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Judges disagree on if remand is necessary

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The Indiana Court of Appeals reversed and remanded a trial court's grant of an ex-wife's petition for additional relief for funds, finding the trial court didn't hear evidence on certain "critical" factors. The judges on appeal didn't agree as to whether the case should be remanded.

In Harold E. Bean Jr. v. Carol A. Bean, No. 49A05-0807-CV-390, the appellate court considered whether the trial court properly adjudicated certain of Harold Bean's dissolution debts to be nondischargeable for the purpose of the federal bankruptcy proceedings; whether the trial court erred in ordering him to pay half of the Beans' children's college expenses; and whether it erred in ordering Harold to pay Carol Bean's attorney fees.

As part of the couple's settlement agreement, Harold was to assume and pay the second mortgage on the marital home, and they were to split equally the cost of educational expenses and file joint tax income returns for 1986 and 1987.

Harold filed bankruptcy after the dissolution; Carol was forced to refinance the home to pay off the second mortgage and tax liability because he failed to pay their joint tax liability.

When considering whether Harold's dissolution debts, such as the second mortgage and tax liability were nondischargeable, the Indiana Court of Appeals noted important evidence on certain factors was missing. The record didn't contain evidence of their incomes and earning potentials when they entered the settlement agreement, and neither party presented evidence about the actual need for support or the adequacy of support without the award, wrote Judge Elaine Brown.

Without a record of the parties' financial situations when they entered into the settlement agreement, the Court of Appeals was unable to tell whether the second mortgage assigned to Harold was intended to be in nature of maintenance or support or part of a property division, which would determine whether the debts were nondischargeable. The appellate court reversed the award reimbursing Carol for her payment of the second mortgage and payment of the tax liability.

The Court of Appeals also reversed the order Harold had to pay half of his children's college expenses. The parties' settlement agreement didn't specify Harold would be responsible for their college fees and expenses, and only mentioned one child's pre-school and kindergarten expenses. In addition, Carol never filed a petition to modify the agreement, wrote the judge. The trial court also erred in awarding Carol attorney fees.

The majority remanded the case for a hearing consistent with the opinion, but Judge Margret Robb dissented to ordering a remand. While she concurred with reversing the orders against Harold, she believed Carol wasn't entitled to a "second bite of the apple" to prove her case. The trial court had no evidence regarding several of the factors for determining dischargeability, and the factors in Carol's favor aren't sufficient to override the factors for which the evidence doesn't support her position and for which there is no evidence at all, wrote Judge Robb.

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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