Rachelle L. Purcell v. Gary A. Purcell (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 14 2016, 8:57 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Dan J. May Matthew J. Elkin Kokomo, Indiana Kokomo, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rachelle L. Purcell, October 14, 2016

Appellant-Petitioner, Court of Appeals Case No. 34A02-1602-DR-253 v. Appeal from the Howard Circuit Court The Honorable Lynn Murray, Judge Gary A. Purcell, Cause No. 34C01-1005-DR-484 Appellee-Respondent.

Bradford, Judge.

Case Summary [1] Appellant-Petitioner Rachelle Purcell (“Mother”) and Appellee-Respondent

Gary Purcell (“Father”) were married in 1987 and have five children, including

N.P., born on September 3, 1994. In May of 2010, Mother petitioned for

dissolution of the marriage. For the academic year of 2012-13, N.P. attended

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Ball State University for one semester and resided on-campus before

transferring to Indiana University-Kokomo (“IUK”), where she resided off-

campus. In February of 2013, the parties entered into a settlement agreement

(“the Agreement”), drafted by Mother’s counsel, in which they agreed, inter

alia, that Father would pay $150 weekly child support and contribute $5000 per

year to N.P.’s on-campus college expenses. The Agreement also provided that

Father’s child support obligation for N.P. would apply to her IUK attendance

while she resided off-campus. Father contributed $5000 for the 2012-13

academic year. [2] In December of 2014, Father filed a petition to emancipate N.P., who had

turned twenty years old. In his petition, Father requested that his child support

obligation related to N.P. be terminated. In March of 2015, Mother filed an

independent action for fraud, alleging that Father had entered into a scheme or

plan to avoid his educational obligations to N.P. and his child support

obligations to his other three minor children. In November of 2015, the trial

court issued its order, ruling that pursuant to the Agreement, Father’s

educational support obligation related to N.P. was satisfied by his weekly

payments of $150, this same $150 payment satisfies his child support

obligations related to his other three children, Mother’s allegations of fraud on

the trial court failed, and neither party was in contempt of court. [3] Mother argues that the trial court erroneously denied her direct challenge to the

Agreement, erroneously concluded that N.P.’s attendance at IUK is “off-

campus” for purposes of the Agreement, and Father is estopped from arguing

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that he was not obligated to pay $5000 per year in N.P.’s sophomore through

senior years at IUK. Because we conclude that the trial court erred in

concluding that Father’s $5000 yearly educational support obligation to N.P.

ceased when she transferred to IUK, we reverse and remand with instructions.

Facts and Procedural History [4] Mother and Father married in 1987 and their marriage produced five children,

N.P., and four others. The oldest child is emancipated, N.P. was born on

September 3, 1994, and the other three children are minors. On May 11, 2010,

Mother filed a petition for dissolution. In the fall of 2012, N.P. matriculated at

Ball State University in Muncie. [5] On February 11, 2013, the trial court issued a decree of dissolution, which

incorporated the court-approved Agreement, which was drafted by Mother’s

counsel and signed by both parties and their respective counsels. The

Agreement provided, in part, as follows:

Section 2.1. Child Custody. The parties shall exercise joint legal custody of all of their children. With respect to [the three youngest], the Father shall exercise primary custody of, and the children shall primarily reside with the [Father]. Due to the [Father’s] non-traditional occupation work schedule, 48 hours on duty 48 hours off duty, the [Mother] shall have overnight parenting time of no less than 150 overnights per year, as [Mother] is exercising overnight parenting at all times that the [Father] is on duty at his occupation; and in addition and any and all time [sic] that the parties may agree.…

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With respect to [N.P.], [Mother] shall exercise primary physical custody. …. Section 2.2. Child Support. The parties agree that the Father should pay to the Mother $150.00 retroactive to February 1, 2013 pursuant to the Worksheets attached…. Deviation of the child support amount is justified due to the agreement of the Father to pay college expenses for the child [N.P.] in the Mother’s custody. …. Section 2.10. Post-Secondary Education Expenses. With respect to [N.P.], the parties agree that [Father] shall contribute the sum of $5,000.00 per academic year to [N.P.’s] on campus college expenses for a total of no more than eight (8) semesters retroactive to the Ball State U. Fall of 2012 semester. His child support obligation to [Mother] as set forth in this agreement shall apply to [N.P.’s] I.U.K. attendance while the child resides off campus…. However, upon [N.P.] reaching the age of 19, the Father’s support obligation shall not terminate and the educational support obligation in the above paragraph shall apply for a total of 8 semesters aggregate. The parties agree that [N.P.] and [Mother] will obtain loans and/or financial aid to cover remaining IUK college expenses. The parties agree that [Father’s] obligation for post-secondary education shall terminate upon [N.P.’s] failure to maintain a 2.0 cumulative GPA on a 4.0 scale. With respect to [the younger children], the parties agree that it is premature to address the division of college expenses at this time. The parties agree to consult with each other concerning the division of post-secondary education expenses for each child as appropriate and if an agreement cannot be reached, either party may petition the Court for a ruling upon this issue.

Appellant’s App. pp. 40-41, 44 (emphases in original). Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016 Page 4 of 10 [6] On May 7, 2013, Mother filed a release and satisfaction with the trial court

indicating that Father’s obligation relating to N.P.’s education had been

satisfied in full for the academic year of 2012-13 when he made a payment of

$5000. On December 23, 2014, Father petitioned the trial court to emancipate

N.P. Father requested that his child support obligation related to N.P. be

terminated because she was twenty years old. On January 26, 2016, Mother

moved for a rule to show cause based on Father’s failure to pay $10,000

allegedly owed for N.P.’s post-secondary education for the 2013-14 and 2014-15

school years. [7] On March 23, 2015, Mother filed an independent action for fraud on the court

and motions for relief from judgment, to construe the Agreement, and for a

support order for the three minor children. In Mother’s filing, she alleged that

Father and/or his attorney undertook a fraudulent scheme to avoid his post-

secondary education obligations to N.P. and his child support to the younger

children by failing to file Worksheets with the trial court, claiming that his sole

obligation to support N.P. was $150 per week, and refusing to pay $5000 per

year for N.P.’s educational expenses. On July 30, 2015, the trial court held a

hearing on Mother’s motions. [8] On November 16, 2015, the trial court issued its findings of fact, conclusions of

law, and order. In its order, the trial court concluded that Mother had failed to

establish that Father or his attorney had perpetrated a fraud on the court; that,

pursuant to the Agreement, Father’s obligation for N.P.’s post-secondary

education expenses was satisfied by his weekly child-support payment of $150;

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that the weekly child-support payment was intended to and does include

support for the younger children; and that neither Father nor Mother was in

contempt of court.

Discussion and Decision [9] Mother argues that the trial court abused its discretion in construing the

Agreement attached to the dissolution decree, attendance at IUK is “on-

campus” for purposes of the agreement, and Father is estopped from making

any argument that he was not obligated to pay $5000 per year in N.P.’s

sophomore through senior years at IUK. Father contends that because Mother

has produced no evidence that Father committed fraud on the court, she cannot

now challenge support provisions of the Agreement and that Mother has

waived her argument that N.P.’s attendance at IUK is on-campus. We need

only address Mother’s contention that the trial court erred in construing the

Agreement.

Whether the Trial Court Erred in Interpreting the Agreement [10] Mother argues that the Agreement obligates Father to pay $5000 per year for

N.P.’s sophomore, junior, and senior years at IUK. Mother’s argument on

appeal is that because N.P. is taking classes on IUK’s campus, she is therefore

attending IUK “on campus.” As such, the argument continues, Father is still

obligated to pay $5000 per year pursuant to Section 2.10 of the Agreement.

Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016 Page 6 of 10 [11] As an initial matter, we conclude that Mother’s arguments were fully preserved

below. On January 26, 2015, Mother filed a motion for rule to show cause

based on Father’s alleged failure to pay the $5000 educational expense for two

years. When mediation failed and Mother learned of Father’s interpretation of

the Agreement, she filed another motion on March 20, 2015. In this motion,

Mother expressly requested that the trial court construe the Agreement. At the

hearing on these motions, the trial court indicated, “it’s a different

interpretation between the two parties here but I’m going to have to decide.”

Tr. p. 56. In its subsequent order, the trial court interpreted the Agreement in

Father’s favor. To summarize, Mother objected to and responded to Father’s

interpretation of the Agreement at the earliest opportunity to do so after he

made it an issue. [12] Mother now appeals, and it is our duty to review the contract de novo to

determine whether it was properly interpreted by the trial court. See Scott-

LaRosa v. Lewis, 44 N.E.3d 89, 94 (Ind. Ct. App. 2015) (“[I]nterpretation of a

contract is a pure legal question, and we review a trial court’s construction of

contract provisions de novo.”). As previously mentioned, with respect to child

support and post-secondary education expenses for Mother and Father’s four

youngest children, the Agreement provided in relevant part:

Section 2.2. Child Support. The parties agree that the Father should pay to the Mother $150.00 retroactive to February 1, 2013 pursuant to the Worksheets attached…. Deviation of the child support amount is justified due to the agreement of the

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Father to pay college expenses for the child [N.P.] in the Mother’s custody.[1] …. Section 2.10. Post-Secondary Education Expenses. With respect to [N.P.], the parties agree that [Father] shall contribute the sum of $5,000.00 per academic year to [N.P.’s] on campus college expenses for a total of no more than eight (8) semesters retroactive to the Ball State U. Fall of 2012 semester. His child support obligation to [Mother] as set forth in this agreement shall apply to [N.P.’s] I.U.K. attendance while the child resides off campus…. However, upon [N.P.] reaching the age of 19, the Father’s support obligation shall not terminate and the educational support obligation in the above paragraph shall apply for a total of 8 semesters aggregate.

Appellant’s App. pp. 41, 44 (emphases in original). [13] As noted by the trial court, while these provisions of the Agreement are not

models of clarity, they are not ambiguous. We part ways, however, with the

trial court’s reading of them. The provisions clearly provide for two types of

support—child support and post-secondary educational support. Father’s $150

weekly child support obligation applies to N.P. and the three minor children

and is an expressed downward deviation due to his agreement to pay a portion

of N.P.’s college expenses. The Agreement then provides that Father will pay

$5000 per academic year (for a maximum of eight semesters) toward N.P.’s post-

1 This provision references more than one worksheet (due to the parties’ split-custody arrangement), but only one was apparently attached to the Agreement. The record establishes, however, that Father’s total support obligation at the time would have been $293.01 per week based on the worksheets ($133.27 for the three children in his custody and $159.74 for N.P. in mother’s custody). Thus, the $150 per week was a clear deviation.

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secondary education expenses. We cannot agree with the trial court’s

determination that Father’s educational support obligation hinges, under the

terms of the Agreement, on whether N.P. resides on- or off-campus. The only

reference to where N.P. resides while attending college is made with respect to

Father’s support obligation—as opposed to his educational support

obligation—and makes clear that Father’s $150 weekly support obligation shall

continue to apply even when N.P. is residing off-campus, presumably with

Mother.2 We conclude that the Agreement obligated Father to pay $5000 per

year toward N.P.’s post-secondary educational expenses without regard to her

residence.

Conclusion [14] Because we conclude that Mother preserved her argument regarding the

construction of the Agreement and that the trial court erroneously concluded

that Father’s educational support obligation only applied when N.P. lived on-

campus, we reverse and remand with instructions to order Father to satisfy his

remaining post-educational support obligations to N.P. [15] We reverse the judgment of the trial court and remand with instructions.

2 The commentary to the Ind. Child Support Guideline 8 provides in relevant part: “The impact of an award of post-secondary educational expenses is substantial … and a reduction of the Basic Child Support Obligation attributable to the child under the age of nineteen years will be required when the child does not reside with either parent.” In apparent recognition of this general rule, the Agreement provides that Father’s $150 support obligation will remain unaffected by N.P.’s living off-campus while attending IUK.

Court of Appeals of Indiana | Memorandum Decision 34A02-1602-DR-253 | October 14, 2016 Page 9 of 10 [16] Pyle, J., and Altice, J., concur.

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