McKay v. McKay

644 N.E.2d 164, 1994 Ind. App. LEXIS 1696, 1994 WL 694049
CourtIndiana Court of Appeals
DecidedDecember 13, 1994
Docket34A05-9402-CV-60
StatusPublished
Cited by69 cases

This text of 644 N.E.2d 164 (McKay v. McKay) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKay v. McKay, 644 N.E.2d 164, 1994 Ind. App. LEXIS 1696, 1994 WL 694049 (Ind. Ct. App. 1994).

Opinion

OPINION

ROBERTSON, Judge.

John McKay [Father] appeals the divorce court's order requiring him to pay sums directly to his son, Joel, for his college expenses entered on the modification petition of Stephanie Cooke [Mother]. Father raises one issue upon which we reverse. Restated, it is:

Whether Father has demonstrated prima facie reversible error in the trial court's order requiring him to pay a portion of Joel's college expenses when Joel, an adult, has steadfastly refused to have any relationship with Father despite Father's ongoing efforts to reconcile their relationship?

FACTS

The facts in the light most favorable to the trial court's judgment reveal that Father and Mother had been married for approximately sixteen years when they divorced in 1984. Mother was awarded custody of the three children, all boys, John, Joel, and Justin. Father was awarded reasonable visitation and ordered to pay child support. At the time of the hearing in this matter, John was in his early twenties and had been emancipated; Joel was twenty years-old, a junior at Indiana University-Bloomington; and Justin was sixteen years-old, a junior in high school and living with Mother. As noted above, the only issue involved in this case relates to the order regarding the payment of Joel's college expenses.

The relationships between Father and Mother, and Father and the sons, were severely damaged as a result of the divoree and continued to deteriorate in the years that followed. Father had exercised visitation with the boys from 1984 to 1987. However, in 1987, the acrimony had intensified to the point where Father voluntarily relinquished his rights of visitation. Father admits the deterioration in the relationships was at least partly his fault. Since 1987, Father has not exercised visitation with the boys but has sporadically sent them cards and gifts.

In 1990, Father began treatment for depression resulting from his alienation from his children. In August of 1991, Father attempted a reconciliation with the boys, who were not interested in reestablishing a relationship with Father. When informal efforts failed, Father filed a petition to enforce his visitation rights with the two younger boys. The trial court held a hearing, interviewed the boys in chambers, and ordered them to participate in a number of counseling sessions designed to effect a reconciliation. After completing the required counseling, the boys refused to visit with Father.

Joel started college at Indiana University-Kokomo, where he could live at home with Mother. Then without consulting Father, Joel transferred to Indiana University-Bloomington and pledged a fraternity. As Joel was no longer living at home, the expenses related to his college education increased substantially. Both parents filed petitions for modification of the child support/educational expenses order and the petitions were joined in the present litigation. Father again requested enforcement of his visitation rights.

*166 At trial, Joel testified that he was electing not to have a relationship with Father, that he did not want a relationship or contact with Father, and there was nothing that could be done to change his mind. Joel referred to Mother and his step-father as his "parents" with whom he consults regarding his college-related decisions.

Father testified that Joel was coming of age, a man, and old enough to make his own decisions. Father stated his belief that it would be very unfair to require him to contribute toward Joel's college education when Joel refused to have any relationship with him and that, under the circumstances, Father did not feel obligated to assist Joel with his college education. Father testified further that, if Joel were willing to reestablish a relationship with him, he would feel responsible to do whatever he could to help put Joel through college.

The trial court denied Father's petition to have his visitation rights enforced. The trial court granted Mother's petition and ordered Father to pay $150.00 per month directly to Joel during the school year for his college room and board expenses.

DECISION

First, we acknowledge that Mother has declined to file an appellee's brief, and therefore, Father need show only prima facie reversible error to be successful in this appeal. Sterrett v. Hartzell (1994), Ind.App., 640 N.E.2d 74. We may reverse the trial court's decision if error appears on the face of the argument. Id.

Under Indiana law, there is no absolute legal duty on the part of parents to provide a college education for their children. Neudecker v. Neudecker (1991), Ind., 577 N.E.2d 960, 962. However, the statutory authorization for the divorcee court to order either or both parents to pay sums toward their child's college education constitutes a reasonable manner in which to enforce the expectation that most families would encourage their qualified children to pursue a college education consistent with individual family values. Id. In determining whether to order either or both parents to pay sums toward their child's college education, the court must consider whether and to what extent the parents, if still married, would have contributed to the child's college expenses. Id.; Ind.Child Support Guideline 3 (Commentary 8.b.).

In Isler v. Isler (1981), Ind.App., 422 N.E.2d 416, we held a nineteen year-old child to have been emancipated when he had chosen to remove himself from his father's custody and control in order to escape domestic discipline or parental restraint. In Green v. Green (1983), Ind.App., 447 N.E.2d 605, trams. denied, we noted that the salient feature of emancipation freeing a child from the care, custody, and control of his parent for the remainder of the child's minority is that the child has created a new relationship between himself and his parent, relieving the parent from the responsibilities of support.

The approach adopted by the Pennsylvania courts when confronted by the precise issue posed in the present case is most persuasive. In Milne v. Milne (1989), 383 Pa.Super. 177, 556 A.2d 854, 856, the court held that 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. In reaching this decision, the Milne court noted that:

The objective of the court [in] extending its protection to adult children of divorced parents is to ensure that they are not unjustly-and that is the key word-deprived of opportunities they would otherwise have had, had their parents not di- ....
In an intact family, there is mutual discussion of the desired choice of school and the affordability of the choice. Parents exercise some control over the adult child by virtue of their provision of financial support. Yet we routinely impose the obligation of educational support for children of divorced parents without making allowance for any input on the part of the noneustodial parent.

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Bluebook (online)
644 N.E.2d 164, 1994 Ind. App. LEXIS 1696, 1994 WL 694049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-mckay-indctapp-1994.