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Trial court erred in excluding evidence of mediation communications

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Even though the trial court erred in excluding an ex-husband’s offer of evidence of communications during a settlement agreement following his divorce to establish a mistake occurred in drafting the agreement, the error was harmless, the Indiana Court of Appeals ruled. This case raised an issue of first impression regarding whether communications during mediation can be used as extrinsic evidence.

In Dennis Jack Horner v. Marcia (Horner) Carter, No. 34A02-1111-DR-1029, Dennis and Marcia Horner, now Marcia Carter, divorced after more than 30 years of marriage. They entered into a mediated settlement agreement in which Horner would pay $550 a month toward the purchase of a new residence for Carter, which was outlined in the “real estate” section of the agreement. Under the “maintenance/support” section, Horner was to pay Carter either $500 or $600 a month until a modification of the court or death of Carter. If she remarried, this maintenance would end. Carter eventually remarried; Horner stopped paying the maintenance, but continued to pay toward her housing for several years. Carter and her new husband lived in the Horners’ former home and paid Horner $660 a month. Eventually they stopped making monthly payments and were evicted.

Horner stopped making the housing payments to Carter because he thought it was maintenance. He argued that there was an error in communications during their mediation, which he wanted to introduce at a hearing to show there was a mistake in the agreement. He claimed he communicated to his attorney that all payments to his ex-wife would stop once she was married. She argued they agreed he would continue to pay her housing because she agreed to give up any interest in his pension. The trial court ruled in favor of Carter and declined to allow Horner to testify as to what was said during mediation.

The Court of Appeals concluded that the settlement agreement is ambiguous, so it may consider extrinsic evidence. But the issue isn’t whether Horner can offer this evidence, it’s whether that evidence can be communications that happened during mediation, something the Court of Appeals has yet to answer.

Citing Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408, the judges concluded Horner should have been allowed to introduce the mediation communications as evidence. He sought to offer this evidence to establish that a mistake occurred in drafting the agreement, which would not be excluded under Rule 408. Only evidence that is offered to prove “liability for or invalidity of the claim or its amount” is excluded.

But it was a harmless error, the judges held, because Horner did testify to communications that happened during mediation and his statements fall far short of establishing any mistake that may entitle him to relief, wrote Judge Nancy Vaidik.

The COA also upheld the finding that the housing payment provision is for a property settlement. Even though that provision has characteristics that resemble maintenance, it was placed under the “real estate” portion of the agreement, and the parties did not expressly provide that this provision was subject to modification. Plus, Horner did not seek to modify his housing payments when Carter remarried in 2007, only his maintenance payments.

 

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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