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Trial Court Failed to Correctly Calculate Marital Pot Total

Statement of the Case
David Scoggin (“Husband”) appeals the trial court’s division of assets pursuant to the dissolution of his marriage to Melony Scoggin-Sommers (“Wife”). On appeal, he argues that the trial court erred in assessing the marital pot because it omitted certain marital assets and incorrectly valued certain assets. He also argues that the trial court abused its discretion in determining that Wife had rebutted the presumption in favor of an equal division of property. We agree that the trial court erred by failing to include all of the assets in the marital pot and by failing to accurately value all of the assets. We also conclude that the trial court did not abuse its discretion in determining that Wife had rebutted the presumption in favor of an equal division of assets. We remand to the trial court with instructions to include the omitted marital assets with correct valuations in the marital pot. The trial court may then distribute the marital assets in accordance with this amended assessment of the marital pot and its finding that Wife rebutted the presumption in favor of equal division.

We affirm in part, reverse in part, and remand.

Issues
1. Whether the trial court erred in calculating the marital pot.
2. Whether the trial court abused its discretion when it
determined that Wife had rebutted the presumption in favor of
an equal distribution of the assets.

Randall Parr is an Indianapolis divorce lawyer. Contact him today.

Read the entire opinion here.

No Attorney’s Fees in Complex Guardianship, Estate Matter

STATEMENT OF THE CASE
Appellants-Respondents, Raymond L. Lamey, M.D. (Raymond) and Ramona Lamey (Mona) (collectively, Appellants), Co-Guardians of the Person of Darvin Henry Lamey and Co-Personal Representatives of the Estate of Darvin Henry Lamey, appeal the trial court’s findings of fact and conclusions of law granting the payment of attorney fees to Appellees-Petitioners, Ziemer,
Stayman, Weitzel & Shoulders, LLP (ZSWS) and Kolb Roellgen & Kichoff, LLP (Kolb), incurred during their representation of the protected person.  We affirm.

ISSUES
Appellants present this court with two issues on appeal, which we restate as follows:

(1) Whether the trial court properly granted payment of attorney fees to ZSWS when ZSWS entered into an attorney-client relationship with Darvin Henry Lamey (Darvin) while Darvin was a protected person and under a guardianship, and entered into this relationship without the knowledge of Darvin’s Guardian ad Litem (GAL) and without contracting with the guardian
of his estate; and

(2) Whether the trial court properly granted payment of attorney fees to Kolb when Kolb entered into an attorney-client relationship with Darvin, without the knowledge of Darvin’s GAL, and without contracting with the guardian of his
estate, for purposes of modifying Darvin’s estate plan and making an election under the Virginia Lamey Trust.

ZSWS and Kolb present this court with two issues on appeal, which we restate as:

(1) Whether Appellants can bring this interlocutory appeal of right even though Appellants were not ordered to pay any amount of money; and

(2) Whether ZSWS and Kolb are entitled to appellate attorney fees pursuant to Indiana Appellate Rule 66(E).

In addition, Kolb presents this court with one issue on appeal, which we restate
as: Whether Appellants have standing to pursue this appeal.

Click here for the entire opinion.

Randall Parr is an attorney in Indianapolis who handles family, guardianship, and estate matters.

Plea Deal Cannot Waive Right to Modify Sentence

In 2013, Pebble Stafford pleaded guilty to three charges, including Class B felony dealing in a controlled substance. Her plea agreement purported to waive her right to seek later modification of her sentence. After the General Assembly amended the sentence modification statute in 2014, Stafford petitioned the trial court for a sentence modification. The trial court granted that motion, and the State now appeals. We affirm and remand with instructions.

Facts
On July 18, 2013, the State charged Stafford with Class B felony dealing in a controlled substance. Stafford was also facing two unrelated charges in two other separate cause numbers.
On June 10, 2014, Stafford entered into a plea agreement resolving all three cases. She agreed to plead guilty to Class B felony dealing in a controlled substance, Class B misdemeanor possession of substance to interfere with a screening test, and Class C felony battery. The agreement provided that she would receive consecutive sentences of six years in the Department of Correction (DOC) with none suspended for the Class B felony; thirty days in the Jefferson County Jail with none suspended for the Class B misdemeanor; and four years in the DOC with none suspended, with direct placement to community corrections for the Class C felony battery.

Click here to read the entire opinion.

Randall Parr is a criminal defense attorney in Indianapolis.  Contact him today.

Court of Appeals: Grandfather Cannot File Paternity Action

When S.A.M. was born, M.M. (“Father”) signed a paternity affidavit and became S.A.M.’s legal father. Over time, suspicion arose that another man, B.H., was S.A.M.’s biological father. However, B.H. died before paternity tests were conducted. Thereafter, B.H.’s father, M.H., filed a paternity action to
determine whether S.A.M. was the biological child of B.H. During that proceeding, Father entered into a mediation agreement (“Mediation
Agreement”) with M.H. Father later asked the trial court to declare that Agreement void ab initio, but the trial court denied his motion. Father now appeals that denial, raising the following restated issues:
(1) Whether the trial court erred when it concluded M.H. had standing as S.A.M.’s next friend to file a petition to establish B.H.’s paternity of S.A.M.;
(2) Whether the trial court abused its discretion in denying Father’s request to declare void the Mediation Agreement;
(3) Whether the trial court abused its discretion in denying Father’s request for attorney fees.

We reverse and remand.

Read the whole opinion.

Randall Parr is an Indianapolis family law attorney.  Contact him today.

Trial Court Must Make Proper Findings to Support Termination of Parental Rights

A.O. (“Mother”) and H.W. (“Father”) (collectively “the Parents”) appeal the order of the Bartholomew Superior Court terminating their parental rights to their minor child R.W. Concluding that the trial court’s order is insufficiently specific as to the basis of the trial court’s decision to terminate the Parents’ parental rights, we remand for the entry of proper findings and conclusions that
support the trial court’s termination decision.

Facts and Procedural History

R.W. was born in October 2014 to Mother and Father. In April 2015, the Indiana Department of Child Services (“DCS”) received a report that Mother and Father were homeless and using illicit drugs. Mother, who was living in a homeless shelter at the time, admitted to using marijuana and methamphetamine. As a result, DCS removed R.W. from the Parents’ care and, on April 9, 2015, filed a petition alleging that R.W. was a child in need of services (“CHINS”). A detention hearing was held that same day, and the trial court approved placement of R.W. with Mother’s aunt (“Aunt”). The Parents denied the allegations in the CHINS petition, and the trial court set the matter for a fact-finding hearing. However, at the May 26, 2015 fact-finding hearing, the Parents admitted to the allegations, and the trial court adjudicated R.W. to be a CHINS.

Randall Parr is an Indianapolis attorney who handles CHINS and juvenile criminal defense matters.  Contact him today.

Find the entire opinion here.

Court Lacks Authority to Make Divorced Mother Co-owner of 529 Accounts

While David Miller (“Father”) and Joy Brown (“Mother”) were married, Father opened two college savings accounts in his name, designating the couple’s two sons as the beneficiaries. After the couple divorced, Father continued making contributions to those two accounts, and Mother opened two additional accounts in her own name with the boys as the beneficiaries. The older son enrolled in college but eventually withdrew.

At issue in this case is the trial court’s order requiring Father and Mother to, among other things, combine all the savings accounts into a single, jointly owned account for the benefit of the younger son. Father appeals. He says he has no objection to paying his share of his son’s college expenses but argues that the funds in the accounts he opened are his property and that the trial court lacked authority to make Mother a co-owner. We agree with Father, reverse the order in its entirety, and remand for further proceedings.

Father and Mother married in 1986 and had two sons: Z.M., born in May 1995, and N.M., born in December 1997. During the marriage, Father opened two “529 accounts”—the tax-advantaged college savings accounts authorized by 26 U.S.C. § 529. Father designated Z.M. as the beneficiary of one of the accounts and N.M. as the beneficiary of the other.

If you need an Indianapolis divorce lawyer, contact Randall Parr today.

7th Circuit Reverses Convictions on Double Jeopardy Grounds

Before RIPPLE, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. For nearly a decade, John Gries and James McCullars were active participants in a private online chat room frequented by pedophiles sharing large volumes of child pornography. They were indicted for conspiracy to distribute child pornography, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. Other users of the chat room cooperated with investigators, pleaded guilty, and received sentencing consideration. The charges against Gries and McCullars proceeded to trial; several cooperators testified against them.

To convict Gries and McCullars of the enterprise offense, the government had to prove that they committed three or more crimes against children “in concert” with three or more persons. 18 U.S.C. § 2252A(g)(2). The jury found them guilty on all charges.
At sentencing the parties and the judge overlooked an important point: The conspiracy counts are lesser-included offenses of the enterprise count. Instead of merging those convictions with the enterprise conviction and imposing sentence on the greater offense alone, the judge imposed concurrent sentences on all three convictions. That error violates the Double Jeopardy Clause. Rutledge v. United States, 517 U.S. 292, 307 (1996).

We reverse and remand with instructions to vacate the sentences on the conspiracy counts and enter new judgments accordingly . . . .

Read the whole opinion.

Randall Parr is a criminal defense attorney in Indianapolis and has practiced since 1981.

Probation For Drug Convictions Revoked

Parke v. State
We affirm.
Facts and Procedural History
In July 2011, Parke pleaded guilty to Class B felony burglary, Class D felony theft, Class C felony forgery, and two counts of Class D felony fraud, pursuant to a plea agreement that capped her executed sentence at ten years and required her “to be evaluated for the Madison County Drug Court [(“Drug Court”)] program.” Appellant’s App. Vol. II at 5. The trial court sentenced Parke to an aggregate sentence of fifteen years, with six years executed on home detention and nine years suspended to probation. In November 2011, Parke was accepted into and agreed to comply with the rules of the Drug Court program. As part of that agreement, Parke acknowledged that the trial court would revisit her sentence if she did not complete the program. Id. at 54. On September 27, 2012, the Drug Court filed a request that Parke be terminated from the program, which the trial court denied. In December 2012, when Parke again failed to appear in Drug Court, the trial court administratively terminated Parke from the program, finding that her thirty-day absence from Drug Court constituted a voluntary withdrawal from the program. Id. at 10. The trial court held a sanctions hearing, and, on January 28, 2013, the trial court ordered Parke to complete her sentence with DOC. Id. at 64, 65.

No Unjust Enrichment in Jail Contract Dispute

-Defendant Dearborn County, Indiana (“the County”), for certain architectural services connected to a project to renovate and expand the Dearborn County Jail (“the Project”). The Contract provided that RQAW would complete a Pre-Design Study, which
would evaluate how to best meet the County’s then-current and future needs. In relation to the Pre-Design Study, the parties agreed that the County would pay RQAW the sum of $90,000. The Contract further indicated that any further work and the cost for such work would be determined at a later time.  RQAW completed the Pre-Design Study and the County paid RQAW the
agreed-upon $90,000.
After completion of the Pre-Design Study, the County decided to seek proposals from a number of architectural firms in connection to the design, bidding, and construction phases of the Project. Although RQAW submitted a proposal for this work, the County ultimately decided to move forward on the Project with a different architectural firm.

RQAW subsequently filed suit, alleging that the County had breached its contract with RQAW. RQAW also alleged that it was entitled to recover damages under the equitable theory of unjust enrichment. As to RQAW’s breach of contract claim, the parties filed competing motions for summary judgment. As to RQAW’s equitable claim, the County filed a motion for judgment on the pleadings. Following a hearing, the trial court granted the County’s motion for summary judgment, denied RQAW’s motion for summary judgment, and granted the County’s motion for judgment on the pleadings.

RQAW challenges these rulings on appeal. We affirm.
To read the full opinion, click here.
If you are looking for a small business attorney in Indianapolis or the surrounding area, contact Randall Parr today.

Wrongful Death Proceeds Distributed Based on Wrongful Death Statute; Not Assets of Estate

Donnie Wayne Winningham, Kelly Annette Winningham, and Kristy Milburn v. The Supervised Estate of Keri L. Winningham and Interested Party of Leigh Ann Schattner

Donnie Winningham, Kelly Winningham, and Kristy Milburn (collectively, the Appellants) bring this interlocutory appeal of the trial court’s order that the proceeds from two wrongful death claims be distributed to the beneficiaries designated under the Adult Wrongful Death Act, rather than the beneficiaries designated under the intestate succession statute. We affirm and remand for further proceedings.

The Appellants are the half-siblings of Keri Winningham. On September 27, 2014, Winningham was walking in Anderson when she was struck by a vehicle driven by one person and then run over by a vehicle driven by another person; she died as a result. At the time of her death, Winningham was a twenty-six- year-old unmarried adult who did not have a will.

Lori Rumreich, Winningham’s aunt, opened a supervised estate for Winningham and was appointed personal representative. As personal representative, Rumreich brought wrongful death claims against two insurance companies. Both companies agreed to settle the claims.

In her petition to open the estate, Rumreich listed the proceeds from the wrongful death claims as assets of the probate estate subject to distribution to the intestate beneficiaries. Sometime after receiving the trial court’s authorization to distribute those proceeds through intestate succession, but before the distribution actually took place, Rumreich became aware of the possibility that the proceeds were not assets of the probate estate and should not have been included in the assets to be distributed through intestate succession. . . .

Read the full opinion here.

If you are in need of an estate lawyer, contact Indianapolis estate attorney Randall Parr today.