Best v. Best

• Decision Date: 30 October 1984
• Docket Number: No. 4-1183A375,4-1183A375
• Citation: 470 N.E.2d 84
• Parties: Mary M. BEST, Appellant, v. Harold L. BEST, Appellee.
• Court: Indiana Appellate Court

Page 84

470 N.E.2d 84

Mary M. BEST, Appellant, v. Harold L. BEST, Appellee.

No. 4-1183A375.

Court of Appeals of Indiana,

Third District.

Oct. 30, 1984.

Louis Pearlman, Jr., Pearlman & Chosnek, Lafayette, for appellant.

John C. Dibble, Dibble, Bartlett & Robb, Lafayette, for appellee.

GARRARD, Judge.

Harold L. Best (father) and Mary M. Best (mother) were divorced on January 26, 1970. The couple's three daughters were placed in the mother's custody and the father was ordered to pay child support. On November 10, 1978 the mother filed a petition to modify support seeking, inter alia, payment for the children's college education. The trial court granted the petition on February 5, 1979 and ordered the father "to pay tuition at Marian College" for the oldest daughter in lieu of support. In April 1979 the mother and the oldest daughter applied for financial aid and falsely stated on the application form that there was no agreement or support order for contribution to her education expenses. The father was not informed of the daughter's receipt of financial aid and paid to the daughter a total of $5,005 for tuition covering four semesters of school. ¹ The father had paid this money in reliance on college fee statements which had been altered to delete evidence of financial aid received and which purported to represent the amount of tuition owed to the college. On November 18, 1981 the mother filed another petition to modify support alleging that the oldest daughter had terminated her attendance at Marian College, was presently a part-time student at Purdue University, that a younger daughter was attending Purdue full time and sought college expenses for both girls. No mention was made of financial aid which had been requested and received by the younger daughter during the fall semester of 1981. Neither did the petition mention that the father had paid to the oldest daughter $1,325 which was not used for tuition due to her departure from school. The petition to modify support was granted on December 23, 1981 and the father was ordered to pay "the Purdue University Student Housing statement and the Purdue University tuition statement, net of all available discounts ...." for the younger daughter in lieu of support. Record at 17. Upon the father's discovery that both daughters had received financial aid which had been applied to tuition, on February 17, 1982 he petitioned the trial court to vacate its previous modification orders, requested an accounting from the mother relative to tuition payments and sought a credit for sums overpaid for tuition and attorney's fees. The trial court found that the mother had misrepresented to the father the amount of tuition actually due and owing and vacated the previous support orders and ordered the wife to repay the father's overpayment of tuition. The mother subsequently perfected this appeal.

The issues are:

1) Was there sufficient evidence of fraud by the mother and overpayment of tuition by the father to support the trial court's judgment?

2) May the trial court order repayment of the amount it finds to be overpayment of tuition?

3) Is there sufficient evidence to sustain an award of attorney's fees?

Issue 1

The central issue that led to this dispute concerns the definition of "tuition." The mother argues that the word "tuition" should be defined as "money paid for instruction; tuition fee." The mother claims that the father paid the tuition fee charged by the school and should not be able to complain about any financial aid received from a collateral source. Since a college education costs more than tuition, she claims merely to have sought financial aid to pay for the expenses of college beyond tuition. In addition, the mother claims she had nothing to do with soliciting the tuition payments from the father since all communications with him were by the daughters and that she derived no benefit from the girls' receipt of financial aid so that the trial court's finding of fraud is based on insufficient evidence.

The trial court issued special findings of fact pursuant to Indiana Rules of Procedure, Trial Rule 52(A) although not requested by either party nor required by the rule. These findings will only be set aside if they are "clearly erroneous," TR 52(A); the findings will be disturbed only if the record contains no facts or inferences supporting the findings. American Independent Management Systems, Inc. v. McDaniel (1982), Ind.App., 443 N.E.2d 98. In determining whether the findings are "clearly erroneous," we will not reweigh the evidence or determine the credibility of witnesses, but will consider only evidence which supports the judgment and the reasonable inferences drawn from the evidence. Mishawaka Brass Manufacturing v. Milwaukee Valve Co. (1983), Ind.App., 444 N.E.2d 855. The judgment controls on any issue not covered by the special findings, TR 52(D), and will be upheld if sustainable on any theory, id., although we may not contradict any of the findings made by the trial court by affirming on grounds contrary to such findings. Kizer v. Davis (1977), 174 Ind.App. 559, 369 N.E.2d 439; see also Mishawaka Brass Manufacturing, supra at 858 (Garrard, J., concurring).

The trial court determined that "tuition" must be defined as the amount actually due and owing, i.e. tuition less any financial aid received. We agree.

It is within the trial court's discretion to require a father to pay some designated portion of a child's college expenses. Lipner v. Lipner (1971), 256 Ind. 151, 267 N.E.2d 393. In addition, the trial court has continuing jurisdiction over the minor children and parents to keep college expense in conformity with changing circumstances. DeLong v. DeLong (1974), 161 Ind.App. 275, 315 N.E.2d 412.

In Norrell v. Norrell (1976), 236 Ga. 797, 225 S.E.2d 305 the husband became obligated in the divorce decree to pay tuition for his children's college or other post-high school institution. The Georgia Supreme Court held that this order obligated the husband to pay only net tuition, i.e. tuition less any scholarships received, and allowed to the husband a credit for scholarships received by the son. Here, the mother had originally petitioned the trial court to order the father to pay for all of the daughters' college expenses. However, the trial court ordered him to pay only tuition. The Norrell definition of tuition reflects the trial court's intent to limit the father's financial burden for his daughter's college education to tuition in lieu of support. We adopt the holding of Norrell and hold that "tuition," unless otherwise defined by the trial court in its order of payment, means tuition fees less financial aid or scholarships received by the student.

Fraud requires that material misrepresentations regarding past or existing facts be made with knowledge of or reckless disregard for the falsity of the statements plus reliance upon the misrepresentations by another to his detriment. Stanzione v. Pascevich (1982), Ind.App., 431 N.E.2d 847. The trial court found that the father was falsely informed of tuition amounts actually due and owing to both Marian College and Purdue University. The...