ILNews

COA: Husband not entitled to judgment relief

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reversed a trial court order granting a husband relief from judgment because the order modified the parties' original property settlement, which wasn't allowed under Indiana Statute or Trial Rule 60(B).

In Janet L. Dillard v. Donald S. Dillard, No. 36A01-0712-CV-606, Donald Dillard filed for divorce from his wife, Janet Dillard, in July 2006. The parties agreed in December 2006 to a property settlement, which stipulated the marital home would be sold and Donald would receive 25 percent of net profits and Janet would receive 75 percent.

The settlement agreement stated any modification or waivers of the terms of the agreement would be effective only if they are reduced to writing and executed with the same formality as the agreement.

In February 2007, Donald filed a motion to set aside the dissolution decree because before they separated, he withdrew money from his 401(k) to pay off some of the couple's credit card debt and that withdrawal will result in a tax liability of more than $26,000.

Janet filed a motion to dismiss, arguing Indiana Code Section 31-15-2-17(c) prohibited the modification of the decree because she hadn't consented to a modification, and the parties hadn't executed a written modification as required under the settlement agreement.

The trial court granted Donald's motion regarding the property settlement portion of the decree; Janet filed a motion to reconsider, saying Donald wasn't entitled to relief under Trial Rule 60(B). The trial court denied the motion to reconsider, and in November 2007, ordered that the majority of the net proceeds from the sale of the marital house go to Donald to pay of his tax liability.

The Indiana Court of Appeals reversed the trial court ruling because the parties didn't agree to a modification of the disposition of their property as is required by the original settlement agreement. Janet never consented to the modification, as is required under Indiana Code. A court can only modify the dissolution if there is fraud, duress, or undue influence, which didn't occur in this case, wrote Judge Carr Darden.

Donald also wasn't entitled to relief under Trial Rule 60(B) because he didn't set forth any extraordinary circumstances or show that the circumstances weren't his fault that would invoke the trial court's equitable powers under the rule, wrote Judge Darden.
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  1. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  2. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  3. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

  4. I've been denied I appeal court date took a year my court date was Nov 9,2016 and have not received a answer yet

  5. Warsaw indiana dcs lying on our case. We already proved that in our first and most recent court appearance i need people to contact me who have evidence of dcs malpractice please email or facebook nathaniel hollett thank you

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