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Why Just Hate When You Can Repudiate? - Family Law News

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Family Law News


Posted on: Mar 13, 2019

By Elisabeth Edwards, Wanzer Edwards PC

So your new prospective client comes in with a tale of sadness and woe: their child is about to leave for college and their co-parent has filed a Petition for Allocation of Post-Secondary Education Expenses. They would normally be happy to help contribute. BUT. They tell you how their son has refused parenting time since he was 16 and refuses to respond to calls, letters or texts. Why should they have to pay these expenses for an ungrateful son?

For the uninitiated, what is repudiation? “Repudiation is defined as a child’s complete refusal to participate in a relationship with his or her parent.” Scales v. Scales, 891 N.E.2d 1116, 1119 (Ind. Ct. App. 2008). “In determining whether a child has repudiated a parent, the trial court’s focus is on the child’s actions after reaching the age of majority.” Id. “However, the trial court may consider a child’s actions which occurred before that age if the conduct continued after the child reached the age of eighteen.” See, e.g., Norris v. Pethe, 833 N.E.2d 1024, 1033 (Ind. Ct. App. 2005) (considering evidence that child’s repudiation of father commenced when she was a minor but continued uninterrupted when she reached the age of majority).

On January 25, 2019, the Indiana Court of Appeals issued an opinion in the matter of Thomas Virgil Messner v. Dawn Marie Messner, 18A-DR-1110, regarding a child’s repudiation for purposes of college expenses. The trial court found that Daughter had repudiated Mother; Father appealed. The Court of Appeals upheld the trial court decision. Some key facts in support of the trial court’s decision were that: Daughter would not initiate contact with Mother and did not respond to Mother’s texts; Daughter would not acknowledge gifts sent by Mother; Daughter did not invite Mother to her graduation or graduation party; Daughter did not include Mother in her college search or tell Mother where she was attending college; and Daughter would not provide Mother her address at college for Mother to send a gift.

Also at issue was Father’s inclusion of Daughter and her brother in a campaign against Mother that likely was the cause of the rift between Mother and Daughter.

Father’s appeal in Messner rested in his belief that, “Where both parties share the blame for the deterioration of their relationship, a trial court should not excuse the repudiated parent from contribution towards college expenses.” This is not the legal standard. There is “no absolute legal duty on the part of parents to provide a college education for their children,” McKay v. McKay, 644 N.E. 2d 164, 166 (Ind. Ct. App. 1994). Further, “When a child who reaches the age of eighteen repudiates a parent, the parent is allowed to dictate if and how much he or she will contribute to the child’s college education.” Id. (adopting the approach of Milne v. Milne, 556 A.2d 854, 856 (Pa. Super. Ct. 1989)).

The rationale for excusing parental contribution upon repudiation was set forth by the McKay court as follows:

By college age, children of divorced parents must be expected to begin to come to terms with the reality of their family’s situation.They must begin to realize that their attitude and actions are their individual responsibilities. Whatever their biases and resentments, while one can understand how they got that way, when they become adults it is no longer appropriate to allow them to stay that way without consequence.

McKay, 644 N.E.2d at 167 (quotation omitted) (some emphasis omitted, some added).

The Court of Appeals upheld the trial court’s denial of Father’s motion, finding that “it would be unjust to give [Daughter] (and indirectly, Father) the benefit of Mother’s financial contribution when [Daughter] has been unwilling to even consider responding to Mother’s efforts at outreach.” As Daughter continued to not desire a relationship with Mother after she reached the age of 18, Mother could be free to contribute to Daughter’s college education as she saw fit. Daughter did not have to actively “hate” Mother; her indifference was deemed enough to be repudiation.

So, what should you tell your prospective clients with repudiation issues?

If your client is the parent who no longer has a relationship with the child, suggest that he continue to try to seek that relationship and communication with the child, especially once the child turns 18 and document all efforts to do so. If the relationship is healed, that is obviously for the best. But if not, that may be a good case to argue repudiation.

If your client is the (likely) custodial parent and the child is estranged from the other parent, he or she should continue to try to foster the relationship with the other parent and avoid poisoning the child from the other parent. While both parents may have animosity toward one another, attorneys should advise their clients to direct their animosity and vitriol to a friend or – even better – a counselor to help him or her work through the hurt feelings. Under no circumstances should a parent engage in a campaign of hatred to align the children against the other parent. The Messner Court provided:

Children, regardless of age, should never be put in the position of having to choose one parent over another. Even adult children do not deserve to be used as pawns that way. The Court cannot condemn this tactic strongly enough.

A parent can engage in a campaign against the other parent and may “win” the child for the day, but may end up eliminating the possibility that the other parent will assist the child with funding her college education. Also, once the child matures and realizes how unfair and harmful the other parent’s attempts at alienation were, the “poisoning parent” may also lose the relationship with the child.

Bottom line, do not allow clients to involve their children in their marital disputes and try to help reunify whenever possible.

If you would like to submit content or write an article for the Family Law Section, please email Kara Sikorski at ksikorski@indybar.org.

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