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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

2014 Indiana Law Update On Demand & Video Replay Seminars

Albion - Nov. 10-11
Avon/Danville - Dec. 11-12
Bloomington - Oct. 30-31
Chicago SE
      Day 1 - Nov. 14
      Day 2 - Nov. 17
Corydon - Nov. 5-6
Evansville - Oct. 27-28
Fort Wayne - Nov. 13-14
Gary - Dec. 4-5
Indianapolis - Nov. 3-4
Jeffersonville - Oct. 29-30
Lafayette - Nov. 6-7
Marion - Dec. 18-19
Merrillville - Nov. 13-14
Michigan City - Dec. 8-9
Muncie - Oct. 30-31
Nappanee - Nov. 6-7
New Castle - Nov. 13-14
Richmond - Nov. 13-14 
Salem
      Day 1 - Dec. 4
      Day 2 - Dec. 11 
Valparaiso 
      Day 1 - Jan. 9
      Day 2 - Jan. 16
Versailles - Nov.25-26
Vincennes - Dec. 11-12

Posted in Highlighted Seminars0 Comments

Trial Court Erred when Child Support Arrearange Calculation Failed to Credit Intercepted Money from Father’s Bank Account

Case: In re the Paternity of D.M.Y., et al., M.R. v. B.Y.
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Supreme Court holds that trial court erred in a child support arrearage calculation when its calculation failed to credit Father for $7,025 that was intercepted from Father’s bank account and disbursed to Mother.

FACTS AND PROCEDURAL HISTORY:
In 1999, Father’s paternity of two children was established, and he was ordered to pay support of $146/wk. In 2010, the trial court determined a support arrearage of $21,337. The trial court further released $15,000 to Mother that had been attached from Father’s bank account.

In 2011, another $7,025 was intercepted from Father’s bank account and, again, disbursed to Mother — but not until early 2012.

Father subsequently moved to determine his arrearage. At a hearing, there was an issue over a summary exhibit that purported to calculate Father’s arrearage as of December 31, 2011. Father objected that the exhibit was inaccurate because, while it was accurate as to December 31, 2011, it did not credit Father for the $7,025 that was released to Mother in early 2012. Nevertheless, after the hearing, the trial court found Father to be in arrears of $6,483 as of December 31, 2011 – technically correct, but it did not credit Father for the $7,025 released to Mother prior to the hearing.

Mother later sought to have Father held in contempt. Following another hearing, the trial court found Father’s arrearage to then be $13,055 as of the hearing, a sum which, again, did not credit Father for the $7,205 attachment. Father appealed, but the Court of Appeals, in a 2-1 memorandum decision, affirmed the trial court’s order.

After granting transfer, the Indiana Supreme Court largely adopted Judge Robb’s dissent in the Court of Appeals opinion, concluding that the arrearage was miscalculated by the trial court. The Court rejected Mother’s argument that Father’s appeal was untimely because he should have appealed the prior order that did not credit him $7,025. The Court noted that, technically speaking, that order was correct because it calculated an arrearage as of December 31, 2011, and, thus, Father had nothing to appeal after that order.

The trial court’s order was reversed, and remanded with instructions to credit Father $7,025 in its arrearage calculation.

To view the text of this opinion in its entirety, click here: In re the Paternity of D.M.Y., et al., M.R. v. B.Y.

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

Law Tips: Eliciting Change Talk in Mediation

Doug Noll, a fulltime peacemaker, emphasizes the importance of “micro-moments of emotion” when mediators should respond appropriately in order to bring the parties to an amicable settlement. Mr. Noll specializes in difficult, complex, and intractable conflicts and he trains others in those conflict resolution skills. A segment of his mediation training focuses on eliciting change talk. Today, Doug is generously providing an outline of how change talk can assist in a positive outcome in your clients’ settlement. Let’s learn about DARN C:

Eliciting Change Talk

Eliciting change talk, or self motivational statements, is an important component in mediationsettlements. This strategy helps to establish and resolve ambivalence and move forward.

Change talk is the party making statements that are in favor of resolution, which suggests that the party is becoming more ready, willing, and able to settle. However, although a mediator may want to hear change talk, she avoids imposing it. The goal is to elicit it from the party in a collaborative fashion. Eliciting change talk has to come about through a consensual, negotiated process between the mediator, the party, and counsel. Change talk can occur in several forms that make up the acronym DARN C.

D =Desire statements. Statements indicating a desire to make a change.

  • “I’d like to get this over with if I could.”
  • “I wish I could make my life better.”
  • “I want to take better care of my kids.”
  • “Getting past this would make me feel so much better about myself.”

A= Ability statements. Statements that speak to the party’s self-efficacy or belief in the ability tomake changes.

  • “I think I could do that.”
  • “That might be possible.”
  • “I’m thinking I might be able to do that.”
  • “If I just had enough money to survive until I got back on my feet, I could probably be OK.”

R = Reasons statements. Statements that reflect the reasons the party gives for considering a change.

  • “I have to settle because the stress and cost is driving me to bankruptcy.”
  • “To keep my sanity, I should probably figure a way out of this mess.”
  • “My marriage is over and I might as well just accept it and move on.”
  • “I don’t like my kids to see me like this.”

N = Need statements. Statements that indicate a need for change. These can be similar to R statements, but the emphasis is more affective or emotional than a more cognitive R statement.

  • “It’s really important to get my life back.”
  • “Something has to change or my marriage will break.”
  • “I’ll die if I keep going like this.”

These DARN statements are important to recognize and then emphasize through reflecting or directing the party to further elaboration. These statements are avenues to the most important part of change talk, the “C” in the DARN C.

C = Commitment language. Commitment language is the strength of change talk.

For example, aperson could say, “I might settle”, or “I could consider settling”, or “I’m planning to settle” or “I will settle”. The last two examples represent authentic commitment. The strength of the verb in the sentence corresponds with the strength of the commitment language.

An important mediator skill is addressing party commitment to change over the course of the mediation by recognizing and responding to change talk. The goal is to strengthen the commitment level.

Amrhein and Miller (2003), a linguist and a psychologist respectively, have shown that while allelements of change talk can be important in building commitment language, it is the stronger commitment statements that predict positive behavior outcomes. In other words, the more a party is making strong commitment statements like “I will do this” and “I am going to do that,” the more likely the party’s behavior is going to change.

I appreciate the contributions of Douglas Noll, both for Law Tips and as a faculty member for ICLEF. His DARN C pointers surely can help to recognize and strengthen the commitments of parties in various situations. I hope you have enhanced your mediation skills through his advice.

For further information on Mr. Noll’s training you may want to visit his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators - 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession - 3 CLE / 3 CME / .5 E - December 3

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About our Law Tips faculty participant:
Douglas E. Noll, J.D., M. A. In addition to being a keynote speaker and negotiation trainer, Doug is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators. He is the author of  Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts (Prometheus Books, April 2011).

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 Law Tips, News0 Comments