Family Law Case Review: Discord Between Father & Daughter Did Not Rise to the Level of Repudiation

Case: Stanley Kahn v. Beverly (Kahn) Bakera
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Daughter’s strained relationship with Father did not rise to the level of “repudiation” for purposes of excusing Father’s obligation to contribute to Daughter’s college expenses where, despite not speaking with Father for over a year, Daughter sent numerous cards, texts, and emails message to Father, telling him that she loved him, sharing updates about her life, and asking for Father about developments in his life.

FACTS AND PROCEDURAL HISTORY:
Daughter began attending Emory University in 2009. In 2010, Father and Mother divorced. The Decree required Father to pay Daughter’s 2010-11 tuition. An agreed entry in early 2012 extended Father’s college obligations for Daughter through December 31, 2012.

In late 2011, Father and Daughter had a heated dispute which resulted in a lengthy strain on their relationship. They did not speak at all, in person or by phone, for all of 2012. However, there was significant “electronic” communication from Daughter to Father during this period: e-cards, e-mails, and text messages. In those, Daughter told Father that she loved him, missed him, happy birthday, photos of her new apartment, and details of other developments in her life. Daughter also asked Father about his eye surgery, a wedding he had attended, and his new apartment. After the Spring 2012 semester, Father stopped paying for all of Daughter’s post-secondary educational expenses.

Mother subsequently filed a motion for rule to show cause against Father. After a hearing, the trial court found Father to be in contempt, and ordered Father to pay various costs arising from his non-payment of Daughter’s post-secondary expenses. Father appealed.

The Court of Appeals reviewed the history of “repudiation” in the college expense context since the McKay case. Noting that each case should be determined with a fact-sensitive approach, the Court reviewed prior cases which found repudiation, and noted the highly acerbic and bitter attitudes that the children in those cases displayed. By contrast, here, while the relationship between Father and Daughter was clearly very strained, there was frequent, non-acrimonious and positive communication from Daughter to Father throughout the period in question. “Given this evidence, we find that the trial court’s findings amply support the conclusion that the discord that existed between [Daughter] and Father did not rise to the level of repudiation so as to obviate Father’s obligation to pay the expenses specified in the agreed order.”

The trial court’s order on the finding of contempt was affirmed.

To view the text of this opinion in its entirety, click here: Stanley Kahn v. Beverly (Kahn) 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 Blog, Family Law Case Review0 Comments

Groundhog Day – Renegotiating Terms

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“We had a deal when we left the room. But after we flew home and sent them the agreement, they admittedly reneged and started renegotiating everything. What should we have done differently?”

Given that legal action on oral deals is notoriously difficult, likely not worth the cost, and will almost certainly prevent possible future deals with that party, this can be a serious problem.

How can you prevent this?

1: Identify “renegotiators” in advance
It’s highly unlikely your counterpart is using this tactic for the first time with you. In fact, he or she has almost certainly done this before multiple times. This means others have experienced this and will surely remember it.

Find them. Do your strategic due diligence by researching your counterparts’ reputations. Then put this information into a database (what I call a Counterpart Intelligence Bank) so you and your colleagues can access it in the future.

Of course, this is easy to recommend but difficult to accomplish. It’s much easier now than ever before, though, with search engines, social media and sites that allow you to mine your networks for this hugely valuable data.

2: Ensure someone in the room has actual authority
Sometimes renegotiators tell you when reneging that they didn’t have the authority to agree in the first place even though they seemingly had it.

You can prevent this problem or smoke it out early by explicitly insisting that your counterpart has someone in the room with authority to make concessions and do the deal. And if they don’t have the authority, then you should only send someone to the negotiation with equivalent limited authority.

Then any deal will be tentative from both sides, and you will substantially reduce the effectiveness of a renegotiation move.

3: Insist on immediately enforceable agreements
Years ago I represented a client in some contentious litigation involving a company and its former employee, who was accused of stealing trade secrets and working for a competitor in violation of his non-compete agreement. Needless to say, the relationship and trust between the parties was irreparably gone.

After a hard fought day long mediation in which we negotiated a resolution to all the issues, everyone was concerned someone would go home, sleep on it, feel like they could have gotten a better deal, and try to renegotiate it.

The mediator’s solution? He asked each lawyer and client to record a statement at the time describing the agreement. He then had this transcribed, while we waited, and had everyone sign the transcription. It was a final, binding legal agreement.

I am not suggesting you do this for every deal. But if you find your counterpart is a “renegotiator” by reputation, do this before you leave the room.

At the least, write down the major agreed upon terms and get everyone to initial them. Written commitments decrease the likelihood parties will renege later.

4: Ensure that renegotiation has a cost
Renegotiators count on their ability to renegotiate with no real negative consequences. Change this. Make sure their possible use of this tactic has negative consequences to their ability to achieve their goals.

How? The mediator above insisted on a provision that if there was any disagreement between the parties as to the terms, he would be the final decision-maker on that issue. And the losing party would pay the winner’s legal costs.

In short, it became super costly to even try to renegotiate – and you would lose anyway.

Another option is to let your counterparts know, before you leave the room, that you consider the agreement morally and legally binding. And tell them that any possible future effort to renegotiate it would be considered a fundamental breach of trust and would result in no deal.

Of course, only state this if it is true and you have strong leverage.

Latz’s Lesson: Renegotiators renege on agreements because it has worked for them in the past. Find this out in advance and protect yourself so it doesn’t work again – this time against you.

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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: Divorce Court May Issue an Order Providing for Visitation Even if Custody Orders are in Place from Another Court

Case: Jovon R. Richardson v. Joshua M. Richardson
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Under certain circumstances, a divorce court may issue an order providing for visitation between a step-parent and a child, even if the child is subject to previous custody and parenting time orders of another court.

FACTS AND PROCEDURAL HISTORY:
Mother gave birth to Child in 2003. A subsequent paternity action established paternity of Father, and included orders of child support and parenting time.

In 2008, Mother married Step-Father. By this time, Father was basically out of Child’s life. Child and Step-Father developed a close bond, and Child essentially treated Step-Father like her father.

In 2013, Step-Father filed for a dissolution of his marriage to Mother. As part of those proceedings, in addition to adjudicating property division and custody and parenting of a subsequent child that Step-Father and Mother had together, the trial court also included a visitation order for Step-Father to have visitation time with Child. Mother appealed.

In its review, the Court of Appeals noted that it is “well established that stepparents have standing to seek visitation rights and that a trial court has the authority to grant the same.” However, at the core of Mother’s appeal was her assertion that, in this particular situation, the trial court lacked authority to issue its visitation order because Child was already the subject of a custody and parenting time order in the preexisting paternity matter between Mother and Father.

The Court of Appeals acknowledged that Father was not a party to the divorce proceedings between Step-Father and Mother and, thus, the trial court could not issue orders affecting Father’s rights. However, since the visitation order of the trial court implicated only Mother’s parenting time — that is, Step-Father’s visitation periods would occur exclusively during Mother’s parenting time periods under the prior paternity order — the trial court’s order did not conflict with the paternity order, or infringe upon any of Father’s rights.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Jovon R. Richardson v. Joshua M. Richardson

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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

I.P Blog: DISH Network Accuses Indiana Resident of Piracy

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

New Albany, Indiana – Intellectual property attorneys for DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar L.L.C., all of Englewood, Colorado (collectively, “DISH Network”), filed a lawsuit in the Southern District of Indiana alleging that Danny Abner of Paris Crossing, Indiana illegally intercepted, decrypted and viewed DISH Network satellite programming.

Defendant Abner has been accused by DISH Network of “circumventing DISH Network’s security system and receiving DISH Network’s satellite broadcasts of copyrighted television programming without payment of the required subscription fee.” This intellectual property lawsuit, brought in the Southern District of Indiana, claims Abner violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq., the Federal Communications Act, 47 U.S.C. § 605 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2511 et seq.

According to DISH Network, Abner’s piracy occurred via the use of Nfusion Private Server (“NFPS”), a television-pirating service. Francis Philip, a/k/a Vgiddy, sold subscriptions to the NFPS service. Philip provided DISH Network with copies of his business records pertaining to Abner, which showed that Abner had purchased one or more subscriptions to the piracy service in 2012.

Through the NFPS piracy service, Abner allegedly obtained DISH Network’s digital “keys,” which he used to decrypt and view DISH Network programming. The type of piracy of which Abner is accused, Internet key sharing, is still possible despite DISH Network’s latest generation of security technology.

In the complaint, filed by intellectual property lawyers for DISH Network, the following counts are alleged:

  • Count I: Circumventing an Access Control Measure in Violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1)
  • Count II: Receiving Satellite Signals Without Authorization in Violation of the Federal Communications Act, 47 U.S.C. § 605(a)
  • Count III: Intercepting Satellite Signals in Violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520

DISH Network seeks injunctive relief, compensatory damages, punitive damages, and reimbursement for DISH Network’s costs, attorneys’ fees, and investigative expenses.

The case was assigned to Chief Judge Richard L. Young and Magistrate Judge Tim A. Baker in the Southern District of Indiana and assigned Case No. 4:15-cv-00068-RLY-TAB.

Complaint

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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

Posted in Intellectual Property Blog0 Comments

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