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Trial court erred in excluding evidence of mediation communications

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Even though the trial court erred in excluding an ex-husband’s offer of evidence of communications during a settlement agreement following his divorce to establish a mistake occurred in drafting the agreement, the error was harmless, the Indiana Court of Appeals ruled. This case raised an issue of first impression regarding whether communications during mediation can be used as extrinsic evidence.

In Dennis Jack Horner v. Marcia (Horner) Carter, No. 34A02-1111-DR-1029, Dennis and Marcia Horner, now Marcia Carter, divorced after more than 30 years of marriage. They entered into a mediated settlement agreement in which Horner would pay $550 a month toward the purchase of a new residence for Carter, which was outlined in the “real estate” section of the agreement. Under the “maintenance/support” section, Horner was to pay Carter either $500 or $600 a month until a modification of the court or death of Carter. If she remarried, this maintenance would end. Carter eventually remarried; Horner stopped paying the maintenance, but continued to pay toward her housing for several years. Carter and her new husband lived in the Horners’ former home and paid Horner $660 a month. Eventually they stopped making monthly payments and were evicted.

Horner stopped making the housing payments to Carter because he thought it was maintenance. He argued that there was an error in communications during their mediation, which he wanted to introduce at a hearing to show there was a mistake in the agreement. He claimed he communicated to his attorney that all payments to his ex-wife would stop once she was married. She argued they agreed he would continue to pay her housing because she agreed to give up any interest in his pension. The trial court ruled in favor of Carter and declined to allow Horner to testify as to what was said during mediation.

The Court of Appeals concluded that the settlement agreement is ambiguous, so it may consider extrinsic evidence. But the issue isn’t whether Horner can offer this evidence, it’s whether that evidence can be communications that happened during mediation, something the Court of Appeals has yet to answer.

Citing Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408, the judges concluded Horner should have been allowed to introduce the mediation communications as evidence. He sought to offer this evidence to establish that a mistake occurred in drafting the agreement, which would not be excluded under Rule 408. Only evidence that is offered to prove “liability for or invalidity of the claim or its amount” is excluded.

But it was a harmless error, the judges held, because Horner did testify to communications that happened during mediation and his statements fall far short of establishing any mistake that may entitle him to relief, wrote Judge Nancy Vaidik.

The COA also upheld the finding that the housing payment provision is for a property settlement. Even though that provision has characteristics that resemble maintenance, it was placed under the “real estate” portion of the agreement, and the parties did not expressly provide that this provision was subject to modification. Plus, Horner did not seek to modify his housing payments when Carter remarried in 2007, only his maintenance payments.

 

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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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