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. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

ADVERTISEMENT