Tag Archive | "Family Law"

Despite Late Filing, COA decides Father’s Appeal on Merits

Family Law Case Review

Case: Charles Cannon v. Kristy A. Caldwell
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Despite Father filing his notice of appeal nearly one month late, the trial court’s modification of Father’s child support obligation was so manifestly unjust as to provide a compelling reason for the Court of Appeals to decide Father’s appeal on the merits.

HELD: The trial court’s child support order violated the Indiana Child Support Guidelines because it included in Father’s income his Social Security Income (“SSI”), even though SSI – a means-tested public assistance program – is excluded from the Guidelines’ definition of gross weekly income.

*The Court’s opinion refers to Father’s SSI benefit as “Social Security Income,” but “Supplemental Security Income” may have been intended.

FACTS AND PROCEDURAL HISTORY:  
Mother and Father divorced in 2011, pursuant to which Father was ordered to pay child support of $20/wk for two minor children. The children also received $93 per month, each, as a derivative benefit of Father’s Social Security Disability (“SSD”).  Father later became ineligible for SSD, which caused the children to stop receiving their $93/mo ancillary benefit. Father did, however, begin receiving SSI of $773 per month.  Mother filed a petition to modify child support.

The trial court held a hearing, with both parties pro se, which was conducted in summary fashion and in chambers. After the hearing, the trial court increased Father’s child support obligation to $35/wk.  Father filed a motion to reconsider and, later, his tardy notice of appeal.

Most of the Court’s opinion concerns the decision to accept Father’s tardy appeal due to “extraordinarily compelling reasons.” Having decided to entertain the case on its merits, the Court reversed the trial court’s modification order. “[T]he Indiana Child Support Guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation.”

The matter was reversed and remanded for further consideration, and a determination of whether a modification is appropriate without including Father’s SSI benefit as his “income.”  

To view the text of this opinion in its entirety, click here: Charles Cannon v. Kristy A. Caldwell

 

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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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Trial Court Did Not Err in Finding that Father was Voluntarily Underemployed, but Erred when Determining How Father’s Income Should be Imputed

Family Law Case Review

Case: Mark H. Miller, II v. Leigh Anne Miller
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not err in finding that Father was voluntarily underemployed, but the trial court erred when it determined the amount to which Father’s income should be imputed without evidence of prevailing job opportunities and earning levels in the community.

DICTA: When determining an income amount to which a parent should be imputed, this opinion suggests that the trial court is required to consider evidence of all four of the following factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. Failing to consider all four of these factors appears to be reversible error.

FACTS AND PROCEDURAL HISTORY:
Mother and Father married in 1999 and had four children together. Mother had been the primary caregiver for the children, but she obtained full-time employment in late 2009, at the about the same time Father lost his job as an insurance agent. Thereafter, Father became the primary caregiver to the children. Mother and Father agreed that Father should return to school, so in 2010, he enrolled part-time at IUPUI.

In 2014, Mother filed a petition for dissolution. At the time of the parties’ 2016 final hearing, Father was still attending IUPUI part-time, but he was also working 15 hours per week which earned him $250/wk. The trial court found Father to be voluntarily underemployed, and imputed him to income of $600/wk for child support purposes. The trial court’s findings suggested the $600/wk amount was based upon Father’s income history as an insurance agent. Father appealed.

Father’s primary argument on appeal was that the finding of voluntary underemployment was erroneous because Father’s decision to return to college was made by agreement with Mother, and that Father should not be penalized for making the decision to return to school. The Court of Appeals rejected these arguments, focusing on the fact that, at the time Father returned to school part-time in 2010, he was also the children’s primary caregiver; since then, Father no longer had the caregiving responsibilities — yet Father continued to take classes on only a part-time basis. “A reasonable inference can be drawn that the time Father spent in his caretaking function is now available for other purposes, yet he is working only fifteen hours a week.”

However, the Court of Appeals agreed with Father that there was insufficient evidence to support the $600/wk amount to which the trial court imputed Father. Interestingly, the opinion suggests that evidence of a party’s abilities and income-earning history, without more, is inadequate on which to determine an imputation amount. Instead, the imputation amount should be determined from four factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. The matter was remanded for a hearing on all four factors.

To view the text of this opinion in its entirety, click here: Mark H. Miller, II v. Leigh Anne Miller

 

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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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The Court of Appeals Remands for a New Consent Hearing, Noting Trial Court Erred by Denying Mother’s Due Process Rights.

Family Law Case Review

Case: SR v. MJ
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred by denying Mother her due process rights when, at the beginning of a hearing to determine whether Mother’s consent was required for an adoption of her child, the trial court did not afford Mother with her right to counsel, or to ensure that Mother was knowingly and voluntarily waiving same.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child together in 2009. Paternity was established, and orders were issued for custody, parenting time, and child support. Father was awarded custody. Mother apparently had a problematic relationship with alcohol that resulted in legal and other problems. There was some dispute about the amount of contact Mother had with Child thereafter.

In 2013, Father remarried Stepmother, who became the primary caretaker of Child. Stepmother later filed a petition to adopt Child, reciting that Mother’s consent was unnecessary due to Mother’s abandonment and failure to support. When Mother received notice of the adoption proceeding, she filed a pro se objection.

In 2015, the adoption court held a consent hearing. At the outset, Mother requested counsel. After inquiring as to Mother’s financial condition, the adoption court determined that Mother, who made $10/hr at one job and $7.50/hr at another, had sufficient income to pay for an attorney and therefore Mother had made a “voluntary choice” to proceed without counsel. The hearing proceeded. Stepmother presented her case, including testimony from Stepmother and Father. Mother made no cross-examination.

At some point during Mother’s case-in-chief and testimony, Stepmother expressed an objection that the trial court, from Stepmother’s perspective, was asking questions and participating in the hearing as though advocating for Mother. As a result, the court continued the hearing and appointed counsel for Mother.

The adoption court began the next hearing, at which Mother appeared with appointed counsel, by announcing that this was not a “new hearing,” but would pick up where the earlier hearing left off. Mother offered more of her own testimony.

After the hearing, the adoption court concluded that Mother’s consent was not necessary for the adoption, citing Mother’s insufficient contact with Child. The court later granted Stepmother’s adoption as in the best interests of Child. Mother appealed.

The Court of Appeals noted that a parent whose parental rights are subject to termination in an adoption proceeding has three rights: (1) the right to be represented by counsel; (2) the right to have counsel provided if the parent cannot afford counsel; and (3) the right to be informed of the first two rights.

The Court of Appeals disagreed that Mother had voluntarily proceeded without counsel, as she requested counsel as soon as she learned that court-appointed counsel was a possibility. And, despite finding Mother was able to afford counsel, the trial court did not afford Mother an opportunity to acquire counsel or encourage her to do so. The adoption order was reversed and remanded for a new consent hearing, for which Mother should have counsel for its entirety, absent a knowing and voluntarily waiver by Mother of that right.

To view the text of this opinion in its entirety, click here: SR v. MJ

 

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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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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.

 

_________________________________________________________________________________

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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