Trial Court Find Mothers Proposed Relocation Not in the Best Interest of Child

Case: In Re: the Marriage of Tina M. Harpenau v. Robin P. Harpenau
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court was within its discretion when it granted Father’s petition to modify custody based upon Mother’s proposed relocation, and when it modified child support as well. The record supported the trial court’s conclusion that Mother’s proposed relocation was not in the children’s best interests.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in Perry County in 2013, with two minor children. The parties agreed to joint legal custody, with Mother having primary physical custody. Shortly thereafter, Mother filed a Notice of Intent to Relocate to Scott County, so that she could move in with her boyfriend and to be closer to Mother’s place of work.  Father’s objected to the proposed relocation, citing his belief that the schools would be inferior, his own increased drive time to see the children, and a concern about criminal activity around the house into which Mother proposed moving.

After a hearing, the trial court concluded that Mother’s proposed relocation was offered in good faith and for a legitimate reason, but that it did not serve the best interests of the children. Thus, the trial court awarded Father primary physical custody and gave Mother the parenting time schedule that Father had prior to the modification. The trial court also modified child support, running its own child support calculation based upon the Decree’s income figures for the parties, and ordering Mother to pay $119/wk based upon the court’s calculation. Mother appealed.

The Court of Appeals reviewed the record and found ample evidence to support the trial court’s findings concerning the best interests of the children: there was limited information about the duration or seriousness of Mother’s relationship with the man she proposed moving in with; Father lives on a 160-acre parcel shared with other family members; and, the lack of relationships the children (or Mother) had in Scott County.  Thus, the modification and denial of Mother’s proposed relocation with the children was not an abuse of discretion.

The Court also concluded that the trial court did not abuse its discretion when it modified child support. The court used the same income figures from the worksheet that was attached to the parties’ recent 2013 Decree. Father testified at the hearing that the numbers had not changed since, and Mother failed to offer any conflicting testimony or evidence, or a child support worksheet of her own. The modification of child support was not error.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau

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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

Modification of Primary & Legal Custody From Mother to Father, Due in Part to Mothers Micromanaging

Case: In Re: The Marriage of Ann (Sutton) Baker v. Milo Sutton
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s modification of primary physical and legal custody of the parties’ 15-year-old son from Mother, to Father, was not error where the record supported findings that the child wanted to live with Father, that Child and Father had grown much closer in recent years, and that Mother was micromanaging Child’s life.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 1999, with Mother awarded sole legal and primary physical custody of the parties’ only child, subject to Father having Guidelines parenting time.

In 2013, Father filed a petition to modify custody. He also requested that the trial court conduct an in camera interview, which the trial court undertook.

The trial court subsequently issued an order that focused on the evolution of the Child’s relationship with Father since the Decree was issued. The trial court found that relationship had matured, and the common interests between Father and Child grew substantially (golf, computers, etc.). In the past year, Child began initiating much of the communication with Father. The trial court’s order was also critical of Mother, citing that she forced Child to continue to participate in many extra-curricular activities in which he was no longer interested, and that she was a “helicopter mom.”

In short, the trial court concluded: “Mother is trying to control the person that [Child] is developing into, and he will never be truly happy unless [Child] determines who that person is. Father, on the other hand, seems to understand the concept of giving [Child] some space.”  The trial court modified custody to sole legal custody and primary physical custody with Father. Mother appealed.

Much of the Court of Appeals’ analysis focused on the role that Child’s wishes played in the trial court’s order. The Court rejected Mother’s argument that Child’s expressed wishes should not control the outcome of the case; the Court of Appeals noted that a child’s wishes is a legitimate factor of consideration and, in this case, there were other factors supporting the modification, as well.  Child had grown closer to Father in recent years, and Child had a good relationship with the members of Father’s current family. The Court also acknowledged Mother’s argument that Child’s stability was an important factor, but that stability did not justify overriding other factors that supported the modification.

The trial court’s modification of custody was affirmed.

To view the text of this opinion in its entirety, click here: In Re: The Marriage of Ann (Sutton) Baker v. Milo Sutton

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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

Negotiations Blog: Agent & Client Must Build Trust & a Plan to Get the Best Results

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“He’s hired me to represent him in these negotiations. But he’s holding out and not telling me everything. It’s like he’s negotiating with me – yet we are on the same side. And the result is counterproductive for both of us. What should I do?”

Lawyers, investment bankers and other agents negotiating on behalf of others face similar situations frequently. And it is almost always a lose-lose proposition. Here are some suggestions if you are the lawyer, agent, or client.

Effective strategies require openness within the team.

Clients who hold their cards close to their vest even with their teammates – especially if they have hired those teammates/lawyers/agents as their designated professional negotiators – are tying their representatives’ hands behind their backs.

Years ago a 45-year-old seller told me he wanted to sell to a private equity group that could grow his company to a much greater degree than he could. He also said he really enjoyed being in his business and had no interest in cutting back upon selling.

Critically, possible buyers needed him actively involved due to his substantive expertise, industry relationships, and because the company was branded to him personally.

In negotiating with a private equity group with a very attractive bid, I communicated my client’s interest in staying involved. They took this to heart and offered a big chunk in cash upfront plus a much greater amount if the business hit certain milestones – milestones it would not likely hit without my client’s participation.

My client, unfortunately, asked me to push back hard and request a lot more upfront with less due upon hitting the milestones. Although I thought we could reasonably request a bit more upfront, I told him pushing back too hard on the cash portion would send the wrong message – that he just wanted to get out early and/or he really wasn’t confident about the business’ long-term prospects.

He insisted we push back super hard, so we did. The potential buyer then got cold feet and walked away from the deal. I later heard my client had withheld from me critical information regarding his goals and interests in selling.

Credible, trusting relationships overcome these challenges.

Lawyers and agents with long-lasting, credible and trusting relationships with their clients rarely face these problems. Why? These clients are much more comfortable sharing their true needs, interests and strategies with their trusted advisors.

How can you develop such relationships? Several years ago I wrote a column on this subject based on a book I recommended called “The Trusted Advisor” (find it at www.NegotiationInstitute.com). Here is a summary of those recommendations:

  • Actively engage with your client from the start.
  • Truly and deeply listen to their needs and concerns.
  • Frame their needs so they know how well you understand them.
  • Envision what success looks like for them.
  • Get a realistic commitment from them to take the steps necessary to achieve their goals.

Mutually develop written Strategic Negotiation Plans.

Clients often just do not know what negotiation-related information to share with their agents and so might inadvertently fail to disclose highly relevant and crucial negotiation intelligence. And many agents might fail to ask their clients the right questions or probe deeply enough to get to their true needs and interests and to find out other critical negotiation elements.

The solution: Brainstorm together to develop a written Strategic Negotiation Plan that ensures you address the critical strategies recommended by the experts’ proven research.

Although this won’t guarantee transparency between teammates, it will increase the likelihood that you will fill in strategic gaps that might otherwise remain open. Plus, brainstorming at this level is often fun.

That will also help develop that trusting relationship.

Want to Learn more from Marty Latz? He will be here November 21.

Gain The Edge: Negotiation Strategies for Lawyers
6 CLE / 6 CME / 1 E – November 21, 2014  9:00 A.M. – 4:30 P.M.

LIVE IN-PERSON SEMINAR ONLY!
- ICLEF Conference Facility, Indianapolis

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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

Family Law Case Review: Fathers Petition to Modify College Expense Sharing Provision Denied

Case: Robert O. Hedrick v. Angela R. Gilbert
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it issued a general attorney fee award against a Father when there was no finding that Father had litigated in bad faith or pursued his petition to modify child support frivolously and, further, the evidence established that Father’s economic circumstances were lesser than Mother’s.

HELD: Trial court acted within its discretion when it denied Father’s petition to modify the college expense sharing provision of the parties’ agreed-upon 2000 Decree. The evidence presented established that the parties’ incomes had not materially changed since the Decree.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2000, with one Child. The parties’ settlement agreement, incorporated into the Decree, provided in relevant part that Child’s future post-secondary educational expenses would be divided 50/50 between the parents.

In 2011, by which time Child was 17-years-old, Father filed a petition to modify child support, reciting that the incomes for both parents had changed since the Decree. Mother responded with her own petition, which included a contempt component for Father’s failure to pay 50% of Child’s college related expenses as had been ordered in the Decree.

At the trial court’s hearing, evidence was presented that Father had been a cook at Burger King for 26 years, and was making $9.41/hr, but that his hours had recently been cut back. Mother was an LPN with a base pay of over $20/hr, but she worked only part-time. After the hearing, the trial court denied Father’s requested modification – finding no substantial and continuing change in circumstances – and finding Father in contempt for not paying his share of Child’s college expenses. The trial court also issued an attorney fee award against Father in the amount of $1500. Father appealed.

The Court of Appeals rejected Father’s argument that the trial court erred by not requiring the parties to submit child support worksheets. Because neither party submitted a worksheet at the hearing, and Father did not raise an objection at the time, any error was waived. Similarly, while Father claimed error for a lack of written findings, Father also never filed a motion for findings with the trial court. The Court of Appeals also concluded that the denial of Father’s request for modification was not an abuse of discretion, since the evidence established that the parties’ incomes had not materially changed since Decree.

Finally, the Court addressed the trial court’s attorney fee award. The fee award of $1500 was a combination of $500 arising from Father’s contempt, and $1,000 for a general award of fees. The Court of Appeals affirmed the $500 contempt award, noting that it was undisputed that Father had failed to comply with the order to pay half of Child’s college expenses. However, as to the $1,000 general fee award, the Court of Appeals reversed it, finding that there was no evidence that Father had acted in bad faith or otherwise improperly, and that the parties’ economic circumstances generally favored Mother.

The $1,000 general attorney fee award was reversed, but the balance of the trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Robert O. Hedrick v. Angela R. Gilbert

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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