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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

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Only a Week Left to Save 50% Off All On Demand Seminars!

It’s August, so it’s time for our Annual 50% Off On Demand Sale! You will not find a more economical way to sample an ICLEF On Demand seminar. Now till the end of August we are offering all of our ICLEF Online/On Demand seminars at 50% OFF our standard online registration fee! This year, avoid the crowds and the traffic and enjoy a tremendous savings when fulfilling your CLE requirements. If you have not already experienced the future of CLE, now is the time to see for yourself why ICLEF On Demand has become the most convenient and effective way to view CLE programming. Click here to see all of our On Demand Seminars, or click a seminar link below. Use Coupon Code: Y14R7

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Here are 15 of ICLEF’s most popular On Demand Seminars of 2014:
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54 Practical Issues, Tips & Traps for Employment Lawyers – 6 CLE / 1.5 E
From April 2014

An Update on Health Care Law – 6 CLE
From May 2014

Trust Accounts Made Easy – 3 CLE / 3 E
From July 2014

Employee Benefits Litigation – 3 CLE
From June 2014

Section 1031 Exchanges – 5.25 CLE / 6.25 CPE
From February 2014

Estate Planning for Same-Sex Couples: The Effect of DOMA Repeal – 1 CLE
From January 2014

Legislative Update for 2014 – 3 CLE
From June 2014

Bankruptcy And Your Family Law Case – 2 CLE
From March 2014

Recent Developments in DUI Defense – 6 CLE
From May 2014

Long Term Care Planning – 3 CLE
From March 2014

Strategies for Taking Charge of Your Law Practice – 3 CLE / 3 E
From March 2014

The Big 3 in IP: Copyright, Trademarks & Patents – 3 CLE
From March 2014

Lobby Law Changes – 1 CLE
From February 2014

Special Issues in Automobile Accident Cases – 6 CLE
From April 2014

14th Annual Property Tax Institute – 6 CLE / 6 Assessor Level I or II
From April 2014

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: The Problem of Financial Exploitation of the Elderly and Disabled

Financial exploitation of the elderly and disabled has been called “the hidden epidemic.” Attorneys who represent the aged and disabled frequently encounter acts of financial exploitation. And attorneys must do what they can to protect their clients from the risk of being financially exploited.

This statement from James Voelz, ICLEF’s Elder Law Institute faculty member, is a reflection of his ongoing concerns about the elderly and disabled clients he serves. I am grateful that Jim agreed to share his expertise on protecting clients in the expanding elder law arena with Law Tips readers. This week he provides background on the “problem” and the applicable law. Then, as we go down this road, we’ll hear Mr. Voelz’s further advice on steps elder law attorneys may want to take to prevent exploitation of clients.

Jim Voelz’s thoughts on the financial exploitation problem:

The Indiana Adult Protective Services (“APS”) program received 41,334 reports, of which 10,506 reports were investigated during 2012. The reports were classified as follows: Abuse- 2,689, Neglect- 3,176, Self Neglect- 3,198, and Financial Exploitation- 1,443. How many cases of financial exploitation are reported? The estimates range from 1 in 5 to 1 in 44.

I recently met with an APS investigator who has almost 25 years of experience. He said that reports of financial exploitation are increasing, and voiced extreme frustration that he has never seen criminal charges filed against a person who financially exploited an elderly or a disabled person! He said that we have the tools to protect people in Indiana, but these tools are not being used effectively. He said the exploiters are getting away with financial exploitation when they are not being prosecuted. He said prosecutors do not file charges, because victims suffer from dementia or other health issues making it difficult to prove that a crime has been committed.

I also contacted Patrick D. Calkins, who is the Program Director for Adult Protective Services. Mr. Calkins told me that APS does not keep statistics about the number of financial exploitation reports that result in criminal charges being filed against the alleged perpetrator. He did verify that the most common excuse for failure to prosecute is “that the victims make bad witnesses.” But he said that his take on this is that homicide victims make bad witnesses also, but prosecutors still file charges for murder.

Mr. Calkins also told me that the victim’s attorney is often the victim’s last line of defense. Consequently, it is important that we do what we can to help our clients not become victims of financial exploitations, and if our client does become a victim, then to help stop the continuation of financial exploitation and to help our client seek appropriate remedies.

Adult Protective Services

Indiana has had an adult protective services (APS) law since 1985. See Indiana Code 12-10-3-1 through 12-10-3-31. Indiana is the only State in which the APS program is a criminal justice function.

The Division of Aging of the Indiana Family and Social Services Administration oversees the APS program. There are 16 APS unit geographic boundaries. APS has 42 field investigators who are employed by “hub prosecutors” who have a contract for services with the Division of Aging, and they are paid from State funds.

A person who believes or who has reason to believe that another person is an “endangered adult” shall make a report to the adult protective services unit, a law enforcement agency, or the Division of Aging on its statewide toll free telephone number (1-800-992-6978), as required by Indiana Code 12-10-3-9.

So what should an attorney, who knows that his client has been financially exploited, do?

Is the attorney required by law to report this? Yes, Indiana Code 35-46-1~3(a) does require a report to be made to the Division of Aging, APS, or a law enforcement agency.

But, what duties does the attorney have pursuant to the Indiana Rules of Professional Conduct?

Rule 1.14(b) and (c) outlines these responsibilities. (Law Tips note: Here is a link to specific language of Rule 1.14: Indiana Rules of Professional Conduct. Consult the Rules for guidance on when a lawyer is permitted or required to take protective measures. One comment to the Rule concludes as follows: “The lawyer’s position in such cases is an unavoidably difficult one.”)

Suspicious Activity Reports

The Financial Crimes Enforcement Network of the United States Department of the Treasury issued an Advisory to financial institutions regarding the filing of suspicious activity reports regarding elder financial exploitations on February 22, 2011. Please refer to http://www.fincen.gov/statutes_regs/guidance/html/fin-2011-a003.html. The Advisory lists potential indicators of elder financial exploitation.

If the financial institution has a reasonable explanation for the transaction based upon the available facts, including the background and possible purpose of the transaction, it is relieved of the obligation to file a Suspicious Activity Report.

Attorneys who are representing clients or other agents who are involved in an activity with a financial institution that could result in the institution filing a Suspicious Activity Report should provide the financial institution with a reasonable explanation for the transaction. This may prevent a visit from Federal or State law enforcement.

Senior Consumer Protection Act

Indiana has a new law called the Senior Consumer Protection Act that became effective July 1, 2013. The Act provides civil remedies involving financial exploitation of a person who is at least 60 years of age. The Act can be found at Indiana Code 24-4.6~6-1 through 24-4.6-6-6.

We’re breaking here in Jim Voelz’s discussion of financial exploitation of the elderly and disabled. But he continues to share his expertise next week in areas such as the right timing for a person to gift their assets and the amount of power given to the attorney-in-fact.

For a comprehensive update in elder law from an outstanding panel, check out the 2014 Elder Law Institute on October 9-10, 2014.

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About our Law Tips faculty participant:
James K. Voelz, Voelz Law, LLC, Columbus, Indiana. Mr. Voelz ‘s law practice primarily involves estate and disability planning, estate and trust settlement, elder law, and Medicaid qualification services. Jim is a member of Hoosier Hills Estate Planning Council, National Academy of Elder Law Attorneys and its Indiana Chapter, and the Indiana State Bar Association’s Elder Law and Probate, Trust and Real Property Sections. Mr. Voelz serves on the Committee on Character and Fitness of the Indiana Supreme Court.  And he is also the author of “Senior Moments” newsletter.

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

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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

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