Justices adopt COA adoption holding, invite attorney fee motions

Back to TopCommentsE-mailPrintBookmark and Share

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.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?