COA Affirms Trial Court Decision for Alternating Annual Custody

Case:In re the Marriage of R.E.F. v. A.M.A. f/k/a A.M.F. (mem. dec.)
by Mike Kohlhaas, Bingham Greenebaum Doll

I typically do not circulate memorandum decisions, but I considered this case to be interesting and notable. The Court of Appeals affirmed a trial court’s order that each parent would have sole legal custody on an alternating annual basis. The Court of Appeals rejected Father’s argument that the arrangement constituted in impermissible automatic change in custody, such as in Bojrab. The Court distinguished the instant case as being an automatic and scheduled change of custody, and not one that was dependent upon a future change in factual circumstances (e.g., if one parent decides to move out of state in the future.)

To view the text of this opinion in its entirety, click here: In re the Marriage of R.E.F. v. A.M.A. f/k/a A.M.F. (mem. dec.)

 

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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

Family Law Case Review: Custody of M.B.

Case: In Re the Custody of M.B. B/N/F S.C. and D.C. v. S.B. and S.W.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The Indiana Supreme Court holds that a third party who seeks to commence an independent child custody action may properly do so in circuit court but, if a CHINS case involving the child is already pending in juvenile court, the circuit court should generally stay its proceedings pending resolution of the CHINS proceeding.

FACTS AND PROCEDURAL HISTORY:
In 2014, DCS initiated CHINS proceedings in Posey County Juvenile Court with respect to Child. Several months later, Child’s paternal Aunt and Uncle filed, in Posey County Circuit Court, an independent custody action pursuant to Ind. Code 31-17-2-3-(2). However, the Circuit Court dismissed Aunt and Uncle’s action after concluding that, because the CHINS matter was already pending, Aunt and Uncle lacked standing to file their action and, further, the Circuit Court lacked subject matter jurisdiction to entertain it.

The Indiana Supreme Court vacated a Court of Appeals decision that had affirmed the trial court’s dismissal. Instead, the Supreme Court determined that Indiana Code 31-17-2-3(2) unquestionably conferred standing upon Aunt and Uncle to file their action.

In addition, the Court concluded that the 2011 revisions to Ind. Code 33-28-1-2 provided that “All circuit courts have . . . original and concurrent jurisdiction in all civil cases and in all criminal cases.” (Emphasis supplied.) Thus, the Circuit Court was conferred concurrent subject matter jurisdiction by statute.

However, the Court added that having subject matter jurisdiction is different from it being appropriate for the circuit court to exercise that subject matter jurisdiction. Citing case law, the Court observed that “courts of concurrent jurisdiction cannot exercise jurisdiction over the same subject at the same time, and [] where one of the courts acquires jurisdiction of the subject matter and its parties, it is vested with such jurisdiction to exclusion of the other until the final disposition of the case.” The Court underscored that an abstention from the exercise of jurisdiction is different from being divested of jurisdiction. The exercise is merely postponed.

When a third party custody action is filed in circuit court, while a CHINS matter is already pending in juvenile court, the circuit has subject matter jurisdiction, but should generally stay proceedings pending the resolution of the CHINS matter.

This case was reversed and remanded.

To view the text of this opinion in its entirety, click here: In Re the Custody of M.B. B/N/F S.C. and D.C. v. S.B. and S.W.

 

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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

Family Law Case Review: Trial Court Committed Reversible Error

Case: Carrie Baker v. Michael Baker
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court committed reversible error when it granted Husband’s motion to dismiss Wife’s motion to reopen the parties’ property settlement without holding a hearing, in contravention of local rule.

FACTS AND PROCEDURAL HISTORY:
In 2009, Husband and Wife entered into a Decree and Property Settlement Agreement in Porter County. The Decree recited that the parties were agreeing to an “equal” division of the marital property.

At the time of the Decree, Husband had counsel and Wife was pro se. According to Wife, she was aware of certain limited deferred income assets that were held by Husband. However, in November 2014, Wife discovered an additional amount of such assets worth in excess of $1,000,000. A few months later, she filed a motion to reopen the property division. Wife’s motion did not cite a specific rule under which she was proceeding.

Husband responded with a motion to strike and dismiss Wife’s pleading. The same day, without holding a hearing or Wife having an opportunity to respond, the Court granted Husband’s motion to dismiss. The trial court’s order concluded that Wife’s effort to reopen the matter was time-barred per Trial Rule 60(B)(3).

On review, the Court of Appeals focused on Porter County Civil Rule 3300.20 which requires, except for certain exceptions not applicable here, “all motions are set for hearing at the time of their filing.” Thus, Husband’s motion to dismiss was granted improperly.

The Court of Appeals also discussed that there are other means of reopening a matter based upon fraud, even if over a year has passed. Thus, the fact that over a year had passed before Wife initiated proceedings to reopen the property settlement was not dispositive.

The matter was reversed and remanded.

To view the text of this opinion in its entirety, click here: Carrie Baker v. Michael Baker

 

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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

Relationship Value in Negotiations

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

It’s been a tough month. I lost a close friend to a 2-year battle with pancreatic cancer. My 85-year-old Dad went in for emergency surgery (which was successful). And I just saw a cousin who last year lost his 34-year-old son (my cousin, too, obviously) in a tragic accident.

What does this have to do with negotiations? Everything. Business, personal and legal-oriented negotiations often revolve around past, current and/or future relationships. Whether and how much we value those relationships – and the extent our counterparts value them too – can make or break a negotiation.

So how should we evaluate and incorporate relationships into our negotiation strategies?

Determine its value relative to your goal
Does your short or long-term negotiation success involve seeing or working with the other party in the future in any context? How much and to what extent? And how much do you really care?

This is crucial. It’s easy to say you care. Here’s the question to ask, at the beginning of the negotiation, to test your real feelings. Would you be willing to accept less or give up more to preserve and/or strengthen the relationship?

Then quantify this. Put a dollar sign next to it. This will help you truly evaluate how much you care.

Of course, it’s also crucial to evaluate how much your counterpart cares, too. Would they take less or give up more to preserve and strengthen the relationship with you? If so, great. If not, do their feelings impact your feelings?

The higher the mutual value – the more you problem solve
I recently met a highly successful patent litigation attorney at a large national firm. Some of the largest companies in the world hire him to protect their patents and intellectual property – which often form the lifeblood of their success.

I asked him to share one of his most successful negotiation strategies in settling these huge, often called “bet the company,” cases. While he is a highly successful and aggressive litigator who has had significant courtroom success, his approach to the negotiations takes a very different tack.

In his experience, he said, at the appropriate point in many cases it’s often in all the parties’ interests to problem-solve by exploring possible partnership options and cross-licensing opportunities. It’s only in this way that the parties can find a solution, which often involves working together in mutually profitable ways.

What specific tactics does he use? One, he engages in some information sharing about his client’s goals and interests – and insists this sharing is mutual. By doing this, the parties often begin to recognize the overlap in their interests. This is the sweet spot in their negotiations and often becomes the fundamental basis for their deals.

And two, he urges everyone to focus on standards that can form the benchmarks of such deals (like similar previous deals, market rate elements, cost savings opportunities, etc.).

Bottom line – he helps his clients solve their problems and create and/or repair their relationships.

Recognize no relationship situations
Not all deals involve possible future relationships between the parties. Or one party might care about the relationship and the other doesn’t. Many of these matters require a more competitive approach.

If so, hold your cards close to your vest, more forcefully exercise your leverage, and make aggressive offers where appropriate.

Of course, never be unprofessional or unethical. That would harm your relationship and reputation – with them and likely others too.

Latz’s Lesson: Relationships can possess almost incalculable value. Recognize and incorporate this into your negotiation strategy.

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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 Blog, News0 Comments

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