Court must give man time to object to ex-wife’s motion

September 16, 2014

A Marion Superior Court erred when it granted a woman’s motion to vacate a hearing on contempt charges against her without giving her ex-husband 15 days to file a response, as permitted under local rules, the Indiana Court of Appeals ruled Tuesday.

Willie Jenkins appealed Marion Superior Commissioner Jeffrey Marchal’s grant of Mary Jenkins’ motion to vacate a contempt hearing. The Jenkins divorced in 2012 and Mary Jenkins was required to secure any of her ex-husband’s belongings and return them to him within 30 days of the finalization of the divorce. But more than a year later, Willie Jenkins still didn’t have his belongings, so he filed a petition for contempt.

Mary Jenkins filed her motion to vacate the hearing, saying she delivered the property to her ex-husband, all pending matters had been resolved, and she had contacted opposing counsel, but counsel had not responded prior to filing. The trial court granted the motion the day after she filed it. Marchal also denied Willie Jenkins’ objection, in which he argued he had 15 days to respond pursuant to local court rule.

The Court of Appeals agreed with Willie Jenkins and remanded the matter for further proceedings in Willie Jenkins v. Mary Jenkins, 49A02-1403-DR-132.

It appears that under LR49-TR5-203(B), a 15-day response period is mandatory should there be any indication that an objection to the granting of a motion by opposing party may ensue, Judge Terry Crone wrote. There is no indication in Mary Jenkins’ motion that her ex-husband approved of or agreed with granting the motion. Based on her statement, in fact, it would be likely that he would choose to object.

“This is not one of those rare cases where the trial court’s adherence to its own procedural rule would defeat justice instead of serving as a means of obtaining orderly and speedy justice. Therefore, the trial court should have followed its own rule, and its failure to do so was error as a matter of law,” Crone wrote.



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