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Judges affirm division of property

September 21, 2011

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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