In re the Marriage of: Milana Staletovich Riggs v. Leon O. Riggs (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2017, 9:38 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Marvin Mitchell R. Brock Jordan Richard J. Dick Densborn Blachly LLP Mitchell Dick McNelis, LLC Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Marriage of: May 22, 2017 Court of Appeals Case No. Milana Staletovich Riggs, 49A02-1605-DR-1057

Appellant-Petitioner, Appeal from the Marion Superior Court v. The Honorable Patrick J. Dietrick, Judge Leon O. Riggs,1 Trial Court Cause No. 49Dl2-1506-DR-2l278 Appellee-Respondent.

1 Leon O. Riggs died while the instant dissolution proceedings were pending, and Milana filed a motion asking the trial court to substitute Leon’s daughter in Leon’s place. That motion was dismissed as moot when the trial court found that the dissolution proceedings terminated upon Leon’s death.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 1 of 20

Kirsch, Judge. [1] Milana Staletovich Riggs (“Milana”) appeals the trial court’s order dismissing

her petition for dissolution of marriage following the death of Leon O. Riggs

(“Leon”). On appeal, Milana raises the following consolidated and restated

issue: whether the trial court lost jurisdiction over the dissolution action when

Leon died prior to the entry of a decree of dissolution. Finding that the trial

court lost jurisdiction, we affirm.

Facts and Procedural History [2] Leon and Milana were married in April 1968, and they lived together as

husband and wife for one year. In April 1969, the couple separated and never

again lived together. There were no children of the marriage. On June 26,

2015, Milana filed a petition for dissolution of marriage (the “Petition”), which

initiated the instant action (the “dissolution action”). Leon suffered from

symptoms of dementia as early as 2010, and by the time the dissolution action

was filed in 2015, Leon required constant care and was not competent to

participate in the dissolution action. Appellee’s App. at 5. Accordingly, the trial

court appointed Leon’s daughter, Cynthia Hill (“Hill”), to be Leon’s guardian

ad litem (the “Guardian Ad Litem”).2 On November 6, 2015, Milana filed a

Petition for Hearing on Preliminary Attorney’s Fees and Expenses, Temporary

2 Because Hill represented Leon’s interests both before and after his death, for clarity, we use the term Guardian Ad Litem to refer to Hill when she acted on Leon’s behalf in the dissolution action.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 2 of 20

Restraining Order after Notice and Hearing, and for Court Appointed

Valuation Experts and Appraisers. [3] Leon died on December 4, 2015, leaving a Last Will and Testament, dated July

6, 2006. At the time of his death, no decree of dissolution had been entered. In

fact, the Guardian Ad Litem had not filed a responsive pleading to the Petition

or to any of Milana’s other motions pertaining to the dissolution action. On

January 20, 2016, a petition for probate of Leon’s will was filed in the Marion

County Probate Court under cause number 49D08-1601-EU-2099 (“probate

matter”). Pet’r’s Ex. 2. Sometime prior to his death, Leon had placed all his

assets into the Leon Riggs Trust (“the Trust”). The Trust assets fell “outside the

probate estate,” and therefore, the value of Leon’s estate was reported as zero.

Tr. at 20. [4] On March 8, 2016, Milana filed a motion to substitute Hill as a party in place of

Leon in the dissolution action.3 Appellee’s Br. at 4. Approximately one week

later, the Guardian Ad Litem, citing to the fact of Leon’s death, filed a motion

to dismiss the dissolution action for lack of jurisdiction and to “deny as moot all

pending motions.”4 Appellant’s App. at 31. After an April 20, 2016 hearing on

3 Milana selected Hill because Hill was the Personal Representative of Leon’s estate and the Trustee of the Trust. 4 At the time the motion to dismiss was filed, the following motions, all of which had been filed by Milana, were pending in the dissolution action: (a) Verified Petition for Hearing on Preliminary Attorney’s Fees and Expenses, Temporary Restraining Order after Notice and Hearing, and for Court Appointed Valuation Experts and Appraisers, dated November 9, 2015; (b) Motion for Court Conference, dated February 22, 2016; and (c) Motion to Substitute Party and Motion/or Hearing on Substitution of Parties, both dated March 9, 2016. Appellant’s App. at 31-32.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 3 of 20

the motion to dismiss and on the motion for substitution of party, the trial

court, following this court’s reasoning in Johnson v. Johnson, 653 N.E.2d 512,

514 (Ind. Ct. App. 1995), granted the Guardian Ad Litem’s motion to dismiss,

finding that the trial court “no longer ha[d] jurisdiction over issues related to the

marital dissolution” due to Leon’s death. Appellant’s App. at 77. Having so

ordered, the trial court denied as moot: (1) Milana’s motion to substitute Hill

as a party in place of Leon; and (2) all other pending motions.5 Milana now

appeals.

Discussion and Decision [5] Milana contends that the trial court erred by granting the Guardian Ad Litem’s

motion to dismiss the dissolution action upon finding that the trial court was

divested of jurisdiction by Leon’s death, occurring as it did prior to the entry of

a decree of dissolution. Milana argues that dismissal of the dissolution action

will deprive her of a just and reasonable share of a significant marital estate

because she will be left with only the remedy of electing to take against the will

in Leon’s probate estate that is valued at zero. [6] We review de novo a trial court’s grant of a motion to dismiss for lack of

jurisdiction. Boyer v. Smith, 42 N.E.3d 505, 508 (Ind. 2015). Whether

jurisdiction exists, however, can depend upon factual determinations. Id.

5 We commend the trial court on the clarity and thoroughness of its order, which greatly aided our appellate review.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 4 of 20

(citing Wolf’s Marine, Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App. 2014)). When

the trial court does make findings of jurisdictional facts, the standard for review

is “for clear error.” Id. at 509. [7] The dispositive issue before this court is whether the trial court had continuing

jurisdiction over the dissolution of Milana and Leon’s marriage, or whether that

court was divested of jurisdiction when Leon died on December 4, 2015. Stated

differently, when Leon, a party to a marriage dissolution action, died prior to

the trial court having granted a dissolution decree, did the cause of action also

die. Milana recognizes that, pursuant to long-standing Indiana law, a

dissolution proceeding terminates upon the death of a party and that none of

the few common-law exceptions to this rule apply in this case. She argues,

however, that, notwithstanding the general rule, this court has the authority to

and, based on equitable considerations, should recognize an exception that

allows the trial court to maintain its jurisdiction over the dissolution action. [8] Indiana follows the general rule that “the trial court in a dissolution action loses

jurisdiction over the case upon the death of one of the principals” (“the

Termination Rule”).6 Johnson, 653 N.E.2d at 514; see also State ex rel. Gregory v.

6 Milana contends that the dissolution court should have allowed her to continue the dissolution action because the application of the Termination Rule “is limited to custody matters.” Appellant’s App. at 15. She argues that in State ex rel. Gregory v. Superior Court of Marion County, 242 Ind. 42, 48, 176 N.E.2d 126, 129 (Ind. 1961), our court’s holding limited the application of the Termination Rule to matters of control and custody of children. Id. at 16. Accordingly, she asserts that our appellate court in Hendrickson v. Binkley,161 Ind. App. 388, 391, 316 N.E.2d 376, 378 (1974), abrogated on other grounds by In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002), cert. denied, improperly cited Gregory as support for the proposition that the Termination Rule has general applicability. Appellant’s App. at 16. We disagree with Milana’s assertion that the Termination Rule has limited application. First, even though the issue before the Gregory Court pertained to custody

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 5 of 20 Superior Court of Marion Cty., 242 Ind. 42, 48, 176 N.E.2d 126, 129 (Ind. 1961); Murdock v. Estate of Murdock, 935 N.E.2d 270, 273 (Ind. Ct. App. 2010); Beard v. Beard, 758 N.E.2d 1019, 1022 (Ind. Ct. App. 2001), trans. denied. However, our Supreme Court has established the following three narrow exceptions to the Termination Rule:

In State ex rel. Smith v. Delaware County Superior Court, 442 N.E.2d 978, 980 (Ind. 1982), our Supreme Court allowed a surviving spouse to seek modification of a property settlement after the decree was entered and after her husband died based on the deceased husband’s fraudulent underreporting of his assets to the court. In State ex rel. Paxton v. Porter Superior Court, 467 N.E.2d 1205, 1207 (Ind. 1984), the Court clarified that the death of a party ended the dissolution proceedings, but allowed the deceased spouse’s attorney to recoup from the surviving spouse fees and expenses incurred in preparing the divorce case. Finally, in Lizak v. Schultz, 496 N.E.2d 40, 43 (Ind. 1986), the Court recognized an exception in order to permit the deceased spouse’s estate to have child support arrearages reduced to a judgment by the dissolution court following the entry of the decree of dissolution.

Murdock v. Estate of Murdock, 935 N.E.2d 270, 273 (Ind. Ct. App. 2010).

matters, the Gregory court recognized the general applicability of the Termination Rule. See Gregory, 242 Ind. at 48, 176 N.E.2d at 129 (“Under the better reasoned authority it would appear that the divorce proceedings terminated entirely and died with the death of the former wife of relator . . . .”). Second, while Hendrickson cited to Gregory to support the notion that the Termination Rule has general applicability, 161 Ind. App. at 391 316 N.E.2d at 378, Gregory, alone, was not the source of that rule. Twenty years before Gregory was decided, our court in Stoup v. Stoup, 35 N.E.2d 112 (1941) recognized the same general rule. See Stoup, 35 N.E.2d at 113 (“Causes of action for divorce die with the person . . . .”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 6 of 20 [9] A fourth exception to the Termination Rule was carved out in Beard. There,

husband filed a petition for dissolution, and the parties requested and were

granted a bifurcated trial pursuant to Indiana Code section 31-15-2-14. 758

N.E.2d at 1021. In phase one of the trial, the dissolution court dissolved the

marriage. Id. However, when husband died prior to the final hearing on

property division hearing, the surviving spouse moved to dismiss the

dissolution proceeding on the basis that the dissolution court no longer had

jurisdiction. The trial court denied the motion and proceeded to divide the

property and enter a final decree. Recognizing the unique situation presented

when parties agree to bifurcate the issues in dissolution proceedings, the Beard

court explained, “While a dissolution action is not completed until the second

phase is finished and a final decree is entered, the orders entered after the first

phase must be valid, binding orders upon which the parties are able to rely in

conducting their affairs.” Beard, 758 N.E.2d at 1023. Accordingly, the Beard

court concluded that the Termination Rule did not apply, thereby affirming the

trial court’s determination that jurisdiction remained with the dissolution court.

Id. at 1025. [10] Milana cites to Johnson and Beard, two cases she contends are significant to the

outcome of the instant case. In Johnson and Beard, the death of a party to a

dissolution proceeding prompted the surviving spouse to file a motion to

dismiss, claiming that the party’s death divested the dissolution court of

jurisdiction. Beard, 758 N.E.2d 1021; Johnson,653 N.E.2d at 513. Both courts

determined that the Termination Rule applied and that the facts of the

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 7 of 20

respective cases did not fall within one of the three stated exceptions to that

rule. Beard, 758 N.E.2d at 1022; Johnson, 653 N.E.2d at 514. While the facts of

the cases were similar, the decisions were decidedly dissimilar—the Johnson

court dismissed the dissolution proceedings, while the Beard court, analyzing

the impact of the bifurcation statute, allowed jurisdiction to remain with the

dissolution court. [11] Here, Milana contends that it was error for the trial court to dismiss the

dissolution action pursuant to the precedent of Johnson. Specifically, Milana

argues that, considering the harm she will suffer if the dissolution action is

dismissed and she can only elect to take against the estate, the trial court should

have followed the Beard court’s equitable approach and allowed the dissolution

action to continue. In her brief, Milana urges this court to follow the analysis in

Beard because “[t]he bedrock principle of this Court’s holding in Beard was that

exceptions to the [Termination Rule] need not resemble the circumstances of a

former exception but that equitable considerations of harm or injury govern.”

Appellant’s Br. at 25. [12] In Beard, husband and wife had been married for nineteen years when husband

(“Beard”) was diagnosed with cancer. In their twenty-third year of marriage,

Beard filed a petition for dissolution of marriage. The parties, together,

requested that the trial court bifurcate the proceedings, as allowed pursuant to

Indiana Code section 31-15-2-14. Beard, 758 N.E.2d at 1021. After the

completion of phase one, the trial court “entered an order dissolving the parties’

marriage and reserving for later decision the issue of property division.” Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 8 of 20

Hearings regarding the division of property were held on August 15 and August

25, 2000. The final hearing was scheduled for October 15, 2000; however,

Beard died on September 4, 2000, prior to the completion of phase two of the

bifurcated proceedings. Id. Thereafter, wife filed a motion to dismiss the

dissolution proceedings on the basis that Beard’s death had divested the

dissolution court of jurisdiction; the trial court denied wife’s motion. After a

hearing, the trial court entered a final decree of dissolution on February 12,

2001, awarding Beard’s estate a share of the property that was greater than fifty

percent of the total property. Id. [13] Wife appealed and, relying on our court’s reasoning in Johnson, claimed that the

trial court erred in denying her motion to dismiss for lack of jurisdiction. In

Beard, like in Johnson, the court recognized: (1) the existence of the

Termination Rule; (2) that our Supreme Court had carved out three exceptions

to the Termination Rule; and (3) that “none of the three exceptions applied” to

the facts before the court. Beard, 758 N.E.2d at 1022. Beard’s estate asked to be

granted an exception to the general rule that a dissolution action ends upon the

death of a party, arguing that “the interests of justice and fairness were best

served by the trial court’s completion of the dissolution, as the trial court was in

the best position to divide the parties’ property after having heard all the

evidence.” Id. at 1021. Considering our court’s decision in Johnson, the Beard

court was presented with a unique challenge—to respect the limited exceptions

our Supreme Court had set out for the Termination Rule and, at the same time,

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 9 of 20

interpret the meaning of an Indiana statute that allowed for bifurcation of

dissolution issues. [14] The Beard court began its analysis by distinguishing that “[h]usband’s death

after the bifurcation creates a different set of facts than existed in Johnson.” Id.

at 1022. Understanding that it was creating an additional exception to the

Termination Rule, the Beard court stated that its review would “involve

different considerations,” but explained that it would employ the same rationale

used by appellate courts to arrive at the three exceptions, i.e., “when the

equities weighed in favor of allowing a party to recover who would otherwise

be injured because the court lost jurisdiction over the dissolution action.” Id.

Of import was the Beard court’s consideration that the parties to the dissolution

had agreed to bifurcate the issues pursuant to Indiana Code section 31-15-2-14

(I.C. § 31-1-11.5-3(a) before its repeal)—a statute that allowed a trial court to

complete a dissolution in two separate phases. Id. at 1022-23. Recognizing that

the dissolution was not complete until the second phase was finished and a final

decree entered, the Beard court asserted that “the orders entered after the first

phase must be valid, binding orders upon which the parties are able to rely in

conducting their affairs.” Id. at 1023. The Beard court offered, for example,

that it would be appropriate for a party to remarry when the previous marriage

was dissolved after phase one of the bifurcated proceedings but before the final

decree of dissolution was entered after phase two. Id. [15] The bifurcation statute contemplates that both phases in a bifurcated dissolution

proceeding will be completed during the lives of the parties. The Beard court,

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 10 of 20

however, was presented with a question of first impression—“whether the

orders entered after the first phase [of a bifurcated dissolution proceeding]

continue to be valid and binding after the death of a party but before the final

decree.” Id. (emphasis added). The Beard court concluded that such first-phase

orders remain valid even after the death of a party. Returning to its prior

example, the Beard court explained, if a party to a dissolution remarries once a

dissolution is entered after phase one but dies before the dissolution proceedings

are finalized,” and if the dissolution “action [was] dismissed and the previous

order void, the deceased party would effectively have two ‘spouses’ who would

be competing for their share of the estate.” Id. at 1023. The Beard court opined

that such an outcome would defeat the very purpose of having a bifurcated

process. Acknowledging that the bifurcation statute had “created a unique two-

part proceeding,” the Beard court concluded that death during the second

portion of the proceeding “does not void an order dissolving the parties’

marriage entered in the first part of the proceeding. Nor does such a death

deprive the trial court of jurisdiction to complete the dissolution action.” Id. at

1025. [16] Milana does not suggest that the instant facts fall within the reasoning of Beard.

Unlike the facts in Beard, here, the parties did not agree to bifurcate the issues in

the dissolution, and the dissolution action was in its very preliminary stages.

Milana had filed with the trial court the Petition, among other motions, but the

Guardian Ad Litem had filed no responsive pleadings, and the trial court had

held no hearings. Recognizing that Beard can be distinguished on the basis of

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 11 of 20

its bifurcated proceedings, Milana argues that the following rationale from

Beard still applies: (1) there are more than three exceptions to the Termination

Rule; (2) equitable considerations are the driving force behind finding such

exceptions; and (3) the facts before us warrant the equitable solution of allowing

the trial court to maintain jurisdiction over the instant action. [17] Referring to the four exceptions, Milana contends that the Termination Rule

has been “overtaken by the exceptions to the Rule.” Appellant’s Br. at 18. As

support for her contention that the Termination Rule is not universally

followed, Milana cites to the following language from Lizak, 496 N.E.2d at 43,

“[T]his ‘general rule’ [for dismissal] seems to have been honored more in the

breach.” Appellant’s Br. at 8, 11, 17, 19. Milana, however, fails to mention that,

except for the awarding of attorney fees in State ex rel. Paxton, the remaining

three exceptions were recognized only where a decree of dissolution had been

entered during the lives of both parties. Here, not only had no decree of

dissolution been entered, there had been no hearings on the matter. Even in

State ex rel. Paxton, where the dissolution decree had not been entered prior to

one party’s death, our Supreme Court allowed the jurisdiction to remain with

the trial court, not for the purpose of completing the dissolution, but to address

the issue of attorney fees—an issue that was not related to the merits of the

dissolution action. State ex rel. Paxton, 467 N.E.2d at 1207. Of further note,

even in the exception set forth in Paxton, two of the five justices dissented,

claiming that attorney fees could not be sought in the dissolution court because

“death terminated the dissolution proceedings and the trial court lost its

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 12 of 20

jurisdiction to make further enforceable orders.” State ex rel. Paxton, 467 N.E.2d

at 1208 (DeBruler, J., dissenting with opinion) (Prentice, J. dissenting). [18] Contrary to Milana’s contention that Beard is controlling, we find the instant

appeal is on all fours with this court’s opinion in Johnson. In Johnson, husband’s

estate (“the estate”) filed a petition for dissolution of marriage during the

parties’ third year of marriage, and the trial court took the matter under

advisement following a hearing. Johnson, 653 N.E.2d at 513. Johnson died

before the decree of dissolution was entered. Pursuant to the Termination Rule,

wife filed a motion to dismiss based on lack of jurisdiction. Id. The estate filed

a notice of pendency of probate proceedings and an objection to the motion to

dismiss; an appearance was entered on behalf of Johnson’s child from a

previous marriage, and Johnson’s personal representative filed a motion for

substitution of party. All pending motions were heard, and the trial court

denied wife’s motion to dismiss and ordered the parties to file proposed findings

of fact and conclusions thereon regarding the distribution of property, assets,

and liabilities. Id. at 513-14. Eight months after Johnson’s death, the trial court

denied wife’s second motion to dismiss and “entered purportedly nunc pro tunc a

decree of dissolution and order dividing the marital property.” Id. at 514. [19] On appeal, wife argued that the trial court erred in entering the decree of

dissolution nunc pro tunc because Johnson’s death had dissolved the marriage

before the trial court had the opportunity to do so. Id. Like Milana in the

current matter, Johnson’s estate, defending the trial court’s decision that

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 13 of 20

jurisdiction continued in the dissolution court,7 argued that the Termination

Rule is not universally followed and the equities of the case dictated that the

Rule not be applied in order to protect the children’s interest in the property of

their father. Id. at 514-15. The Johnson court rejected the estate’s argument,

noting that Indiana, like New Jersey, “deems all divorce proceedings

terminated upon the death of one of the parties, except in those instances which

we already have stated do not apply in the instant case.” Johnson, 653 N.E.2d

at 515. We agree with the Johnson court’s reasoning. [20] Again, like Milana’s argument in the instant case, Johnson’s estate argued that

Indiana’s Survival Statute, now Indiana Code section 34-9-3-1, reflects Indiana

public policy favoring the survival of actions, including dissolution actions.

Like the Johnson court, we too are not convinced that public policy dictates the

survival of the dissolution action under the facts of this case. We agree with the

Johnson court’s statement:

We believe the legislature did not intend for trial courts to retain jurisdiction over dissolution actions following the death of one of the parties for the purpose of resolving property matters between the parties and their successors in interest. The property settlement is part and parcel of a final decree of dissolution. Once the marriage is ended by the death of one of the parties before the judgment is rendered, no final decree can be attained.

7 Interestingly in Johnson, while it was the wife who was appealing, most of the arguments addressed were raised by husband’s estate

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 14 of 20

Johnson, 653 N.E.2d at 516 (internal citations omitted). [21] The Johnson court reiterated the general applicability of the Termination Rule,

explained that the Rule had only three narrow exceptions, and having found

that the Johnson facts did not fall into any of the three exceptions, remanded the

case to the trial court with instructions to dismiss the dissolution action for lack

of jurisdiction. Id. Here, the facts of the instant case make an even less

compelling case than those in Johnson for continuing the dissolution action after

Leon’s death. In Johnson, the trial court entered an order nunc pro tunc, the final

hearing was held over two days between July 9 and August 16, 1993, and

Johnson did not die until September 20, 1993, approximately one month after

the evidence had been submitted to the trial court. 653 N.E.2d at 513. Here,

no order was ever entered, and the only documents before the trial court were

those that had been filed by Milana. Additionally, Milana filed the Petition

more than forty-five years after the parties separated, about five years after Leon

was diagnosed with dementia, and less than five months before Leon died. [22] The focus of Milana’s argument on appeal is that considerations of equity

require the trial court to maintain jurisdiction over the dissolution action,

because “depriving a widow of a just and reasonable share of the marital estate

would be not less than a gross miscarriage of justice.” Appellant’s Br. at 21. On

appeal, Milana does not contend that the termination of the dissolution case

deprives her of a remedy, nor could she. Milana has already filed with the

probate court an election to take against the will. Pet’r’s Ex. 3. Instead, Milana

argues that where her only remedy is to take against the estate, an estate that is

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 15 of 20

valued at zero, she will be placed in a less financially advantageous position

than she would be if the trial court had jurisdiction to divide the marital

property. [23] Distilled to its essence, Milana contends that the death of a party to a

dissolution proceeding should not deprive the trial court of continuing

jurisdiction when the surviving spouse may fare better before the dissolution

court than it otherwise might in another forum. We find this contention to be

untenable. If jurisdiction over a dissolution action was based on the notion that

jurisdiction remains in the forum where a party can recover the most,

dissolution courts would be unable to determine jurisdiction until judgment had

been entered in all pertinent venues. The trial court did not err in dismissing

the dissolution action. [24] Affirmed.8

Barnes, J., concurs.

Robb, J., dissents with separate opinion.

8 Milana also contends that Leon’s daughter, as Personal Representative of Leon’s estate and Trustee of his Trust, should be substituted on appeal to allow Milana to recover her share of the marital estate. Finding, as we do, that the dissolution action was properly dismissed for lack of jurisdiction, we need not address that issue.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 16 of 20

IN THE COURT OF APPEALS OF INDIANA

In re the Marriage of: Court of Appeals Case No. 49A02-1605-DR-1057 Milana Staletovich Riggs, Appellant-Petitioner,

v.

Leon O. Riggs, Appellee-Respondent.

Robb, Judge, dissenting. [25] I respectfully dissent. Assuming the facts are as Milana has averred, during the

course of the marriage Leon may have placed marital assets in an irrevocable

trust that does not benefit Milana. In a dissolution action, it is a basic tenet that

all assets of either party, whether owned before marriage, acquired by joint

efforts, or acquired by either spouse in his or her own right prior to the parties’

final separation are to be included in the marital pot and are subject to division.

Ind. Code § 31-15-7-4(a); Quinn v. Quinn, 62 N.E.3d 1212, 1223 (Ind. Ct. App.

2016). Through the vagaries of time and nature, however, Leon died before the

marital estate could be determined and divided by the dissolution court here.

When the dissolution court dismissed Milana’s action due to Leon’s death, her

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 17 of 20

only recourse became the probate court – but because Leon placed all his assets

in trust, his probate estate has zero assets. In affirming the trial court’s

dismissal of her dissolution action, the majority has left Milana in a “legal black

hole”: the dissolution court has no jurisdiction due to Leon’s death, and the

probate court has no assets to distribute so her claim to entitlement to a portion

of those assets will go unheard. Brief of Appellant at 10. This, despite even

Leon’s counsel acknowledging at the hearing on the motion to dismiss that

“due process tell[s] us . . . [y]ou have the right to have the forum within which

your argument can be heard.” Transcript at 67. Rather than allowing a forum

for consideration of the merits in the dissolution court, the majority has

effectively determined for itself that on the facts and equities of this case, the

ultimate result that Milana take nothing additional from the marital estate is

appropriate. See slip op. at ¶ 20 (the majority noting it is “not convinced that

public policy dictates the survival of the dissolution action under the facts of

this case”). I do not believe we can consider the facts and equities of this case

without allowing a trial court to hear evidence and consider them first. We are

not yet reviewing the result of the process; we are reviewing the process itself.

However valid the result might be (that is, that Milana take nothing from

Leon’s portion of the marital estate), I cannot concur in the majority decision

because it short circuits the legal process of arriving at that result. [26] As the majority notes, Johnson states the general rule that divorce proceedings

terminate upon the death of one of the parties, and further acknowledges three

specific exceptions to that general rule. See slip op. at ¶ 19 (citing Johnson, 653

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 18 of 20

N.E.2d at 514-15). In Beard, we added a fourth exception, having “learn[ed]

from Johnson that all three previous exceptions to the common law rule were

made when the equities weighed in favor of allowing a party to recover who

would otherwise be injured because the court lost jurisdiction over the

dissolution action.” 758 N.E.2d at 1022. I am less concerned here with the

specific facts leading to each exception than I am with the notion that the

exceptions acknowledge termination of a dissolution action on the death of one

of the parties is not a hard and fast rule. Should we accept the proposition that

in all but these four specific instances death brings an immediate end to a

dissolution action, we would be creating an inequity for Milana and those

similarly situated.9 The inequity is not necessarily with respect to the result—as

I have noted, we are not yet reviewing the result and I acknowledge what we

know of the equities from the limited record before us would seem to be against

her. Rather, there would be an inequity in not allowing her case to be

considered at all by any trial court. [27] Based on the record at this stage of the proceedings, we do not know when

Leon established the trust and what effect that has on the marital estate. The

trust could have been established sometime in the forty-plus years the parties

were physically separated but not yet legally separated, or it could have been

9 The facts of this case admittedly do not fit within any of the four currently acknowledged exceptions to the Termination Rule. However, the very nature of an exception is that it is crafted to address never-before-seen facts that warrant deviation from the application of a general rule. In other words, that there are only four exceptions to the Termination Rule to date does not mean there can never be more.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 19 of 20 after Milana filed her petition for dissolution. Based on the fact that Leon was diagnosed with dementia in 2010, we may assume he established the trust sometime before Milana filed for divorce, but we cannot make a legal determination based on an assumption. As Milana seeks a share of the assets Leon placed in trust, the dissolution court is in the best position to decide what is and is not a marital asset and what would be a just and reasonable division of the marital estate. Ind. Code § 31-15-7-4(b); see Wireman v. Wireman, 168 Ind. App. 295, 308-09, 343 N.E.2d 292, 300 (1976) (holding trial court must decide in a dissolution action whether the transfer of property by one spouse was for the purpose of defeating the other spouse’s claim to that property because an equitable property settlement can not be made unless all of the property held by the spouses is considered and may set aside the transfer if fraudulent). In short, this case is not yet at a stage where any court can decide the equities, but the dissolution court should have the first opportunity to do so. Accordingly, I would reverse the dissolution court’s dismissal of Milana’s action. Court of Appeals of Indiana | Memorandum Decision 49A02-1605-DR-1057 | May 22, 2017 Page 20 of 20