Indiana Continuing Legal Education Forum – ICLEF

Case: Phillip J. Troyer v. Tracy L. Troyer
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD:
Trial court erred when its final Decree retroactively modified child support obligations of its provisional order without any petition to modify the provisional order on file.

FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 1993, and had Child in 2000. In May of 2011, Mother filed a petition for dissolution of marriage. Two months later, the trial court entered its Provisional Order setting forth various rights and obligations of the parties, including that Father pay child support to Mother of $53 per week and that Mother provide health insurance coverage for Child. Neither party subsequently filed any petition to modify these provisional obligations.

In June, 2012, following nearly four days of final hearings, the trial court issued its Decree. The Decree increased Father’s child support obligation to $155 per week, retroactive to approximately 5 months before the Decree was issued. The Decree also modified the “six percent rule” obligations related to Child’s uninsured and deductible medical expenses, also retroactive to the same date. Father appealed.

The Indiana Court of Appeals reviewed Ind. Code 31-15-4-14, which provides that a provisional order terminates by operation of law upon the entry of a final decree. Indiana statute further provides that, “[t]he terms of a provisional order may be revoked or modified before the final decree on a showing of the facts appropriate to revocation or modification.” Ind. Code 31-15-4-15. Given that neither of the parties requested a modification of the provisional order – much less offered a showing of facts in support of doing so – it was error for the trial court to modify the provisional order retroactively.

The matter was remanded to the trial court to amend its Decree accordingly.

To view the text of this opinion in its entirety, click here: Phillip J. Troyer v. Tracy L. Troyer

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The Indiana Family Law Update is a free service provided by Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Case: In Re: Visitation M.L.B.: K.J.R. v. M.A.B.
by Mike Kohlhaas, Bingham Greenebaum Doll 

HELD: Trial court’s grandparent visitation order was remanded by the Indiana Supreme Court for failing to provide specific findings as to all four “Troxel principles” that address the balance between parental rights and a child’s best interests; such an oversight renders a grandparent visitation order per se unconstitutional.

DICTA: The Indiana Supreme Court suggests that a grandparent visitation order may run afoul of the “Troxel principles” where it provides for materially more visitation time than the grandparent enjoyed with the child before the visitation order.

FACTS AND PROCEDURAL HISTORY:
Child was born in 2004, out of wedlock, to Mother and Father. The relationship between Mother and Father soon ended, but paternity was later established. Father apparently did not pursue a relationship with Child; however, the paternal grandfather (“Grandfather”) did establish a meaningful relationship with Child, beginning with visits to the hospital when Child was born, and continuing through frequent, informally arranged visitation of a few hours in duration for years thereafter.

Mother remarried in 2006. In 2010, Stepfather initiated adoption proceedings. At about the same time, Mother ended Grandfather’s informal visitation with Child, who was then 6-years-old. Father contested the adoption, while Grandfather intervened seeking a grandparent visitation order.

After a consolidated hearing on the adoption and grandparent visitation petitions, the trial court granted the adoption, terminated Father’s parental rights, and issued a grandparent visitation order for Grandfather. The visitation order provided for Grandfather to have Child one weekend per month, a block of 10 days each summer, and 10-hour visits on Easter, Thanksgiving, Christmas, and sometime the week of Child’s birthday. Mother appealed the grandparent visitation order.

The Indiana Supreme Court reviewed the case law and statutory history of grandparent visitation in Indiana, which has been significantly influenced by the U.S. Supreme Court’s Troxel decision in 2000. As later adopted by the Indiana courts, an Indiana trial court considering a grandparent visitation request must consider and make findings as to the four “Troxel principles”:

1. A presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests;

2. The “special weight” that must be given to a fit parent’s decision regarding nonparental visitation;

3. That “some weight” be given to whether a parent has agreed to some visitation or denied it entirely, since the very existence of a relationship between the child and grandparent hinges on this; and

4. Whether the petitioning grandparent has established that visitation is in the child’s best interests.

In the instant case, the trial court did not make findings as to all four of the “Troxel principles”. The Indiana Supreme Court concluded that this, without more, rendered the grandparent visitation order unconstitutional.

The Court concluded that the appropriate remedy was remand without a new hearing. The Court further guided the trial court that a mere recitation of the “Troxel principles” would not be adequate, and that there should also be “analysis of how the evidence as weighed by the trial court fits within that framework.” The Court further declined to address whether or how a grandparent visitation order that does not address the “Troxel principles” by name might nevertheless sufficiently address them in substance. The Court also expressed concern that, in the instant case, the trial court’s visitation order had provided for more visitation time than Grandfather previously had with Child and, indeed, even exceeded the schedule Grandfather had proposed to the trial court, implying that the schedule would benefit from being trimmed on remand.

The trial court’s grandparent visitation order was remanded.

To view the text of this opinion in its entirety, click here: In Re: Visitation M.L.B.: K.J.R. v. M.A.B.

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The Indiana Family Law Update is a free service provided by Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

by Mike Kohlhaas, Bingham Greenebaum Doll 

HELD: In calculating Father’s income for child support purposes, the trial court correctly included in Father’s income the discretionary contributions Father made to his 401(k) plan.

FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 2001, and had one child together. In the course of computing child support during their divorce proceedings, there was disagreement about what income figure should be used for Father. Father was working as a scientist at Lilly, and between his base pay and bonuses, his gross income had reached over $100,000 per year. However, Father was also making relatively substantial voluntary 401(k) deferrals of over $20,000 per year. The trial court record appeared to substantiate Father’s claim that he had consistently lived a frugal lifestyle, and that the 401(k) deferrals were not deliberately ramped up to reduce his income for child support purposes. Nevertheless, the trial court included the voluntarily 401(k) deferrals in Father’s income when it calculated child support, from which Father appealed.

Father’s primary argument on appeal relied on the stated purpose of the Guidelines to maintain the same standard of living the child would have enjoyed had the marriage remained in tact. In effect, Father argued that the parties lived very modestly – and saved substantially – throughout the marriage, and that a child support calculation that excluded his voluntarily 401(k) deferrals would nevertheless provide sufficient resources to maintain that same standard of living.

The Court of Appeals rejected Father’s argument. While acknowledging that maintaining the same standard of living is a stated objective of the Guidelines, the “income shares model” and the Guidelines’ broad definition of “income” requires that voluntary 401(k) deferrals be included as income in the support calculation.

The trial court’s child support order was affirmed.

To view the text of this opinion in its entirety, click here: Alexander Nikolayev v. Natalia Nikolayev

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The Indiana Family Law Update is a free service provided by Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Case: In the Matter of the Paternity of G.W., J.W. v. R.M.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: By failing to register timely with the putative father registry, to sign the child’s birth certificate or a paternity affidavit, or to file a paternity action, a putative father waives the right his right to object to adoption of the subject child by a third party.

FACTS AND PROCEDURAL HISTORY:  Child was born to Mother on July 27, 2010. Prior to her pregnancy, Mother was in a relationship with R.M. R.M. and Mother never married, R.M. never signed Child’s birth certificate or a paternity affidavit, and he did not register with the putative father registry. R.M. was aware of Mother’s pregnancy, attended doctor appointments with her, and was present at Child’s birth. R.M. visited with Child regularly for the first nine months of Child’s life, at which time Mother terminated the informal visitation arrangement.

Mother subsequently married Husband in 2011, and thereafter Husband filed a petition to adopt Child in Floyd Circuit Court, to which Mother consented. Although R.M.’s name was recited in Husband’s adoption petition as the “biological father,” a search of the putative father registry did not locate R.M. and he received no notice of the proceedings.

Concurrently, R.M. was working with the Clark County prosecutor on a paternity petition. In fact, R.M. signed the petition to establish paternity nearly two weeks before Husband’s adoption petition was filed in Floyd Circuit Court; however, R.M.’s paternity petition was not actually filed until four days after Husband’s adoption petition. Mother filed an objection to R.M.’s paternity petition, and R.M. filed an objection in the adoption case.

The adoption and paternity matters were consolidated, and Mother filed a motion to dismiss R.M.’s paternity case. Following a hearing, Mother’s motion to dismiss was denied, from which she sought and was granted interlocutory appeal.

On appeal, Mother argued that, as a matter of law, R.M.’s failure to timely register with the putative father registry, sign the birth certificate or a paternity affidavit, or file a paternity action results in a lack of standing to contest the adoption or to seek paternity.

The Court of Appeals reviewed the putative father registry statute, noting that a putative father who registers within 30 days of a child’s birth or the filing of an adoption petition – whichever occurs later – is entitled to notice of the adoption. Failing to register timely has far-reaching implications, including implied consent to adoption by a third party.

R.M. argued on appeal that he was statutorily excepted from the putative father registration requirement because Mother had disclosed his name to the attorney handling the adoption; however, the statute provides for such an exception only where the mother provides BOTH the putative father’s name AND his address, which did not occur in this instance.

Citing the underlying public policy objective of ensuring that children have parents, the Court of Appeals concluded that “[a]s R.M. acknowledges that he never registered, we must necessarily conclude that he is not entitled to notice of the adoption proceeding, and has irrevocably and implicitly consented to the adopt of his minor child….”

The trial court’s decision not to grant Mother’s motion to dismiss R.M.’s was reversed.

To view the text of this opinion in its entirety, click here: In the Matter of the Paternity of G.W., J.W. v. R.M.

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The Indiana Family Law Update is a free service provided by Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN