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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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