ILNews

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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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