For Muncie and Delaware County: They Are Looking for CASA Volunteers

From The Muncie Star Press comes Session planned for Delaware County CASA volunteers

The Delaware County Court Appointed Special Advocate Program is now accepting applications for its winter training program. As the number of abused and neglected children continues to grow, the need for committed volunteers is greater than ever.

An informational session for anyone interested in learning more about the CASA program will be 5:30-8:30 p.m. Feb. 1 in the training room at the Youth Opportunity Center, 3700 W. Kilgore Ave.

***

Training dates for those interested in volunteering for CASA will be Feb. 3, 8, 10, 15, 17, 22 and 24 and March 1.

All sessions will be 5:30-8:30 p.m. in the YOC training room.

Those interested in volunteering should call the CASA office at (765) 747-7875. Applicants must be at least 21 years old and will be required to complete a screening process, including a criminal background check.

Attorney Fees: Those That Are Court Ordered

Indiana law generally allows for what we call fee shifting - one party pays the other side's attorney fees.  For background on this read my Attorney Fee FAQ from  Indiana Family Law Blog .

Last month I had a Delaware County Circuit Judge explain to me and opposing counsel his method for dividing attorney fees in a child support modification case. I never heard another judge using this method - and so far it has impressed every lawyer I mentioned it to.  ( I should add that opposing counsel, a Muncie native, appeared to be surprised when he heard the judge's idea).

The judge's method consisted of having both us multiply our fees by the percentage of each party's share of the combined weekly income found on the Child Support Worksheet.  Then to have us subtract the lesser fee from the larger fee - just as the Child Support Guidelines have us do when there is split custody.

No statute or rule created this method.  So far as I know, only one Delaware Circuit Judge employs this method.  I do think the method has more rationality than is common in deciding what fees are to be paid by or to the other side. Its rationality makes the method interesting.

Rationally ordering fees is not something I expect and stories like what Pennsylvania Family Law wrote about in Counsel Fees astound me:

Next we received a counsel fee petition.  The dependent spouse owed her counsel tens of thousands of dollars even after securing a substantial retainer. We resisted this request vigorously arguing that the facts were apparent from the beginning and the litigation almost completely unnecessary.  When the request for attorneys fees did not go in the direction she aspired, the opposing counsel filed a petition to withdraw.

The wife filed an answer professing that she had wanted to settle her case all along but that her attorney had told her the litigation was necessary and that her husband would be required to pay her attorneys fees.

We don’t know whether these allegations are true. But we can state almost without exception, that if an attorney tells a client in a domestic relations proceeding that he or she is certain to secure attorney fees in that proceeding, a second opinion should be secured. Even in cases where there is a contractual undertaking for a party breaching an agreement to pay attorneys fees, we have found that courts award such fees on a very conservative basis.  And in situations where attorneys fees are sought by reason of statutory allowance (i.e., the law expressly allows award of attorneys fees) such awards are usually a fraction of what is sought.

I suggest reading my A Phrase to Remember: Financial Attrition. for all that is wrong with the general attitude with this kind of litigation.  However, I find even more wrong with the other attorney in this story.

What lawyer in their right mind guarantees anything from a judge? Especially about fees.  Judges will cut fees or not grant fees, and there is very little that can be even on appeal.  The standard being abuse of discretion, Indiana's appellate courts will generally uphold the trial judge's decision. Some counties have been explicit about how they award some fees  So far I have cataloged  Fayette and Grant Counties (out of Howard, Henry, Madison, Delaware, and Ripley).

Locally, we had a commissioner notorious for his not allowing fees in any case.  His theory being that the lawyers needed to get some money down on a case.  (I do not have time to go into why this actually was a good thing - locally).  In a civil suit, I had another judge cut my fee to an amount that still makes no sense to me. (Nor did it make any sense to opposing counsel at the time.  His response was the the judge did it to all lawyers including himself ).  For more on Madison County fees, give my What are Lawyer's Fees in Madison County, Indiana? a look.

Just to give another side to this story, I had a Grant County case where the judge did award $1,000.00 at a provisional hearing (actually after two provisional hearings which included a protective order issues).

About the only time I can guarantee a court generally ordering a fee involves contempt cases - if one wins the case.  Even then, there is noting guaranteeing that a judge will not cut the fee from what the lawyer shows as being earned and due.

Delaware County's Mediation Program - A good idea from Muncie

Let me say that I think Delaware County has hit on a great idea. (Although I understand that there is some connection with the Henry County Circuit Judge as the possible originator.  I think its greatness lies in overcoming my two objections to mandatory mediation.

I am writing about this because I think it is a program that would be worth imitating in other parts of Indiana.

I learned over the past month that the Delaware County Courts started a mediation program this past year.  Not much seems to be known - even by the Muncie attorneys about the program or how it works.  Thanks to Jennie Scott, a Muncie attorney, who opposes me on a case in Muncie, I got the start of an education.

I probably should also thank Tom Cannon of Delaware Circuit Court 5 for explaining a bit of the process during a hearing this past Friday.  And the Delaware County Court Administrator for giving me a packet that I spent Sunday scanning in and uploading. Also, I understand Judge Voorhees of Delaware Circuit Court 1 lobbied for this program.

What are those objections might be worth mentioning:

1. That it is mandatory:
   

I do not like mediation when it is forced upon a case automatically.  Yes, I am thinking of you , Marion County.  While this may come as a surprise to non-lawyers, judges some times take a dim view of lawyers.  I think mandatory mediation is a symptom of judge's not trusting lawyers to recognize the cases where mediation is not going to work.  Yes, judges, we do know when the parties will not listen to reason and need your judgment.  Just as judges should know which lawyers will not settle a case because they wish to pump up their fees.

Delaware County does make mediation mandatory. (See the Order creating the Delaware County (Indiana) Alternative Dispute Resolution Fund Plan.)

2.  Mandatory mediation does give any relief to those who cannot afford paying mediators and attorneys.

I have a case in another county where the judge refuses to rescoind a mediation order - even though the parties have little money to pay for anything.

First, Delaware County created a fund to pay mediation costs (which at $75.00 per hour msut be a bit discounted by the mediators).  See the Order and Delaware County notice re fees - Delaware County added $20.00 to the amount for filing fees to pay for its mediation program.

Second, the Order requires co-payment by the parties and the County created this Sliding Fee Schedule.  This chart showing how Delaware County determines the co-pay for its mediation program although I want to note something I learned in Friday's hearing.  The judge combines the parties' income to get the income figure and the co-pay is then divided between the two (so a $40.00 co-pay becomes $20.00 paid by the parties).

Judge Cannon stated the reason for the co-pay was to give the parties a financial incentive for participating in the program.

Lastly, Here the attorneys move the case into mediation and then they get out (take a look at the Delaware County Waiver of representation ).


So what is good about mediation?

It gives people - the parties, the clients - a chance to deal with the emotional issues that underpin so much of family law cases.  The courts have no means of dealing with those issues - they are designed only to deal with the wholesale legal issues and not the retail issues of the case.  As a lawyer, I am the client's advocate and those issues conflict with that role.

If you think that your county could use a program like this, then talk to your judges and pass along this information.  Nothing will change unless there is an effort made.

For those interested, I have posted the following documents elsewhere online:

Delaware County Circuit Court ADR Project Waiver and Consent to Release Confidential Information Form  -  Client release form

 Instructions for Completion of Alternative Dispute Resolution (ADR) Project Plan -  The title sums this up pretty well.  These are the  instructions for completing the Delaware County, Indiana Alternative Dispute Resolution (ADR) Project Plan forms that are also posted here

Delaware County Facilitation Agreement - An agreement signed by the parties setting out understanding of ADR project and what they agree to do during mediation.

Delaware County Intake Form - The form used by Delaware County Courts as for intake for the County ADR program.

Delaware County Mediation Order - sample order

Mediation outcome What appears to be form used by the Delaware County mediation program as report to the court and parties on the mediation's income.


Delaware County Mediation Program Survey - Delaware County has a form for surveying the participants in its mediation program.







.

Delaware County Local Rules: Child Support Modification Orders

How often do we see a problem where the the support set up card has not been changed with the County Clerk? Or where the support arrears gets automatically set up on the Clerk's records. Muncie has a solution to this problem:

LR18-DR00-DLR-004 B. Order of Modification. Commencing on July 1, 2000, all Recorded judgment Orders on Petitions to Modify Support Payments shall be accompanied with a change in support payment sheet. The Recorded Judgment Order submitted for signature WILL NOT be signed without a change in support sheet completed and attached, or proof that the same has been done with the Support Clerk of Delaware County. With the above procedure being followed, any arrearage to be determined will be computed automatically on the support records and will allow the attorneys access to said arrearage immediately.

Delaware County: Modifying Custody or Spousal Maintenance or Child Support in Delaware County

Here lies some problems of local rules. Pay attention to this Delaware County Local Rule for Domestic Relation Cases:

A. Petition for Modification. No Petition for Modification of Custody, Child Support, or Spousal Maintenance will be entertained unless a full year has elapsed from the date of the last decision of the court pertaining to custody, support or maintenance, except on showing by a verified petition requesting a hearing and setting forth in detail that an extreme emergency exists.

I have never seen any of the Muncie lawyers raise this in any case of mine. On the other hand, I am not sure that any case of mine violated this rule. Maybe it is used often and maybe it is forgotten. Still, I see some problems with this rule and one oddity.

First, extreme emergency goes undefined. Indiana's statutes neither define extreme emergency nor contain this requirement.

Which leads to the next set of problems. Indiana statutes set out when a custody or child support order may be modified by a court.

Here is the statute setting out the grounds for a custody modification:

IC 31-17-2-21
Modification of child custody order
Sec. 21. (a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
(c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.

I think an extreme emergency does not necessarily equal a substantial change. Therefore, the local rule ought not impede the filing of a custody modification. If it were, then budget for an appeal to the Indiana Court of Appeals.

About child support or maintenance modifications, the following statute creates the same problem for the Delaware County Local Rule:

IC 31-16-8-1
Modification or revocation of child support order or maintenance order

Sec. 1. (a) Provisions of an order with respect to child support or an order for maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5-9(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, modification may be made only:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:

(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

(c) Modification under this section is subject to IC 31-25-4-17(a)(6).
As added by P.L.1-1997, SEC.8. Amended by P.L.103-2007, SEC.19.

Again, I disagree that the Local Rule can impede a support modification unless there is no showing of a substantial and continuous change. I also do not think that an extreme emergency equates to a substantial and continuous change - the former seems far more severe than the latter.

As I wrote above, I have not had to deal with any case where these rules came up but as I also wrote in Local Rules: "Until the Internet came along, I think they were mostly gotcha tools for out of county attorneys." This Rule has all the appearances of a "gotcha" for the unwary attorney or pro se party. Not the best idea I have seen out of Muncie.

More counties with financial declarations

Having written Madison County Local Rules: LR48-FL00-17 FINANCIAL DECLARATIONS/SUPPORT WORK SHEETS and Forms - Indiana Financial Declarations, I thought a short review of other counties requiring a financial declaration might be of use. I started with the counties surrounding Madison County but only Henry County and Hamilton County have rules on financial declarations. So I expanded the review to counties where I have practiced and continue to do so. Then I wrote Family Law and Pretrial Conferences - Riffing on Marshall County's Local Rules and noticed Marshall County required a financial declaration. Which lead me to adding Marshall County.

Of my usual counties, that leaves Grant, Delaware, Tipton, Blackford, Hancock and Howard Counties not requiring a financial declaration.

Please, do not think this list exhausts all of Indiana's counties. Remember that the rules requiring financial declarations are local rules. However, the Indiana Judicial System has a trial courts page and from this page a one can find a county's local rules. Scroll down the page till you see a box indicating local rules and a link.

I guess most will find it odd that only two counties provide online access to their forms. Those counties being Hamilton and Marion County (which they include in their local rules as appendixes). I can only offer up that courts may not as comfortable with the Internet as other government agencies. Which will mean a trip to the county clerk or court administrator's office for the other counties (hint: call first).

Henry County:

(B) CONTESTED FINAL HEARINGS. At contested final hearings, counsel are directed to prepare and submit a list of assets, list of debts, and proposed distribution of assets and debts indicating those items which are in dispute along with any other supporting documents or exhibits. Requests for exemption from this rule will be handled on a case by case basis.

Hamilton County:

LR29-FL00-402. FINANCIAL DECLARATIONS, SUPPORT WORK SHEETS, VISITATION, AND CHILDREN COPE WITH DIVORCE WORKSHOP
402.10 Parties shall complete in full Indiana Child Support Obligation Worksheets (Form FL00-402A) and Financial Declarations (Form FL00-402B) on the forms adopted by the Court in all contested matters involving child support or disposition of assets. Parties must date and file these forms prior to any hearing or trial. Financial Declarations shall be exchanged by the parties and filed with the Court not less than three working days before any preliminary hearing and not less than ten working days before the final hearing. Child Support Worksheets shall be exchanged and filed with the Court on the hearing date. Child Support Worksheets must be attached to all proposed orders and decrees addressing child support.

402.20 If there are any assets or obligations not disposed of by written agreement between the parties, the litigants must prove the value of the assets and the amount of obligations at the hearing. Financial Declarations shall be considered as received in evidence subject to crossexamination. Direct examination, on matters in the Financial Declaration, should be confined to unusual factors which require explanation, or to corrections

Marion County:

LR49-FR00-504. FINANCIAL DECLARATION FORM

A. Requirement2. In all family law matters, the initiating party shall complete, serve and file a Financial Declaration Form within 30 days of filing a Petition for Dissolution of Marriage, Legal Separation or to Establish Paternity or a Petition for Modification of Child Support or at least seven days prior to any hearing, whichever is sooner. A blank form shall be served upon the responding party with the summons or order to appear instructing the respondent to complete, serve and file the form within 30 days of receipt or at least seven days prior to any hearing, whichever is sooner. Failure by any party to submit the Verified Financial Declaration Form as required shall preclude him or her from presenting evidence as to those matters contained in the Verified Financial Declaration Form, except for good cause shown. These time limits may be amended by court order for good cause shown.
B. Exceptions. The Financial Declaration Form need not be exchanged if:

1. The parties have obtained leave of court;
or
2. The parties have a signed agreement;
3. The proceeding is one in which the service is by publication and there is no response;
4. The proceeding is post-decree and concerns issues without financial implications. Provided, however, when the proceeding is post-decree and concerns only a child support arrearage, the alleged delinquent party shall complete the entire Form, while the support recipient need complete merely that portion thereof which requires specification of the basis of the arrearage calculation.

C. Admissibility. Subject to specific evidentiary challenges, the Financial Declaration shall be admissible into evidence upon filing.
D. Supporting Documents. For the purpose of providing a full and complete verification of income, assets, liabilities and values, each party shall attach to the Financial Declaration Form all nformation reasonably required and reasonably available. At the minimum this shall include current wage records, income tax returns and supporting documentation. "Reasonably available" means that material which may be obtained by letter accompanied with an authorization, but does not mean material that must be subpoenaed or is in the possession of the other party. The court may require either party to supplement the Financial Declaration Form with appraisals, bank records, and other supporting documentation. Such supporting documentation shall not be attached to the Financial Declaration filed with the court, or , if attached, shall have all information redacted as necessary to comply with Indiana Trial Rule 5
(G). Supporting documentation, if relevant, may be admitted into evidence at a hearing as an exhibit subject to the Rules of Evidence.
E. Financial Declaration Forms -- Mandatory Discovery. The exchange of Financial Declaration Forms constitutes mandatory discovery and Indiana Trial Rule 37 sanctions apply. The Forms shall be supplemented if additional material becomes available pursuant to Indiana Trial Rule 26(E)(2).

Allen County:

LR02-TR26-710 Financial Declaration Form

(1) Requirement. In all relevant family law matters, (except support matters enforced by the State), including dissolution, separation, paternity, post-decree and support proceedings (excepting provisional hearings), the parties shall simultaneously exchange Financial Declaration Forms seven (7) days prior to any hearing. The Financial Declaration Form shall be submitted to the Court during the hearing. The Financial Declaration Forms shall be in a format approved by the Court. These time limits may be amended by the Court for good cause shown.

(2) Exceptions. The Financial Declaration Form need not be exchanged or filed if:
(2.1) The Court approves the parties’ written agreement to waive the exchange;
(2.2) The parties have executed a written agreement that settles all financial issues;
(2.3) The proceeding is one in which the service is by publication and there is no response; or,
(2.4) The proceeding is post-decree and concerns issues without financial implications.
(3) Admissibility. Subject to specific evidentiary challenges, the
Financial Declaration Form shall be admissible into evidence during the hearing. The submission of the Financial Declaration Form shall not prohibit any other relevant discovery permitted under the Indiana Rules of Trial Procedure.

Boone County:

LR06-FL00-BLR-16
FINANCIAL DECLARATIONS, SUPPORT WORKSHEETS, AND CHILDREN COPING WITH DIVORCE WORKSHOP
(1) Parties shall complete an Indiana Child Support Guideline Worksheet and Financial Declarations on forms adopted by the court and in all contested matters involving child support or disposition of assets. Parties must date and file these forms prior to any hearing or trial. Financial Declarations shall be exchanged by the parties and filed with the court not less than three working days before any preliminary or final hearing. Child Support Worksheets shall be exchanged and filed with the court on the hearing date. Child Support Worksheets must be attached to all proposed orders and decrees addressing child support.
(2) If there are any assets or obligations not disposed of by written agreement between the parties, the litigants must prove the value of the assets and the amount of obligations at the hearing. Financial Declarations shall be considered as received in evidence subject to cross-examination. Direct examination, on matters in the Financial Declaration, should be confined to unusual factors which require explanation, or to corrections.

Ripley County:

LR69-FL02-14 SUBMISSION OF FINANCIAL DECLARATION FORM
A. Requirement: In all relevant family law matters, including dissolutions, legal separations, paternity and post decree support or maintenance proceedings, the moving party shall prepare and serve a Financial Declaration Form on the opposing party or their counsel within thirty (30) days of the date of the filing of the action. The responding party shall prepare and serve a Financial Declaration Form within twenty (20) days after receipt of service of the moving party’s declaration. These time limits may be amended by court order for good cause shown after motion or by written agreement of the parties filed with the Court.
B. Exceptions: The Financial Declaration Form need not be exchanged nor settlement conference conducted if:

1.) The parties agree in writing to waive exchange.
2.) The parties have executed a written agreement which settles all financial issues.
3.) The proceeding is one in which the service is by publication and there is no response.
4.) The proceeding is post-decree and concerns issues without financial implications. Provided, however, when the proceeding is post-decree and concerns only an arrearage, the alleged delinquent party shall complete the entire Form, while the support recipient need complete merely that portion thereof which requires specification of the basis of the arrearage calculation (with appropriate supporting documentation); or
5.) Where the gross marital estate in a dissolution or legal separation is $5,000.00 or less.

C. Admissibility: Subject to specific evidentiary challenges, the Financial Declaration shall be admissible into evidence upon filing and shall comply with Indiana Administrative Rule 9 and Indiana Rule of Trial Procedure 5(G).
D. Supporting Documents: For the purpose of providing a full and complete verification of income, assets, liabilities and values, each party shall attach to the Financial Declaration Form all information reasonably required and reasonably available. At the minimum, this shall include income tax returns and supporting documentation and current wage records. Reasonably available means that material which may be obtained by letter accompanied with an authorization, but does not mean material that must be subpoenaed or is in the possession of the other party. The Court may require either party to supplement such Financial Declaration with appraisals, bank records, and other evidence to support the values set out therein.
E. Financial Declaration-Mandatory Discovery: The exchange of Forms constitutes mandatory discovery. Thus INDIANA TRIAL RULE 37 sanctions apply. Additionally, pursuant to INDIANA TRIAL RULE 26(e) (2) and (3), the Form shall be supplemented if additional material becomes available.

F. Within ninety (90) days of the date of filing conduct and verify to the Court that a settlement conference between the parties and counsel has been conducted and report to the Court any stipulations or agreement which have arisen from the settlement conference. This section of the rule shall not apply unless both parties are represented by counsel.
G. In all matters involving support, each party shall submit to the Court a completed Child Support Obligation Worksheet with supporting documentation within sixty (60) days of the filing of the petition.
H. The Financial Declaration Form and Child Support Obligation Worksheet is available from the Clerk.
(4) Financial Declaration –Mandatory Discovery. The exchange of Financial Declaration Forms constitutes mandatory discovery, and Trial Rule 37 sanctions are applicable. Additionally, pursuant to Trial Rules26 (E) (2) and (3), the Financial Declaration Form shall be supplemented if additional information becomes available.

Marshall County:

(B) The parties shall file one document listing all property and indebtedness to be divided by the Court prior to the commencement of the final hearing. The parties shall also set forth on the document each party’s valuation of the item or debt to be divided and indicate whether the party wishes to have the item or debt assigned to them or to the other party. The final hearing shall not commence without the appropriate document being provided.

Indiana Forms: Child Support Change of Address/Name Form

The Delaware County Clerk has some forms that are of importance and use for family law cases.

You need the Child Support Change of Address/Name Form whenever you are the one receiving child support and are moving to a new location. I know of no reason that the same form could not be used in other counties - provided that the name and address for the county clerk is changed,

Delaware County seeking volunteers for CASA program

CASA means Court Appointed Special Advocate. The article in the Muncie Star-Press pretty does a good job of describing their duties:

CASA volunteers act as advocates for children passing through the court system, gathering “relevant information about a particular child and then making recommendations to a judge as to what the volunteer believes would be in the child’s best interest,” according to a press release.

These volunteers do need commending as they serve an important role in our family law cases. Call the CASA office at (765) 747-7875 if you are interested in volunteering.

The article can be found here and has more details.