ILNews

Judges affirm division of property

Back to TopCommentsE-mailPrintBookmark and Share

Although a commissioners’ report that divided land among two owners was technically inadequate, the Indiana Court of Appeals upheld the division because one of the owners didn’t show he was prejudiced.

In George W. Giltner, Jr. v. Betty L. Ivers, Martin Zacharias, Jr., and Bradi L. Zacharias, No. 10A05-1010-PL-662, Betty Ivers owned 80 percent of a 100-acre parcel of land that was partly wooded and partly farm land, and George Giltner owed the other 20 percent. Brandi and Martin Zacharias, who were buying Ivers’ portion to build a home in the wooded area, tried to negotiate with Giltner to buy his share, but he refused. The Zachariases filed a complaint to compel partition of the land and three commissioners were appointed.

Both parties were interested in the wooded portion, but did not mention that to the commissioners. The commissioners apportioned Giltner 16.5 acres on the farmland side, and the rest of the land to the Zachariases. Giltner filed a motion to set aside the report, claiming the report wasn’t in proper form and was unreasonable in the division of the land. The trial court heard testimony from Giltner about how he often visited the wooded area with his family while growing up and it held special memories for him; Brandi also testified that she had childhood memories of spending time in the woods and that her relatives, who lived nearby, only recalled seeing Giltner on the property twice.

The trial court issued an order confirming the report and denied Giltner’s motion to correct error.

The Court of Appeals rejected the Zachariases’ arguments as to why Giltner waived each issue he raised on appeal. Giltner argued that the report should be set aside because it didn’t make any finding as to whether the division would materially damage a party, it didn’t reveal the property’s value or methodology used, and the division wasn’t proportionate to the parties’ ownership interests.

The report issued was sparse in information and didn’t find whether dividing the land would cause material damage to a party, as the commissioners were instructed to do. However, that the commissioners recommended a division at all indicates that they believed the land could be fairly divided, wrote Judge Terry Crone. The report is technically inadequate because it didn’t include information and reasoning supporting their suggested apportion, which helps the trial court make a reasoned decision to confirm or deny and helps parties decide whether to challenge the report, he wrote.

The commissioners were also told to maintain a file of all information supporting the report, and this information was discoverable to the parties. There’s no indication in the record that Giltner tried to access this information.

Giltner hasn’t showed that he was prejudiced, so he is not entitled to reversal, the appellate court ruled.
 

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. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT