Family Law Blog: Trial Court Properly Refused to Set Aside Divorce Decree

Case: Parviz Jahangirizadeh v. Fatemeh Pazouki

by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court properly refused to set aside divorce decree, six years after it was issued, based upon allegations by Husband that Wife failed to disclose marital assets.

FACTS AND PROCEDURAL HISTORY:
Wife filed for dissolution in 2007. Prior to a final hearing, Wife filed a financial declaration listing various assets. In 2008, the trial court issued a decree that divided the marital estate, and required a property equalization payment from Husband, to Wife, in the amount of approximately $57,000.

Six years later, in 2014, Husband filed a motion to set aside the Decree. The motion alleged that, a month after the Decree was issued, Wife opened a bank account with an initial deposit of $50,000, which Husband reasoned could not have been done without Wife failing to disclose all of her assets in her financial declaration.

Wife moved to dismiss, arguing that the motion to set aside was untimely under Trial Rule 60(B)(3). The trial court agreed, and dismissed Husband’s petition with prejudice. Husband then filed a motion to reconsider, which referenced recent litigation in a California court between Wife and her brother, in which the California order concluded that Wife “was not a credible witness and lied on the witness stand….”

The trial court denied Husband’s motion to reconsider, from which Husband appealed.

The Court of Appeals reviewed Trial Rule 60(B)(3),  noting that a motion based upon fraud generally needs to be filed within one year, but there is also a “savings clause” that gives the court the authority to entertain an independent action arising from fraud after a year has passed.

Reviewing all of Husband’s options with regard to his fraud assertion, the Court of Appeals concluded that, assuming all of Husband’s assertions to be true, at most, Wife had engaged in “ordinary” fraud by not disclosing all of her assets. Only extraordinarily egregious cases of fraud (e.g., a showing of intentional misconduct, a direct assault on the integrity of the judicial process, etc.) allow a party to circumvent the one-year time limitation that generally applies to Trial Rule 60(B)(3).

The trial court’s denial of Husband’s motion to set aside the Decree was affirmed.

To view the text of this opinion in its entirety, click here: Parviz Jahangirizadeh v. Fatemeh Pazouki

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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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I.P. Blog: How Should I Protect My Intellectual Property

By: Paul B. Overhauser Publisher: Indiana Intellectual Property Law News

Different types of intellectual property are protected by different means.

In the United States, patents may be available to any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Patent protection must be sought by application with the U.S. Patent and Trademark Office (“USPTO”). There are three types of patents:

Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

More information on patents is available here: USPTO’s patent process website.

Trademarks protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. Registration with the USPTO is not required, but does provide certain advantages. More information on trademarks is available here:

Online IPR Tutorial (Module 3)

USPTO’s trademark process website

Copyrights protect original works of authorship, including literary, dramatic, musical, artistic and certain other works, both published and unpublished. In the United States, the U.S. Copyright Office handles copyright registration that, although not required for protection, does confer advantages. More information on copyrights is available here:
Online IPR Tutorial (Module 3)

USPTO’s Copyright Process website

How long does patent, trademark or copyright protection last?

A U.S. utility patent is generally granted for 20 years from the date the patent application is filed; however, periodic fees are required to maintain the enforceability of the patent.

A design patent is generally granted protection for 14 years measured from the date the design patent is granted.

A U.S. trademark generally lasts as long as the trademark is used in commerce and defended against infringement.

Copyright protection is for a limited term. For works created after January 1, 1978, copyrights last for 70 years after the death of the author. For works “made for hire” (covering the usual type of work owned by a small business), the copyright lasts for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For more detailed explanation of copyright terms, visit the Copyright Office webpage or consult this guide on Duration of Copyright provided by the Copyright Office.

A trade secret can be protected indefinitely as long as the secret is commercially valuable, its value derives from the fact that it is secret, and the owner take reasonable precautions to maintain its secrecy.

The information presented on this site does not constitute legal advice. It should not be considered to replace advice from an Indiana intellectual property attorney. An Indiana intellectual property lawyer can help you with matters involving patents, trademarks, copyright or trade secrets.

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By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Family Law Blog: Husband’s Failure to Act Timely Resulted in Waiver to Assert Issue Years Later

Case: Ronald Fritts v. Linda Fritts
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Husband’s failure to act timely with a motion to correct error when he learned within days of the Court’s 2010 Decree that the Court’s and parties’ understanding of Husband’s pension was materially incorrect resulted in a waiver to assert the issue years later.

FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 1993 and separated with Wife’s petition for dissolution filed in 2008. While the divorce was pending, Husband retired from Delphi. At the time, Husband elected a surviving spouse benefit on his defined benefit pension.

The trial court’s divorce Decree adopted the parties’ joint pension analysis, concluding that Husband’s Delphi pension was worth $771,923, the coverture portion of which was $283,183. The Decree awarded Wife one-half of the coverture portion. There was no mention of the survivor’s benefit. Shortly after Decree, Husband learned that, because PBGC had taken over the pension due to Delphi’s bankruptcy, his survivor benefit election was irrevocable. However, Husband filed no motion to correct error on the issue (and, later, no Trial Rule 60(B) motion).

Extensive post-decree litigation of numerous issues followed, including one appeal prior to this one. More recently, it appears, Husband raised the issue of his pension and how it was handled under the Decree. The trial court set that issue, and several others, for hearing in early 2014. At that hearing, Husband testified that, based upon Social Security Administration data and his own calculations, Wife was actuarially likely to outlive him by 16 years and receive $487,889 by way of her survivor benefit. In a subsequent order, while the trial court noted that the situation with Husband’s pension clearly was not contemplated at the final hearing, there was inadequate evidence presented for the court to impose any remedy. So, the original Decree terms would stand. Husband appealed.

In its opinion affirming the trial court, the Court of Appeals focused on the fact that Husband appeared to learn about the pension problem shortly after the Decree was issued, but took no steps to raise the issue timely. “Because he did not do so, he may not argue on appeal that the trial court’s decision not to credit [Wife] for the surviving spouse benefits she might receive is clearly erroneous.” The trial court’s decision as to the pension was affirmed.

To view the text of this opinion in its entirety, click here: Ronald Fritts v. Linda Fritts

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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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Negotiation Blog: Rather Than Avoid Negotiations, Use Your Strengths

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“I dislike negotiating and the inherent conflict in it. It really bothers me and causes a significant amount of frustration and stress. Yet I realize that much of life involves some level of conflict and negotiation – even within the family. What should I do?”

1. Utilize your strengths

Knowing your strengths and weaknesses – and appreciating the conflict avoider part of yourself – will invariably help you live a happier life. And if this requires that you avoid an upfront role in certain conflict-ridden negotiations, so be it.

But that doesn’t mean you simply avoid all possible negotiations, some of which may not involve significant conflict. The key is to evaluate your situation, drill down to the parties’ interests beyond their stated positions, and involve yourself where the parties’ mutual interests dominate their conflicting interests.

Examples might include negotiations involving mutually beneficial long-term business relationships or partnerships and family issues that must be addressed or they will fester and get worse.

2. Bring in a front-line negotiator

Some love to negotiate as much as you dislike it – and some have developed an expertise in both the process and the substantive issues on the table in various situations. Take advantage of their strengths.

Let’s say you just inherited your family business but have little interest in it. Consider involving an investment banker, a business broker/consultant and/or a lawyer to take the lead role in the sale.

You can and should be involved in these negotiations, but in a behind-the-scenes role that minimizes your face-to-face conflict.

A friend is a successful business owner who really dislikes personal and professional conflict. He is super relationship-oriented and goes to great lengths to avoid conflict as it takes a psychological toll on him.

How did he grow a successful business? He focused on building client relationships – his strength – and hired a Chief Operating Officer whose role included managing internal and external conflicts.

3. Consider technology to help

What type of conflict causes you the real pain? For many, it’s the in-person, face-to-face overt variety. If this is you, consider whether and to what extent you can effectively negotiate through technology like e-mail, texts, exchanging red-lined documents, and other similar communications.

However, keep in mind the downside risks to solely communicating in these relatively impersonal ways. While it will shield you from in person uncomfortable adversarial contexts, it’s also easier for many to say no by e-mail than in person.

4. Over prepare

Finally, if you evaluate the situation and it really does require you to negotiate it yourself, then:

– Over prepare and develop a strategic plan in advance of the actual engagement with your counterpart, including identifying when it makes sense for you go with your best alternative (or Plan B), thus ensuring that you don’t succumb just to avoid the conflict;

– Practice the negotiation beforehand, including trying out possibly uncomfortable phrases like “I understand what you’re saying, but it just doesn’t seem fair to me because… “. Practice will increase your comfort level in that environment.

– Request a break if the conflict gets too intense. You can then cool down and reflect on the strategies in your plan.

Latz’s Lesson: Some love negotiation and others don’t – stick with your strengths and take steps to shield your weaknesses.

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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

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