Military Service, Jurisdiction and A New Case from The Court of Appeals

Having discussed jurisdiction and service in Got to Have Service on the Other Side and More on Got to Have Service on the Other Side, let me bring up a recent Indiana Court of Appeals case In re: the marriage of Anthony J. Harris v. Teasha J. Harris. Thanks to a lack of personal jurisdiction, the case had to start over.

And before anyone gets overly excited, the case turns on the fact that the husband was on active military duty in Germany and wife failed to comply with the Solider and Sailor's Relief Act and so will not translate easily to a wide range of cases.

The case does bear reading for military service issues. I seem to be having an increase of cases involving service members and the case serves as a good reminder that a different set of rules apply to active duty members of the Armed Services.

The Indiana Lawyer noted the case here: Trial court didn t have personal jurisdiction over serviceman.

More on Got to Have Service on the Other Side

I have to make a comment about a recent case of mine and Indiana Trial Rule 4(E). Adding this to Got to Have Service on the Other Side seemed to make the earlier post a bit too long.

This part of Rule 4 reads as follows:

(E) Summons and Complaint Served Together--Exceptions. The summons and complaint shall be served together unless otherwise ordered by the court. When service of summons is made by publication, the complaint shall not be published. When jurisdiction over a party is dependent upon service of process by publication or by his appearance, summons and complaint shall be deemed to have been served at the end of the day of last required publication in the case of service by publication, and at the time of appearance in jurisdiction acquired by appearance. Whenever the summons and complaint are not served or published together, the summons shall contain the full, unabbreviated title of the case.

Back in January, I had an opposing attorney try to dismiss a paternity complaint on the grounds that their client had never gotten a summons. Opposing counsel would have been on much better ground but for a couple of things:

1. There had not been an emergency hearing about 10 days before;
2. That prior to the emergency hearing, his client had been handed a copy of the paternity petition; and
3. Our local rules on emergency hearings follow the rules for temporary restraining orders, and those rules had been complied
   

Opposing counsel lost his motion to dismiss. It would have been better that a summons had been issued after the emergency hearing just as it might have been a shorter argument if I had remember Trial Rule 4(A) and (E). After all, the opposing party had appeared and the court had acquired jurisdiction by virtue of her appearance.

Got to Have Service on the Other Side

The Indiana Lawyer's COA rules on service of summons issues does not report on a family law case, this is subject still needing attention.

Gohl filed his motion arguing the judgment against him was void for lack of service of process. The Court of Appeals judges agreed and reversed, finding the trial court didn't have personal jurisdiction over Gohl when it rendered the default judgment against him. Colonial failed to specifically comply with T.R. 4.13 as it pertained to effecting service of process of publication against Gohl, and it didn't perform a diligent search to determine Gohl's whereabouts. The company relied on one search that turned up a B. Gohl on the opposite end of the state from what county was listed on the mortgage. The Court of Appeals remanded with instructions for the trial court to grant Gohl's motion.

***

The service of summons on the Elliotts didn't follow T.R. 4.1 because the sheriff who served a copy of the foreclosure action at the house didn't also send a copy by first-class mail. The appellate court didn't rule on the issue of whether it was improper because it had found in the Elliotts' favor based on other reasoning. But the judges did caution practitioners, trial courts, and law enforcement personnel to be mindful of the requirements of Trial Rule 4.1(B).

No service, then no further proceedings until there is service.

Why not? Because proceeding would violate federal and state constitutional rights. At a minimum, due process requires notice and a chance to be heard by a court.

Indiana Trial Rule 4 explains a bit more the importance of service:

(A) Jurisdiction Over Parties or Persons--In General. The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.

This part of Trial Rule 4 sets out what the summons is to have in it:

(C) Form of summons. The summons shall contain:

(1) The name and address of the person on whom the service is to be effected;

(2) The name, street address, and telephone number of the court and the cause number assigned to the case;

(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;

(4) The name, address, and telephone number of the attorney for the person seeking service;

(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.

The summons may also contain any additional information which will facilitate proper service.

For those interested in doing their own documents, check with your local County Clerk for forms.

Indiana has 17 rules on service (follow the links to Trial Rule 4.1(B) and Trial Rule 4.13 as mentioned above). I think that pretty much describes the importance of service.

Fee Agreements - What Applies In New York and Indiana

Image by publik16 via Flickr

Divorce Saloon published Retainer agreements and your divorce: A primer. Some applies directly to Indiana,

In New York and most other if not all other states in the Union, a retainer agreement in matrimonial actions is a requirement. Failure to execute one and provide a client with a Statement of Clients Rights and Responsibilities could preclude an attorney from getting paid one dime in the divorce action. It is a very serious infraction. As a matter of fact, here in New York, an attorney is required to file the retainer agreement with the court along with the client’s statement of Net Worth at the very beginning of the case, so that the court can assess whether or not the attorney’s fees and terms comply with state law and mandates.

It doesn’t matter if the divorce is contested or uncontested. An attorney is required to have a retainer agreement for ANY matrimonial action that he or she handles because guess what? A lot of uncontested divorces, so called uncontested divorces, actually turn out to be contested. And the attorney is required to have the terms of such an eventuality spelled out for the client at the beginning of the case or risk not getting paid if the thing turns ugly.

Okay, New York is a whole lot tougher than Indiana. Our fee agreements are definitely not filed with the court (which makes me wonder if the New York fee agreements are then open to the public - and therefore other lawyers. Indiana lawyers really have no idea what everyone else is charging until and unless we ask the court for payment of fees by the other side.)

Indiana's Rule of Professional Conduct 1.5 applies to our fee agreements. The main parts dealing with family law matters are these:

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution or upon the amount of maintenance, support, or property settlement, or obtaining custody of a child; or

(2) a contingent fee for representing a defendant in a criminal case.

This provision does not preclude a contract for a contingent fee for legal representation in a domestic relations post-judgment collection action, provided the attorney clearly advises his or her client in writing of the alternative measures available for the collection of such debt and, in all other particulars, complies with Prof.Cond.R. 1.5(c).

Back to Divorce Saloon's article, and its listing of what should be in the fee agreement:

1. Names and addresses of the attorney and client.

2. The hourly fee/rate

3. Amount of any advance retainer and what it covers.

4. Whether the agreement covers appeals, family court proceedings or any other proceedings in addition to the divorce action.

5. the right of the client to fire the attorney at any time or to seek other counsel at any time.

6. Whether the attorney would require an additional retainer for trial or not.

7. Frequency of itemized billing.

8.under what circumstances the lawyer may seek to withdraw from the case and the attorney’s right to seek a charging lien.

9. Client’s right to be kept abreast of the case and receive correspondences if requested.

10. all other pertinent terms and conditions.

Frankly, I would think 1 -7 would not need much explaining to the general public. Everybody wants to know what will be the cost and what they are paying for. Eight and Nine, I spell out in my fee contracts because most clients doe not seem to understand that lawyers are supposed to communicate with them (see Indiana's Rule of Professional Conduct 1.4) or that we can withdraw from a case (see Indiana's Rule of Professional Conduct 1.16). But I got to say that I am not sure what comes under the heading of "ll other pertinent terms and conditions," and it probably does leave the general public scratching their heads.

So far, I have published on Scribed my fee agreement for visitation cases, child support cases, and for uncontested divorces. Between sick kids, work and an attack of bronchitis, I have not finished with revising all of my fee agreements. Keep checking my documents at Scribd as that is where I will be posting them.

Just Because There is a Law

Everyone should read Lesson Learned From Case of Child Abducted to Brazil and Retained for Five Years: An International Convention is Only As Good as Its Enforcement Mechanism from Florida Divorce * Child Custody * Domestic Violence Law Lawyer for more than its obvious topic:

Yet, in a recent case there, the Indian Supreme Court ruled that an Indian Wife who had been permanently residing in the UK with her Husband and their child, must return to the UK with their child for custody proceedings there.

Ultimately, the adverse impact of Brazil’s conduct on future trade with the US may have propelled Brazil to finally send the boy home.

Now, a Congressman from that boy’s home state, New Jersey, has introduced legislation intended to promote enforcement of the Hague Convention by appointing an official to monitor compliance and to empower the government to impose sanctions for noncompliance.

Enforcement falls down for two reasons: 1) the parties think someone else will enforce their court order; or 2) the court itself does not do as it should. The Brazil case falls in the second category.

Without a person taking action a court order remains only paper.

When one of our courts go off into the weeds, the remedy is an appeal.

A statute is only as good as its enforcement mechanism.

Courts Cost Money

For those wanting to understand a bit more the courts in your life, and for those who think we need judicial reform (particularly child custody matters), this post is for you.

Indiana's Chief Justice must give a yearly State of the Judiciary speech to the Indiana General Assembly. From The Indiana Lawyer's report on his speech, Chief justice: courts handling the tough times, I latched onto the following paragraphs:

The chief justice encouraged lawmakers to support any measures designed to help the judiciary collect all revenue that the law says is due from court operations so that it can go directly to state and county budgets that need it. Because requests for new courts and judges just aren't reasonable because of the economic state, the chief justice urged lawmakers to support legislation that would allow retired magistrates to also work as senior judges to ease local caseloads.

Additionally, the chief justice recommended that lawmakers support legislation that would create a framework for new veterans' courts, problem-solving courts that would allow the judiciary to better deal with those with special disabilities stemming from military service pressures. This would mimic what's already been done with drug and re-entry courts, he said.

"This bill has no fiscal note at all, and indeed the net of these three ideas is revenue positive," he said, adding to a message that the judiciary will do all that it can to assist in these tough times.

***

Chief Justice Shepard also pointed to areas the judiciary has worked on during 2009: a statewide electronic protective order registry system is enacted in every county, and hundreds of law enforcement agencies have used the e-citation system implemented in the past year. He also pointed out the 1,112 attorneys and judges who've been trained to help in mortgage foreclosure cases, and that the judiciary will soon put facilitators into foreclosure-settlement sessions to help. In addition, the number of new volunteers trained as court-appointed special advocates in 2009 increased 26 percent over 2008.

He also spoke about how the state's judicial branch is about ready to unveil new statewide jury instructions that will be easier for non-attorneys to understand and how a statewide assessment tool for juvenile offenders in the Department of Correction has been adopted.

Even if there was a role for a court to act in a more policeman role, that is a more activist role, there is no money for them to do so.

Even more specifically about family law and judge, The Indiana Lawyer published State funding of judges being explored

Lawmakers rejected a southern Indiana county's request this week for a new judge to run a family court, even though it proposes paying for it locally rather than with state money. But in declining to attach the magistrate-turned-judge idea to another bill, a House committee said it wants to keep talking about the issue that could be a policy-altering move in how Indiana pays for its trial court judges.

The House Judiciary Committee approved HB 1154, which would allow Marion County to convert its 24 appointed commissioners to magistrates that hold the same responsibilities but would be able to consider a wider range of issues within each court. The county proposes paying the $2.3 million for those magistrates with a $35 fee tacked on to traffic infractions, which has been collected since 2004 and is by law turned over to the state general fund. The fee initially went into place to pay for jail overcrowding costs, but that issue has been largely resolved and the fee isn't used for that anymore. Now, the state's largest county wants to use that money to save the state from having to pay for the county magistrates or pay for adding new judicial officers.

***

Committee members voted 11-0 in support of the idea, but not before voicing hesitation about a proposal by Rep. Eric Koch, R-Bedford, to amend the legislation so that Bartholomew Superior Court could also convert a commissioner position into a new Superior judgeship starting in July 2011.

This would allow the county to convert a current commissioner, who hears only child support non-payment cases, to a judge that could hear all family-related case types. Bartholomew Circuit Judge Stephen Heimann proposed using the same kind of funding mechanism as Marion County is proposing in its commissioner-to-magistrate conversion - using a fee of at least $20 on traffic infractions that would go to the state general fund. If anything fell short of the estimated $150,000 needed, the county would be responsible for making up the difference. An estimated $189,000 per year could be raised from the fee, and be applied not only to the judge's salary but also benefits, Judge Heimann said.

Even without this having a state fiscal impact, Rep. Trent Van Haaften, D-Mount Vernon, questioned why the proposed amendment didn't call for a commissioner-to-magistrate change as Marion County's proposal did, but rather a commissioner-to-judge. In response, Judge Heimann said it was specifically because the county needed a new family court and needed a judge's authority to hear all of those issues that might come before it.

Just in case anyone thinks this only an Indiana problem, give a read to The Future of Divorce in MN

The court system is in a financial crisis. This crisis has been articulately described by Chief Justice Eric J. Magnuson in highly publicized interviews he has given to the media. I have read some of his interviews, and I have to say that I think he is right. (I also have to disclose that, technically, I work for the Minnesota Supreme Court. My license to practice law is granted by the Minnesota Supreme Court, and in some sense Chief Justice Eric J. Magnuson is my “boss.” Regardless, I feel that he is right and I think that anyone who has an interest in the Minnesota court system should make known to their legislators how important it is that the court system be adequately funded.)

In a practical sense, the lack of funding effects every person who is getting divorced in Minnesota. The court filing fee is now $400. It could increase. It costs $100 to file a motion in divorce court, and it even costs $25 to send a fax to the court. These are the costs that are easy for people to recognize.

However, there are other costs. The funding for child custody and parenting time evaluations in Hennepin County has been reduced significantly. Now, judicial officers are talking about parties using private evaluators. Private evaluators typically charge thousands of dollars for a custody or parenting time evaluation.

Unpaid, overworked describes every court I know of.

Tips on Handling the Other Parent

Good advice here coming from Divorce, it's just the beginning blog's We Assume a Rational World.

There are no quick fix answers to any of these questions. Each divorce in unique and a “one size fits all” answer doesn’t exist. Keeping this in mind, there are some things a parent can do to minimize the irresponsibility the other parent exhibits. My first suggestion is DON’T lie or cover for the other parent. The children are going to have to figure out their relationship with both parents and cannot do this if they are being presented with misinformation. The parent also should not highlight or dwell on the irresponsible behavior of the other parent by engaging in talking negatively about them.

Try to role model for your children the types of behaviors you want them to exhibit as they grow into adulthood. If you are yelling at them, you are teaching them to yell. If you complain all the time, you are teaching them to complain. Try to show your children the way you want them to act by modeling that behavior. If your ex-partner misses visitation, be there for your children to let them talk about how they feel while letting them know that a parent shouldn’t act that way.

One great problem facing family law lawyers, judges, and the entirety of the family law system is that we have presume everyone is rational. Learning that they are not takes time and a lot of frustration. Yes, lawyers get just as frustrated as our clients. I am nowadays giving advice given me by my mother when people would get my temper flaring: consider the source and ignore them. Read all of the above article, it has sound advice.

Dressing for Court

Ohio Family Law Blog has a spot on post with How To Dress For Court – Do’s And Don’ts. He has some interesting specific suggestions that I will bet are based on experience.

The proper and/or appropriate attire for either party changes dramatically if the parties are facing a “contested” divorce and/or custody hearing, wherein each would be on the witness stand for protracted periods of time and, wherein, their appearances would certainly be scrutinized by the Court.

FOR MEN: Same as above; however, a sports coat or suit could be worn but would not be considered mandatory. If the Husband/Father is seeking custody of his child or children, he would want to be dressed conservatively…nothing too flashy, nothing too out-of-the ordinary. For example, if a young Husband is seeking custody of his child/children, he could receive “negative” points if he appeared in Court in non-traditional attire such as Black Gothic Style clothing or wildly colored hair. Remember, that most Judges are older conservative individuals. If the Husband/Father has an abundance of tattoos, I would definitely suggest that he consider wearing a long-sleeved shirt to “cover” the tattoos! Also, it would be advisable for the client to remove evidence of body piercings….ears, lips, nose, eyebrows, etc.

FOR WOMEN: The main point to remember……..you do not want to appear in Court as Sharon Stone appeared in “Basic Instinct”! This is not the time to appear to be “hot” or “sexy” especially if you are seeking custody of your child or children. You want to appear stable, sensible, warm and loving. Soft colors are better than bright and vibrant colors. Longer skirt lengths are better than short skirt lengths! You do not want to wear anything that would be considered “too short, too skimpy, too wild, too bold, or too sexy”.

I advise my clients to dress appropriately for Court. Dress as you would for church or an important job interview. If you are in the armed services, wearing your military attire is a very safe choice. If you look sloppy or inappropriate, the Judge or Magistrate may believe that you are showing or displaying a lack of respect for the Court. You have but one opportunity to create that “first impression”! So, consider these “do’s and don’ts” in advance of your Court date and make a good impression with the Judge.

I make a slightly different suggestion. Dress like you are going on a date to a very nice restaurant - not a place for a suit and tie. With the point being that the client/witness should feel comfortable in their clothes. Something I learned a long time ago when I still did criminal defense work and jury trials. The client was clearly not comfortable in his clothes and it was attracting the attention of the jury.

Kysa M. Crusco over at the New Hampshire Family Law Blog also picked up on this Mr. Mues' post. She makes a similar point to what to mine above:

Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.

Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.

Oh, and piercings...good idea to leave them at home.

Court Files, Court Records and Getting Them

Call this a reactionary post. Me reacting to Endangered Fathers' Different Uses Of Divorce Records with that is not so for Indiana.

Divorce records are maintained by the vital records department or in the health statistics department. Any person wishing to access these records may do so by placing a request with the concerned department holding the information. They can also obtain copies of the records which are uncertified copies if you are not one of the concerned parties in the divorce. Only concerned parties in the divorce can obtain a certified copy of the divorce certificate

No - our court records are keep by our county clerks.

No - you go to the county clerk, tell them the cause number and they get the file for you. (Excepting Marion and Hamilton Counties).

I got to say that I do not for certain about uncertified records being all a non-party can get - never had to deal with the issue.

The rest of the article raised similar problems for me. It is my standard operating procedure to give clients copies of everything. Fire and flood may get some but there should be no ordinary reason for one of my clients to need to go to the county clerk to get a copy of their file. Which is one of two reasons I have problems with this paragraph:

These records can help the individual ensure that the divorce has legally occurred. In many cases of uncontested divorces, the respondent party may not be aware of the settlement of the divorce. A divorce record helps in proving that the divorce has been finalized in the Court of Law.

Noooooooooooooooo. Here we get a Decree of Dissolution from a judge that is signed and sealed. We give it to the client. That same Decree goes out to the opposing party where there is a uncontested divorce. Also, our Chronological Case Summaries are mailed out to the parties who do not have lawyers. For all my grousing about Indiana, I cannot imagine a court system where a party is not aware of a case's end.

And in the context of Indiana, this just sounds bizarre:

When a person intends to marry again after a divorce, the divorce certificates should be provided to legally allow the person to remarry. It also helps resolve issues arising in the care of children born out of the marriage where divorce has taken place. A woman intending to change her name that carries the surname of the ex-husband can do so by providing these records.

If those problems were not enough to drive you crazy, a larger one looms. The Indiana Law Blog published Ind. Courts - "Indiana courts moving toward unified records system: But private firm pushes competing setup" Part I and here are what seem the choice bits:

That (excluding the "Part I") is the headline to a lengthy story today by Harold J. Adams of the Louisville Courier Journal. It begins:

After nine years and $51million spent, Indiana is progressing toward a statewide computer system that may eventually connect the records of all the state's 401 courts to each other, other state agencies and the public.

That would allow anyone with Internet access to check the history and status of any court case anywhere in the state. It would also give judges and attorneys a quick way to determine whether someone in their local court has had a role in other cases elsewhere.

But the move toward a single system isn't without its wrinkles. Even though the state system is free to counties, another vendor already handles court records for more than half of Indiana's 92 counties and is fighting to keep that business — and add more. * * *

Indiana's Odyssey system is run by the Indiana Supreme Court through the Judicial Technology and Automation Committee, known as JTAC and headed by Sullivan. The state wants to replace what Sullivan says is a mishmash of 23 different electronic case management systems in use across the state with a single, unified system.

“I and the members of our court — and I think most Indiana judges — are of the view that we would be much better off if all Indiana courts were using the same case management system,” Sullivan said. * * *

But while some counties are eager to connect to Odyssey, others have declared they won't participate.

Kosciusko County Clerk Jason McSherry wants no part of the statewide system.

“From a taxpayer standpoint, I don't have a lot of faith in anything the state or government runs,” McSherry said. “I think they ought to let the private sector take care of that.”

(Er, has no one informed the Kosciusko County Clerk that she is part of the government?).

I take the view that the legal system belongs to the citizens and since our tax dollars help fund it, then the information in and about those courts should be freely available without anyone making a profit off of what was created with our tax dollars.

More importantly, this article may make clear to everyone that no state wide data exists about our legal system but remains pretty much bound up in the county courthouses. In some ways not much different than in 1816 or 1851 or 1973. Think about that for a while.

(Since i derafted this post, The Indiana Lawyer published Harrison County joins Odyssey.)

Want to Take the Fight Out of Divorces? Ontario Is.

Recently, I have been writing about Indiana's family law system in general (see Should Indiana Have a Statute Promoting Collaborative Divorce? and Follow up on If You Could Change the Delivery of Legal Services.) and Taking 'combat' out of divorce system from the Toronto Star caught my eye.

Ontario has good ideas - or so I think.

As of that date, every person applying for custody of or access to a child must complete a sworn statement outlining "the facts and circumstances that relate to the child's best interests."

The often thorny matter of money will also be tackled as financial information relating to child support will have to be disclosed annually.

And a parent whose name was left off their child's birth certificate will have the legal right to apply to have their surname added to their child's surname if the court grants a declaration of parentage.

And a parent whose name was left off their child's birth certificate will have the legal right to apply to have their surname added to their child's surname if the court grants a declaration of parentage.

***

To that end, Bentley wants the system to provide more information to families up front about the legal steps they need to take and, more importantly, the impact on children when a relationship breaks down.

He wants the system to better be able to identify straightforward cases that can be resolved quickly and easily to free up resources for more complicated disputes.

As well, Bentley plans to make it easier for families to get legal advice and encourage them to pursue "less adversarial" means of resolving matters, such as mediation.

Indiana Family Law Resources

I am not sure how many readers take a look at the sidebar because some seem to miss a collection of links I have under the heading of Indiana Family Law Resources.

When I created this list, my thought was to create a mini-portal for the most important sources for Indiana family. That does not work very well if no one notices that the information is here.

Nor is it really much use to those using RSS feeds or who have an e-mail subscription.

Every parent should bookmark the first three links.

• Indiana's Parenting Time Guidelines
• Indiana Child Support Guidelines
• Indiana's Online Child Support Calculator
• Indiana Trial Courts and Clerks
• Indiana's Family Law and Juvenile Law Code
• Indiana Rules of Trial Procedure
• Indiana Rules of Appellate Procedure

If you are looking for a specific trial court, then go to Indiana Trial Court and Clerks. This page is maintained by our Indiana Supreme Court. Find the county and this will take you a page showing contact information for each court in a county, the judge's name, a map to the courthouse, and a link to the county's local rules.

Indiana's Family Law and Juvenile Code takes you to Title 31 of the Indiana Code. Here you will find the statutes on marriage, annulment, divorce, parenting time, custody, paternity. child support, and more.

The Indiana Rules of Trial Procedure contains all the rules needed in handling a case procedurally (as opposed to the substance found i the Guidelines and statutes). Not all apply to family law - such as anything dealing with jury trials - but these need knowing for trying a case and they apply in all counties.

Indiana Rules of Evidence are those rules about what is relevant evidence and how we get that evidence before a court. Don't follow these and you do not get your case made.

Indiana Rules of Appellate Procedure are the rules on how to create and handle an appeal in Indiana's Court of Appeals and Supreme Court.

Well, I hope this helps. Bookmark the specific sites or come back here - these will be here.

What Is a Divorce/Custody Coach?

Reading Is Your Divorce Driving You Crazy? from Galbraith Family Law Blog pointed out I do not know of anyone offering divorce coach services in Indiana. There might be an opening for the entrepreneurial minded here as Mr. Galbraith makes a great point that needs to be made more known to clients:

Lawyers are not trained to help you work through the emotional journey. We want you to get the support you need so you can get through the emotional journey more quickly and efficiently.

Since I really know nothing about divorce coaches, I thought I might as well list those whose sites I run across:

1. Pamela Wynn (also on Twitter)
2. 101 Co-parenting (also on Twitter)
3. We Parent (also on Twitter)
4. THE DIVORCE HELP CLINIC™
5. Indiana Custodial Rights Advocates (who is located in Boone County, Indiana).
   

Not exactly sure if a life coach qualifies but look over Find your life purpose after divorce with Beverlee Garb (has the benefit of being local).

Insight into lawyering - family law division

Marilyn Stowe takes an issue that I find devilishly hard to write about and brings the point home with great clarity in her Fleetwood Mac and a divorce lawyer’s Rumours.

Many clients begin their meetings with me, assuming that what I am about to hear is new. It isn’t. I’ve already heard the account of the breakdown of their marriage or relationship, over and over again. Different faces, different people – but fundamentally the same story. What is interesting is that when a relationship does break down, the parties don’t always have the same tale to tell. One will blame the other. One may blame a third party. The other may say it wasn’t the third party. Perhaps he or she will insist that the relationship has simply run its course.

***

For me, as a lawyer who listens to both sides of such stories daily, these songs remain as relevant today as they were thirty years ago. They remind all of us that we are human and fallible.

Here are two different beliefs, genuinely held, as to what has gone wrong. Probably there is a whole lot more that could be said, about why this relationship ended as it did.

I would add only two thoughts.

My job as a lawyer is to evaluate the client's story and, as pointed out above, there are a limited number of stories.  The story needs evaluation against the law.  Then the issue becomes how best to advocate that story.

I would also point out - as I seem to be doing quite often to clients nowadays - that this also applies to judges.  I hear a lot of stories and so do judges.  I had a support hearing this month where father was telling a quite outrageous story.  My client boiled with worry at what she was hearing.  I think she - like many others - do not understand the judge's job is to judge - take both stories and weigh them.  In this case, the judge ordered father to do what he was supposed to do by January 15 or go to jail.  The clients worries were for nothing.  (Tip: listen to watch a witness says but watch the judge closely).

What Do You Know About Indiana Courts? Part Two - Trial Judges & Commissioners

If you have read What Do You Know About Indiana Courts?, you have probably realized that
Indiana has no courts dealing specifically with family law cases.

For the most part, our trial judges have their time taken first by criminal cases and then by civil suits and then family law cases.  What expertise exists for family law cases will be found more in the unelected commissioners.


Recently Madison County offered a good example of what we have for judges.  Our long standing Circuit Judge resigned and the Governor appointed a new judge.  The Anderson Herald-Bulletin described the appointee's resume as:

ANDERSON­ — A man whose legal experience ranges from enforcing the law as a state trooper to trying criminal suspects as a deputy prosecutor has been named Madison County Circuit Court judge

***

Pyle said his experience gives him the ability to view cases from the perspective of law-enforcement officers and with an understanding of legal theory. “It gives me a really well-rounded background to be an effective judge.”

Notice the emphasis on criminal matters?  This is how the press presents courts to the public.  However, Judge Pyle played to the same choir when he was sworn in according to the Herald Bulletin's New Judge Pyle vows ‘respect, reliability, results’:

He noted a recent federal stimulus grant of nearly $1 million that will help the courts consolidate and expand problem-solving courts. Drug court, mental-health court and re-entry court are meant to provide alternatives to nonviolent offenders who may benefit more from treatment and social-service intervention than from incarceration.

Recently, someone commented to an older post of mine, What to do if refused visitation? that lead me to think a bit more about judges.  The comment noted how hard it was to get visitation enforced as opposed to child support.  Why should that be?  Remember that our Circuit and Superior Court judges are elected.  For those complaining about our judges should ask themselves - what attracts you to a judicial candidate when you go vote?   If you look upon a trial judge's judge as being about helping the prosecutor prosecute criminals, I suggest that you need to rethink your complaints about Indiana's judiciary.  So long as the public demands judges talk like prosecutors, we will have judges whose interest in family matters is secondary at best.  Judges will talk the talk necessary to get themselves re-elected.

(Added after the first draft.  I noticed Family Law Prof blog published MacDowell: "When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism" that seems - once one gets past the academic prose to actually touch on this issue but from a different direction.)

What Do You Know About Indiana Courts?

Indiana has two broad types of courts:  trial courts and appellate courts.  The appellate courts mean the Indiana Court of Appeals and the Indiana Supreme Court.

Trial courts mean either Circuit Courts or Superior Courts.  The difference between the two is that the Indiana Constitution created Circuit Courts:

Section 7. Judicial Circuits. The State shall, from time to time, be divided into judicial circuits; and a Judge for each circuit shall be elected by the voters thereof. He shall reside within the circuit and shall have been duly admitted to practice law by the Supreme Court of Indiana; he shall hold his office for the term of six years, if he so long behaves well.
(History: As Amended November 3, 1970).

Section 8. Circuit Courts. The Circuit Courts shall have such civil and criminal jurisdiction as may be prescribed by law.
(History: As Amended November 3, 1970).

The Indiana General Assembly created the Superior Courts.

The following sets out the powers of the Indiana Circuit Courts:

IC 33-28-1-2

Jurisdiction

Sec. 2. (a) The circuit court has original jurisdiction in all civil cases and in all criminal cases, except where exclusive jurisdiction is conferred by law upon other courts of the same territorial jurisdiction.

(b) The circuit court also has the appellate jurisdiction that may be conferred by law upon it.

As added by P.L.98-2004, SEC.7.

And here the General Assembly set out the powers of our Superior Courts at IC 33-29-1-4:

Sec. 4. The judge of a standard superior court:
(1) has the same powers relating to the conduct of business of the court as the judge of the circuit court of the county in which the standard superior court is located; and
(2) may administer oaths, solemnize marriages, and take and certify acknowledgments of deeds.
As added by P.L.98-2004, SEC.8.

No practical difference exists between the two.  Notice that both courts have criminal jurisdiction. Criminal cases take precedence when it comes to scheduling cases and they will be heard by the judge.  Which may make clear why most family law cases are not heard by the elected judge but by a commissioner appointed by the judge.

A few counties have created family courts.  However, it does not appear that these family law courts are separate courts but a program in addition to the court's general jurisdiction.  (This is based on my knowledge of Henry County and extrapolating to the other counties listed as having family courts).

None of the above applies to juvenile courts which have jurisdiction over paternity cases.   Marion County is the only county I am aware of that has a court denominated for paternity cases only  Even then it is part of the Marion County Circuit Court and commissioners preside over the actual court hearings. In other counties, the juvenile court is but a part of a court's regular jurisdiction which means in addition to its civil and/or criminal jurisdiction.  In Madison County, Superior Court 2 is our juvenile court and hears all juvenile criminal cases, CHINS cases, regular civil suits, paternity cases, and dissolution of marriage cases.

The Indiana Supreme Court maintains a Know Your Indiana Courts page that provides more detailed information on how Indiana structures its courts.  You may also want to check out Indiana Code 33-33 which sets out how the Indiana General Assembly organizes the courts in each of our 92 counties.

I will be following this up on the 19th with What Do You Know About Indiana Courts? Part 2.

No Cookie Cutter Cases

This came to me from an e-mail and I thought this person has figured out one thing that eludes a lot of people:

The reality is that each case is going to be unique and there are no "cookie cutter" answers when it comes to relocation.

Substitute "custody" or "divorce" or "child support" or "parenting time" for "relocation" and the truth of the statement remains undiminished.

Family law recognizes the people differ from another makes for a variety of cases.  The statutes provide only a generally outline of the possibilities available to the courts and the parties.  The judge bases a judgment on the evidence and counsel's arguments comes from applying the general rules to the specifics of each.  When the parties think the trial judge has incorrectly applied the law to the facts, there is the option of an appeal.  Even then the law on appeals recognizes the variety of people and cases by using the abuse of discretion standard -  if there is any evidence supporting the judge's decision, then the Court of Appeals upholds the trial judge's decision. (Put most simply, an abuses of discretion occurs when  the trial judge appears to have gone far into left field.)

All this may explain why this blog is not set up for answering specific questions.  The facts determine much and no way does anyone ever give all the facts.  They are a subtle thing these facts.

It may also explain why you cannot find a quick, specific answer to what appears to you to be a simple question.  They do not exist.  What does exist are the facts of your case, the general rules found in the statues and Rules, and the less general rules found in the case law.  You who are looking for specific, simple answers are going about it wrong.  You need to do what us lawyers do:  study the statutes, study the Rules, study the case law, and think of how all this applies - think about the whole range of possibilities.

Catching Unasked Questions - Indiana Family Law

John Bolch's post Q & A inspired me to try my hand to address Google queries that brought some to this blog.  The queries are in bold and my responses are in plain text.

Remember what my disclaimer says about answering specific legal questions - see it on the right hand side and down.

Who mediates child support modification in Indiana


A: Hard to tell from this query if the searcher wanted to know who made the decision about child support modifications or if they really wanted to know about mediation. If they actually meant mediation, then it is whoever is chosen as the mediator.  Otherwise, it will be left up to the court that set the original support order.  See, the court (paternity or divorce) that made the original order keeps jurisdiction of the case. (Getting a different judge is a different matter).


How to interpret the Indiana parenting guidelines

A.  Another query seriously lacking in specificity.  The general rules for interpreting a rule or statute:  1) the specific provision controls the general, and 2) the thing must be read as a whole  (the tail does not wag the dog). 

Indiana law teenager rights visitation

A.  Yes, they exist and apply to teenagers.  You need to read the Indiana Parenting Time Guidelines.  You will find a link to the IPTG on the right hand of the screen and down. 


Cohabitation agreements Indiana

A.  Is it time for a FAQ (Frequently Asked Questions)?  We have them.  I suspect you can find a form online but there is no officially prescribed form.  Check out the cohabitation archives here.



Indiana modification of custody forms

A. I have been saying this for a long time, Indiana has no official forms.  You can find versions of forms online.  I suggest reading my for the pros and cons on forms. 


"post-nuptial agreement" +indiana

A. See my articles here. 



Successful cases winning annullment; indiana annulment laws


A.  These searchers did not stick around to read anything written on here about annulment.

Let me explain that if these people were looking for information on successes winning cases on the trial court level in Indiana they will never find this information on the Internet. As these people were searching for annulment, they probably did not see this article.  I did a search for annulment cases at  the appellate level and published my results here.



Indiana laws for unmarried fathers


A.    I am going to be very technical for a second:  Indiana has no law for unmarried fathers only for paternity cases.  The laws apply to unmarried fathers and mothers.

Unmarried fathers need to look at IC 31-14, The Indiana Parenting Time Guidelines, and the Child Support Guidelines.  There you will find the general law in Indiana for unmarried parents.



Can a child determine which parent they want to live with in indiana; a child%27s right to choose

A.  No. 


Emergency custody for fathers in indiana

A.  I suspect this searcher wound up not finding what he might have found if he had just looked for "emergency custody in Indiana".  Even then he would not be happy with what he found - there really is nothing specific about what is meant by emergency custody in Indiana.

I explain this more here.



Indiana custody law attorney fees

A.  If the searcher was looking for a specific answer, they were unlucky.  I do not know of anyone who will specify their fees online. As I told someone yesterday, there are too many details needing to be known before even giving an estimate of fees for a custody case.  I will suggest that anyone thinking of a custody case budget at a minimum $3,000.00.


best family law attorneys indiana

A.  I found this one amusing.  There being more art to the law than science, judging a best lawyer is a lot like judging between Leonardo da Vinci and Michaelangelo. 

Damned hard to think of how to define "best"  when so much depends on each case.  A terrible lawyer can do quite well with good facts while a great lawyer can do little with bad facts.  The clients bring us the facts of the case and we have to live with them.  The better lawyes know when not to take a case.


"common law marriage" indiana

A.  There is none.  Look at the articles on cohabitation here.

How a Client Can Screw Themselves Up

Thanks to Judith's Divorce Blog and her A BIG EGO for this very succinct description of how the client can damage themselves regardless of who they have for a lawyer:

Becoming entrenched in your position prevents compromise and when misguided conceit sets in, a marriage hurtles towards oblivion and a case towards a final hearing. Deaf to sound legal advice, arrogance can result in an otherwise unnecessary judicial determination of matters that could have been settled months before with the same outcome and at a fraction of the cost.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Online Resource: WomensLaw.org

With a broader scope than this blog, WomensLaw.org does touch on some of the same issues I do.

They have pages on Knowing the Law which breaks down along the lines of state, federal, tribal and religious law.  I do not recall another general site that has links to religious law.  The following is from the sub-page on Indiana custody law:

General Information About Custody and Visitation in Indiana

• Child Custody Information from Indiana Legal Services
• Custody Q&A
• Frequently Asked Questions
• Who has custody of the child if there is no custody order?
• How can I change a custody order?

How will the judge make a decision about custody?

• Best Interest Factors

Definitions
Glossary of Family Law Terms

The following is the site's Preparing for Court page:

The information on these pages will assist you in preparing for Civil court, developing a strong case, and gathering evidence.

• Legal Definitions This page includes legal definitions that are not state-specific. Please note that the definitions of these terms may be different or more specific in your home state.

• Download Court Forms This page includes links to court forms for filing cases. Not all court forms are available online, but you may also find forms from the clerk of court at your local courthouse.

• Preparing Your Case This page provides tips for preparing your protection order case and getting ready for a hearing.

• Choosing and Working with a Lawyer This page provides interview questions and ideas for how to make the most of working with a lawyer.

• When the Legal System Fails You This page provides tips for when the legal system falis you

• Filing Appeals You may have a right to appeal a court order if the judge made an error of law.

Other pages that should have some interest are When the Legal System Fails You and Choosing and working with a lawyer.  Good information and advice appear on both pages.

And, men, I suggest that if any of these topics are of interest to you that you read them, too.

A Few Thoughts About Lawyers and Legal Services

I forget how I came across Clark Kent's Lunchbox: Why I Hate Divorce Attorneys. With what I have been dealing with since mid-May (a disappearing secretary being the largest but not only problem), the following raised all sorts of issues in my mind:

On the recommendation of a close friend, I contacted an attorney who was touted as the best in area, having handled multi-million dollar settlements without ever losing a case. You can already guess this guy was going to be expensive, but because he was drinking buddies with my friend, I would get a cut rate. For the best attorney in Houston this is what I got:

* When they sent the original papers to my former spouse, they goofed on the address sending it 3 states in the other direction, and new papers had to be drawn, which would require more money, but they said I wouldn't be charged for it since it was their mistake
* Two months later the new papers were sent, but were still wrong resulting in petitioning the court to move back the trial date
* After numerous phone calls (at a cost of X hundred dollars per 15 minutes), I was told the new court date
* Third set of papers sent... 6 weeks later
* Bill sent which includes charges for all calls I made to them, every goof up in paperwork, the address screw up, and filing fees to adjust court dates... and no friends and family discount
* Called attorney's office several days before court date only to be told they had filed another continuance and pushed the date back. The new court date? One year after the day originally contacted the attorney.
* Received notice informing me their office needed another $X thousand dollars to keep them on retainer.

I have been trying to maintain a level of service here that was different and better than what I know others provide.  I know one popular firm locally does not communicate as quickly or as fully as I have done.  I find one similarity between the Houston lawyer and the local firm, and that is the issue of front.  They put on a better front.

I cleaned up most of the train wreck created by Mary's departure but not all.  It took a week of about 20 hour days to do that.  Still, there remain things undone and things to do.  I can say that they are being done.

I do want to say that not all attorney-client relationships work.  I have had things sour more quickly with client that I personally like than with those I do not.  I have heard other attorneys say similar things.  We are puzzled by this.  I do not know if we come to be seen less professional by liking certain clients and those client have less respect for us or if it is something else.

I have also seen lawyers who are quite competent at one sort of case have difficulties with a simpler sort of case.  Again, no rational explanation existed for the situation.  It happens just like a slump in baseball.

Not that I think that either scenario I just wrote about applies to this story from Houston.  What distinguishes my scenarios from the Houston scenario, is the lack of effort and anguish I detect from Houston.  The effort put into a case where the client is liked but then turns on the attorney creates the anguish.  Nothing stresses out a lawyer like not being able to get a handle on a case but not quite get it all lined up regardless of knowing the facts and the law.  The last case I can think of this happening to me was a support case, and I remain convinced after a long, long time that what I lacked was a handle on the client's understanding of what was going on.  (She had a very neat notebook containing all the pleadings, she asked pretty good questions about the case, and I assumed that she knew what was what.  Turned out she did not.  Also, it turned out that she wanted more than what the courts could give her.  She was unhappy with the outcome even though the court gave her what she was entitled to under the law).

One other thing really sets me off about the Houston law firm and that is its document production.  Proper intake procedures ought to be in place in a firm like that.  I have been using client questionnaires for years so that I get proper information (such as the opposing party's address and spelling of names).  I have automated document production on most of my work product so that it can be produced in a reasonable speed.  I am so very annoyed (and have been since the start of July) that I am getting things out in a few days that would take a day with staff.  I do not get paid for having a fancy office, I get paid for the work done and I keep that in mind.  My clients have no money to waste and neither do I.  Automating document production serves to save my clients and myself from poor document production.

(Which is not to say that all mistakes have been removed but I have cut down on the stupid ones.  The stupid ones occur whenever I forget my own rules and use search and replace for creating documents.) 

For the non-lawyers having read so far, understand this: 1) the attorney-client relationship is a partnership between you and your lawyer;  2) you deserve good communications with your lawyer not only about what is going on with your case but what your case is about; and 3) if it is not working you need to get an explanation of why it is not.

(I freely admit that I have been troubled by returning phone calls as promptly as I ought to this past month and a half).

As for any lawyers who have read this far, this kind of lawyering affects all us and we need to explain and show the general public how this is not good lawyering.  If you think we can merely blow this as an aberration, read the comments to the post.  People think this is typical for lawyers.  They have no understanding of what we actually do.  Which I put down to our making a mystery of the legal process based on the belief that an ignorant client is one who willingly pays any fee - that never really worked and has less chance of survival in the Internet Age.


I wrote a comment to Why I Hate Divorce Attorneys and here is the writer's response:

R_mattocks That would've been logical if I was returning a defective toaster to WalMart, but there's papers that has to be filed with court taking one attorney off and more papers adding the new one. That takes time & money.

I would still have to pay another retainer fee with a new attorney and then get them up to speed on the state of the case. More time.

He was recommended by a close, close friend and when the two of would talk, he'd ask how things were going. When I told him, he said he'd relay my complaints since he and the attorney were drinking buddies. And I did complain to the attorney about his staff. Nothing.

Being unemployed didn't give me the financial leverage to pull up stakes, & the money I did have needed to go to the kids or the other attorney would've used not making payment against me.

Yes, I could've fired him earlier, but it would've cost me more money to get another attorney, and would've dragged the process out longer which was a financial burden for my ex, who lost her job several months after I did.

Strategically, who wins and who loses if I had "thought" to get another attorney? Me-more in debt. My Ex-more in debt. My kids-both parents are paying for two (or three) attorneys instead of school supplies and clothes. The only winners - attorneys.

And besides all that I couldn't find the receipt when I tried to return my defective attorney to the customer service counter.

Believe me, the divorce system is flawed - mainly because of the dirt-bag dads who try shirk their obligations. As a by-product of the system, there are an army of attorney's profiting off it. I'll take anyone on that wants to challenge me on that, because along with not putting thought into another attorney, I put my journalistic skills to use and got an education (and not from Law & Order).

As a post script, to be fair, my ex's attorney was the exact opposite. he didn't exploit the opportunity and educated me on the things my attorney should've. In the end, he didn't work for my wife so much as he worked for a realistic solution in the best interest of our kids given the circumstances.

The original writer understood correctly that time is needed to prepare.  What he may not realize that the complexity of the facts dictate how much time it takes to get prepared and that his description of the case makes me think the facts were not so complicated.  It would have been possible for another lawyer to take over the case.

The original writer hits the nail on the head about costs.  Again, asking about might have given him some surprising answers but with the caveat that more complex the case the greater the fees.  Not all lawyers charge on an hourly rate but charge flat fees (which is very more common in my area of Indiana - another reason to be wary of those saying they know what lawyers cost as geography changes everything).  Some do what I have started to do and unbundle their services. (Go here for why I am offering this type of service).   But you got to ask before you can learn these things.

Think about that my fellow lawyers.  I think we can all pick apart some of the writer's errors about cost.  We can do that because we know what the costs might actually be - something denied the writer.  Pay attention to the more important points about cost and perception of the services provided (or not provided) and to how the opposing attorney behaved.

I think the writer was lucky it was not a complicated matter, that opposing counsel took a collaborative approach, and that the judge dealt well with a pro se party.

What I have no idea about is how to get the general public to learn what we do, and how the family system of the different states actually work.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.