Dissenting judge: Majority ‘needlessly prolongs’ divorce case

September 22, 2015

A divorce case remanded to the trial court for proceedings needlessly prolonged the litigation, a dissenting Court of Appeals judge wrote Tuesday.

The majority in Timothy Kendrick v. Angela Kendrick, 49A02-1412-DR-888,  remanded the case to include all of the ex-husband’s future pension earnings as part of the marital estate before determining whether the portion earned before his marriage should be excluded from the presumption of equal distribution.

The trial court concluded that the part of his benefit earned prior to marriage should be excluded, but the court had not factored it in the calculation of the estate. Judge Elaine Brown wrote in a majority opinion joined by Judge Patricia Riley, “While the court may ultimately determine that the portion of Husband’s pension earned prior to the marriage should be awarded solely to him, it must first include the asset in its consideration as to how the marital estate should be divided.”

Dissenting Senior Judge Ezra Friedlander would affirm the trial court in all respects, and said the trial court already had considered the portion of the husband’s pension earned prior to marriage using the coverture fraction formula.

"Even without the magic words indicating that the trial court technically considered all of Husband’s pension as a marital asset before setting aside to him the coverture portion earned outside the marriage, it is very clear that this is precisely the method employed in dividing Husband’s pension between him and Wife,” Friedlander wrote. “Although I understand the point the Majority is making in remanding on the stated rationale, it needlessly prolongs this litigation and ultimately serves no purpose. The trial court obviously employed a well-established and well-accepted method in distributing Husband’s pension, and I would let that be the end of the matter.”

The panel also affirmed an order that Timothy Kendrick make equalization payments to his ex-wife in advance of his receipt of his pension benefits.



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