ILNews

COA: Home isn't allowed in marital estate

Back to TopCommentsE-mailPrintBookmark and Share

Even though a trial court believed a wife's testimony that her in-laws' purposefully kept her from receiving any money from the sale of the marital residence in the event of a divorce, the lower court erred by including the residence in the marital estate, ruled the Indiana Court of Appeals. The home was titled in the name of the in-laws and they weren't joined as nonparties to the dissolution proceedings.

Greta Nicevski testified during the dissolution proceedings that she believed her husband, Krstin, and his parents had titled the Nicevskis' home in the parents' names solely to deprive her of half the property's value if they were to divorce. After the Nicevskis married, Krstin's parents paid for the lot, construction, and title insurance for the home; the Nicevskis paid the parents rent to live in the house.

The trial court accepted Greta's testimony that she and her husband paid $80,000 toward the house, even though she didn't have evidence or bank statements to support her testimony. The lower court also ruled the house belongs to Krstin and that he must pay her $40,000.

In Krstin Nicevski v. Greta Nicevski, No. 02A04-0904-CV-188, the Court of Appeals relied on In re Marriage of Dall, 681 N.E.2d 718 (Ind. Ct. App. 1997), to reverse the trial court. In Dall, the wife's father purchased the lot, supplied most of the lumber for the home, paid the contractors and for the building materials, but the Dalls and the wife's parents all helped to build the home. The home was titled in the parents' name when the Dalls divorced. The trial court in that case held that an equitable interest in real property titled in a third-party's name, although claimed by one of the divorcing parties, shouldn't be included in the marital estate.

The Dall court also ruled that unless a nonparty is joined, the dissolution court is powerless to adjudicate with certainty the extent of the marital property interest in the real estate.

In the instant case, Krstin's parents were not joined as nonparties pursuant to Trial Rule 12(B)(7).

"We fully acknowledge that the trial court assessed witness credibility and chose to credit Greta's testimony over Krstin's, and we do not second-guess that decision," wrote Chief Judge John Baker. "Unfortunately, pursuant to Dall, the trial court simply did not have the power to include the residence in the marital estate."

The appellate court also rejected Greta's argument that Krstin waived any argument because he didn't object to her failure to join his parents at trial or seek to join them himself. The judges agreed with the Dall court that reliance on the waiver doctrine doesn't resolve this case, and that even though Krstin included a valuation of the residence at trial, he isn't precluded from arguing that the residence shouldn't have been included in the marital estate, wrote the chief judge.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

ADVERTISEMENT