did not

abuse its discretion in ordering Mother to pay $750 of Father’s attorney fees.

Mother and Father have been blessed with two daughters who excel academically.

Indeed, both have received scholarships such that their college expenses are minimal.

Nevertheless, although Mother has the financial means, she has chosen litigation over

11 paying her proportionate share of these minimal expenses or even communicating with

her children and Father. No one wins in such situations, and we strongly recommend that

Mother consider this in the future.

The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.