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Family Law Case Review 2/25/11

Case: Stephanie L. Cotton v. Charles C. Cotton

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: To comply with the Indiana Trial Rules and Due Process, the summons served with a petition for dissolution of marriage must include a clear statement to the Respondent of the risk of default for failure to appear or otherwise respond.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 2002. In March 2009, Husband filed a petition for dissolution of marriage. Wife was served with a summons and copy of the petition, but she did not appear personally or by counsel, nor did she respond to the petition. Husband continued to live in the marital residence for five months after filing, leading Wife to believe that the parties were working on reconciliation and that Husband was not pushing finalization of the dissolution.

However, in September 2009, Husband and his counsel attended a final hearing. Wife had not appeared personally or by counsel, and she received no notice of the final hearing. In Wife’s absence, and following only Husband’s testimony, the trial court defaulted Wife and entered a final dissolution decree that included an award of joint legal and physical custody of the parties’ son, and divided the marital estate. Wife subsequently learned of the Decree, hired counsel, and filed a T.R. 60 motion to set aside the Decree, which was denied. Wife appealed.

On appeal, Wife contended that the Decree was void because it was entered without personal jurisdiction over her, due to insufficiency of process; specifically, the summons used by Husband included language to Wife that she “may personally appear” and that “[y]ou must appear before the Court if directed to do so pursuant to a Notice, Order of the Court, or Subpoena,” but no language articulating a risk of default for doing nothing. In reviewing the summons, the Court of Appeals summarized the applicable law of insufficiency of process, and concluded: “We hold that due process requires that, at a minimum, a respondent in a dissolution proceeding be notified of the risk of default for failure to appear or otherwise respond.”

In this instance, the subject summons presented Wife with the option of appearing or responding to the petition, but did not provide notice to her that the trial court could take further and final action without further notice to her. The Court of Appeals added, “the command of Trial Rule 4(C)(5), grounded in due process, is that the respondent in a dissolution proceeding must be given notice in a ‘clear statement’ of the risk of default for failure to appear or other respond . . . ” Concluding that the subject summons did not comply with Trial Rule 4(C)(5), or the Due Process Clause, the dissolution decree was reversed and remanded for further proceedings.

To view the text of this opinion in its entirety, click here: Stephanie L. Cotton v. Charles C. Cotton

Posted in Family Law Case Review0 Comments

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

ICLEF Expands Reach of Scholarship with Indiana Law Update

35th Annual Judge Robert H. Staton Indiana Law Update 2013, Sept. 26 & 27, 2013

Record Setting Attendance at the 2013 Indiana Law UpdateTM Seminar

 

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

July is here and that means it is time to register for this year’s Indiana Law UpdateTM Seminar. This is the ORIGINAL program that you have been attending and is the Only one that has existed since 1979. It continues to offer exactly what you are looking for – the finest scholarly review of the latest trends, developments and changes in Indiana Law – and how those changes effect you and your practice. Do not be confused by another program. Indiana Law UpdateTM is the Original – the one you know and have placed your trust in for 35 years!

ICLEF is proud of our longstanding support of scholarship funding for law students. Since the inception of the Robert H. Staton Indiana Law UpdateTM program in 1979, ICLEF has provided significant financial support to the Robert H. McKinney Alumni Association as well as local bars and foundations.

ICLEF has recently extended the reach of this tradition by providing funds to each of the four accredited Indiana Law Schools. ICLEF is without equal in our financial support for the continuing legal education of future Indiana Lawyers. Your commitment to the Indiana Law UpdateTM program makes this possible.
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” Thank you for your support of the Notre Dame Law School and Thomas L. Shaffer Public Interest Fellowship Account.”
- Nell Jessup Newton, The Joseph A. Matson Dean & Professor of Law, University of Notre Dame

” Thank you for your gifts to the IU Robert H. McKinney School of Law and the IU Maurer School of Law Scholarship Fund on behalf of the Judge  Robert H. Staton Indiana Law UpdateTM Program. Through your generous support, deserving young men and women have access to a world-class education”
- Daniel C. Smith, President & CEO, Indiana University Foundation

“Thank you for your generous support of our Law Students. Your donations to the School of Law Annual Fund ensures that talented young scholars who wish to earn a Valpo degree will have the means to do so.”
- Mark A. Heckler, Ph. D., President, Valparaiso University

“Your generosity is greatly appreciated. Private philanthropic contributions from our friends is essential, and your gift helps to bridge the gap between the cost of tuition and the true cost of educating every McKinney Law Student.”
- Andrew R. Klein, Dean & Paul E. Beam Professor of Law, Robert H. McKinney School of Law, Indiana University, Indianapolis

“Thank you for the generous contribution that we recieved through the Judge Robert H. Staton Indiana Law UpdateTM program. Such support makes a real difference and is deeply appreciated. We are grateful for this contribution, and for the ongoing relationship with ICLEF.”
- Hannah L. Buxbaum, Interim Dean, IU Maurer School of Law, Bloomington
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36th Annual Judge Robert H. Staton Indiana Law UpdateTM
12 CLE / 1E
– Tuesday & Wednesday, September 23 & 24, 2014  •  8:50 A.M. – 4:45 P.M (Both Days)

For your convenience this years program will be available simultaneously in multiple locations across the state:

LIVE IN-PERSON SEMINAR
- Indiana Convention Center, 500 Ballroom
100 S. Capitol Ave., Indianapolis, IN 46225

LIVE GROUP WEBCASTS
- Grand Wayne Center, Fort Wayne
120 W. Jefferson Blvd., Fort Wayne, IN 46802

- Blue Chip Resort & Casino, Michigan City
   777 Blue Chip Drive, Michigan City, IN 46360
   Program begins at 7:55 A.M. Central Time

- DeFur Voran Law Office, Muncie
   400 S. Walnut St., Suite 200, Muncie, IN 47305

- Taft Stettinius & Hollister Law Office, Indianapolis
   130 E. Ohio St., Suite 3500, Indianpolis, IN 46204

LIVE INDIVIDUAL WEBCASTS OF DAY 1 & 2
- From your home or office computer or tablet

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Highlighted Seminars0 Comments

MSC-SlotT3-2013

2014 Masters Series Summer Conference

This years Masters Series Summer ConferenceTM will be held Thursday, July 17th through Saturday, July 19th, 2014, at the beautiful French Lick Springs Resort & Casino & West Baden Springs Resort, in French Lick, Indiana. Attendance will be limited so register soon!

Four of ICLEF’s Masters Series programs will meet concurrently Friday and Saturday, July 18-19, while also allowing for time to enjoy fellowship and all there is to see and do at the French Lick Springs Resort & Casino as well as the remarkable setting of the neighboring West Baden Springs Resort. Very special room rates have been made available for ICLEF Masters Series ConferenceTM Attendees. Hotel reservations can be made online at www.FrenchLick.com or by calling 812-936-9300.

French Lick Springs Resort & Casino Courtyard  French Lick Springs Resort & Casino-Front Porch  French Lick Springs Resort & Casino - Well

Advanced Level Seminars at This Years Conference:
ICLEF is pleased to present advanced-level seminars, known collectively as The Masters Series, for those practitioners who require a distinct level of continuing legal education in their respective fields. Trademarks of The Masters Series include a low faculty-to-attendee ratio, seating arrangements that facilitate interaction, and topics designed to make you think, while providing you with answers to the tough questions and difficult situations you may encounter in your practice.

Click a title below for Topics, Faculty, Agenda, Price & Registration information. To download a PDF of the 2014 Masters Series ConferenceTM Brochure & Registration form, Click Here.

Pardon the Interruption: Ethics! – 3 CLE / 3 E
– James J. Bell, Bingham Greenebaum Doll LLP, Indianapolis
– Charles “Chuck” M. Kidd, Indiana Supreme Court Disciplinary Commission
– Kevin P. McGoff, Bingham Greenebaum Doll, LLP
– Margaret “Meg” M. Christensen, Bingham Greenebaum Doll, LLP

Advanced Individual Bankruptcy Chapters 7, 11 & 13 – 6 CLE / 1 E
Program Chairs:
– Mark S. Zuckerberg, Bankruptcy Offices of Mark S. Zuckerberg P.C., Indianapolis
– Deborah J. Caruso, Dale & Eke Professional Corporation, Indianapolis

Advanced Business Succession Planning – 6 CLE
Program Chair:
– Jeanne E. Longsworth, Longsworth Law LLC, Fort Wayne

Advanced Issues in Family Law – 6 CLE
Program Chair:
– Kendra G. Gjerdingen, Mallor Grodner LLP, Bloomington

Negotiation Strategies within Mediation – 6 CLE / 6 CME / 1 E
Program Chairs:
– Martin E. Latz, Latz Negotiation Institute
– Samuel R. Ardery, Bunger & Robertson, Bloomington

 

ICLEF's Annual Masters Series Conference<sup>TM</sup> at the beautiful French Lick Springs Hotel & Casino and West Baden Springs Hotel & Spa in French Lick, IN. Advanced Seminar at the ICLEF 2012 Masters Series Conference ICLEF's Annual Masters Series Conference at the beautiful French Lick Springs Hotel & Casino and West Baden Springs Hotel & Spa in French Lick, IN.  Advanced Seminar at the ICLEF 2012 Masters Series Conference

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Masters Series ConferenceTM Schedule of Events:

Thursday, July 17, 2014
10:00 A.M.     ICLEF Board of Directors Meeting
                        West Baden Room, West Baden Springs
12:00 P.M.     ICLEF Masters Series ConferenceTM Registration Open
                        Level 2 Conference Facility Area
1:50 P.M.        Welcome & Introduction
                        – Alan M. Hux, Masters Series ConferenceTM Chairperson
                        – Windsor Ballrooms, Level 2 Conference Facility Area
2:00 P.M.       PTI: Ethics!
                        - James J. Bell, Program Chair
                        - Windsor Ballrooms, Level 2 Conference Facility Area
3:30 P.M.       Program Break
3:45 P.M.       Plenary Session continues
5:15 P.M.       Adjourn for the Day

5:30 P.M. – 7:30 P.M.      Hosted Reception (Open to All Faculty, Registrants & Guests)
                                         Join us for our welcoming reception with complementary drinks and heavy h’orderves

Friday, July 18, 2014
7:30 A.M.      ICLEF Masters Series ConferenceTM Registration Open
                      – Level 1 Conference Facility Area
7:45 A.M.      Continental Breakfast for Faculty & Attendees
                      – Level 1 Conference Center Foyer
9:00 A.M.     Begin Part One of the 2014 Masters Series ConferenceTM
                      - Level 1 Conference Center

Program start and break times will vary by individual seminar agenda

12:15 P.M.    Adjourn for the Day

3:00 P.M.     Historic West Baden Tour
                   (Open to All Registrants & Guests for $10. Proceeds benefit Indiana Landmarks,
                    a Nonprofit Organization. See Below for more information)

4:00 P.M. – 6:00 P.M.     ICLEF Private Slot Tournament
                                        (Open to All Registrants & Guests. See Below for more information)
                                        - Entertainment Lounge, French Lick Casino

To download a PDF of the 2014 Masters Series ConferenceTM Brochure & Registration form, Click Here.

Saturday, July 19, 2014

7:30 A.M.      ICLEF Masters Series ConferenceTM Registration Open
                      – Level 1 Conference Facility Area
7:45 A.M.      Continental Breakfast for Faculty & Attendees
                      - Level 1 Conference Center Foyer

Program start and break times will vary by individual seminar agenda

9:00 A.M.     Begin Part Two of the Masters Series ConferenceTM
                    - Level 1 Conference Center
12:15 P.M.    Conference Adjourns

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Tour the Historic Grounds

Friday July 18, 2014 • 3:00 P.M. – 4:00 P.M.   Prior to our movie presentation, enjoy a private tour of the West Baden Springs Resort to truly appreciate the architectural and historical significance of the resort. A nominal fee of $10 will be charged for the tour, with all proceeds going to Indiana Landmarks. To register for the Historic West Baden Tour email: scottking@iclef.org.  Or to download a PDF of the 2014 Masters Series Conference Brochure & Registration form, Click Here.

ICLEF's 2013 Masters Series Conference, July 25-27, 2013, French Lick Springs Resort & Casino & West Baden Springs Hotel & Spa, French Lick, IN  West Baden-Atrium  Large well at the West Baden Springs Resort West Baden-Ceiling ICLEF's 2013 Masters Series Conference, July 25-27, 2013, French Lick Springs Resort & Casino & West Baden Springs Hotel & Spa, French Lick, IN

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ICLEF Slot Tournament:
Friday, July 18, 2014  •  4:00 P.M.– 6:00 P.M.
- Entertainment Lounge, French Lick Casino

Reigning Tournament Slot King
L. Tyler Spies, Deatrick & Spies PSC, Louisville, KY

A new twist to our popular slot tournament this year! Tournament Participants and Conference attendees alike will join us for our private reception in the French Lick Casino.  The first 60 Slot Tournament registrants will receive two complimentary drink tickets while a cash bar and complimentary h’orderves will be available for all of our conference guests and tournament players.  Join us for your chance to win or simply catch up with friends and cheer on our slot tournament competitors before starting your evening at the resort!

To register for the Slot Tournament email: scottking@iclef.org.  Or to download a PDF of the 2014 Masters Series Conference Brochure & Registration form, Click Here. 

MSC-SlotT3-2013  MSC-SlotT2-2013  MSC-SlotT1-2013 MSC-SlotKing-2013

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Other Activities & Offerings:

French Lick Springs Resort & Casino
Spend some time exploring all there is to do and see at French Lick Springs Resort & Casino and neighboring West Baden Springs Resort. Concierge service will be provided by FLSR and available throughout the day at the ICLEF registration desk to assist you in making tee times, spa or dinner reservations, and to assist you with the many other activities and features of the beautiful and historic French Lick Springs Resort!  For a complete list of activities at the resort, please go to the resort’s website at www.FrenchLick.com 

Very special room rates have been made available for ICLEF Masters Series Conference Attendees. Hotel reservations can be made online at www.FrenchLick.com or by calling 812-936-9300.

Enjoy a Round of Golf!
It is recommended that reservations for the French Lick Resort Golf Courses be made prior to your arrival. As special guests of ICLEF, conference attendees may reserve tee times at either the nationally recognized Pete Dye Course or Donald Ross course on either Wednesday afternoon (7/24) or Thursday morning (7/25) regardless of where you make your overnight accommodations! ICLEF has blocked a limited number of tee times on these two dates for your convenience. These tee times are available until July 5, 2013 so make your plans today! For golf reservations call 812-936-9300 & ask for the ICLEF reserved tee times.

ICLEF's 2013 Masters Series Conference, July 25-27, 2013, French Lick Springs Resort & Casino & West Baden Springs Hotel & Spa, French Lick, IN ICLEF's 2013 Masters Series Conference, July 25-27, 2013, French Lick Springs Resort & Casino & West Baden Springs Hotel & Spa, French Lick, IN

Concierge service will be provided by French Lick Springs Resort
Available throughout the day at the ICLEF registration desk to assist you in making tee times, spa or dinner reservations, and to assist you with the many other activities and features of the beautiful and historic French Lick Springs Resort! For a complete list of activities at the resort, please go to the resort’s website at www.FrenchLick.com 

Relax in one of the Resorts’ Signature Spas
It is recommended that reservations for the French Lick Resort Spas be made prior to arrival. For spa reservations call 812-936-5819.

ICLEF's 2013 Masters Series Conference, July 25-27, 2013, French Lick Springs Resort & Casino & West Baden Springs Hotel & Spa, French Lick, IN  ICLEF's 2013 Masters Series Conference, July 25-27, 2013, French Lick Springs Resort & Casino & West Baden Springs Hotel & Spa, French Lick, IN

Fun Just for the Kids
French Lick Resort provides fun and exciting activities and adventures that will keep any child engaged and absorbed! Special activities, supervised by the Resort’s trained counselors, have been developed to ensure that kids ages 6-12 years have a full experience in fun and creativity. Visit the resort website for specific activities and events under the link “KidsFest.” Big Splash Adventure Indoor Water Park Just across the way from the French Lick Resort, Big Splash Adventure Indoor Water Park & Resort offers an exciting water park adventure for the entire family. Experience tropical luxury in a family friendly environment! For more information about all the wet and wild fun visit the water park website at www.bigsplashadventure.com

Posted in Highlighted Seminars0 Comments

Divorce Law v. Estate Law: What Divorce Lawyers Can Do To Protect Clients’ Estate Rights

Welcome back to Law Tips. I hope you took advantage of the insights Kent Jeffirs, shared a few weeks back, to kick off this two-part segment on the issues that can arise when one party dies before the final dissolution decree is entered. (Click Here to read, or scroll down) Kent’s continued guidance this week moves specifically into what divorce lawyers can do to protect clients’ estate rights. His foremost piece of advice is: Advise divorce clients about estate and beneficiary designation issues early and often!

In many cases (especially those involving employer sponsored plans) there is no clear answer to the questions that arise when a client dies who failed to change his or her beneficimy designations following a divorce. Therefore, the first and most urgent advice any lawyer should give a divorcing or recently divorced client: CHANGE YOUR BENEFICIARY DESIGNATIONS ASAP!

Divorce lawyers must advise, advise, advise. While a divorce lawyer may not be able to force clients to change their beneficiary designations (even when they are clearly in such clients’ best interests), divorce lawyers do not want to leave themselves exposed to claims that “you never said that could happen” by former clients or their family members. When it comes to making proper beneficiary designations, an ounce of prevention could be worth a substantial inheritance or years of contentious litigation.

Divorce lawyers must discuss issues of estate planning and beneficiary designations with their clients at the very beginning of representation and while the divorce is pending. If allowed to change beneficiary designations prior to the divorce being filed or while it is still pending, advise clients to change their designations unless prohibited from doing so by a court order. If the divorce is already filed or if there is a restraining order or provisional order already in effect prohibiting any changes to beneficiary designations, consider petitioning the divorce court to provisionally allow specified changes to designated beneficiaries based on the hardship or inequitable results that would occur if a party died before the divorce was finalized.

While this may seem overly precautious to some for provisional orders when there is no immediate threat to the health or life of a client, the small effort necessary to include such provisions in provisional orders and to make such beneficiary changes before or at the time the divorce is filed or even while a divorce is pending is nothing compared to the financial devastation that could occur to the deceased client’s family members without such changes. Remember, the surviving spouse in a divorce where no final decree of dissolution was entered can claim any individually titled property he stood to lose in the divorce, all jointly titled property as the surviving co-owner, plus a spousal allowance of $25,000 and an intestate or elective share of any assets of the deceased spouse’s estate that were titled in her name alone if the surviving spouse was fortuitous enough to have his spouse die while the divorce is pending.

In furtherance of divorce lawyers documenting their disclosure and advice concerning these issues, it is recommended that divorce lawyers include in their engagement agreements that it is the client’s responsibility to make appropriate changes to his or her estate plan and beneficiary designations and request that the client provide the attomey with a copy of any beneficiary designation changes for the attorney’s file when the client changes their beneficiary designations.

Finally, upon the entry of the dissolution decree and the finalizing of the representation, divorce lawyers should send an appropriate closing letter which sets forth all of the client’s responsibilities following the entry of the final dissolution decree including the client’s responsibility to make appropriate changes to his or her estate plan and beneficiary designations. Just as suggested above for inclusion in engagement agreements, the closing letter should also request that the client provide the attorney with a copy of any beneficiary designation changes for the attorney’s file when the client changes their beneficiary designations.

Thanks again to Kent Jeffirs for his generous contributions to Law Tips. FYI, Kent offers a comprehensive discussion of the situations you may encounter with your clients during his CLE presentation, addressing subjects such as, executors, ERISA and divorce court jurisdiction. If you are interested in the Video Replay or the On Demand Seminar of  “The Main Event: Divorce Law vs. Estate Law & Designated Beneficiaries,”  Click Here.

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About our Law Tips faculty participants:
Kent A. Jeffirs is a sole practitioner in Crown Point, Indiana, who for the last 22 years has concentrated his legal practice in estate planning, probate and trust administration, guardianships, real estate and small business counseling. In 2007, Mr. Jeffirs was one of the first group of Indiana attorneys to be board certified as a Specialist in Wills, Trusts Estates by the Indiana Trust and Estate Specialty Board. He has also testified in court proceedings as an expert witness on probate matters. Mr. Jeffirs received his B.A. degree, with honors, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Indiana University, Bloomington.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Blog, Law Tips, News0 Comments