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: Three Less-Recognized Reasons It’s Important to Plan for Digital Assets

A few weeks ago on Law Tips Professor Gerry Beyer shared his insights on the growing significance of digital assets in everyone’s estate planning. You can find that article at: Estate Planning Does Not Include Just Grandma’s Cameo Brooch Anymore. It’s my pleasure to provide a continuation of that discussion.

Do you and/or your clients dismiss the importance of a plan for online accounts, cloud and flash drive storage, blogs, etc? How might your client be effected if he/she does not make provisions for protecting these digital assets? Professor Beyer outlines the myriad of issues in his CLE training for ICLEF’s Midwest Estate,Tax & Business Planning Institute. Such as, he discusses how planning makes things easier on executors and family members. How it prevents identity theft. How it avoids financial losses to the estate. As well as other critical issues in the estate planning realm. Today we’re sharing three of perhaps the less-recognized reasons that Prof. Beyer points out to make an estate plan for digital assets:

To Avoid Losing the Deceased’s Personal Story

Many digital assets are not inherently valuable, but are valuable to family members who extract meaning from what the deceased leaves behind. Historically, people kept special pictures, letters, and journals in shoe boxes or albums for future heirs. Today, this material is stored on computers or online and is often never printed. Personal blogs and Twitter feeds have replaced physical diaries, and e-mails have replaced letters. Without alerting family members that these assets exist, and without telling them how to get access to them, the story of the life of the deceased may be lost forever. This is not only a tragedy for family members, but also possibly for future historians who are losing pieces of history in the digital abyss. Rob Walker, Cyberspace When You’re Dead, N.Y. TIMES, Jan. 5, 2011.

For more active online lives, this concern may also involve preventing spam from infiltrating a loved one’s website or blog site. Comments from friends and family are normally welcomed, but it is jarring to discover the comment thread gradually infiltrated with links for “cheap Ugg boots.” Id. “It’s like finding a flier for a dry cleaner stuck among flowers on a grave, except that it is much harder to remove.” Id. In the alternative, family members may decide to delete the deceased’s website against the deceased’s wishes simply because those wishes were not expressed to the family.

To Prevent Unwanted Secrets from Being Discovered

Sometimes people do not want their loved ones discovering private emails, documents, or other electronic material. They may contain hurtful secrets, non politically correct jokes and stories, or personal rantings. The decedent may have a collection of adult recreational material (porn) which he or she would not want others to know had been accumulated. A professional such as an attorney or physician may have files containing confidential client information.

Without designating appropriate people to take care of electronically stored materials, the wrong person may come across this type of information and use it in an inappropriate or embarrassing manner.

To Prepare for an Increasingly Information-Drenched Culture

Although the principal concern today appears to be the disposition of social media and e-mail contents, the importance of planning for digital assets will increase each day. Online information will continue to spread out across a growing array of flash drives, iPhones, and iPads, and it will be more difficult to locate and accumulate.

As people invest more information about their activities, health, and collective experiences into digital media, the legacies of digital lives grow increasingly important. If a foundation for planning for these assets isn’t set today, we may re-learn the lesson the Rosetta Stone once taught us: “there is no present tense that can long survive the fall and rise of languages and modes of record keeping.” Ken Strutin, What Happens to Your Digital Life When You Die?, N.Y. L.J., Jan. 27, 2011 (For fifteen centuries, the meaning of the hieroglyphs on the Rosetta Stone detailing the accomplishments of Ptolemy V were lost when society neglected to safeguard the path to deciphering the writings. A Napoleonic soldier eventually discovered the triptych, enabling society to recover its writings.)

Again, thank you to Professor Gerry Beyer for sharing his expertise on the ramifications of failing to include digital assets in estate planning.

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About our Law Tips faculty participant:
Prof. Gerry W. Beyer is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, Lubbock, TX. He joined the faculty at Texas Tech in June 2005. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools. He was also the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer. He has authored and co-authored numerous books and articles focusing on various aspects of estate planning, including a two volume treatise on Texas wills law, an estate planning casebook, and the Wills, Trusts, and Estates volume of the Examples & Explanationsseries. Professor Beyer received his J.D. from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois.

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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Trial Court Within Discretion Denying Grandmother’s Petition for Visitation

Case: In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court was within its discretion in denying Grandmother’s petition for grandparent visitation, where Grandmother neither rebutted the presumption that Mother was a fit parent, nor did she meet her burden that grandparent visitation would be in the Children’s best interests.

NOTED: The Court of Appeals expressly declined to decide what legal standard should be applied to a modification of grandparent visitation, as opposed to establishing it in the first place.

FACTS AND PROCEDURAL HISTORY:
Mother has two young Children, born out-of-wedlock, with Father. In early 2013, Father “walked away” from Children and no longer had any contact with them. Prior to then, paternal Grandmother had periodic contact with Children, when the Father would see them. After Father stopped having contact with Children, Grandmother approached Mother informally to request contact with the Children, but Mother denied it citing concerns over prior incidents (e.g., Grandmother consuming alcohol around the children, not using a car seat on one occasion, etc.)

Grandmother subsequently filed a petition for grandparent visitation. At a subsequent hearing, the parties apparently agreed that Grandmother would have a “trial period” of supervised visitation, pending a full hearing.

At the next hearing, Grandmother put forth no evidence that Mother was unfit. On cross-examination, Grandmother also conceded she had allowed the Children to be placed in various dangerous or inadvisable situations during her trial parenting time. Following the hearing, the trial court denied Grandmother’s petition for visitation, from which Grandmother appealed.

The basis of Grandmother’s appeal was an argument that the trial court applied the wrong legal standard. Because the parties had previously reached an agreed entry for Grandmother’s visitation, Grandmother argued that the second hearing was a modification of an existing Grandparent visitation order, not an issue of whether to establish it in the first place. However, the Court of Appeals rejected that argument, agreeing with Mother that the original visitation order was a trial arrangement pending a full hearing on the matter. And, having properly addressed the McCune factors, the trial court was within its discretion to deny visitation.

In a footnote, the Court of Appeals also indicated that it was expressly reserving for a future case the issue debated by the parties as to the legal standard for a modification of grandparent visitation.

The trial court’s order denying grandparent visitation was affirmed.

To view the text of this opinion in its entirety, click here: In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens

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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