Putative Grandfather Lacked Standing to Commence Paternity Matter

Family Law Case Review

Case: In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: A putative grandfather, whose son – the putative father – was deceased, lacked standing as the child’s “next friend” to commence a paternity matter.

FACTS AND PROCEDURAL HISTORY: Child was born to Mother in 2007. Father executed a paternity affidavit and is listed as Child’s father on the birth certificate. Father continued to have a relationship with Child, and he shares custody of Child with Mother.

In 2011, a third party, B.H., passed away. And some point, it came to be believed by the parties that B.H. was Child’s biological father.

In 2013, B.H.’s father (“Grandfather”) filed a petition to establish paternity of Child. He sought custody or, in the alternative, grandparent visitation. The trial court referred the matter to mediation, which resulted in an agreement, the key provisions of which were: (1) B.H. was the biological father of Child; (2) Father and Mother would share joint legal custody of Child; and (3) Grandfather would have grandparent visitation.  The trial court approved the mediated agreement.

Implementation of the agreement became contentious, resulting in Grandfather seeking to have it enforced, and Father seeking to have it set aside as void due to Grandfather’s lack of standing. After a hearing, the trial court concluded Grandfather had standing, declined to set aside the mediated entry, and ordered the parties to follow it. Father appealed.

Reviewing the paternity statute, the Court of Appeals noted that the only avenue for Grandfather to have standing would be as Child’s “next friend,” a term that is not statutorily defined. Reviewing the applicable case law, it is significant that Child already has Mother and Father involved in Child’s life. The Court further concluded that the Grandparent Visitation Act, without more, did not confer standing upon Grandfather; the Court concluded that, had the legislature wished to confer standing automatically upon a putative grandparent, the statute determining who can initiate a paternity matter could have been amended to add grandparents, but it was not. Further, because the lack of standing cannot be cured, the order referring the parties to mediation, and the resulting mediation agreement, are all void by extension.

The trial court’s order was reversed.

To view the text of this opinion in its entirety, click here: In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B.

 

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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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Dealing with the Untrustworthy – Part 2

NOTES ON NEGOTIATIONS
By Marty Latz, Latz Negotiation Institute

“We had a deal. Then he tried to slip something in that we had not even discussed. It was significant, too. Not a huge change. But not a minor issue, either. And it wasn’t inadvertent or a mistake. He intentionally did it. Frustrating, to say the least. It raised an issue of credibility and trust.”

Should you walk? It depends.

First, it depends on whether the deal primarily involves a one-shot zero-sum transaction with relatively few issues and no future relationship between the parties. If so, you might decide it’s worth it to close. Otherwise, especially if you will have to work with your counterpart to implement the deal, seriously consider walking away.

Second, and related to the first, evaluate your leverage. Your counterpart’s sleazy tactic (we call these “nibblers” in the negotiation world) changed the value of your deal with them – and made it worse. So re-evaluate it now relative to your Plan B, your alternative to doing that deal.  If your Plan B now appears better than this deal, walk.

This evaluation should also include your personal attitude toward risk and conflict. Your counterpart’s trust-raising tactic increases the risk and possible conflicts and problems involved in the deal and with this counterpart.

Roger Fisher, co-author of the bestseller Getting to Yes: Negotiating Agreement Without Giving In, once said “trust is a matter of risk analysis.” He’s right. The more you trust, the more you risk. The less you trust, the less you risk.

It just became riskier for you to trust your counterpart. The deal also became riskier. Folks like this will be less reliable and trustworthy on all fronts.

If you have spent your life building a company and want to sell it and retire, you likely will not accept a handshake deal with a stranger. Way too risky.

And while you can try to legally nail down in writing as many contingencies as you can, it’s tough to completely eliminate the trust factor in any deal. It’s especially difficult if the deal involves a future relationship between the parties.

Manage the risk.

So what should you do if you decide to keep the deal? At the least, request an equivalent or greater concession in return. Don’t just give in. If you do, they’ll nibble more. After all, it worked. Why not keep on nibbling?

In addition, consider these strategies. I also recommend these if you find your counterpart untrustworthy due to other factors (like your research into their reputation, they made material misrepresentations in the negotiation, they used other sleazy tactics, etc.).

  • Independently confirm all statements that may provide your counterpart with leverage or power, especially if they involve the existence of an alternative deal.
  • Discount the relevance of statements that cannot be confirmed.
  • Document and then confirm in writing the party’s commitments.
  • Consider recording the negotiation.
  • Aggressively explore your potential alternatives (Plan Bs).
  • Be especially wary of vague and ambiguous statements and commitments.
  • Understand that such negotiations take more time and effort than others and recognize this cost in doing business with this person.
  • Pay attention to the details and don’t leave ambiguous issues unresolved.
  • Consider bringing in an independent third party to help.
  • Specifically define what constitutes a breach.
  • Provide a fair and efficient mechanism to ensure commitments get satisfied or to resolve disputes that may arise from a potential breach. (We use escrow agents in some transactions for this very purpose. It’s too risky to trust the other side will just comply based on our agreement – so escrow agents manage it.)

Of course, don’t lower yourself to their level. Your reputation is too important to risk.

Latz’s Lesson:  Sometimes we have to deal with untrustworthy individuals. Protect yourself.

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Marty Latz will be presenting again this year at the ICLEF Conference Facility!
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

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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

Landlord Held Liable in Suit by Occupant

Prepared By Richard A. Mann & Todd Small

On September 28, 2017, the Indiana Court of Appeals, in Richter v. Laurenz Place, LLC, reversed the trial court’s judgment for the Defendant landlord. The Plaintiff, Kristopher Richter, sued his previous landlord, Laurenz Place, after his former co-tenant sued Richter for his portion of damages owed to Laurenz Place. In the suit, Richter claimed as a tenant he should have received notice of the alleged damages to the rental property, that he disputed some of the alleged damages, and that he was wrongfully denied access to the rental property.

There were two lease agreements. The first lease was signed on April 28, 2012 by the co-tenant only, and not Richter. However, Richter was listed as an authorized occupant in the lease signed April 28, 2012. The second lease was signed April 30, 2013 (herein “Second Lease”). The Second Lease was signed and initialed by both the co-tenant and Richter. After Richter and the co-tenant vacated the apartment, Laurenz Place sent the co-tenant an itemized list of damages, but refused to provide Richter a copy, despite his request.

The Court of Appeals restated the issue on appeal as “whether the trial court erred by determining Richter was not a ‘tenant’ within the meaning of the landlord-tenant provision of the Indiana Code.” A tenant is defined by the Indiana Code as “an individual who occupies a rental unit: (1) for residential purposes; (2) with the landlord’s consent; and (3) for consideration that is agreed upon by both parties.” Ind. Code § 32-31-3-10.   The Court of Appeals noted that the two lease agreements listed Richter as an authorized occupant, Richter signed and initialed the Second Lease, and Richter also signed the Clubhouse Addendum attached to the Second Lease as “Leaseholder.” The Court of Appeals also referenced the testimony and exhibits provided by Richter that he paid rent. One of the exhibits was a receipt from Laurenz Place with Richter’s name typewritten in the “Bill To” and “Customer Name” lines.

The Court of Appeals stated that there was no dispute that Richter occupied the rental property for “residential purposes.” They also found that it was “plain that [Richter]” occupied the rental premises with Laurenz Place’s consent. The third element for Richter to be a tenant under Indiana law is “consideration for this occupancy agreed upon by both parties.” The Court of Appeals “construing the leases between the parties strictly against Laurenz Place and doing so in the context of the other evidence at trial” found that “it is apparent that there was an agreement on monthly rent and the like.” Therefore, the Court of Appeals found that the trial court was clearly erroneous when they determined Richter was not a tenant. As such, Richter was entitled to certain rights under Indiana Code sections 32-31-3-12, 32-31-3-14 and 32-31-5-6.

The trial court was reversed and the case was remanded for the trial court to consider the costs incurred by Richter as a result of the landlord’s failure to afford him the rights as a tenant, as well as to determine the attorney’s fees to which Richter was entitled.

Conclusion:
Landlords and Tenants should review this case, their lease, their conduct, and decide how to proceed. Landlords should consider granting all rights to whomever is an authorized occupant as the Landlord can be held responsible for damages, attorney fees, and may be waiving their right to recover.

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Richard A. Mann has been practicing Family Law for more than 37 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, Mann Law, 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 consecutively from 2009 – 2017.

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

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Negotiation Trust and Credibility – Part 1

NOTES ON NEGOTIATIONS
By Marty Latz, Latz Negotiation Institute

“Everyone lies in negotiations. And everyone knows everyone lies in negotiations. So why should we care? Shouldn’t we just assume our counterpart is not telling the truth, should not be trusted, and behave accordingly?”

No. Making these assumptions would be highly counterproductive and inaccurate. Everyone doesn’t lie in negotiations. And we shouldn’t assume our counterparts don’t tell the truth and should not be trusted.

But credibility and trust issues do raise critical problems that infuse many negotiations. And some people do lie and cannot be trusted.

Since these issues permeate many negotiations, we will address it in two columns. We will first focus on why we even care about trust and credibility in negotiations.

Next month, we will address what to do if your counterpart cannot be trusted.

So why care? Because your and your counterparts’ trust, credibility, honesty, and reputation directly impact your negotiation results.

Studies show the extent that parties mutually trust each other leads to maximum success in many negotiation contexts.

The opposite, too. Parties’ distrust leads to lack of information sharing (a crucial element of negotiation effectiveness), inefficiencies, wasted time, high transaction costs, implementation problems, and lost deals.

Without trust, I will be less willing to work with you to satisfy our mutual and sometimes competing interests. We may not even engage, leaving us with a suboptimal resolution to a problem we both face.

Assume I’m looking for a contractor to build an addition to my house. I get several bids. XYZ’s bid, after our initial negotiation, is the lowest by $10,000. And his references say he does excellent work.

But I also reach out to my LinkedIn and Facebook networks to research his reputation.

One mutual connection tells me XYZ orally promised her certain prices on changes that arose during her renovation. He reneged.

The other emails me XYZ used cheap piping despite promising top quality.

I will likely go with the next lowest contractor. XYZ lost my business. And I paid more for my addition. Lose-lose, due to lack of trust and credibility.

Or let’s say I still go with XYZ. But I end up spending a ton of time detailing the parts used, every possible contingency, and negotiate everything into a contract with airtight provisions relating to a possible breach.

It may still be better than my alternative, given the cost difference and risk involved. But we both lost time and effort having to dot every “i” and cross every “t.”

Trust and credibility also disproportionately and negatively impact negotiations involving parties expecting future relationships.

A colleague recently completed a nine-month negotiation involving a long-term partnership between his company and a serial entrepreneur interested in further funding and managing it. Neither party would have closed had either heard a hint the other party had trust or credibility issues.

“Hold on,” you respond. “This sounds great. But it’s a no-brainer that you want a reputation as trustworthy and credible, right?”

Wrong. Many negotiators put their reputations at risk by playing fast and loose with the truth. Perhaps they make up an alternative to their deal in an effort to create leverage. Or they play games like orally reaching a deal and then nibbling for more. Or they threaten their counterpart in a fit of anger.

Of course, sometimes these strategies work – short-term. And then only if the negotiation involves just a few zero-sum issues (where one dollar more for one necessarily means one dollar less for the other).

But reputation-risking strategies rarely work long-term. Eventually these tactics come to light. Reputations suffer.

Years ago, I raised some money for my software company. I had an investor willing to put in $100,000. But my research turned up a fraud-related problem on his SEC record. I turned down his money. Too risky.

I eventually closed that round – but it took more of my time and effort. He lost out too.

Two final notes. One, it’s not only about getting the best deals. It’s also about behaving morally and ethically.  You’ll never regret doing the right thing in a negotiation.

And two, your reputation rests on what your counterpart says about you after the negotiation. Not what you hope they say. Remember this next time you consider a tactic some might find too close to the line.

Latz’s Lesson:  Trust, credibility and an honest reputation lead to better and more successful negotiations and deals.  Don’t put them at risk.

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Marty Latz will be presenting again this year at the ICLEF Conference Facility!
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

______________________________________________________________________

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 Blog1 Comment