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Judges affirm division of property

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Although a commissioners’ report that divided land among two owners was technically inadequate, the Indiana Court of Appeals upheld the division because one of the owners didn’t show he was prejudiced.

In George W. Giltner, Jr. v. Betty L. Ivers, Martin Zacharias, Jr., and Bradi L. Zacharias, No. 10A05-1010-PL-662, Betty Ivers owned 80 percent of a 100-acre parcel of land that was partly wooded and partly farm land, and George Giltner owed the other 20 percent. Brandi and Martin Zacharias, who were buying Ivers’ portion to build a home in the wooded area, tried to negotiate with Giltner to buy his share, but he refused. The Zachariases filed a complaint to compel partition of the land and three commissioners were appointed.

Both parties were interested in the wooded portion, but did not mention that to the commissioners. The commissioners apportioned Giltner 16.5 acres on the farmland side, and the rest of the land to the Zachariases. Giltner filed a motion to set aside the report, claiming the report wasn’t in proper form and was unreasonable in the division of the land. The trial court heard testimony from Giltner about how he often visited the wooded area with his family while growing up and it held special memories for him; Brandi also testified that she had childhood memories of spending time in the woods and that her relatives, who lived nearby, only recalled seeing Giltner on the property twice.

The trial court issued an order confirming the report and denied Giltner’s motion to correct error.

The Court of Appeals rejected the Zachariases’ arguments as to why Giltner waived each issue he raised on appeal. Giltner argued that the report should be set aside because it didn’t make any finding as to whether the division would materially damage a party, it didn’t reveal the property’s value or methodology used, and the division wasn’t proportionate to the parties’ ownership interests.

The report issued was sparse in information and didn’t find whether dividing the land would cause material damage to a party, as the commissioners were instructed to do. However, that the commissioners recommended a division at all indicates that they believed the land could be fairly divided, wrote Judge Terry Crone. The report is technically inadequate because it didn’t include information and reasoning supporting their suggested apportion, which helps the trial court make a reasoned decision to confirm or deny and helps parties decide whether to challenge the report, he wrote.

The commissioners were also told to maintain a file of all information supporting the report, and this information was discoverable to the parties. There’s no indication in the record that Giltner tried to access this information.

Giltner hasn’t showed that he was prejudiced, so he is not entitled to reversal, the appellate court ruled.
 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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