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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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