ILNews

COA: Husband not entitled to judgment relief

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reversed a trial court order granting a husband relief from judgment because the order modified the parties' original property settlement, which wasn't allowed under Indiana Statute or Trial Rule 60(B).

In Janet L. Dillard v. Donald S. Dillard, No. 36A01-0712-CV-606, Donald Dillard filed for divorce from his wife, Janet Dillard, in July 2006. The parties agreed in December 2006 to a property settlement, which stipulated the marital home would be sold and Donald would receive 25 percent of net profits and Janet would receive 75 percent.

The settlement agreement stated any modification or waivers of the terms of the agreement would be effective only if they are reduced to writing and executed with the same formality as the agreement.

In February 2007, Donald filed a motion to set aside the dissolution decree because before they separated, he withdrew money from his 401(k) to pay off some of the couple's credit card debt and that withdrawal will result in a tax liability of more than $26,000.

Janet filed a motion to dismiss, arguing Indiana Code Section 31-15-2-17(c) prohibited the modification of the decree because she hadn't consented to a modification, and the parties hadn't executed a written modification as required under the settlement agreement.

The trial court granted Donald's motion regarding the property settlement portion of the decree; Janet filed a motion to reconsider, saying Donald wasn't entitled to relief under Trial Rule 60(B). The trial court denied the motion to reconsider, and in November 2007, ordered that the majority of the net proceeds from the sale of the marital house go to Donald to pay of his tax liability.

The Indiana Court of Appeals reversed the trial court ruling because the parties didn't agree to a modification of the disposition of their property as is required by the original settlement agreement. Janet never consented to the modification, as is required under Indiana Code. A court can only modify the dissolution if there is fraud, duress, or undue influence, which didn't occur in this case, wrote Judge Carr Darden.

Donald also wasn't entitled to relief under Trial Rule 60(B) because he didn't set forth any extraordinary circumstances or show that the circumstances weren't his fault that would invoke the trial court's equitable powers under the rule, wrote Judge Darden.
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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