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Justices adopt COA adoption holding, invite attorney fee motions

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The Indiana Supreme Court has granted transfer on a St. Joseph County adoption case and fully adopted a holding by the state’s intermediate appellate court. In doing so, the state justices invited the prevailing biological mother to request attorney fees because of what it found to be possible frivolous or bad faith efforts.

Justices issued a unanimous order today in The Adoption of N.W., M.W. v. A.W., No. 71S04-1102-AD-87, which adopts the Court of Appeals decision from Sept. 16, 2010, that reversed a ruling by St. Joseph Probate Judge Peter Nemeth.

This case revolves around N.W., who was born in late 2001 to mother M.W. and father R.W. and lived with them until the parents’ separation in 2005. The parents agreed in a divorce settlement that they would share joint legal custody of N.W., and the father would retain physical custody.

The father married A.W. in early 2009. Stepmother A.W. filed an adoption petition after visitation ceased between mother and child and the biological parents disagreed about visitation, parenting time, and child support.

The trial judge in December 2009 granted the stepmother’s adoption petition and found the mother’s consent wasn’t required because she’d failed to support the child. Judge Nemeth later denied a motion to correct error or grant relief.

The Court of Appeals last year reversed, holding that mother’s adoption consent was required and that “there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.’s best interest.”

Since then, that ruling and holding has been cited in other appeals before the state’s appellate courts.

Deciding that the appellate panel correctly ruled on the issues, the Supreme Court granted transfer and adopted that opinion under Indiana Appellate Rule 58(A)(1). Reviewing the lower ruling and materials, the justices also determined more was required under Indiana Code 34-52-1-1.

That state statute permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: (1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.

“The record before us suggests one or more of these grounds may exist for an award of attorney fees,” the order says.

Supreme Court Public Information Officer Kathryn Dolan said that less than once a year the justices might grant transfer and fully adopt a Court of Appeals decision, but it’s even rarer for them to suggest the court might entertain a motion on attorney fees like this.

As the prevailing party, the mother has 60 days to file a request for attorney fees incurred at trial and on appeal under I.C. 34-52-1-1 if she chooses to do so.

Attorneys on the case are listed as South Bend lawyer Mark James for the stepmother A.W., and Michigan City lawyers Craig Braje and Elizabeth Flynn for the mother M.W.

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  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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