Considering 20-Year Cohabitation, Trial Court Properly Awarded the Complainant

Family Law Case Review

Case: Jeffrey L. McMahel v. Mary A. Deaton
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In a cohabitation case, the trial court properly awarded the complainant cash payments and property equal to roughly 30% of the parties’ collective property interests, even though a division based solely on title of assets would have entitled her to about 18% of the parties’ collective property. The trial court based its decision on the equitable considerations of a nearly 20-year cohabitation, during which the parties had a child together.

FACTS AND PROCEDURAL HISTORY:
Jeff and Mary began cohabitating in 1996. They had a child in 1998. They never married, and their relationship ended in 2014.

Mary filed a complaint against Jeff after they separated, alleging unjust enrichment. After a hearing, the trial court concluded that, although Jeff recently went on disability, he was the primary wage earner throughout the relationship. At the time the relationship ended,  the parties had about $14,000 worth of jointly titled assets, Mary had about $30,000 of asset in her own name, and Jeff had about $138,000 assets in his name, including the residence.

The trial court allocated assets totaling about $41,000 to Mary, but also awarded her a “cash equalization” payment of about $13,000. Jeff appealed.

The Court of Appeals denied Jeff’s request to overrule Indiana’s previous cases that provide the legal foundation for cohabitation related claims. Further, the Court agreed with Mary that the equitable circumstances of the parties’ relationship and contributions supported the trial court’s order.  The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Jeffrey L. McMahel v. Mary A. Deaton

 

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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

Wrongfully Withholding Parenting Time From the Other, Not Basis For Child Custody Modification

Family Law Case Review

Case: Carl Wayne Montgomery v. Patricia Ann Montgomery
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s modification of child custody was reversed where, despite the discretion afforded a trial court in such situations, the evidence did not support the modification.

HELD: One parent wrongfully withholding parenting time from the other is not, without more, a basis for a modification of child custody.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2009, with a young Child.

Mother later moved to Wisconsin and began living with Boyfriend. An agreed entry provided for Father to retain primary custody of Child, subject to Mother’s “distance as a factor” parenting time schedule.

Boyfriend had at least two prior battery convictions, and Father became concerned about Child spending time at Mother’s residence. Father moved to modify Mother’s parenting time, which included an allegation of Boyfriend striking Child. A GAL recommended that Boyfriend not be present during Mother’s parenting time. However, the trial court ruled that Mother, who denied any abuse, could continue to exercise her parenting time without any restrictions on Boyfriend.

In 2014, Mother filed a petition to modify custody to her. After a hearing, Mother’s petition was granted. Father appealed.

The Court of Appeals noted the deferential review of a custody modification. However, here it found that there was no evidence presented of a substantial change in any of the statutory factors for determining custody. The trial court’s rationale for modifying custody included that Father had wrongly withheld some parenting time from Mother. The trial court also found that the allegations made against Boyfriend were fabricated by Father. However, the Court concluded that these findings, even if supported by the evidence, did not constitute a substantial change in any of the statutory factors required to modify custody.

Beyond the “substantial change” issue, the Court of Appeals further questioned how a change of custody would serve Child’s best interests. There was uncontroverted evidence presented at the hearing that Child was well-cared for, well-adjusted, and doing well in Father’s custody. The GAL had also recommended that Father retain custody.

The Court reversed the custody modification order, and remanded the matter for a change of legal custody and primary physical custody to Father, subject to Mother’s parenting time per the IPTG.

To view the text of this opinion in its entirety, click here: Carl Wayne Montgomery v. Patricia Ann Montgomery

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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

A Child’s Mental Health Records May Be Open to Parties in Custody Battle Even if Doctor Objects

By Richard Mann, Richard A. Mann, P.C., Indianapolis

The Indiana Court of Appeals in Meridian Health Services Corporation v. Thomas Martin Bell just ruled that a provision of Indiana Law that allows a mental health professional to deny the patient access to his or her records does not apply to a parent obtaining those records.

This was a custody and parenting time case where Father was seeking access to the child’s mental health records. The counselor in this case obtained a letter from a medical doctor stating that it was “medically necessary that the records of [the child’s] therapy sessions not be released to her parents.” The doctor and counselor took the position that I.C. 16-39-2-4 prevented the release of the records based upon the providers’ opinions.

The counselor failed to appear at a deposition and produce the records as Meridian Health had filed a motion to quash the subpoena 3 days before the deposition. The court had not yet ruled on the motion to quash. After which father filed a motion for rule to show cause and the court held a hearing on all pending motions. The court denied Meridian’s motion to quash and for a protective order and father subpoenaed the counselor for deposition again. The counselor again failed to appear at the deposition with the records and Meridian then filed the records with the court and asked the court to hold them under seal pursuant to Indiana Administrative Rule 9(G)(2). The trial court ordered that the attorneys could review the records in camera but subsequently ordered that the counsel could copy the records.

On appeal Meridian argued that 16-39-2-4 supported the refusal to deny the release of records and if not then the release was prevented by HIPPA. The Court of Appeals found under HIPPA there are 3 exceptions to the general rule that health care providers may release records to the parents and that none of the exceptions applied. The court went on to find that 16-39-2-4 only applies to a provider’s denial of access to records to the patient and a parent has access to the records unless there is a court order limiting such. The trial court ordered that Meridian pay attorneys’ fees and found that the Father should not have had to file the various legal pleadings to obtain the records as he was allowed those records under Indiana law but that he was not to disclose the information to the child. The court of appeals affirmed the trial court.

It has commonly been believed by many in the mental health community and the legal community that Meridian’s position was correct as far as the release of the records. In advising clients who are parents or providers, counsel should read this case carefully and review the citied material in the case as while the Father was given the records in this case there may be other ways hinted at in the opinion to protect the information if that is your client’s position.

In affirming the award of attorneys’ fees the court referenced the trial court’s finding about Meridian filing of the motion to quash shortly before the deposition and then not appearing for the deposition when the court had not granted or ruled upon the motion. The court made clear that the counselor was required to appear and put their objection on the record. You cannot simply choose to ignore the subpoena without court order

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

This blog does not constitute legal advice nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs, News0 Comments

Are You Thinking About Filing for Divorce? If So, TIme is Running Out Before the End of Year & There are Tax Consequences

By Richard Mann, Richard A. Mann, P.C., Indianapolis

Under Indiana law there is what is commonly known as a mandatory waiting period after the filing before a divorce can be final. (The legal term is dissolution of marriage but for this article the term divorce is used). Pursuant to I.C. 31-15-2-10, “in an action for a dissolution of marriage … a final hearing shall be conducted not earlier than sixty (60) days after the filing of the petition.”

The last court day of this year is December 29, 2016. During the holidays, courts are addressing emergencies and other matters, so a non-contested divorce may be pushed aside until after the beginning of the year. Therefore, your last reasonable date to file for divorce and this means file with the court is October 21, 2016. Many people think the 60 days starts when you see a lawyer to start your divorce, it does not. October 21, 2016. This assumes you will have an agreed divorce. Otherwise, depending upon the issues and the court involved, it may be too late to file the divorce and have it finalized before the end of the year.

While Indiana law allows bifurcation of the divorce versus the other issues, see IC 31-15-2-14, most courts will not grant a bifurcated divorce without agreement of the parties, and many courts will not grant a bifurcated divorce at all, especially if children are involved. Further, your spouse may not agree as a matter of strategy especially if you are the higher income earner.

Now you might ask, what does it matter?

The IRS website states,

The IRS offers these seven facts to help you choose the best filing status for you.

  1. Marital Status. Your marital status on the last day of the year is your marital status for the entire year.
  2. If You Have a Choice.  If more than one filing status fits you, choose the one that allows you to pay the lowest taxes.
  3. Single Filing Status. Single filing status generally applies if you are not married, divorced, or legally separated according to state law.
  4. Married Filing Jointly. A married couple may file a return together using the Married Filing Jointly status. If your spouse died during 2012[6], you usually may still file a joint return for that year. Dates have not been updated on the IRS website.
  5. Married Filing Separately.  If a married couple decides to file their returns separately, each person’s filing status would generally be Married Filing Separately.
  6. Head of Household.  The Head of Household status generally applies if you are not married and have paid more than half the cost of maintaining a home for yourself and a qualifying person.
  7. Qualifying Widow(er) with Dependent Child.  This status may apply if your spouse died during 2010[4] or 2011[5], you have a dependent child and you meet certain other conditions.”
    Dates have not been updated on the IRS website.

Look at paragraphs one (1) and three (3). Paragraph three (3) is not as simple as it looks as the IRS may require state law to meet certain standards for the term “separated” and it does not mean you just do not live together. You should consult a Certified Public Accountant (CPA) to verify your situation.  

If your divorce is final by December 31 (this year December 29), will you be in a higher or lower tax bracket? If you are not divorced by December 31 (this year December 29), how will the refund or tax liability be handled? Who gets the exemptions for any children and will you qualify for head of household as described in paragraph 6? These decisions could mean thousands of dollars difference in your tax liability and should be given consideration. The IRS has not published the schedules for 2016; however, to obtain an idea of the affect upon you check out the interactive tool offered by the IRS for 2015.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

This blog does not constitute legal advice nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

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