Indiana Supreme Court Justice Steve David has gained much notoriety recently based upon his decision in the case of Barnes v State of Indiana. Many people seem alarmed by this decision but it does not surprise me at all. When I first heard of it my comment was, "Well I know Dickson will have dissented". Then I went into my bullet point soliloquy about how this was predictable and that I had warned people, including Governor Daniels, that this is the type of decision that I fully expected from Steve David.
I first became aware of Steve David over 10 years ago when he was the Boone County Circuit Court judge. He had ordered the return of a toddler to parents over the objections of the Child Protect Services case manager. Soon after, the child was dead; having been struck by a vehicle while wandering through a parking lot unsupervised.
This was just the beginning of my knowledge about or encounters with Steve David. In the work I do I am often able to review juvenile case files and family law cases. Who accepted a plea agreement for 10 years probation and no jail time for a man who had sex with a child? Who placed three adolescent girls in the custody of a convicted child molestor instead of with their mother? Who dismissed a lawsuit seeking access to the records of the detention of a child at the Boone County Jail and had alleged a sexual assault? Judge Steve David in all of those.
More alarming though is when a Western Boone High School student brought sexual assault allegations to me Steve David placed a No Contact Order on her barring her from disclosing more information to me. When it was discovered that she was leaving information for me at my house a No Contact Order was placed against me by Judge David which barred me from receiving information from the girl.
I warned the public about Judge David though. While facing a concocted felony charge in the court where David presided I invited the public to come see the evidence of corruption by David and Boone County Prosecutor Todd Meyer exposed at my trial. However, I never have exposed this evidence which is kept in a vault far from Lebanon, Indiana. The reason for that -- I never got a trial.
On 17 August 2005 Meyer took one of the fliers about my trial, that were being distributed around Boone County, to David. That day my 33 subpoenas, including three police officers to testify in my favor, were quashed and my trial date vacated. Two days later a building where some of the evidence against David was being stored was burnt to the ground in an arson fire. Although the evidence survived the fire, the State Fire Marshall would not allow items to be retrieved from the burn site until a specified time. The building was razed prior to that specified time. Fortunately that crime scene tape was crossed and the evidence retrieved prior to the building being razed.
For the next year and a half I tried to get a trial so a jury could see and hear the evidence. As trial dates would approach David would sua sponte [on his own] reset the trial date. Eventually, the prosecutor from the third county assigned to the case made a motion to dismiss. I argued against the motion and filed a Motion to Reinstate the charge contending I had the right to a trial by jury and the case had not been properly disposed. Yes, I am the guy who filed to be recharged with a felony after the charge was dismissed. I do have documents that demonstrate that the Probable Cause Affidavit contained false statements, that the prosecutor assisted in it and that Judge David, according to one of the special prosecutors assigned to the case, was culpable in the alleged crime.
Also during 2005 I became aware of a child-sex ring operating in Boone County. Former assistant principal of Western Boone High School, Jerry Taylor, suddenly resigned after an alleged victim filed a complaint with Boone County Prosecutor Todd Meyer stating that Taylor had sexually assaulted her. I have a recording of Taylor admitting to the crime which was provided to prosecutor Meyer yet Taylor was never charged but instead was allowed to quietly leave the community and now works at another school. One of the statements made by Taylor in that recording was that he would get Judge David to send children to the Henry County Youth Center as a sort of extra form of punishment. Parents have told me that their children were sent there if the child or the parent had refused Taylor's sexual advances.
I had also received complaints from young girls or parents about what they considered inappropriate sexual activity at the Indiana United Methodist's Childrens Home in Lebanon. In 2008 one employee, Stephanie Rogers, was charged and convicted of having sexual relations with a female child, age 15, who resided there.
In 2005-2006 I placed signs in the windows of my home about Judge David being corrupt and inviting people to come see the trial. During the Summer of 2006 I added an additional sign, more particularly a sign that read, "Child Sex Ring Evidence - Guess Who's Involved". Immediately the Thorntown Council President Gary Jones had Marshall Jeff Woodard cite me for violating the town's ordinance prohibiting unapproved signs. In September of 2008 Gary Jones' son Caleb, who was 19 years of age at the time, was arrested and charged with battery following an incident in which he cut his mom with a knife after she refused to let him shower at the same time as his younger sister.
Boone County Superior Court II Judge Rebecca McClure heard the sign case. She is the judge who would not allow me to attend the trial of Delisa Draper in December 2007 related to the 2005 arson fire. Ultimately McClure found that Thorntown's sign ordinance was constitutional and that I had violated it. I do have documentation where McClure admits to being involved in the cover-up of child-molestations.
There was also the year that I went to the Boone County Lincoln Day Dinner and was escorted out by 4 Lebanon Police Department Officers. The excuse was that they did not have room to accommodate me. Coincidentally, or not so, Delisa Draper a victim of the 19 August 2005 fire who was charged in connection with it was asked to leave. I have attended numerous other Lincoln Day Dinners and political events throughout the state and never have I been asked or told to leave any of those.
Although I have been a child advocate for years and participated in numerous child-related events both as a participant and volunteer never have I seen Judge David participate in any. For someone who claims to be such an advocate for children you would expect to see him at least once volunteering in a hands-on activity. It seems that only his name appears.
Just to top it off, staff in the court house have relayed stories to me about his dictatorial practices and the tirades he would go into with them. There are numerous other "stories" from courthouse staff, police, lawyers and more about him that I don't have recorded so I won't bother mentioning them. Overall though, they paint a picture of someone who abuses his power and authority.
Today, more information came out about the Barnes v State of Indiana case following a meeting between Indiana Attorney General Greg Zoeller and members of Campaign for Liberty and the public. Zoeller was asked why he sought this opinion from the State Supreme Court. His response was that he had to follow the wishes of the prosecutor. He was then specifically asked if he had the discretion whether to pursue transfer to the Indiana Supreme Court. He reluctantly replied that he did.
Zoeller released a press statement following the meeting in which he stated that he did not seek a broad interpretation that would allow the Fourth Amendment violations to stand and that the citizens could not resist such violations. However, a reading of the brief indicates that Zoeller did seek a broad ruling and clearly laid the seeds for the ruling made by Justice David. The brief will soon be made public.
A recall page for Steve David has already been started on FaceBook. I encourage you to join. I think it is also needed for Zoeller as he has not been forthright in his explanation that he did not seek a broad ruling that expanded police powers well beyond what is constitutionally acceptable. Justice Dickson's dissent was correct and was narrowly tailored to accomplish the legitimate police purpose.
I have made it no secret in the past that Steve David was a climber who violated the rights of litigants in the courtroom and operated in a corrupt manner. To this day I will still say that he is corrupt, has taken under-the-table payments to fix at least one case, and has violated his oath of office.
But I leave it up to you to decide. If you were a public figure seeking to ascend in your field and I had very publicly made those allegations would you sue me for defamation or seek an injunction to require the removal of such statements? Judge David never has nor has he disputed my claims. Judge David dismissed a lawsuit seeking access to the public records, by statute, about a girl who was detained at the Boone County Jail and who had alleged to me that she had been sexually assaulted. He then placed a No Contact Order on her and then one on me which barred her from sending information to me or me from receiving it. Why would a judge not want a child having access to a child advocate? I alleged that at my trial I would reveal "evidence of corruption" by Judge David and Prosecutor Meyer but David would not allow me to have a trial and dismissed the charge, over my objection. If there was nothing to hide, why hide?
If I was a judge and a criminal defendant alleged he would produce evidence that I was involved in corruption, I'd say bring it on. But maybe that is just because I am not corrupt!
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Friday, May 20, 2011
I warned you about Supreme Court Justice Steve David
Sunday, May 8, 2011
Happy Mother's Day to Mothers
Today is Mother's Day. Established by Anna Marie Jarvis in 1905 as a way of honouring her mother, Ann Jarvis, who died on May 9, 1905. The elder Jarvis had pioneered attempts at establishing a “Mother's Friendship Day” to reunite families who had been divided during the War Between the States. The holiday was declared official by the state of West Virginia in 1910, and the rest of states followed quickly.
Like most other holidays I believe Mother's day has been trivialized and can be added to the ever growing list of commercial events rather than a day set aside to reflect upon the contributions of the people or person it was intended to honour. I still wonder each year what attaching stickers of the characters of the latest popular animated children's program to coloured eggs has to do with Jesus.
Jarvis also opposed the commercialization of Mother's Day which had become rampant within 10 years. She saw the purchase of greeting cards as a means for those who were too lazy to write a personal letter. Jarvis was arrested in 1948 for disturbing the peace while protesting against the commercialization of Mother's Day, and she finally said that she "...wished she would have never started the day because it became so out of control ..."
I am dismayed by the far-reaching stretch that card makers and others are attempting to make to sell more products. Apparently it is becoming common to provide your grandmother, aunt, sister or practically any female who has given birth with a Mother's Day greeting card. It should really come as no surprise though.
Since the 1970's motherhood has been trivialized through the feminist movement which sought to limit women's choices. Being a stay-at-home mother and providing the necessary, intimate care to your children was projected as caving in to the demands of a male-dominated society and was no longer acceptable. The myth that children could be reared just as effectively in institutionalized settings was projected.
Women who chose child-rearing of their own children were failing to meet “their needs”. Instead they were programmed to forgo early childhood and pursue additional institutionalized education for the purpose of entering the job market as a career woman. Many bought into it which – with what they lacked in parenting skills and commitment – they made up for in denial.
Grandmothers, aunts, sisters and practically any other person are now the ones who are raising many children in our contemporary society while birth mothers abandon their obligation in search of other pursuits. We often hear about how society has failed our children or it takes a village to raise them. Your children are not mine or my neighbors though, they are yours and if they are failed or need to be raised by a village it is because of two people – their mother and father – who should have raised them but failed. Still, all too often mothers and fathers are willing to shirk their responsibility and hand their children over to a stranger to raise.
For all those mothers who made personal sacrifices to provide their children with the important elements in their lives – regular routines, rituals, consistency and the sense that you know and care about them – you are the ones deserving of the rewards of parenthood and the accolades of Mother's Day.
For all those who laconically pass their children off to be raised in an institution or by a nanny, you should give it up. You are no more a mother than the “family” dog. You should have had a parakeet instead. That way you could just throw a towel over its cage and quiet it whenever you are too busy or just not interested enough to tend to its needs. Finding a babysitter or having to take your car to be detailed to clean up after the children is not the type of "sacrifice" that a true parent makes for their children.
Instead of you pseudo mothers lining your dresser top or some other acquisition with the impersonal cards and flowers you received for Mother's Day, you should bag that stuff now while the nanny clears the dinner table and prepares the children for bed. Put that bag in the hand of your child as you send her off in the morning to the primary caregiver and enclose a note that says this: “Thanks for picking up where I have failed. You deserve these Mother's Day praises more than me.
Better yet don't bother. You have already rationalized your abuse and neglect of the child you chose to have. Why would I possibly think you would owe up to it and accept that you are only a mother through biology. Tell your husband to bang the nanny tonight. At least that way “your” next child will have a better chance of getting raised by his mother.
If you need assistance in building a relationship with your child then please contact my scheduler to arrange an appointment with me.
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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Saturday, April 30, 2011
Public input sought for Parenting Time Coordination Rules
The Domestic Relations Committee and the Alternative Dispute Resolution Committee of the Judicial Conference of Indiana have developed proposed Parenting Coordination rules and commentary. This is the first time that rules have been proposed for Parenting Time Coordination.
Parenting coordinators are used to assist parents in resolving disputes associated with their children. A trial court judge can recommend a coordinator be used or the parents can voluntarily agree to use a coordinator to resolve their dispute. Typically, the coordinators work to resolve disputes concerning issues about parenting time, not disputes involving support. Parenting Coordinators are appointed by trial court judges to help resolve disputes between parents regarding their children.
I have attended meetings while the proposed rules were being drafted and was given the proposed rules which are now publicly available here. ; I was very satisfied with the consideration given to these rules. Please read them and provide input. Comments from the public on the proposed new rules will be accepted until May 26, 2011.
Comments can be sent in writing to the following address:
Jeffrey Bercovitz, Director Juvenile and Family Law
Indiana Judicial Center
c/o Domestic Relations and Alternative Dispute Resolution Committees
30 South Meridian Street, Suite 900
Indianapolis, Indiana 46204-3546
Once comments are submitted, the Committees will review the responses and prepare a revised draft for submission to the Board of Directors of the Indiana Judicial Conference who will then submit the proposed rules with any revisions to the Supreme Court of Indiana. The Justices of the Supreme Court determine if the rules are approved.
If you have any questions please feel free to contact me.
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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, April 22, 2011
Attaining Justice and Happiness
In a life where I am immersed in child custody law and surrounded by those who are embroiled in child custody battles, in the pursuit of justice, I somehow manage to attain happiness. What I often see is the result of the paradox of justice - unhappy people.
Let there be no doubt that it is often necessary to engage in a battle for custody of a child and that not all players in the battle are unhappy. Equally though let there be no doubt that at least one of the players in the battle is unhappy. Yet each will profess that he or she is driven by a determination to protect the child, provide for the best interest of the child or to attain justice for the child.
Anecdotally though I know this simply isn't true. It may be what the parties feel but such feelings, although critical to this analysis, do not make the truth. What they are really fighting for - the affections of the child - is what drives this "pursuit of justice".
In the courts of equity there is no defining line, no demarcation between just and unjust as there is in a court of law. Equity instead requires a determination of fairness, as objective as that is to be. The aggrieved are subjective are subject and searching for a result favourable to their objective standard, flippantly defined as fair in most cases. "I just want what is fair" has been a common mantra barked at me in a fit of righteous bantering.
In criminal law I have seen "justice" dispensed with an almost alarming proficiency as though an operations manager stands over the courtroom ensuring that results are predictable and uniform.
I have sat through murder trials, sometimes lasting less than a full day, where families of both the accused and the victim are present. I have watched those I have known get sentenced to a term that will likely not be outlived and the family is unhappy. Across the courtroom is the family of the victim, equally unhappy. Yet, "justice" was served.
So it comes to me - is it possible that a person can attain justice and happiness?
Like in child custody battles, where I believe loss of love or fear of it is the main motivator, so too is it in criminal law. The long prison sentence did not replace the affections of and relationship with the victim.
Justice in the sense that it is used in the legal system is the polite, politically correct synonym for retribution, revenge, punishment or vengeance.
Even in a theft case, although not directly affected by love of a person, justice and happiness may not be able to be harmonized. What was the value in that property that it requires lamenting over the results of the charge against the offender, time out to attend trial, the nervousness of being a witness. Was it lack of affections that drove one to seek refuge in material goods that another thought worthy the risks to obtain through stealing?
In child custody cases it is usually quite easy for me to discern who the unloved parent is. In mediation where I interview both parties it is quite simple. When I am an advocate for the child through a single party I must look to the outward behaviours and manifestations of character of the other party to make such a determination.
Of the tell-tale signs are, first, facial expressions. A happy person will radiate their happiness which is apparent in an uplifted face often expressed through a smile. The unhappy person however may require some detective work.
I have interviewed hundreds of people and discovered some commonalities among them that differentiate the miserable from the joyful. Body image is the first sign.
Truthfully I am not satisfied with my body image and it is a daily struggle to attempt to maintain my body as I wish it to appear. I could offer justifications from OCD through simply wanting to maintain the body I once had as a professional athlete with three percent body fat. Such offering would simply mask some discontentment in my life. Although not significant I thought it still worthy of mentioning.
Contrast this with the mother who desperately clings to her child, trying to win her affections while attempting to alienate her from her father. No amount of time in a tanning bed is too great for her. The heavily pasted on make-up attempts to hide the blemishes occurring as a result of the stress under which she has placed upon herself. The constant array of new clothes as though she is a fashion model, the accessories, the jewelry; none is a replacement for character. Her demeanor, resembling that of a dog-snatching character riding a bicycle through a tornado in a child's dream, is ever present as she is paraded about by the ever-present attorney at her side. Finally, there is the massive weight gain which evidences a tormented soul searching for solace in food.
I've been exposed to another who outwardly showed the signs of the internal struggle of trying to punish the father for some perceived injustice by trying to alienate their children from him. Although the cocaine abuse had made a noticeable impact upon her appearance it wasn't until the two-year divorce process that the effect of aging manifested itself by tearing her skin down in a way that one would think took ten years.
Each fought zealously draining the courts of resources, financing the lifestyle of their respective attorneys and making regular employment by the fathers and nearly unsurmountable task. But what did the journey they embarked upon, motivated by hatred for their children's fathers, get them? They sought what they thought was justice and by reducing the father's to impoverished visitors in their children's lives they must have, in their distorted view, won.
In their minds they fought for and attained justice but were they left with happiness. I contend that they have not. So it comes to me again - is it possible that a person can attain justice and happiness?
At the root of happiness must be love. Love of oneself, the love of others, love of one's people and love of country. The Beatles once rightfully proclaimed in song that you can't buy me love. Love is organic. True love is earned through the deeds and character of one's soul. It stands to reason then that if one performs the acts of a spiteful soul motivated by hatred then that person cannot be happy.
I have intentionally omitted love of one's God for I am an agnostic but let's still look towards the guidance offered by some of the world's major religions.
Judaism, the religion of the Old Testament of the Bible, teaches us to take an eye for an eye. For a Jew to be forgiven he must begin with repentance followed by prayer and good deeds. Thus justice is achieved through retribution and condemnation of the offender.
Similarly, the Koran teaches that we reap what we sow. Salvation is earned through deeds alone. Reciprocity and punishment are the foundations of justice in Islam. Thus, it takes an affirmative act by the one who has wronged us before "justice" is attained and happiness returned.
In contrast, Jesus taught about justice in his Sermon on the Mount. Essentially he said to set aside the ways of Judaism that taught that justice is attained through retribution. Instead he said to turn the other cheek, love your enemies and pray for those who would persecute you. In short, forgiveness was the way to attain "justice".
The eastern religions find some commonality in their methods for attaining justice. Buddhism tells us to abandon anger; "Forsake anger, give up pride. Sorrow cannot touch the man who is not in the bondage of anything, who owns nothing." Although their home country, Tibet, is occupied by the Chinese the Buddhist there still have an easiness about them, a satisfaction with life. Compare this to the Israelis and Palestinians who follow the mantra of combat violence with violence. Who appears to be the happier people?
Confucianism offers a somewhat mixed message; "Answer hatred with justice, and love with benevolence. Otherwise you would waste your benevolence." but also "Do not do unto others what you would not want others to do unto you."
Confucius saw "justice" as a last resort though: "What need is there of the death penalty in government? If you showed a sincere desire to be good, your people likewise would be good. The virtue of the prince is like the wind; the virtue of the people like the grass. It is the nature of grass to bend when the wind blows upon it."
Hinduism teaches that there is no birth and no death but eternal living. The pursuit of justice is a stage that one must experience on the path to reaching the Truth. Once reaching Truth then the craving for justice no longer apply.
Gandhi was a lawyer before becoming a spiritual leader. He preached revolution through non-violence and achieved it; the withdrawal of the British from India. Although he didn't speak directly about justice, in his autobiography he closed with this: "To see the universal and all pervading Spirit of Truth face to face one must be able to love the meanest of creation as oneself." This indicates that he felt you should love the ones who wrong you, those whom you may see as the meanest of all creation.
Taoism is quite clear on the pursuit of justice; "When two great forces oppose each other, the victory will go to the one that knows how to yield." and "Throw away morality and justice, and people will do the right thing." I have long cautioned against externally imposed morality.
I exist not on the planes of right or wrong but in the between where I am what I am. I am guided by self though my shape is drawn from the society in which I reside. I believe this to be the course of many, even those who claim adherence to an aforementioned spiritual belief system. Take the gangster from the hood and surround him with love, he becomes loving. Take the child from the loving home and expose him to a vindictive battle over his affections or person and he becomes hateful.
Even with that guidance we still find that as nations and individuals that the pursuit of justice is paramount. It is the greatest religion because it claims nearly everyone as followers. It's deities, the judges, are the new gods prayed to by the masses through the shamen, the attorneys and prosecutors.
But if justice is the pill to relieve our pains then why are its shamen suffering? Lawyers experience twice the rate of clinical depression as society in general. They also have at least a 50% higher rate of alcoholism. They have the highest rate of divorce and also job dissatisfaction.
The pursuit of "justice" is the primary cause of human suffering, not the anecdote. Forgiveness must be the first step to your happiness. This is a daunting task though as forgiveness seems impossible when your happiness has been taken away and you are in so much pain.
In the realm of child custody battles happiness can only be derived from coming to peace with one's self, the other parent and the concept that, while there may have been terrible acts in the past, forgiveness will allow you to move forward as co-parents for life and ultimately provide the happiness you were searching for since once unified as parents and family.
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Monday, April 18, 2011
Indiana Court of Appeals Rejects Judge Pfleging's Make Father Pay Regardless of the Law Plan
In an unpublished opinion the Indiana Court of Appeals rejected, wholesale, the judgment of Hamilton Superior Court II Judge Daniel J. Pfleging's plan to make a father pay child support in excess of that agreed upon, not give credit for payments made, make him pay mother's portion of the child's educational and health-care expenses and hold him in contempt for not doing so.
Father raised six issues on appeal
I. Whether the trial court erred when it calculated Father's child support arrearage as of the date of March 19, 2010;
II. Whether the trial court erred when it found that Father had paid $6,000.00 in child support during the time period from August 2007 through March 19, 2010;
III. Whether the trial court erred when it found Father in contempt of court for failure to pay support as ordered;
IV. Whether the trial court erred when it determined that Father owed “$15,939.04 plus $403.18 less $1,200.00” in college expenses for L.L.'s 2008-2009 academic year;
V. Whether the trial court erred by failing to offset funds owed to Father from Mother for uninsured medical expenses against any arrearage due to Mother; and
VI. Whether the trial court erred when it calculated Father's weekly gross income at $2,211.04, and incorporated that amount into its Order.
There was nothing groundbreaking in this decision. All aspects were well settled law. The decision is a memorandum opinion and cannot be cited as case law.
Interestingly, in all the cases I have ever read there has not been one where the Court of Appeals has across the board shot down everything a trial court has done in relation to orders regarding child support and a father.
This reflects a somewhat new attitude of the justices that a father is more than just an ATM to be squeezed financially for the benefit of the mother. Unfortunately a recent justice was just added to the Indiana Supreme Court, Steve David, who holds true to the old values that existing court orders are irrelevant when it comes to making a father pay.
So onto what happened in this case.
In the Agreement between the parents Father was to pay child support in the amount of $231.00 per week, both parties were to “contribute equally to the children's college tuition at a state college/university, after all grants, loans, and scholarships have been applied for by each child” and to “equally divide any unreimbursed medical, dental and optical expenses.”
The present litigation upon which the immediate appeal was filed began with Mother filing for a modification of the agreement which was followed by petitions for contempt filed by each against the other.
After three hearings over the course of fifteen months the trial court issued it's order which contained substantively the following;
1) Father had a child support arrearage of $25,185.00;
2) Father owed $15,142.22 for college expenses;
3) Father was in contempt for failing to pay support as ordered; and,
4) Father was responsible for payment of Mother's attorney fees in the amount of $3,715.00.
Thereafter, Father filed a motion to correct error, which the trial court denied. This appeal then followed. Father was represented by Melanie K. Reichert of Broyles Kight & Ricafort, P.C. in Indianapolis, Indiana. Mother did not file an appellee's brief. When the Appellee does not file a brief the Appellant is held to a lesser standard where error must only be shown at first blush.
Father first asserted that the trial court committed error in determining his child support payment arrearage. Although a payment history was introduced at an earlier hearing there was none introduced at the final hearing. The trial court's calculation of support owed through the final hearing but refusal to consider any payments made after the earlier hearing was error.
Father's second argument is that the trial court incorrectly calculated his support payments. Based upon Mother's exhibit, a statement by her as to Father's payment history, the court concluded that Father had only paid $6,000. However, the trial court had ample evidence submitted by Father that he had paid thousands of dollars more. The trial court's basis for Father's payment history based upon mother's assertion while ignoring Father's actual payment history was error.
Father's third argument is that the trial court erred in finding him in contempt for “failing to pay support as ordered.” Because the trial court calculated the support arrearage based upon a payment history that was seven months less than the period used to calculate amount owed and because the court relied upon Mother's false declaration of amount Father had paid during the time of payments that were included the Court of Appeals determined that Father cannot be held in contempt for failure to pay as ordered.
Father's fourth argument is that the evidence does not support the trial court's finding regarding college expenses he owed to Mother pursuant to the terms of the Agreement.
In making its determination the trial court added up the numbers provided on Mother's exhibit and concluded that Father owed $15,939.04 for fees, tuition, books, parking, and room and board.
Mother's calculation of the college expenses incurred by the child included;
$7,560.00 fee to cover room and board;
$6,531.00 for tuition;
$828.04 additional required fees;
$875.60 book fee; and
$145.00 parking
$15,939.64 total
Keep in mind the portion of the Settlement Agreement that relates to college expenses; the parents shall “contribute equally to the children's college tuition". Black's Law Dictionary, sixth edition, defines equal as, "Alike; uniform; on the same plane or level with respect to efficiency, worth, value, amount, or rights. Word 'equal' as used in law implies not identity but duality and the use of one thing as the measure of another." In short as relates here, two like amounts.
Father asserted that Mother provided no evidence that she actually paid $6531.00 for tuition. Although Mother claimed to have paid $875.60 for books, the accompanying receipts add up to approximately $440.00 or one-half of the amount claimed. Apparently Mother figures if she claims double the expense then Father can pay half of the claimed amount which will cover the entire actual expense. Similarly, Mother claimed to have paid $7560.00 for room and board. However, the residential lease presented showed that the cost for housing was $3400.00 during the school year. This time less than half of the actual expense which would result in a windfall to Mother.
Finally, Father asserted that the parties agreed that room and board was specifically not to be paid by the parents. Such language was in the Settlement Agreement. Although the total that Mother claimed to have spent was $15,939.64 the evidence showed that the actual costs, assuming tuition was as claimed, was only $10,371.00. Father's half would be $5185.50. Since only "tuition" was to be paid by parents, Fathers half would be $3265.50.
The trial court was in error by finding that Father owed Mother $15,939.04 instead of $3265.50. A nice try on the part of Mother and the Court.
Father's next argument was that the trial court should have used the unreimbursed medical expenses that he incurred to offset the child support payment arrearage. The Agreement provided in pertinent part, “Husband shall maintain health, dental, and optical insurance on the minor children. The parties shall equally divide any unreimbursed medical, dental and optical expenses. . . .”. Again, in short as relates here, equal means two like amounts.
During the hearing, Father introduced an expense accounting, which included a list of medical payments, and accompanying receipts, for which Father claimed he had not been reimbursed. Mother made no claim as to the charges being invalid nor did she claim that she had paid any of the unreimbursed expenses.
The trial court erred by refusing to assign any of the unreimbursed medical expenses to Mother. The panel of the Court of Appeals remanded with instruction for the trial court to calculate the total amount and offset Father's child support payment arrearage by half that amount.
Finally, Father asserts that the trial court erred by calculating his weekly gross income at $2,211.04, when his pay stubs and Verified Financial Declaration reveal that his income was $1,953.20 per week. The trial court made no findings or conclusion that Father's income was more than what the evidence showed. Thus, the trial court erred by basing its child support order on an unverified and unsigned child support worksheet declaring Father's income at $2211.04 per week. Since Mother was the one who petitioned to modify Father's child support payment obligation it can reasonably be assumed she provided the worksheet with the petition as required. Again, nice try.
One last thing just because it was the proper thing to do. The panel also vacated the award of Mother's attorney fees. The court stated, "Because the attorney order rests upon the trial court's finding of contempt based upon arrearages for support and educational expenses and because we vacate that finding, we also vacate the order for attorney fees.
For whatever reason Judge Pfleging had in completely ignoring the parties Settlement Agreement and the law it is clear that he held a strong bias against Father. Fortunately Father, unlike the vast majority of litigants, was able to afford to file the appeal.
Appealing a trial court order is a time sensitive issue. Rule 9 of the Rules of Appellate Procedure sets forth the time for filing: "A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court's ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first."
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Sunday, April 17, 2011
Indiana Court Times on Unprepared Attorneys
The 13 April 2011 issue of the Indiana Court Times has an article titled Best Practices: What to do with the Unprepared Attorney written by the Honorable Marianne Vorhees.
A quick side note: I do not use the term Honorable as of course but do reserve it for those jurists who I believe bring honour to the judiciary. Marianne Vorhees is one of those who is deliberate in her thinking and application of the law. She views child custody proceedings as an examination of people and facts as unique as a set of fingerprints while giving due diligence to consideration for the ultimate recipient of her decision; the child.
I have built a practice of assisting attorneys and litigants with child custody proceedings. So when I saw the title of this article and certainly upon reading it I felt a sense of vindication. It is a matter of routine that I tell people that if they can afford to have an attorney then they can't afford to not have me working with them.
Near the end of the article Vorhees states, "As judge, you probably cannot do anything to protect the party represented by the unprepared attorney. The person who selected the attorney will have to suffer the consequences of choosing counsel unwisely."
That last sentence is profound but misses its greatest significance in what it doesn't say by what it does. Let me first back up to what the essence of the article was about; trial preparation.
When discussing relevant knowledge Vorhees wrote, " For example, if an attorney asks for hearing on behalf of a custodial parent seeking to relocate with a child, the court could hold a very productive pre-trial conference. There have been recent statutory changes that may be unknown to parents and even to some attorneys, especially those who don’t practice family law on a regular basis."
Although such information is not widely disseminated to the public it is well known among those practicing that there are attorneys who are profoundly ignorant of child custody matters who take these cases. It is not a subject that you will hear raised often but few attorneys fall into the category of child custody experts.
So when Vorhees says, "The person who selected the attorney will have to suffer the consequences of choosing counsel unwisely" she is correct. But what may not be readily discernible to the casual reader is the implicit message; that a child may ultimately suffer the consequences of a parent having an unprepared attorney.
I have all too often, after the damage has been done, seen a good parent, with a good case, with a child who needs his or her frequent and meaningful involvement not get that opportunity because of the short-comings of an attorney.
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Thursday, April 14, 2011
Letting Children Decide Parenting Time
Over the years I have been involved in some of the most notorious and bitterly contested custody cases in the state. Still I encounter new situations that come close to shocking me.
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The latest that peaked my interest was a mother going off on the father about his acknowledgement that their child had called him to alter the parenting time schedule. Before I get into the juicy details of the mother's tirade let's first examine what the Indiana Parenting Time Guidelines have to say on this subject.
One of the basic needs of a child is "To be free from having to side with either parent and to be free from conflict between the parents."
In regards to communication about parenting time the guidance is "All communications concerning a child shall be conducted between the parents."
As for adjusting parenting time the guidance is "Whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine, the parent who becomes aware of the circumstance shall notify the other parent as far in advance as possible. Both parents shall then attempt to reach a mutually acceptable adjustment to the parenting schedule."
So the child calls Father and requests that a change be made for the mid-week parenting time because of a conflict with a school function. Father had no objection to the change in the parenting time. However, I had previously instructed him that all communication between he and Mother should be in writing. He also knew that this scheduling modification is something that should be communicated between the parents.
Father then sent an email to Mother simply stating the facts and reinforcing that the decisions to make parenting time changes should not involve the child:
"I just received a call from [our child] asking if she could switch my parenting time from next Wednesday the 13th to Tuesday the 12th due to a school event she is participating in. Please confirm that you in fact asked her to call and make the switch and that this is your request. The switch is fine with me and I appreciate the advanced notice, but these types of conversations should be kept between us as to keep [our child] out of the middle of adult situations and scheduling issues. If I was unable to make the change that would make me out to be the bad guy and I don't appreciate you putting me in such a position."
This is in a form that reflects what I have instructed him to do and was done so without any review or editing by me. The only suggestion I had for him on this one after the fact was to modify the last sentence to not be centered on him but to instead read, "If I was unable to make the change that would make me one of us out to be the bad guy by giving her an expectation that we were unable to accommodate. We should not put her in such a position."
Mother responded to Father's email in a rather accusatory and combative nature. This has been her mode for eight years and, I believe, although both parents had carried on in this manner she was the primary reason that these litigants have been to the Indiana Supreme Court and back already with the case currently headed to the Indiana Court of Appeals. Attorney fees have exceeded a quarter million dollars.
Here is Mother's response; "If you are willing to switch your day to Tuesday, April 12 so [our child] can participate in the talent show, then I agree to the switch. Also, the talent show is on Thursday, April 14 @ 6:30. In regard to the phone call, I did not ask [our child] to call you. Rather, [our child] simply came home from school yesterday excited that she had made it into the talent show this year and asked to participate. I looked at the paper and noticed that the rehearsal is on a Wednesday (which is your parenting time evening), so I simply told [our child] that before I could tell her yes or no for sure, I would have to talk to you and get your permission for her to go during your parenting time (as to not undermine your authority since we have joint custody). She was excited about making the cut for the show and couldn't wait to ask you, so she asked me if she could call you and ask about it immediately. I told her she could call you, as I always do when she asks to call you. I am not sure what you want me to do[]? On one hand, I have numerous emails where you accuse me of not permitting [our child] to have access with you via phone and now you are upset that I allowed [our child] to call you when she asked to do so. Would you have preferred for me to tell her that she couldn't call you? Either you want to be involved in decisions regarding [our child] or you don't. Regardless, I am not going to always be the one to break upsetting news to [our child] because you won't allow her to participate in activities during your parenting time. Being a parent means you sometimes have to be the bad guy. Further, I am not going to allow you to once again knit pick everything I do. Since we are still under a court order to participate in parenting time coordination with Dr. Ferraro, I am forwarding all communication to him for his review and file. I know that misery loves company, but that is an invitation to a party that I will not be attending with you." [emphasis added by me]
Although it is fine for Mother to allow the child to call her father she should have made it clear that it was between the parents to decide this issue. Mother fails to understand the nuances of appropriate responsibilities for the child with respect to communication between the parents.
Mother forwarded both emails to Dr Ferraro. His response included; "An effort to be less reactive and more businesslike in your response would be productive. Specifically, it would seem that the last 10 sentences did not contribute significantly to the resolution of the matter at hand."
To effectively co-parent it is necessary to put aside past differences, blame and desire for justification or retribution. Mother still fails to understand that it is time to put the interest of their child ahead of her desire to bring Father down.
The newly appointed parenting time coordinator must already be wondering why Mother has custody of the child when she has such a combative attitude and refuses to make simple decisions without involving the PTC. She has previously told Father that the PTC must decide the issue of whether the parties could switch transportation responsibilities for one of the mid-week parenting time days. They would each still transport one way but flip the usual he pick up, she drop off.
With him being ordered to pay 75% of the PTC fees it is clear to see her motivation in wanting every issue to go to the PTC.
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
