Father who abandoned twins at age 5 loses appeal over college support

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A father who was found to have abandoned his twin sons when they were 5 years old after he divorced their mother was properly ordered to pay a share of his sons’ college expenses, the Indiana Court of Appeals ruled Thursday.

David Cunningham lost on all of the arguments he raised on appeal in David Cunningham v. Penney (Cunningham) Barton, 19A-DR-1038. He and his then-wife Penney had twin sons who were born in December 1999, but the couple divorced about two years later.

After the Vermillion Circuit Court established that father would pay child support, he “voluntarily ceased exercising parenting time with Children in 2004 when they were five years old. Father remarried and had two additional children. On September 26, 2009, by agreement of the parties, Father’s child support obligation was increased to $220 per week and was not modified afterwards,” Judge Patricia Riley wrote.

The court also noted that when the twins were 10, father forbade them from attending their paternal great-grandmother’s funeral, which the trial court noted “emotionally hurt” the children. Riley wrote that father had no contact with the twins again until they were 14, at which time he phoned them seeking to re-establish contact. The sons called him the next day and said “he should not contact them any further and that they wished to have nothing to do with him. Thereafter, there was no communication between Father and Children.”

When the twins were planning to go to college, mother moved for a petition for contribution to post-secondary educational expenses. The trial court eventually ordered the children each to pay one-third of their educational expenses. Of the remaining two-thirds, father was ordered to pay 66% and mother 34%.

Father appealed, seeking to void the educational support order on numerous grounds, including that his children had repudiated him, that the trial court “failed to adequately look into each child’s aptitude for the education they were seeking to obtain,” and that the orders were duplicative to his child support orders or awarded sums not sufficiently supported by the evidence.

Regarding his claim the twins had repudiated him, “The trial court’s findings regarding Father’s conduct illustrate that this is not a case where Children sought ‘the means of inflicting yet another blow to a parent who has already suffered the deeply painful rejection of his or her child,’” Riley wrote, citing McKay v. McKay, 644 N.E.2d 164, 166 (Ind. Ct. App. 1994).

“The trial court’s determination that Children had not repudiated Father was based upon its conclusion that, despite the fact that Children were hurt by Father’s choice to abandon them when they were five years old, they testified in open court (at age 18) that they were open to having a relationship with Father,” the panel found.

Father also said the trial court erred by failing to impute mother’s boyfriend’s income to her. The COA found this issue not preserved for appeal because it was not raised until father moved to correct error.

“(W)e conclude that the trial court’s determination that Children had not repudiated Father and that Children had adequate aptitude for post-secondary education were not clearly erroneous, the trial court did not abuse its discretion by ordering Father to pay non-duplicative educational expenses during the same period he had a child support obligation, and that the amount of the educational expenses it ordered was supported by the record,” the panel wrote in affirming the trial court.

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