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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