ILNews

Trial court erred in excluding evidence of mediation communications

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

ADVERTISEMENT