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COA: Home isn't allowed in marital estate

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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.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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