Anderson v. Anderson

Decision Date31 December 1979
Docket NumberNo. 2-1175A341,2-1175A341
PartiesJane M. ANDERSON, Appellant, (Plaintiff below), v. Robert S. ANDERSON, Appellee, (Defendant below).
CourtIndiana Appellate Court

Ronald L. Sowers and M. Robert Benson, Torborg, Miller, Moss, Harris & Sowers, Fort Wayne, for appellant.

Leonard E. Eilbacher, Hunt, Suedhoff, Borror, Eilbacher & Lee, Fort Wayne, Robert G. Smith, Custer, Smith & Burry, Decatur, for appellee.



Jane M. Anderson (Jane) appeals the judgment dismissing her amended complaint.


Jane has presented several issues which we have consolidated into the following:

(1) Did the trial court err in determining Jane's amended complaint failed to state a claim for relief?, and

(2) Did the trial court err by the procedures it employed to dismiss Jane's amended complaint?

We affirm.


Robert S. Anderson (Robert), an attorney, filed a petition for the dissolution of the parties' thirty-year marriage on December 26, 1973. Thereafter Robert and Jane negotiated a property settlement agreement which they executed on March 12, 1974. 1 A dissolution decree was entered by the Adams Circuit Court on March 15, 1974. The decree contained neither an order dividing the parties' property nor any indication the agreement was submitted to the Court. No appeal was taken from this judgment.

On December 26, 1974 Jane commenced a new and distinct cause of action by filing a three-count complaint. 2 The first count, based upon the theories of fraud and attorney deceit, 3 alleged Jane and Robert were formerly married; Robert filed a petition for dissolution of their marriage; their marriage was dissolved by decree of the Adams Circuit Court; between December 26, 1973 and March 12, 1974 she entered into negotiations with Robert for division of the parties' property; at the outset of said negotiations Robert told her that it would be a waste of time and money for her to obtain independent counsel to represent her during the negotiations; because of his knowledge and experience as a practicing attorney and the trust she placed in him as her husband, she relied on his advice and did not obtain independent counsel to represent her during the negotiations; Robert presented a hand-written list of the assets she was to receive and the estimated value of those assets; he represented the value of the listed assets at $184,414.35 when, in fact, their worth was only $153,380.83; Robert knew, or using reasonable care should have known, the true value of the listed assets; at the conclusion of the negotiations, on March 12, 1974, Robert presented the property settlement agreement for her signature, telling her it was a fair and equitable settlement in terms of the law; and, in reliance upon Robert's knowledge and special skills as an attorney and the trust she placed in him as her husband, she signed the agreement.

The first count further alleged Robert's representations in regard to the agreement were false and fraudulent in the following particulars: the agreement is not a fair and equitable division of the property in accordance with the guidelines set out in the Indiana Dissolution of Marriage Act; the bulk of what she received under the agreement was property or dividends and interest or appreciation on property she received through inheritance from her mother's estate; the agreement only awards her 30% of the marital property; the agreement did not take into account the earnings or earning abilities of the parties; the agreement did not take into account her contributions to the marriage as a homemaker; and the agreement did not convey the value Robert represented. The first count prayed for actual damages of $110,000 and treble damages of $330,000.

The second count of Jane's complaint incorporated by reference the first count and alleged the acts, omissions, and misrepresentations of Robert were done intentionally or with heedless disregard for her rights. The second count prayed for punitive damages of $100,000.

The third count, based upon a theory of legal malpractice, alleged between December 26, 1973 and March 15, 1974 Robert, a licensed attorney, undertook to advise her concerning her rights and remedies relative to a pending dissolution of marriage action; she relied upon Robert's knowledge and experience and the fiduciary relationship existing between them; Robert, in rendering said services, failed to exercise the degree of skill and care expected of an attorney; as a proximate result of Robert's negligence, she received far less by way of the property division than she would have received had she been adequately represented. The third count prayed for damages of $110,000. Jane attached to her complaint a copy of the hand-written list of assets she was to receive and a copy of the property settlement agreement.

In his answer, Robert requested Jane's complaint be dismissed because it "fails to state a claim upon which relief can be granted." Later Robert requested a judgment on the pleadings,"with respect to the defense raised by . . . (his) Answer." Admitting for the purposes of the motion the facts alleged in Jane's complaint, Robert argued in his supporting brief that these facts prevented Jane from any recovery under Indiana law. Because the dissolution decree referred to in her complaint was a final and complete adjudication of the parties' property rights, he argued her complaint was an impermissible collateral attack. After hearing the parties' arguments on the motion, the trial court entered a judgment dismissing Jane's complaint. 4 The trial court found the dissolution decree to be a final and complete adjudication of the parties' property rights, thereby barring Jane's action as an impermissible collateral attack. 5

On June 24, 1975 Jane filed an amended complaint. 6 Although reasserting the basic facts and requests for relief as her original complaint, Jane's amended complaint did not pray for punitive damages. Additionally, Jane alleged in the dissolution proceeding the trial court had not determined the property rights of the parties because Robert's petition for dissolution "did not present to the jurisdiction of the Adams Circuit Court the matter of property or property rights of the (parties)" and the dissolution decree "excepted any reference to property or property rights of (the parties) . . . ." In addition to the two exhibits attached to the original complaint, 7 Jane attached copies of the dissolution decree and Robert's petition for dissolution.

Robert responded with a "Motion to Strike Amended Complaint," accompanied by a supporting brief presenting two legal arguments: first, the amended complaint was an improper pleading following an entry of judgment; and, second, admitting the dissolution decree did not address the issue of the parties' property, he argued the power of the trial court in a dissolution action to adjust and determine the property rights is mandatory; therefore, a dissolution decree, even though silent on the issue of property rights, may not be collaterally attacked. In response to Robert's motion, Jane argued she had an absolute right to amend her complaint within ten days from the time she was served with notice of the judgment of dismissal. On September 8, 1975 the trial court granted Robert's motion to strike the amended complaint "for the reasons set forth in said motion." 8

Jane's motion to correct errors challenging the June 17 judgment dismissing her original complaint was overruled by the trial court on September 8, 1975. Jane challenged the order striking her amended complaint with a second motion to correct errors. The trial court overruled her second motion to correct errors on September 23, 1975.




The trial court held the dissolution decree operated as an absolute bar to the maintenance of Jane's asserted claims under the doctrine of res judicata. 9A Challenging the substantive basis of the trial court's action, Jane presents the following arguments:

(A) An action for damages on the grounds of fraud is not an impermissible collateral attack upon the dissolution decree;

(B) The dissolution decree does not bar an independent action for fraud in the procurement of a judgment pursuant to Indiana Rules of Procedure, Trial Rule 60(B);

(C) The dissolution decree does not bar either a negligence action for legal malpractice or an action for attorney deceit pursuant to IC 34-1-60-9.

A Action for Fraud

Jane argues when one is induced to enter a contract by the fraud of the other contracting party common law allows the injured party to keep what has been derived under the contract and recover in an action for fraud the damages caused by the fraud. She contends, because the dissolution decree does not adjudicate the parties' property rights, res judicata does not bar her from maintaining an action for fraud based upon her agreement with Robert. This claim is proper, she argues, because it is not based upon the dissolution decree but upon the settlement agreement as a contract. We disagree.

When the Dissolution of Marriage Act addresses a situation the traditional rules of contract and tort must yield to the provisions of that Act, §§ 31-1-11.5-1 to 31-1-11.5-24 (Burns Code Ed., 1978 Supp.), 9 and the law related thereto.

Under the law existing prior to the Dissolution of Marriage Act, a divorce decree operated as an absolute bar to maintaining an independent action involving property rights growing out of or connected with the marriage, 10 regardless of whether the divorce decree adjudicated the parties' property rights. 11 This was true even though the independent action was based upon a "contract" entered into between the parties. 12 In so holding, the courts reasoned that in a divorce proceeding it was the mandatory duty of the trial court to adjust and determine the parties' property rights. ...

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