*1 marily the remarks the trial because
judge were made Willis had been after Yager convicted and sentenced. v. State
(1982), Ind., 437 N.E.2d 462.
Furthermore, the remarks judge allegation concerned an
trial no material relevance to an issue
bore
raised in the Motion to Correct Errors. judge
Whether not the trial and Willis concerning
had a conversation law (2) jury years prior room
books two
to trial is irrelevant to the issue of whether jury trial had Willis' access law judge
books. even if the trial had error,
committed the error would have been
harmless.
Affirmed.
GARRARD, P.J., concurs in result.
BUCHANAN, J., concurs. BROWNSING, Appellant,
Charles R. BROWNSING, Appellee.
Nora
No. 60A01-8703-CV-68. Indiana, Appeals
Court of
First District.
Sept. 1987.
Rehearing Denied Oct. 1987. Culley, Indianapolis, ap-
Richard E. pellant. Edwards, appel- Spencer, for
Charles W. lee.
879 RATLIFF, Chief Justice. entered stipulation into a dismissing Mark Hogan III and and complaint amended his STATEMENT THE OF CASE declaratory seek a judgment partition or Nora, against separate Nora filed Brownsing peti- a appeals Charles R. from the tion for an order of Circuit Court the modification and en- Owen dismissal of his forcement of the complaint against Brownsing. Nora decree. On Octo- We 1, 1986, ber Nora moved affirm. to dismiss the complaint,. amended A hearing held, was FACTS 9, 1986, and on December the court dis- missed the complaint. amended Charles 21, 1981, August marriage On appeals this dismissal. Brownsing Charles and Nora was dissolved pursuant to the decree and order of the ISSUES
Owen Circuit Court. The decree and order incorporated property settlement Although Brownsing (8) raises three is- parties. ment entered into appeal, sues on following rephrased agreement provided, pertinent part, as dispositive: issues are follows: 1. Whether the trial court erred in dis- "(b) Husband and jointly wife and missing Brownsing's Charles declaratory property entireties own real situated judgment partition and complaint. 2, at # Worthington, R.R. Box Owen 2. Whether the Owen Circuit Court has County, Indiana. Said real property was jurisdiction to hear Brownsing's peti- Nora acquired by parties during their mar- tion for modification and enforcement of riage. The husband shall continue to divorceedecree. mortgage make payments respecting property
said real until said real property DISCUSSIONAND DECISION sold, can be at which time husband and equally wife shall equity divide the real- Issue One proceeds sale, ized from the of said with argues Charles that the trial court erred being husband first reimbursed from in dismissing his complaint sought which proceeds said those funds constituting declaratory judgment on the issue of mortgage payments him follow- Nora's interest in Worthington proper- ing the dissolution herein before said ty or in the partitioning alternative a of the equal equity by division of property. Specifically, argues Charles place." takes that, since the property's depreci- value has August Record at 85. In late ated, Nora nothing would receive if the Brownsings entered listing agree- into a property Thus, were sold. re- Charles ment Realty, (Mark III) with Mark III Inc. quests that the court declare that he can to sell Worthington real estate. Al- property sell the free from any claims though produced Mark III prospective Nora. Charles also that this suit is failed, buyer, the sale listing agree- and the not a collateral attack on the divorce de- expired. Subsequently, Mercer Real- cree, but rather interpretation ty Company contracted with the Browns- interests therein. Charles believes ings to sell the property. Unfortunately, that the jurisdiction trial court had to adju- Brownsings have been unable to sell parties' interests, dicate the erred in dis- property. missing complaint, and should de- have September 5, 1984, On brought Charles clared that Nora had no interest against III, an action Mark and William property. Charles' belief is mistaken. Hogan agent as an alleging Mark III duty breach of listing agreement under the A property agreement settlement sought damages. Charles also incorporated named that is into a final dissolution Nora as a defendant so that she could 'decree and order not be modified un assert her interest in agreement the law suit. provides par- Charles less the so subsequently
ties
consent.
Indiana Code
after the trial court had awarded Martin all
81-1-11.5-10(c)
section
Steele v. Davis
corporation
stock in the
pursuant
prop-
to a
Ind.App.,
son,
(1982),
Davisson and
erty
Davisson
settlement
which was in-
491, 493;
37 N.E.2d
Anderson v.
corporated
4, 1979,
into the January
disso-
4
Ind.App.,
decree,
(1979),
Anderson
99 N.E.2d
lution
attempted
Id. Bonnie
3
397-98;
(1979),
Pactor v. Pactor
181 Ind. argue
equitably
she was entitled to
*3
329, 332,
1148,
App.
391 N.E.2d
1150. All half of the
upon quasi-
refund and relied
a
questions
regarding
adjudication
the
of
theory.
contract
Id. at 500. The court
property rights
put
marital
rejected
are
to rest
theory,
this
as follows:
Meyers
the divorce decree.
v. Handlon
context,
"Taken in
this evidence does
(1985),
106, 111;
Ind.App., 479 N.E.2d
not
quasi-contract,
reveal an issue of
but
Anderson,
10;
at 397 n.
Wilhelm v. Wil
expresses
instead
Bonnie's dissatisfac-
(1979),
1079,
Ind.App.,
helm
397 N.E.2d
weight
tion with
given
to her contri-
Wilkeim,
1081. As stated in
acquisition
bution to the
and mainte-
legislature's
''The
intent
enjoin
was to
nance of
property
marital
in the property
court,
dissolution,
at the time of
to
agreement.
settlement
If the settlement
property rights
settle all
certainty.
with
agreement
inequitable,
was
she should
contemplates
separa-
Dissolution
a final
agreed
case,
not have
any
to it.
In
a
tion of the
and a final division of
collateral attack on the dissolution decree
property.
paths
their
'Their
in life
inappropriate."
is
and,
diverge,
legal
henceforth
in
contem-
Accordingly,
Id.
the court reversed sum-
plation, they
strang-
are to each other as
mary judgment for Bonnie and entered
(1976),
ers'
Wolfe,
v.
46 Ohio
Wolfe
summary judgment in
of
favor Martin. Id.
399,
St.2d
350 N.E.2d
421. Conse-
at 501.
quently,
subsequent
their
conduct should
As in Goodyear, the amended com
respective rights
not alter their
plaint in
present
case was a collateral
estate;
rights
marital
these
must be de-
prior
attack on the
dissolution decree. The
termined
a final
prop-
distribution of
previously
trial court
parties'
decided the
erty made at the time of dissolution."
in
interests
the real estate
the 1981
Wilhelm,
However,
at 1081.
a dissolution
incorporated
dissolution decree which
property
decree and
settlement
be re
property
agreement.
settlement
The de
petitioner
voked or modified if a
establishes
specifically provided
cree
that Charles
31-1-11.5-17;
fraud.
Indiana Code section
mortgage
should continue to make
pay
Thompson
(1984),
Thompson
Ind.App.,
ments until
property
could be sold and
298, 300-01;
458
Pactor,
N.E.2d
181 Ind.
that Nora would then obtain half of the
App.
332-33,
at
proceeds. provision No exists for subse- extent that opinion its stands for the propo- quent judicial determination of the inter- sition that the court which dissolved the upon ests based market value calculations. marriage may only "clarify and enforce" Since the current indepen- suit was filed order fraud, absence of dently petition and not as reopen express provision in a property settle- proceedings dissolution enforcement, agreement, express or the Therefore, the suit was collateral. the trial of the parties at the time of proposed properly court dismissed the amended com- modification. plaint. recognize I general rule cited Issue Two majority application and its post to most *4 complaints. dissolution
Charles next that the trial jurisdiction court lacks to hear peti Nora's I recognize also that occasionally a court reopen tion to proceedings dissolution may fail to foresee some contingency in its which seeks enforcement original of the planned disposition of marital property. decree.1 Although Charles is correct That risk is somewhat increased when the noting that a divorce decree cannot be mod presented court is property agree- with a ified or revoked unless the pro decree so parties. executed vides, parties agree, shown, or fraud is judge may The conclude that no fraud is recognize he fails to that a may court re involved and that he should restrain the open proceedings dissolution to clarify and temptation modify to what parties enforce a decree. Indiana Code section agreed themselves have to. The lawyers, present case, 31~1-11.5-17. In the pro no reasons, for a variety of may have failed to vision exists in the dissolution decree and adequately express in agree- the text of the parties have not consented to modifica ment what should upon be the result Furthermore, tion. alleged Nora has not occurrence of some contingency. fraud, had, and even if she the suit was If fact, such a contingency, in then oc- barred Ind.Code 31-1-11.5-17 which § curs provisions before the of the (2) year has a two period. Thus, limitation fully ment/decree have been performed, only remedy that request Nora can is | what happen? should that reopen court the proceedings to clarify I and enforce the see no need order. to make the This answer de- appears pendent upon escape to be the an petition. nature of Nora's hatch written into Therefore, agreement, upon the court jurisdiction has or and may clarify parties question and enforce the after the actually order has may appoint arisen. carry commissioners to out the sale of the real estate and distribu Neither do I believe the court should at proceeds tion of provided as juncture that powerless consider itself or original decree. strain for some semantic difference be- tween "modification" and "clarification" in
Affirmed. order justify to action. purpose The clear of the statute is to NEAL, J., concurs. provide for a full and final distribution of GARRARD, P.J., concurs with property rights parties. of the separate opinion. parties themselves submitted that determi- petition 1. We reopen note that the to was filed However, due to the interconnected nature of independently seeking declaratory from the suit present appeal, this issue to the we will address judgment partition. the issue of the preserve judi- this issue at our convenience to jurisdiction reopen court's may to the divorce economy. cial properly appeal. not be before this court on nation to the dissolution court they when
granted jurisdiction it to dissolve their mar-
riage.
It is thing say one to that onee finalized
by the process trial disposing order
the property of the may not be
revoked or (except modified for fraud or
upon agreement) in the sense that property
given spouse to may one given not be other; that what has been done should
not be undone. quite It is thing different say aspect some of the division
which was not covered not be con-
sidered provided the court and for. I
believe IC 31-1-11.5-17 is concerned with former, and the power inherent
court with the latter.
I realize this view should no doubt re-
quire fact hearings determinative in some
cases to establish whether alleged such,
omission was indeed or whether
occurrence was covered
ment/decree, and it was merely the party's
failure perceive consequences problem. that was the Such are, however,
matters capable proof
our trial fully up courts are to the task. basis,
On this I concur. Jr., Byer,
William Byer Gaus, & Anderson, appellant. for Darryl CURRIE, Bernard Appellant Linley Pearson, Gen., E. Atty. Rodia, Jay (Defendant Below), Deputy Atty. Gen., Atty. Gen., Office of Indianapolis, appellee. Indiana, STATE of Appellee (Plaintiff Below). YOUNG, Judge. No. 48A04-8608-CR-254. Darryl appeals Bernard Currie his con- viction for burglary, a felony. Class C On Court Appeals Indiana, appeal, he asserts that the trial court erred Fourth District. by permitting police testify officer to as Sept. 1987. to statements during Currie interrogation. custodial We reverse on this Rehearing Denied Oct. 1987. therefore, issue and do not address other issues raised Currie. Currie was arrested in early morning hours of November 1985. Later that day, probable hearing cause was held.