Family Law Case Review: Grandparents Visitation Order Reversed

Case: In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor
by Mike Kohlhaas, Bingham Greenebaum Doll

[Full disclosure: I participated in the representation of the Appellant in this appeal.]

HELD: Trial court erred when it issued a visitation order in favor of Grandparents.

FACTS AND PROCEDURAL HISTORY:
Mother became pregnant in high school. Weeks before her delivery, Father committed suicide. In 2010, paternity was established by way of an agreed entry between Mother and the paternal Grandparents. Child was born on June 17, 2010.

Mother eventually returned to high school, and graduated with a 3.9/4.0 GPA. She later enrolled at the University of Southern Indiana to study accounting, while working part time in the accounting department of a large local company.

Following Father’s death and Child’s birth, Mother maintained a close relationship with Grandparents. Mother included Grandparents at Child’s birth, baptism, birthday parties, holidays, and other family events. Mother also took Child to Grandparents’ home nearly every Sunday. While Mother would sometimes leave Child with Grandparents for several hours, Mother did not allow any overnights.

In February 2013, Grandparents filed a petition for grandparent visitation, in part because they were seeking overnights and in part because of a stated concern that Mother might reduce or eliminate their access to Child. Initially, Mother continued her Sunday visits to Grandparents’ house after the petition was filed.

Within weeks, Mother began to notice behavior issues with Child after he spent time with Grandparents (e.g., potty training accidents, crying, etc.). After one visit, Mother noticed unexplained bruises on Child’s back. Mother elected to discontinue Child’s visits with Grandparents.

Following an evidentiary hearing, the trial court issued a grandparent visitation order. The order provided for a six-week phase-in that would reach a final visitation schedule of every other Sunday from 10 A.M. to 6 P.M.. No overnights were provided for in the order. Mother appealed.

The Court of Appeals reviewed Troxel and similar Indiana cases dealing with the constitutional aspect of grandparent visitation orders, as well as the resulting four “McCune factors” that must be considered by a trial court prior to ordering grandparent visitation. Applying the McCune factors to the record, the Court of Appeals concluded that Mother’s decision to restrict visitation was not unreasonable, and that the trial court’s finding to the contrary was unsupported. The Court of Appeals also concluded that the trial court gave no weight to the McCune factor that Mother had been providing for some visitation and, thus, the grandparent visitation order was not necessary for Grandparents to have any time with Child; there is an important difference between a parent who limits grandparents’ opportunities to visit with a child, and those who deny it entirely.

The trial court’s grandparent visitation order was reversed.

Chief Judge Vaidik dissented with a separate opinion. She believed that the circumstances surrounding Mother’s decision to stop the visits with Grandparents were such that it was within the trial court’s discretion to conclude that Mother had acted unreasonably because the evidence did not establish a clear nexus between Child’s behavioral issues and bruises with any wrongdoing by the Grandparents.

To view the text of this opinion in its entirety, click here: In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of 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

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Divorce Law v. Estate Law: What Divorce Lawyers Can Do To Protect Clients’ Estate Rights

Welcome back to Law Tips. I hope you took advantage of the insights Kent Jeffirs, shared a few weeks back, to kick off this two-part segment on the issues that can arise when one party dies before the final dissolution decree is entered. (Click Here to read, or scroll down) Kent’s continued guidance this week moves specifically into what divorce lawyers can do to protect clients’ estate rights. His foremost piece of advice is: Advise divorce clients about estate and beneficiary designation issues early and often!

In many cases (especially those involving employer sponsored plans) there is no clear answer to the questions that arise when a client dies who failed to change his or her beneficimy designations following a divorce. Therefore, the first and most urgent advice any lawyer should give a divorcing or recently divorced client: CHANGE YOUR BENEFICIARY DESIGNATIONS ASAP!

Divorce lawyers must advise, advise, advise. While a divorce lawyer may not be able to force clients to change their beneficiary designations (even when they are clearly in such clients’ best interests), divorce lawyers do not want to leave themselves exposed to claims that “you never said that could happen” by former clients or their family members. When it comes to making proper beneficiary designations, an ounce of prevention could be worth a substantial inheritance or years of contentious litigation.

Divorce lawyers must discuss issues of estate planning and beneficiary designations with their clients at the very beginning of representation and while the divorce is pending. If allowed to change beneficiary designations prior to the divorce being filed or while it is still pending, advise clients to change their designations unless prohibited from doing so by a court order. If the divorce is already filed or if there is a restraining order or provisional order already in effect prohibiting any changes to beneficiary designations, consider petitioning the divorce court to provisionally allow specified changes to designated beneficiaries based on the hardship or inequitable results that would occur if a party died before the divorce was finalized.

While this may seem overly precautious to some for provisional orders when there is no immediate threat to the health or life of a client, the small effort necessary to include such provisions in provisional orders and to make such beneficiary changes before or at the time the divorce is filed or even while a divorce is pending is nothing compared to the financial devastation that could occur to the deceased client’s family members without such changes. Remember, the surviving spouse in a divorce where no final decree of dissolution was entered can claim any individually titled property he stood to lose in the divorce, all jointly titled property as the surviving co-owner, plus a spousal allowance of $25,000 and an intestate or elective share of any assets of the deceased spouse’s estate that were titled in her name alone if the surviving spouse was fortuitous enough to have his spouse die while the divorce is pending.

In furtherance of divorce lawyers documenting their disclosure and advice concerning these issues, it is recommended that divorce lawyers include in their engagement agreements that it is the client’s responsibility to make appropriate changes to his or her estate plan and beneficiary designations and request that the client provide the attomey with a copy of any beneficiary designation changes for the attorney’s file when the client changes their beneficiary designations.

Finally, upon the entry of the dissolution decree and the finalizing of the representation, divorce lawyers should send an appropriate closing letter which sets forth all of the client’s responsibilities following the entry of the final dissolution decree including the client’s responsibility to make appropriate changes to his or her estate plan and beneficiary designations. Just as suggested above for inclusion in engagement agreements, the closing letter should also request that the client provide the attorney with a copy of any beneficiary designation changes for the attorney’s file when the client changes their beneficiary designations.

Thanks again to Kent Jeffirs for his generous contributions to Law Tips. FYI, Kent offers a comprehensive discussion of the situations you may encounter with your clients during his CLE presentation, addressing subjects such as, executors, ERISA and divorce court jurisdiction. If you are interested in the Video Replay or the On Demand Seminar of  “The Main Event: Divorce Law vs. Estate Law & Designated Beneficiaries,”  Click Here.

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About our Law Tips faculty participants:
Kent A. Jeffirs is a sole practitioner in Crown Point, Indiana, who for the last 22 years has concentrated his legal practice in estate planning, probate and trust administration, guardianships, real estate and small business counseling. In 2007, Mr. Jeffirs was one of the first group of Indiana attorneys to be board certified as a Specialist in Wills, Trusts Estates by the Indiana Trust and Estate Specialty Board. He has also testified in court proceedings as an expert witness on probate matters. Mr. Jeffirs received his B.A. degree, with honors, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Indiana University, Bloomington.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

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Mistakes Lawyers Make in Medical Malpractice Cases: Expert Carelessness

Welcome back to Law Tips for an expansion of  the discussion on how to avoid the issues that can cripple a medical malpractice case.  This week our faculty participants, Linda Chezen and John Boren, delve into the concerns surrounding inadequate expertise in evaluation of the case.  Their overall alert is: ….woe betides the attorney who does not adequately explain the standard of care, show causation, and prove/justify the amount requested as damages.”

Inadequate expertise in evaluation of the case: Relying on an expert who is not one!  And/or is not recognized by other experts.
The need for a witness that is not only an expert but very creditable and professional in his or her presentation is paramount. A firm that utilizes experts with questionable credentials will eventually get branded with its carelessness. I still remember the med mal case I tried where the plaintiff’s expert was not a medical doctor and the jury decided for defendant because the plaintiff did not have a “real” doctor.

There are societies and other professional organizations in which an expert can list membership but all are not equal. For medical doctors, The American Board of Medical Specialties is the key credential for an expert. The ABMS is a non-profit organization that oversees standards and certification for all twenty-four recognized medical and surgical specialties. Truly Board-Certified specialists are known as Diplomates and are identified by the words, “American Board of…”  preceding the name of their specialty. For example, “Diplomate of the American Board of Emergency Medicine”. Other copycat “boards” employ similar sounding names though they may not use the designation of “American Board”.

Utilizing an expert with questionable credentials may not keep you from getting to trial. If you need trial experience, using a fake expert can get you the experience- if not the verdict you want.  For other professionals and scientists, knowing how to evaluate the credentials of the person and the organizations is a critical skill. Questions to ask:

1. Would they have you as a member?

2. What do the university faculty know about the society?

3. The right expertise may not be an M.D.

a. Toxicology- Society of Toxicology

b. Alcohol- Research Society on Alcohol

c. Neuroscience – Society for Neuroscience

At the least, have a non-testifying expert evaluate the case.
It feels great to get that favorable expert review on a challenging case you just accepted. This may be a good time to breathe and get a second opinion, particularly when the issues are complex and the trial expenses will be high. An additional opinion from a non-testifying expert will help establish that the first expert’s analysis is on target and may give supplemental insight into the case. Non-testifying experts often remain with the case to serve as strategic consultants whose work may be protected from discovery by work-product rules. This approach can provide long-term savings in terms of both time and money.

Where to find the best medical expert witness:
Have someone familiar with the medical world and the academic qualifications evaluate expert’s CV and experience. Do not stop with your own witnesses but have the same process for the opposing side’s experts. Compare the witness to the stars of the specialty and other potential expert witnesses.

Know who is doing relevant research. See http://report.nih.gov/
“Research Portfolio Online Reporting Tools provides access to reports, data, and analyses of National Institutes of Health research activities, including information on NIH expenditures and the results of NIH supported research.”

Thanks again to Linda Chezem and John Boren for illustrating the dangers that could jeopardize medical malpractice cases. Be sure to check in here at Law Tips next week for tips from our Medical Malpractice experts on avoiding the wrong experts when evaluating your case. Meanwhile, you have the opportunity to take advantage of the excellent CLE presentation on Mistakes Attorneys Often Make With Medical Malpractice Cases through ICLEF’s On Demand CLE programming.

ICLEF also has Advanced Medical Malpractice on June 24th, as a Live In-Person only Seminar, Click Here.

Resource: Marian Langley JD, reference article: Seven Mistakes Attorneys Often Make With Medical Malpractice Caseshttp://www.ilawconnect.com/blog/seven-mistakes-attorneys-often-make-with-medical-malpractice-cases

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About our Law Tips faculty participant:
John D. Boren opened his law practice in Martinsville, Indiana, in 1979 and joined with Steve Oliver to form the partnership of Boren and Oliver in 1981. Together they have  pursued numerous cases for injured clients with successful representation against the largest corporations in the world. John has also successfully defended numerous clients charged criminally, including the defense of a twelve year old boy charged with murder. His areas of practice include personal injury, medical malpractice, major criminal defense and DUI.

Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville. Judge Chezem’s expertise reaches into several areas. For instance, due to her extensive background in underage drinking laws, she teaches law students, graduate students and lawyers about ethical and legal issues in alcohol research. She also focuses on animal use and production law and, on the human side, informed consent and certificates of confidentiality.

About our Law Tips blogger:
Nancy HurleyLaw Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy.  She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you onLaw Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Be Vigilant Concerning Spousal Rights After the Death of One Party

Divorce Law vs. Estate Law

Is Filing For Divorce Close Enough? Does “It ain’t over ’til the fat lady sings” apply in divorce? What happens to all the spousal rights when a divorce is pending but one party dies before the final dissolution decree is entered? In most situations, not much. You are still husband and wife. Filing an action for dissolution does not terminate a spouse’s marital status for purposes of inheritance and other death-time rights. Only the decree of dissolution determines that the status of marriage has ended…

In our recent CLE entitled Divorce Law vs. Estate Law & Designated Beneficiaries Kent Jeffirs, our faculty participant who practices in Crown Point, Indiana, takes up issues such as “Death During Divorce: Is Filing For Divorce Close Enough?” and “Little Known Statutes that May Fight the Good Fight in Death During Divorce.” I’m pleased to bring Law Tips readers a bit of Kent’s expertise in preventing unfortunate and difficult-to-solve circumstances for your clients.

…While one could change his will while the divorce is pending, the spousal allowance and right to elect against the will remain until the final dissolution decree is entered. So no matter how contentious the divorce and no matter how long the parties have been separated, the surviving spouse in a divorce where no final decree of dissolution was entered can claim any individually titled property he stood to lose in the divorce, all jointly titled property as the surviving co-owner, plus a spousal allowance of $25,000 and an intestate or elective share of any assets of the deceased spouse’s estate that were titled in her name alone if the surviving spouse was fortuitous enough to have his spouse die while the divorce is pending. Indiana case law and statutes offer very few avenues for relief upon the mere filing for divorce if the final dissolution decree is not entered prior to the death of a party to the divorce.

“Little Known and Little Used Statutes that May be Used to “Fight the Good Fight” Upon the Death of a Party During a Dissolution of Marriage Action”

Two statutes contained in the Indiana Probate Code have remained as descendants of two statutes promulgated by the Indiana Legislature in the middle of the nineteenth century (the 1850′s!). These statutes have carried through what some consider to be antiquated concepts of penalizing “adultery” and “spousal abandonment” to modem times in spite of the law’s “more enlightened” transition to “no-fault” divorce. Indiana Code 29-1-2-14 and 29-1-2-15 provide as follows:

29-1-2-14. Adulterous husband or wife. If either a husband or wife shall have left the other and shall be living at the time of his or her death in adultery, he or she as the case may be shall take no part of the estate or trust of the deceased husband or wife.

29-1-2-15. Abandonment of spouse. If a person shall abandon his or her spouse without just cause, he or she shall take no part of his or her estate or trust.

See also I.C. 30-4-2.1-9. Applicability of adultery and abandonment forfeiture provisions.
(A trust of a deceased spouse is subject to the following: (1) I.C. 29-1-2-14 and (2) I.C. 29-1-2-15).

In Estate of Calcutt v. Calcutt, 576 N.E.2d 1288 (Ind. App. 1991), trans. denied, the court reaffirmed much earlier decisions that pursuant to I.C. 29-1-2-15, in order for the prohibition in 29-1-2-14 to apply, the surviving spouse must have “abandoned” the decedent before his or her death. See also In re Estate of Patrick, 958 N.E.2d 1155 (Ind. App. 2011 ) (Trial court properly denied estate’s motion to dismiss husband’s petition for survivor’s allowance under I.C. 29-1-4-1 as he did not “leave” his wife within the meaning of l.C. 29-1-2-14. Evidence supported trial court’s finding that husband and wife had separated by mutual consent, which did not support a finding of abandonment.)

One might ask if “abandonment” is necessary under I.C. 29-1-2-14 to prevent a surviving spouse from obtaining the survivor’s allowance or any portion of the estate, is 29-1-2-15 redundant? Note that under 29-1-2-15 no adultery is required. However, as reaffirmed by the above appellate decisions, 29-1-2-14 does require a finding of “abandonment” before a spouse will lose their spousal allowance or inheritance. Indiana Code 29-l-2-14′s requirement that a spouse “shall have left the other” has thus been interpreted as synonymous with “abandonment.”

These statutes should be utilized with extreme caution. Harking back to the days of having to prove fault as grounds for a divorce, many practitioners believe these statutes lead to extremely negative and costly litigation where an estate may try to take advantage of the surviving spouse in what had become a troubled marriage or may involve pitting “blended families” against one another in contentious litigation or even seek to assign blame when one spouse commits suicide.

While this author agrees with many of the negative sentiments expressed on this topic, repeal of these statutes while the law provides that the death of a party during a divorce has little or no effect on a soon-to-be-ex-spouse receiving all or a substantial share of the deceased spouse’s estate would be inequitable. Indiana’s Probate Code provides that a spouse cannot be appointed executor of the deceased spouse’s estate if a divorce is pending, but that divorcing spouse can nonetheless claim any individually owned property he stood to lose in the divorce, all jointly held property as the surviving co-owner, a spousal allowance of $25,000 and an intestate or elective inheritance if he is fortuitous enough to have his spouse die while the divorce is pending. If the “antiquated” Abandonment and  Adultery Statutes is to be changed, this harsh result should be changed also.

Thanks to Kent Jeffirs for his commentary on important issues concerning death during divorce. This conversation will continue in Law Tips next week as he provides more input for you on what divorce lawyers can do to protect clients’ estate rights. FYI, Kent offers a comprehensive discussion of the situations you may encounter with your clients during his CLE presentation, addressing subjects such as, executors, ERISA and divorce court jurisdiction. If you are interested in the Video Replay or the On Demand Seminar of  “The Main Event: Divorce Law vs. Estate Law & Designated Beneficiaries,”  Click Here.

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About our Law Tips faculty participants:
Kent A. Jeffirs is a sole practitioner in Crown Point, Indiana, who for the last 22 years has concentrated his legal practice in estate planning, probate and trust administration, guardianships, real estate and small business counseling. In 2007, Mr. Jeffirs was one of the first group of Indiana attorneys to be board certified as a Specialist in Wills, Trusts & Estates by the Indiana Trust and Estate Specialty Board. He has also testified in court proceedings as an expert witness on probate matters. Mr. Jeffirs received his B.A. degree, with honors, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Indiana University, Bloomington.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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