COA Says Adoption Order Erroneously Issued by Trial Court

Case: In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erroneously issued an adoption order when it dispensed with the statutorily required background check, and did not consolidate a pending paternity action involving the same children with the adoption proceeding.

HELD: An adoption court is required to consolidate any paternity cases involving the child before ruling on the adoption petition.

FACTS AND PROCEDURAL HISTORY:
Father and Biological Mother had three children together, out of wedlock. Father’s paternity was established in 2012; as part of that proceeding, Father did not know Biological Mother’s address, so she was served by publication and did not attend the hearing. The paternity matter awarded Father physical and legal custody of the children, as well as a child support and parenting time order for Biological Mother.

Biological Mother would go on to have limited involvement with the children, seeing them roughly once a month when they were at her mother’s home. She also gave them birthday presents.

Father remarried in 2009, and, in 2015, his wife, Adoptive Mother, filed a verified petition to adopt the children. Biological Mother learned of this, and filed both an objection in the adoption court, and a motion to set aside the paternity order in the paternity court – citing lack of personal jurisdiction over her.

After a hearing, the adoption court granted Adoptive Mother’s petition to adopt the children, concluding that Biological Mother’s consent was unnecessary because she failed to support the children in a meaningful way for over a year. Biological Mother appealed.

The Court of Appeals had various issues with how this adoption was handled, but found one to be dispositive: Ind. Code 31-9-2-22.5 requires a particular background check for any would-be adoptive parent. The Court concluded that the limited check in this case did not substantially comply with the statute and, because the underlying policy for the background check is the safety of the children, Father’s argument that Biological Mother invited this error was unpersuasive.

The Court also decided, in a matter of first impression, that any paternity case involving a child must be consolidated into an adoption proceeding involving the child. When an adoption case and paternity case involving the same child are pending at the same time, the adoption court acquires exclusive jurisdiction. If the paternity matter were not consolidated into the adoption matter, then the adoption could be granted and then closed, leaving the paternity matter open but in limbo because of its lost jurisdiction over the child. If the adoption court always consolidates the paternity matter into it, it can issue consistent orders that resolve both adoption and paternity.

The trial court’s adoption order was reversed, and remanded with instructions to consolidate the paternity matter and to undertake a statutorily compliant background check.

To view the text of this opinion in its entirety, click here:
In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O.

 

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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

Court of Appeals Affirms Mother is Unemployed with Just Cause

Case: Tracy K. Barber v. Amy Henry
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not abuse its discretion when it concluded that Mother, who scaled back and then eventually quit working as a physician in order to care for her special needs children, should not be imputed to more than minimum wage for child support purposes.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child in 1999. The parties shared joint legal custody, with Mother providing primary physical custody subject to Father’s “liberal visitation.” Mother re-married, and her children – including Child – and the child of her new husband had various developmental challenges, such as autism and ADHD.

Mother had worked as a physician, but began working less and less to spend more time at home dealing with the children’s needs, therapy appointments, and eventually some home schooling. Mother’s husband was a full-time physician, providing Mother the easier financial option of working less. By late 2014, Mother quit working altogether, partly a result of an incident at Father’s house which left Child charged with a juvenile incident, after which Child was placed on house arrest and suicide watch.  One of Child’s probation requirements was no contact with Father.

In 2015, litigation between Mother and Father erupted on various issues, most relevant to this appeal being a child support recalculation. After a hearing, the trial court calculated child support with Mother at minimum wage, finding that Mother’s departure from the workforce was not unreasonable and not devised to avoid child support. Father appealed.

The Court of Appeals reviewed the case law on imputation of income, noting that “[i]t is not our function . . . to approve or disapprove of the lifestyle of [parents] or their career choices and the means by which they choose to discharge their obligations in general.”  The Court’s “review of the record leaves us convinced that Mother is unemployed with just cause.” [Notably, the opinion did not seem to address in detail Father’s central gravamen on appeal, which was not that Mother should be imputed income based upon Mother’s own potential income, but instead a Gilpin-type imputation to Mother based upon the financial resources shared with her by her new husband that allowed Mother the option not to work.]

The trial court’s calculation of child support was affirmed.

To view the text of this opinion in its entirety, click here: Tracy K. Barber v. Amy Henry

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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

When Time & Knowledge are Short

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“What should I do if I don’t have nearly the same level of factual knowledge as my counterpart – and I just don’t have the time to learn it as it’s super complicated and I have a short deadline in which to respond?” Here’s what I recommend.

1.    Use Your Expertise on the Process
No one is an expert on everything. But for those who regularly engage in significant negotiations in their professions (like lawyers, sales and purchasing professionals, business consultants, investment bankers, and business executives), strive to develop an expertise in the process of negotiation.

Why? Expert negotiators can use their process-oriented knowledge to deeply probe and ascertain the other sides’ interests and needs regardless of their lack of substantive knowledge. Of course, they will need to have a baseline level, but their relative lack of knowledge will not destroy their ability to achieve a great deal.

Here, experience does not equal expertise. Knowledge of how to expertly navigate and control the negotiation process can make up for a substantive knowledge deficit.

Many years ago my car broke down and required significant repair work. At the time, I knew very little about what supposedly needed to be done.

I had already developed, however, an expertise in negotiation. What did I do? I first set my twin goals of a) getting quality repair work done, and b) at the lowest possible price. Then, to accomplish these, I ran a reverse auction and got five repair facilities bidding against one another for my business.

2.    Enlist an Expert Advisor
It’s important in all negotiations to know what you don’t know and to stay within your relative comfort zone knowledge-wise. Faking it can lead to failing it. And it can cost you dearly in terms of credibility, which is disastrous short- and long-term.

Fortunately, you can hire expertise and knowledge. When time is short and you can’t easily get up-to-speed on the issues, invest in an expert advisor. Their credibility and ability to give your negotiation a fresh look can be invaluable.

Whether it’s a financial expert who can analyze a business’ accounting practices, a mergers and acquisitions lawyer or business consultant who can tell you what similar companies have sold for in the past, or a colleague who is extremely knowledgeable on the issues on the table, good experts are worth their weight in gold.

A friend and former client recently bought a house here in Scottsdale. While he’s pretty knowledgeable about construction, he’s no expert. And he had a very limited amount of time in which to determine whether and how much to bid for the house, which he wanted to renovate. So he hired an expert to evaluate what needed to be done and its cost. Money very well spent.

Asking for advice here, also, is a sign of strength – not a weakness. Knowing your limitations, and shoring them up, will almost always increase your ability to achieve your goals.

3.    Strengthen your leverage      
Leverage is perhaps the single greatest factor determining your ability to achieve success in negotiations. Strong leverage can hide and/or overcome many other weaknesses. And weak leverage will often shine a light on liabilities in other areas.

So when time is tight and you lack knowledge relating to issues on the table, spend your limited time and resources trying to maximize your leverage. How? At the least, seek a better alternative (Plan B) to a deal with your current counterpart (your Plan A).

If Company A offered you a job that seems good but gave you a short deadline in which to accept or reject it, talk with Company B too.

It will be well worth your time.

Latz’s Lesson:  When time and knowledge are short, don’t stress. Just put your negotiation expertise to work, call an expert, and take the time to develop a strong Plan B.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog0 Comments

Postsecondary Education Expense Statute Does NOT Permit an Award for Graduate or Professional School Expenses

Case: Case: David P. Allen v. Kimberly W. Allen
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Supreme Court holds that Indiana’s postsecondary educational expense statute does not permit an award for graduate or professional school expenses.

FACTS AND PROCEDURAL HISTORY:
Father and Mother divorced in 2002. A subsequent 2010 agreed entry provided for an allocation between the parents of Daughter’s undergraduate educational expenses and health insurance.

In 2013, shortly before Daughter’s 21st birthday, when Daughter was a senior at IU, Father filed a petition to modify seeking orders regarding Daughter’s graduate school expenses. At subsequent hearings, it was determined that Daughter had been accepted into the IU dental school, which costs approximately $75,000 per year. The trial court found that both of the parents had significant resources, and then ordered the same apportionment of expenses that was set forth in the prior undergraduate order to continue for Daughter’s dental school.

The Court of Appeals rejected Mother’s argument that the trial court lacked the authority to issue a graduate school expense order. Mother then sought transfer, which was granted.

The Indiana Supreme Court noted that the interpretation of the term “postsecondary” was a matter of first impression, and that the term is not defined in the postsecondary educational expense statute. The Court took interest in the fact that other areas of the Indiana Code define the term, and limit its application to undergraduate matters. The Court also noted that the requirement that a petition for postsecondary expenses be filed when the child is of an age well short of graduate or professional school would seem to suggest that only undergraduate expenses were contemplated. Finally, the Court observed that Indiana’s statute allowing for any type of college expense order is unusual on the national level, and further permitting graduate or professional school expense orders would “put Indiana in the minority of the minority” on the issue.

The Court advised in a footnote that a “postsecondary” expense order may properly apply to a trade school or associate’s degree, not only to baccalaureate degrees.

The trial court’s graduate school expense order was reversed.

To view the text of this opinion in its entirety, click here: David P. Allen v. Kimberly W. Allen

 

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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 Review, News0 Comments

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