COA: Supreme Court was Clear, Post-Secondary Educational Expenses are Constitutional

Family Law Case Review

Case: Lisa Gill, et al. v. Jeffrey B. Gill, et al.
by Mike Kohlhaas, Bingham Greenebaum Doll

This is a consolidated appeal of three separate challenges to Indiana’s post-secondary educational expense statute. The constitutional arguments are: (1) the statute violates Equal Protection, by placing divorced parents in a different position than married parents; and (2) the statute violates a parent’s constitutional right to determine his or her child’s upbringing and education.

The Court of Appeals quickly disposed of the matter, concluding that “the Indiana Supreme Court has clearly held that statutory authority allowing a trial court to order a divorced parent to contribute to his child’s post-secondary educational expenses is constitutional.” The Court was unpersuaded by the appellants’ argument that the passage of time warranted a closer review of precedent.

We will provide updates on transfer, if sought.

To view the text of this opinion in its entirety, click here: Lisa Gill, et al. v. Jeffrey B. Gill, et al.

 

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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

Support Modifications Typically Inappropriate without Differing at Least 20% from the Prior Order

Family Law Case Review

Case: Danielle Maple v. Travis Maple
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Court of Appeals underscores the Indiana Supreme Court’s MacLafferty holding that, when entertaining a child support modification, it will very seldom be appropriate to modify support if the new support amount is not more than 20% different than the previously-ordered support amount.

HELD: When a trial court is establishing a child support order that includes a credit for “prior born” children, the trial court is required to use a prevailing child support worksheet from that prior born child’s case, and the amount of the credit for prior born children may not be re-litigated.

FACTS AND PROCEDURAL HISTORY:
Mother and Father married, had two children, and divorced in 2009. Mother also had one child from a prior relationship, for whom a child support order had been issued in 2005 and never modified. That 2005 worksheet established Mother’s legal duty of support for her prior-born child at $121/wk.

In the instant case, Father endeavored to modify child support for a variety of reasons, including changes of income and parenting time. However, in the course of seeking this modification, Father sought to reduce Mother’s credit for her legal duty to support a prior born child down to $66/wk. The trial court agreed and, recalculating child support, issued a new child support order which differed by only 16% from the prior order. Mother appealed.

The Court of Appeals reviewed the MacLafferty holding, which provides that the circumstances are rare in which child support should be modified without differing at least 20% from the prior order. The Court of Appeals concluded that no such extraordinary circumstances existed in this case, and the trial court’s modification of support was inappropriate.

Further, the Court of Appeals assigned error to the trial court’s recalculation of the amount of Mother’s credit for her legal duty to support her prior-born child. In effect, the Court concluded that a trial court calculating child support is bound to the child support worksheet of the other court that established support for the prior-born child, and the amount of that credit may not be re-litigated in the current court.

To view the text of this opinion in its entirety, click here: Danielle Maple v. Travis Maple

 

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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

Recipient Party is Intended to Receive 100% of the Subject Account, Regardless of Value at Time of Transfer

Family Law Case Review

Case: Fazia Deen-Bacchus v. Harold M. Bacchus, Jr.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: When a Decree assigns a value to an investment account for purposes of calculating the marital estate, and then awards one party that account, absent express language providing otherwise, the recipient party is intended to receive 100% of the subject account, regardless of its value at the time of transfer, not the amount that the trial court assigned to the account when calculating the marital estate.

FACTS AND PROCEDURAL HISTORY:
In January, 2011, the trial court issued its property division order incident to the dissolution of the parties’ marriage. Among other property, the order gave Wife, “as her property,” three investment accounts. Elsewhere in the order, the trial court assigned values to each of the three investment accounts for purposes of calculating the overall marital estate.

Apparently, Husband was dilatory in transferring these accounts to Wife and, by the time Wife pressed the issue, the aggregate value of the three accounts had increased materially. A dispute then arose between the parties as to whether Wife was to receive the entire of each of the three accounts — including appreciation — or whether Husband owed Wife only the amount in the original values used by the trial court to value each account for divorce purposes, leaving Husband entitled to keep the rest.

After a hearing, the trial court sided with Husband, but ordered him to pay Wife a nominal amount of interest in addition. Wife appealed.

The Court of Appeals, agreeing with Wife, reversed the trial court. “[T]he order plainly and unmistakably identifies the investment accounts, not a certain value of the accounts, as Wife’s property.” Thus, Wife was entitled to receive the entirety of each of the subject accounts, including any appreciation subsequent to the property division order.

[While not addressed by the opinion, presumably the risk of loss also falls on the party awarded the account.]  

To view the text of this opinion in its entirety, click here: Fazia Deen-Bacchus v. Harold M. Bacchus, Jr.

 

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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

Corporate Panel Lessons

Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

I recently served on a panel of expert negotiators from the business and legal communities. Together the panel had over 100 years of experience negotiating deals, and settlements worth billions.

Here are some of the lessons, along with my own thoughts.

•    Set aggressive goals – then get the information to achieve them. One panelist described the negotiation for her dream job, which started while she was in law school. What did she do? Figured out exactly what she wanted and then spent several years learning about that industry and how she could add value to the organization that would eventually hire her as its top lawyer.

•    Re-evaluate your goals in long-term negotiations. Some negotiations last years. They require specialized strategies. In all negotiations, set aggressive, specific goals to start. For long-lasting negotiations, re-evaluate those goals in light of information gathered, fluctuating leverage, etc. Of course, there’s not likely a need to revise your goals weekly. But do it regularly, especially when significant changes occur.

•    Focus on your counterpart’s personal self-interest. Several panel members emphasized the need to find out counterparts’ personal drivers, pain points or self-interests. It’s especially crucial in negotiating with large entities. Why should that mid-level professional do the deal? Are they getting pressure from their boss to show progress or clear their desks of long-running disputes? How can you make them look good internally?

•    Gather information in unconventional ways. One panel member described several powerful information-gathering techniques.

  • Public companies are required to report critical information – get it. This panel member once analyzed a company’s public statements and financial reports and deduced its actual authority for the deal on which he was working. He got the entire amount, despite that company’s early false statements about its authority. Top mergers and acquisitions lawyers know this well, as many analyze the terms and conditions of their counterpart public companies’ previous deals and use this precedent in negotiating their deals’ terms.
  • Always be on the lookout for information. One panel member described a complex negotiation involving multiple impasses. After the last impasse, as he was walking out of the mediation, he inadvertently glanced into the room where his counterparts had been strategizing. Though the whiteboard had been erased, he could still notice the outlines of some critically important numbers. Wow.
  • Read everything and talk with everybody. Few negotiators really spend the time doing their strategic due diligence on their counterparts. Talk with folks who have negotiated with your counterparts previously. Read everything they have written. Find out their reputations. Talk to industry experts. Mine your social networks and online resources.

•    A strong case may involve weak leverage. One example involved millions of dollars in a litigation matter where the very survival of the company was at stake. And the company was likely to lose. Yet it had decent leverage. How? The company on the “winning” side had no interest in spending a ton of money to win only to likely get little in bankruptcy court. This panel member settled his losing case for pennies on the dollar.

•    Limited vs. full authority is usually advantageous. Parties with authority have power, right? Wrong. They have the power to concede. One panel member described a negotiation in which he flew to London to negotiate a big deal. He knew after walking in to the meeting he would get a great deal. How? His counterpart at the table was its top guy, the one with its ultimate authority. From that point on, every time his counterpart requested a concession, this panel member called home to try to get more authority. He got an excellent deal and got his counterpart to even pay for his flight home.

•    Fair and reasonable standards can drive the result when you have weak leverage. Sometimes there’s nothing you can do to strengthen your weak leverage. Now what? Focus on fair and reasonable standards. One panel member described negotiations worth hundreds of millions of dollars with the federal government where the government – if it couldn’t negotiate a deal – could legally just stop payment on the services provided. That’s weak leverage. What did this panel member do?  Focused on independent objective fair and reasonable standards, like: precedent and market value (what the government had done in similar circumstances in the past with them and other similarly situated companies); costs and inflation (how their increased costs and inflation led to higher amounts to be paid); and experts’ opinions (what independent objective experts suggested was fair.)

•    Don’t ask for their bottom line – ask what they want and why. An experienced mediator on the panel shared one of his “secrets” –  simply ask what the other side wants and why. And don’t ask for their authority or bottom line, issues where many will bluff or lie or prematurely commit – often reducing their ability to reach a solution later without losing credibility.

Latz’s Lesson: These strategies sound simple. They are. The challenge is systematically putting them into practice.

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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 Blog, Negotiation/Mediation Blog0 Comments

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