Court of Appeals of Indiana | Memorandum Decision 30A01-1611-DR-2608 | June 9, 2017 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Thomas M. Barr

Thomas M. Barr & Associates

Nashville, Indiana

ATTORNEY FOR APPELLEE

Christopher T. Smith

Smith Davis LLC

Greenfield, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kurt R. Duncan,

Appellant-Respondent,

v.

Betsy J. Duncan,

Appellee-Petitioner.

June 9, 2017

Court of Appeals Case No.

30A01-1611-DR-2608

Appeal from the Hancock Circuit

Court

The Honorable Charles D. 

O’Connor, Special Judge

Trial Court Cause No. 

30C01-0709-DR-829

Bradford, Judge.
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Case Summary

[1] The marriage of Appellant-Respondent Kurt Duncan (“Father”) and AppelleePetitioner Betsy Duncan (“Mother”) was dissolved in 2009, having produced 

two children, Brittany and Nattalee, born in 1993 and 1995, respectively 

(collectively, “the Children”). In October of 2012, the trial court ordered 

Father to pay a portion of Brittany’s college expenses, as she was a full-time 

student at the time. The October of 2012 order made Father’s obligation 

contingent on Brittany maintaining a certain grade point average (“GPA”). 

[2] In 2014, Mother petitioned the trial court for a contribution from Father toward 

college expenses for Nattalee, who had begun college in 2013. As with 

Brittany, Father’s obligation for college expenses for Nattalee was made 

contingent on her maintaining a certain GPA. After a hearing, the trial court 

issued an order grating Mother’s petition (“the Order”), in which it ordered 

Father to pay a portion of the Children’s college expenses dating back to 2013, 

found Father in indirect contempt of court for failing to timely pay Brittany’s 

college expenses, and ordered him to pay a portion of Mother’s attorney’s fees. 

Father contends that the trial court erroneously concluded that (1) the Children 

had not repudiated him, (2) he has any obligation to contribute to the 

Children’s college expenses, (4) he was in contempt of court, and (4) he was 

obligated to pay a portion of Mother’s attorney’s fees. We conclude that the 

trial court did not err in concluding that the Children had not repudiated 

Father. The trial court, however, erred in concluding that Father has any 

current obligation for the Children’s college expenses, because neither has 
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established that she has maintained the requisite GPA. Consequently, we also 

reverse the trial court’s determination that Father is in contempt of court and 

that he is currently obligated to pay a portion of Mother’s attorney’s fees. We 

affirm in part, reverse in part, and remand for further proceedings. 

Facts and Procedural History

[3] Father and Mother’s marriage was dissolved on April 28, 2009, and two 

children were born of the marriage: Brittany, born June 3, 1993, and Nattalee, 

Born March 30, 1995. On June 29, 2012, Mother petitioned for payment of 

educational expenses. On October 24, 2012, the trial court found that Father 

had a child support arrearage of $10,878.09 and ordered Father to pay 71% of 

Brittany’s post-secondary educational expenses. The trial court also made the 

following findings regarding Brittany’s college expenses:

The parties’ oldest child Brittany is a full-time college student. 

Mother seeks an order on how college expenses are to be paid. 

Brittany lives at home and commutes to Indiana UniversityPurdue University in Indianapolis. Brittany spends some 

overnights with her boyfriend. Brittany works approximately 

thirty hours per week and earns $8.67 per hour. She uses her 

earnings for her living expenses.

Based on the evidence, the Court orders that Brittany’s college

expenses to be paid 29% by the Mother and 71% by the Father 

after Brittany has contributed $2,000 per year toward her costs. 

Brittany’s contribution may come from grants, loans or her 

wages. The Court notes Brittany received a Pell Grant her first 

year of college in the amount of $9,662.00[] that satisfies her 

obligation for the current school year. The Court defines 

Brittany’s college expenses to be tuition, books, required fees, 
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and on campus room and board. If Brittany elects to live off 

campus, college expenses include $100 per week for 

transportation and food expense for each week that Brittany 

attends classes for a semester in which she is enrolled in at least 

nine hours of credit. The parents’ financial obligation for 

Brittany’s college expenses is limited to four years and Brittany 

maintaining a cumulative [GPA] of 2.5. Brittany is directed to

insure that each parent has access to her grades and that she 

applies for all available grants and financial aid. 

Appellant’s App. Vol. II pp. 31-32. 

[4] On March 10, 2014, Mother moved for a rule to show cause and petitioned for 

a college expense contribution for Nattalee. On April 29, 2014, the trial court 

issued the Order: 

ENTRY ON PENDING MOTIONS

Hearing was held on April 25, 2014 on the Petitioner’s Verified 

Motion For Rule To Show Cause And Petition For College 

Expense Contribution and Respondent’s Request To Find 

Daughter Emancipated. The Petitioner [Mother] appeared in 

person and by counsel Christopher Smith. The Respondent 

[Father] appeared in person. The Court, having taken the issues 

under advisement, now makes the following Order. 

1) The parties are the parents of Brittany Duncan, born June 

3, 1993 and Nattalee Duncan, born March 30, 1995.

2) Brittany was previously found to be emancipated and the 

parties agree that Nattalee became emancipated on her 

nineteenth birthday on March 30, 2014. The Court vacates 

Father’s child support for Nattalee effective March 30, 2014.

3) Father had a child support obligation for Nattalee of $143 

per week. His child support arrearage was found to be 

$10,878.08 as of October l9, 2012. From October 20, 2012 

through March 30, 2014, Father should have paid current child 
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support in the sum of $10,725. Since October 19, 2012, Father 

has paid a total of $12,240 thereby reducing his arrearage by 

$1,515 to $9,363.08. The Court orders Father to pay the 

arrearage at the rate of $100 Per week. The Court instructs 

Mother’s attorney to prepare an Amended Income Withholding 

Order to Father’s employer.

4) The Court also ordered the parents to assist Brittany with 

her college expenses. The evidence was that Father has not paid 

any sums toward Brittany’s college expenses. The Court finds 

Father owes Brittany the sum of $6,209.76 for his share of her 

college expenses for the 2012-2013 school year and the 2013-2014 

school year. The Court orders Father to pay Brittany $6,209.76 

within sixty days and to timely pay Brittany’s college expenses as 

they come due.

5) Mother seeks a college-expense order for Nattalee as she is 

completing her first year of college. Nattalee lives with Mother 

and commutes to IUPUI. The evidence presented indicated the 

parties’ gross weekly income figures are $1,517 for Father and 

$463 for Mother, or an income division of 77% for Father and 

23% for Mother. The Court finds the parents should contribute

to Nattalee’s educational costs in much the same way as they 

have contributed for Brittany’s post-secondary educational costs. 

Nattalee will be required to contribute up to $2000 per year 

toward her educational costs through grants, loans and wages. 

The parents are ordered to contribute 23% from Mother and 77% 

from Father for any educational costs after Nattalee’s 

contribution. Since Nattalee is living with Mother, the Court 

finds that an appropriate room and board cost to be imputed is 

$140 per week for each week Nattalee is enrolled in and 

attending school. This will most likely be thirty-six weeks per 

year. The Court orders Father to pay to Mother $108 per week 

for each week that Natallee [sic] is attending school and living 

with Mother.

6) The Court finds that Nattalee’s school expenses for the 

current year that the parents are responsible for is the sum of 
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$1,414.51. Father’s share is $1,089.17. The Court orders Father 

to pay this amount to Mother within sixty days.

7) The Court finds it appropriate to modify the college 

expense order for Brittany given the new circumstances of a 

second child in college, and the evidence that Brittany lives 

predominately with her boyfriend. The Court continues to order 

the parents to contribute to Brittany’s post-secondary college 

expenses under the new 77/23 division after Brittany has 

contributed $2000 per year toward her expenses. The Court 

reduces the parents’ obligation for Brittany’s transportation and 

food expense to the sum of $50 per week.

8) The Court continues the previous limitations on the 

parent’s [sic] responsibility for Brittany as expressed in the 

October 2012 Order and makes those limitations apply to 

Nattalee as well.

9) The Father expressed a repudiation argument, that 

because his daughters have rejected any type of relationship with 

him, he should not be required to contribute to their college 

expenses. The Court rejects Father’s repudiation argument 

because the Court finds that Father has not made a reasonable 

effort to have a positive relationship with his children after he 

and Mother divorced. Father testified he had attempted to call 

the girls a few times without success. Father admitted he did not 

attempt to talk to Brittany at Nattalee’s graduation and did not 

visit the girls at Christmas when they were at Father’s relatives. 

10) The Court finds the Father in indirect contempt of Court 

for his failure to honor the Court order with respect to payment 

of his portion of Brittany’s college expenses. The Court 

sentences Father to sixty days in jail and suspends it on the 

condition he timely meets his financial obligations to Mother and 

his children. The Court orders Father to pay partial attorney fees 

to Mother’s counsel Christopher Smith in the amount of $1,000 

in monthly installments of $200 beginning May 15, 2014.
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Appellant’s App. Vol. II pp. 23-26. On May 29, 2014, Father filed a motion to 

correct error. On October 18, 2016, following a hearing, the trial court denied 

Father’s motion to correct error. 

Discussion and Decision

[5] Father appeals from the denial of his motion to correct error. “A trial court has 

discretion to grant or deny a motion to correct error, and we reverse its decision 

only for an abuse of that discretion. An abuse of discretion has occurred if the 

trial court’s decision is against the logic and effect of the facts and 

circumstances before the court or if the court has misinterpreted the law.” Bales 

v. Bales, 801 N.E.2d 196, 198 (Ind. Ct. App. 2004) (citations omitted). In 

issuing the Order, the trial court entered findings of fact and conclusions 

thereon sua sponte. Sua sponte findings only control issues that they cover, while 

a general judgment standard applies to issues upon which there are no findings. 

Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations 

omitted). 

We may affirm a general judgment with findings on any legal 

theory supported by the evidence. As for any findings that have 

been made, they will be set aside only if they are clearly 

erroneous. A finding is clearly erroneous if there are no facts in 

the record to support it, either directly or by inference.

Id. 
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I. Repudiation

[6] Father first claims that the trial court abused its discretion in declining to 

eliminate his post-secondary obligations entirely on the basis that the Children 

had repudiated him. 

Repudiation is defined as a complete refusal to participate in a 

relationship with the parent. [Lovold v. Ellis, 988 N.E.2d 1144,

1150 (Ind. Ct. App. 2013)] (citing Norris v. Pethe, 833 N.E.2d 

1024, 1033 (Ind. Ct. App. 2005)). Indiana law provides that a 

court may enter an educational support order for a child’s 

education at a post-secondary educational institute, but 

repudiation of a parent by a child is recognized as a complete 

defense to such an order. See Ind. Code § 31-16-6-2(a)(1); McKay 

v. McKay, 644 N.E.2d 164, 166 (Ind. Ct. App. 1994). In McKay,

the Court noted that there is no absolute legal duty on parents to 

provide a college education for their children, and adopted what 

was Pennsylvania’s approach at that time, stating “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.” 644 

N.E.2d at 166 (quoting Milne v. Milne, 383 Pa. Super. 177, 556 

A.2d 854, 856 (1989)). A child’s repudiation of a parent—that is 

a compete refusal to participate in a relationship with a parent—

may obviate a parent’s obligation to pay certain expenses, 

including college expenses. See Bales v. Bales, 801 N.E.2d 196, 

199 (Ind. Ct. App. 2004), reh’g denied, trans. denied. It is well 

established that on appeal, we do not reweigh the evidence; 

instead, we consider first whether the evidence supports the 

findings and then whether the findings support the judgment. See 

Lovold, 988 N.E.2d at 1150. The appellant, for his part, must 

establish that the trial court’s findings are clearly erroneous; 

findings are clearly erroneous when a review of the record leaves 

us firmly convinced that a mistake has been made. See id.

Kahn v. Baker, 36 N.E.3d 1103, 1112-13 (Ind. Ct. App. 2015), trans. denied. 
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[7] We conclude that the record contains sufficient evidence to support the trial 

court’s finding that the Children did not repudiate Father. In response to 

questions by Father regarding the Children’s relationship with him, Mother 

responded, “[m]y daughter had a ... graduation party ... that you chose not to 

come to.” Tr. p. 26. Mother further testified that the Children have tried to 

have a relationship with Father. Mother testified that the Children had 

attended Father’s grandmother’s funeral and that Brittany had unsuccessfully 

attempted to visit him at his home in Brown County. According to Father’s 

testimony, he spoke to his mother about spending at least one Christmas at her 

house with the Children but, in the end, did not go because he was working. 

We conclude that this evidence is sufficient to support the trial court’s 

determination that a repudiation did not occur based on attempts by the 

Children to maintain a relationship with Father. While Father does point to 

evidence that would tend to support a finding of repudiation, this is merely an 

invitation to reweigh the evidence, which we will not do. See In re Paternity of 

Pickett, 44 N.E.3d 756, 763 (Ind. Ct. App. 2015) (“Although the record contains 

evidence that could have supported a finding that Child repudiated Father, 

there is also evidence that would support a determination that Child did not 

repudiate Father. And under our standard of review, we may consider only the 

evidence favorable to the trial court’s judgment.”). 

Standard of Review for Issues II, III, and IV

[8] Father also challenges the specific provisions of the Order relating to the 

amount of post-secondary educational expenses he has been ordered to pay. 
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We review the trial court’s apportionment of college expenses 

under a clearly erroneous standard. Carr v. Carr, 600 N.E.2d 943, 

945 (Ind. 1992); Winslow v. Fifer, 969 N.E.2d 1087, 1092 (Ind. Ct. 

App. 2012), trans. denied (2013). Therefore, we will affirm the 

trial court unless its order “‘is clearly against the logic and effect 

of the facts and circumstances which were before’ the court.” 

Marriage of Hensley v. Hensley, 868 N.E.2d 910, 913 (Ind. Ct. App. 

2007) (quoting Carr, 600 N.E.2d at 945). In determining whether 

the trial court’s decision is clearly erroneous, we consider only 

the evidence and reasonable inferences favorable to the judgment 

without reweighing evidence or judging witness credibility. 

Winslow, 969 N.E.2d at 1092.

In re Paternity of Pickett, 44 N.E.3d at 764. 

II. The Amount of Brittany’s College Expenses

[9] As mentioned, the trial court’s order issued in October of 2012 provides that 

“[t]he parents’ financial obligation for Brittany’s college expenses is limited to 

four years and Brittany maintaining a cumulative [GPA] of 2.5.” Appellant’s 

App. Vol. II p. 32.1 Moreover, the Order specifically “continues the previous 

limitations on the parent’s [sic] responsibility for Brittany as expressed in the 

October 2012 Order and makes those limitations apply to Nattalee as well.” 

Appellant’s App. Vol. II p. 25. Father correctly contends that the record 

contains no evidence that Brittany ever maintained the required cumulative 

GPA of 2.5. Consequently, Father is also correct that the record does not 

 

1

 Although the Children were also directed to ensure that both parents had access to their grades and apply 

for all available grants and financial aid, the parents’ financial obligations to the Children were not 

specifically tied to these directions. 
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support the trial court’s order that he pay any of Brittany’s post-secondary 

educational expenses. We vacate those portions of the Order requiring Father 

to pay Brittany’s post-secondary education expenses, whether current or 

accrued, and remand for an evidentiary hearing on whether she has satisfied the 

GPA requirements. If the trial court determines that Father’s obligation has 

been triggered, then an amount can be determined. 

III. The Amount of Nattalee’s College Expenses

[10] Father contends that the same dearth of evidence that exists regarding 

Brittany’s GPA also exists in Nattalee’s case. As with Brittany, we vacate those 

portions of the Order requiring Father to pay Nattalee’s post-secondary 

education expenses, whether current or accrued, and remand for an evidentiary 

hearing on whether she has satisfied the GPA requirements. If so, the scale of 

the obligation can then be determined. 

[11] Father makes another claim that we choose to address, as it is likely to arise on 

remand, which is that the trial court erroneously ordered him to pay for 

Nattalee’s college expenses during a period when he was already paying child 

support. Indiana Code subsection 31-16-6-2(b) provides that “[i]f the court 

orders support for a child’s educational expenses at a postsecondary educational 

institution under subsection (a), the court shall reduce other child support for 

that child that ... is duplicated by the educational support order [and] would 

otherwise be paid to the custodial parent.” We have also noted that 

“[d]uplicative support and college expense orders should be avoided.” Stover v. 
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Stover, 645 N.E.2d 1109, 1110 (Ind. Ct. App. 1995) (citing Carr v. Carr, 600 

N.E.2d 943, 946 (Ind. 1992)). 

[12] The trial court issued the Order on April 29, 2014, and, inter alia, determined 

that Nattalee was emancipated as of March 30, 2014, and terminated Father’s 

child support obligation of $143.00 per week as of that date. The trial court also 

found that Nattalee had incurred $1414.51 in school expenses for the 2013-14 

school year and that Father was responsible for $1089.17 of that total, or 77%. 

Finally, the trial court ordered that Father would pay $108.00 per week, or 77% 

of Nattalee’s room, board, and transportation costs of $140.00 per week while 

living with Mother but, significantly, did not order Father to pay these expenses 

retroactively. 

[13] Father’s argument is based on his contention that the trial court ordered him to 

pay educational expenses that were duplicative of his child support payments. 

The record does not support this contention. First, the $1089.17 that Father 

was ordered to pay (for his share of expenses for books, fees, and an iPad) was 

strictly for college-related purposes and not duplicative of his child support 

obligations in any way. Moreover, the $108.00 weekly payment for expenses 

incurred while Nattalee lives with Mother never overlapped with Father’s child 

support payments, as the Order simultaneously established the former—without 

making it retroactive—while eliminating the latter. The trial court did not err in 

ordering post-secondary educational payments that were duplicative of Father’s 

child support payments. 
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IV. Father’s Ability to Pay

[14] In another issue likely to arise on remand, Father contends that the trial court 

erroneously failed to consider his ability to pay a portion of Brittany’s and 

Nattalee’s college expenses. Indiana Code subsection 31-16-6-2(a) provides, in 

part, as follows:

(a) The child support order or an educational support order may 

also include, where appropriate:

(1) amounts for the child’s education in elementary and 

secondary schools and at postsecondary educational 

institutions, taking into account:

(A) the child’s aptitude and ability;

(B) the child’s reasonable ability to contribute to 

educational expenses through:

(i) work;

(ii) obtaining loans; and

(iii) obtaining other sources of financial aid reasonably 

available to the child and each parent; and

(C) the ability of each parent to meet these expenses[.]

[15] Father essentially argues that the trial court abused its discretion in 

apportioning college expenses based on the incomes of the parties, which it 

found to be $1517.00 per week for Father and $463.00 per week for Mother, or

approximately $79,000.00 and $24,000.00 per year, respectively. While it is 

true that the record contains no direct evidence that Father was able to pay a 

proportionate share of the Children’s college expenses, we cannot say that the 

trial court abused its discretion in drawing the inference that he could. Quite 

simply, Father is making approximately $79,000.00 per year and presented no 

evidence of extraordinary expenses, such as unexpected medical bills, that 
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would hinder his ability to pay his fair share of the Children’s college expenses. 

To the extent that Father points to evidence in the record of circumstances that 

he argues hinder his ability to pay, the trial court was under no obligation to 

credit it, and apparently did not. Father has failed to establish error in this 

regard.

V. Contempt

[16] Father also challenges that portion of the Order finding him in indirect 

contempt of court for failing to pay Brittany’s college expenses. We have 

already concluded, however, that the trial court erred in concluding that Father 

has a current obligation to pay any of Brittany’s or Nattalee’s college expenses. 

Consequently, Father cannot be held in contempt for failure to pay them. We 

therefore also vacate the provisions of the Order declaring Father to currently 

be in contempt of court and ordering him to pay a portion of Mother’s 

attorney’s fees. 

Conclusion

[17] We conclude that Father failed to establish that the trial court erred in finding

that the Children have not repudiated Father. Father has established, however, 

that the trial court erred in concluding that he had any current obligation to pay 

the Children’s post-secondary educational expenses. Consequently, we also 

vacate the trial court’s finding that Father is currently in indirect contempt of 

court for failing to pay college expenses and a portion of Mother’s attorney’s 

fees. 
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[18] The judgment of the trial court is affirmed in part and reversed in part, and we 

remand for further proceedings consistent with this memorandum decision. 

[19] Najam, J., and Riley, J., concur.