Guardianship Matters Must be Heard in County Where Matter is Already on File

Case: In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C.
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: When a guardianship matter is already properly on file in one county, a petition filed in another county concerning the custody and parenting time of the subject child is properly dismissible and should be heard, instead, by the court already entertaining the guardianship matter.

HELD: Indiana’s statute that permits a court to restrict parenting time based upon a risk to the child’s physical health or emotional development does not require specific findings by the court concerning those risks to the child.

FACTS AND PROCEDURAL HISTORY:
Child was born, in Illinois, to Mother in 2009. Child was subsequently made a ward of the State of Illinois. Father had been incarcerated but, upon his release in 2010, Father began visiting Child. In 2011, upon Father’s motion, paternity was established in Kankakee County, Illinois.

In early 2013, Mother brought Child to Decatur County, Indiana, where Child was to live with Guardian, who was a friend of Father. Father initiated this move, as Father had since moved to Hendricks County, Indiana, and wanted Child to be closer to him. Guardian subsequently filed, in Decatur County, and with Mother’s and Father’s consent, a petition to be appointed Child’s guardian. That petition was granted.

Over six months later, Father filed, in Hendricks County, a petition to register the Illinois paternity order, and a motion to vacate the Decatur County guardianship order, alleging a lack of jurisdiction. After a hearing, the Decatur Court issued an order restricting Father’s parenting time and requiring that it be supervised. Father then filed, in the Hendricks Court, a petition to modify custody and parenting time, which Guardian moved to dismiss. The Decatur Court denied Father’s motion to dismiss, and the Hendricks Court granted the Guardian’s motion to dismiss as well as issued a fee award in Guardian’s favor. Father appealed both orders, which were consolidated into a single appeal.

The Court of Appeals concluded that the Decatur Court had proper jurisdiction. The Court suggested that, at one point, Father might have had a UCCJA argument that the Decatur Court should not be hearing the matter – and that the matter should be resolved in Kankakee County, Illinois — but that Father waived that argument when he consented to the guardianship in the Decatur Court.

In terms of the Hendricks Court matter, the Court agreed that Father’s petition to modify was properly dismissed. “Although the actions took two different forms, their subject matter was the same. Because the subject of child custody and parenting time was properly before the Decatur Court in the guardianship action, the Hendricks Court was precluded from making a custody or parenting time determination in the subsequently-filed paternity action.”

Notably, the order from the Decatur Court that restricted Father’s parenting time and required that it be supervised contained no specific findings of fact. Though neither party had requested findings, the applicable statute concerning parenting time restrictions provides: “A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.” The Court of Appeals determined the statute does not require specific findings from the trial court in the absence of either party requesting findings generally. Since the trial court’s parenting time restrictions were generally supported by evidence (e.g., Father’s history of drug and alcohol addiction, prior incidents of questionable care of the child, etc.), the order was affirmed.

The only order from below that was reversed was an attorney fee award issued by the Hendricks Court in favor of Guardian, and against Father, in the course of dismissing Father’s petition to modify. The Court of Appeals concluded that the trial court failed to hear any evidence of the parties’ financial resources and, in the absence of same, the attorney fee order was improper.

To view the text of this opinion in its entirety, click here: In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C.

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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

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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

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

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Trial Court Erred When Child Support Calculation Deviated from ICSG

Case: James Bogner v. Teresa Bogner
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when its child support calculation deviated from the Indiana Child Support Guidelines calculation without supporting circumstances to do so.

HELD: Trial court erred when it modified the claiming of the child for tax purposes without analyzing the financial ramifications of doing so.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced, with one Child, in 2007. Father was ordered to pay child support of $162/wk, and the parents were to alternate claiming Child for tax purposes.

In 2009, by agreed entry, Father’s child support was reduced to $135/wk. Then, in 2011, Father moved closer to Mother and Child, enabling Father to informally increase his parenting time. This included parenting time before and after school that obviated the need to pay for child care.

In 2013, Father petitioned to modify support. The parties stipulated to all of the inputs of the support calculation – incomes, parenting time, etc. – which resulted in a joint child support worksheet that calculated support at $59/wk. Father argued in support of this modification, but Mother opposed it on the basis of valuable tax credits apparently enjoyed by Father, and potential uninsured medical expenses to be covered by Mother.

After the hearing, the trial court essentially agreed with Mother, concluding that $59/wk was too little to cover a reasonable share of Mother’s expenses for Child. The trial court set support at $105/wk, instead of the $59/wk indicated by the parties’ joint worksheet. The trial court also changed the tax exemption, from alternating years between the parents, to Mother being able to claim every year.  Father appealed.

The Court of Appeals agreed with Father on the issue of weekly child support. The Court concluded that the trial court erroneously determined that the $59/wk shown on the joint child support worksheet would be the totality of Father’s financial contributions to raising Child. Doing so overlooks all of the expenses for Child that Father paid directly, including during Father’s fairly liberal parenting time.

On the issue of the tax exemption, the Court of Appeals referenced the Guidelines and related case law that a trial court should engage in a careful analysis before making a decision on awarding a dependency exemption. Here, since there was no evidence in the record concerning the financial implications of modifying when each parent could claim the exemption, it was error for the trial court to make a change.

The trial court’s order was reversed. On remand, the trial court was instructed to use a support amount of $59/wk per the worksheet. On the issue of the tax exemption, the trial court was instructed to engage in the analysis set forth in Child Supp. G. 9 concerning how the exemption should be allocated.

To view the text of this opinion in its entirety, click here: James Bogner v. Teresa Bogner

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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