Marriage of Duke, In re
| Decision Date | 15 February 1990 |
| Docket Number | No. 32A01-8902-CV-49,32A01-8902-CV-49 |
| Citation | 549 N.E.2d 1096 |
| Parties | In re The MARRIAGE OF Phillip R. DUKE and Pamela S. Duke. Pamela S. DUKE, Respondent-Appellant, v. John W. WYNNE, as Executor of the Estate of Phillip R. Duke, Petitioner-Appellee. |
| Court | Indiana Appellate Court |
Howard S. Young, Jr., Young & Young, Frank E. Spencer, Robert E. Lehman, Michael F. Singer, Indianapolis, for respondent-appellant.
William M. Evans, G. Pearson Smith, Jr., Stephen E. Arthur, Bose McKinney & Evans, Charles F. Cremer, Jr., Indianapolis, for petitioner-appellee.
The respondent-appellant Pamela S. Duke is appealing from the trial court ruling denying her Ind. Trial Rule 60(B) motion to vacate a void judgment. She was seeking to void the dissolution decree from her marriage to the petitioner Phillip R. Duke. Phillip R. Duke died about two weeks after the dissolution with the resulting substitution of the executor of his estate as the appellee.
Prior to Pamela's motion, in a proceeding in the probate court, the estate filed a "petition to construe will and to determine the rights of the parties." By this petition, the estate sought a ruling that upon the parties' dissolution, the bequests in Phillip Duke's will to Pamela were revoked. The court denied Pamela's petition to dismiss the estate's petition. Because of the consequence for the estate of the disposition of Pamela's motion to set aside the divorce decree, we ordered that Pamela be allowed to bring an interlocutory appeal from the probate court's judgment denying her motion to dismiss the petition to construe the will, and that the interlocutory appeal be consolidated with the appeal from the dissolution court.
With respect to that part of the appeal questioning the validity of the divorce decree, the procedural facts show that Phillip R. Duke filed his petition for dissolution on May 8, 1986. The petition for dissolution omitted any allegation as to the date of separation of the parties. Counsel for Pamela S. Duke entered his appearance on June 4, 1986. On July 7, 1986, the trial court heard the case and entered the decree of dissolution and approved the agreed alimony and property settlement.
On April 28, 1988, Pamela S. Duke filed the motion to vacate the dissolution decree which was denied on that date. At that time the trial court found that the dissolution hearing was held on the 60th day after the filing of the petition for dissolution and that Pamela S. Duke had waived the issue about the date of separation by executing the property settlement on July 2, 1986 and failing to raise the issue at the earliest opportunity.
In the five issues raised in this appeal Pamela contends that the overruling of the motion to vacate the judgment is contrary to law in that the trial court wrongfully determined:
A. I.C. 31-1-11.5 does not require that the parties had separated before or at the time of filing the petition for dissolution of marriage, or during any period of time prior to the final hearing.
B. I.C. 31-1-11.5-4(a), requiring that the petition for dissolution set forth "the date on which the parties separated" is directory, not mandatory.
C. Any failure of a petitioner to allege, or of the Court to find, the fact or date of separation would go to the Court's jurisdiction of the particular case, not its subject matter jurisdiction.
D. Respondent waived jurisdiction of the cause by not raising the jurisdictional issue at the earliest opportunity, and by submitting to the Court a property settlement agreement and requesting that the Court approve the agreement as settling issues between the parties.
E. For the purpose of determining the period of sixty days which, under I.C. 31-1-11.5-8(a) must pass between the filing of a petition for dissolution and the final hearing thereon, the day on which the petition is filed is not counted and the day of the final hearing is counted.
The argument section of Pamela S. Duke's brief combines these five issues into two major arguments. Under both sections, she asserts generally that the dissolution of marriage is a special statutory action and the statutory requirements are jurisdictional and cannot be waived.
Her first argument is that the decree is void because the petition for dissolution did not contain an averment of the date that the parties separated. The statute providing that the dissolution petition set forth the date on which the parties separated is IND. CODE 31-1-11.5-4(e). While the date of actual separation has significance for the court's consideration of a just and reasonable division of the parties' property, Hunter v. Hunter (1986), Ind.App., 498 N.E.2d 1278, we agree with the Executor that the failure to set forth the date of separation would not deprive the trial court of subject matter jurisdiction, or of power to decide the particular case. Certainly I.C. 31-1-11.5-4 itself does not preclude the court's jurisdiction to hear the case in absence of some of the averments to be set forth in the petition. Separation of the parties before the final hearing was proved, and there is no question regarding the sufficiency of the proof, or the sufficiency of the evidence showing the marriage was irretrievably broken. Therefore, we need not determine whether the petitioner in a dissolution need prove separation occurred before the final hearing.
Pamela's other argument is that jurisdiction was lacking because 60 days had not elapsed between filing the dissolution petition and the final hearing. See I.C. 31-1-11.5-8; T.R. 6(F). The purpose of section 8 is to set up a "cooling-off" period after the initial filing. Mendenhall v. Mendenhall (1946), 116 Ind.App. 545, 64 N.E.2d 806, 809 (under prior statute). The legislature omitted in the present statute language in earlier codifications declaring that "any trial had or decree rendered in any such case in less than such sixty (60) days shall be null and void."
The petition for dissolution was filed on Thursday, May 8, 1986, and the final hearing was held on Monday, July 7, 1986. July 7th was the 60th day following the filing of the petition. Pamela had not objected to the court's hearing the dissolution on July 7th. Pamela asserts that the court could not have held a final hearing until the 61st day, thereby allowing 60 days to expire between the filing and final hearing. There is no authority in Indiana which settles the question whether the dissolution statute and T.R. 6(F) compel the court to calculate the waiting period in a manner other than that prescribed in T.R. 6(A)--where the first day is not counted and the last day is counted.
In any case, even if the court proceeded to final hearing one day too soon, we believe that the supreme court's explication of subject matter jurisdiction in Mishler v. County of Elkhart (1989), Ind., 544 N.E.2d 149 puts to rest Pamela's contention that the divorce decree is void, on either of the two grounds she asserts.
In Mishler, the supreme court granted transfer, vacating the court of appeals' decision which had held that because the trial court did not have the authority to order the Elkhart County Plan Commission to rezone certain property, it did not have jurisdiction, and its judgment was therefore void and could be collaterally attacked.
While the supreme court agreed that a judgment rendered without jurisdiction may be collaterally attacked, it found fault with the appellate court's appraisal of the trial court's rezoning order as one "without jurisdiction." To render a valid judgment, a court must possess jurisdiction over the subject matter and over the parties. Subject matter jurisdiction is generally defined as the power to hear and determine cases of the general class to which the proceedings then before the court belong, and courts of general jurisdiction are presumed to have subject matter jurisdiction. Id. at 151.
Once a court has acquired subject matter and personal jurisdiction, Even an erroneous judgment is voidable only through direct appeal. Snelson v. State (1861), 16 Ind. 29, 32 (). The fact that a trial court has erred in exercising its jurisdiction does not mean it lacked jurisdiction. As Justice Arterburn wrote for this Court:
Far too often there is an inclination in a law suit to attempt to convert a legal issue into one of "jurisdiction" and from that point contend all actions of the court are void, and that the question of jurisdiction may be raised at any time or that the proceedings are subject to collateral attack and are a matter for original writs in this court.
J.I. Case & Co. v. Sandefur (1964), 245 Ind. 213, 217-218, 197 N.E.2d 519, 521.
Mishler, 544 N.E.2d at 152. (Emphasis supplied.) The worst that can be said of the trial court's rendering the decree is that it erred in exercising its jurisdiction before the passing of the 60th day. Even if that was error, it could not have deprived the Hendricks Superior Court of jurisdiction to hear the particular class of cases to which the case belonged, dissolution cases. Accordingly, the judgment was not void, and could not be attacked collaterally. Pamela waived the issue of the court's jurisdiction of the particular case because she failed to make a timely objection and failed to take up the issue on direct appeal. Mishler, 544 N.E.2d at 152.
Having affirmed the dissolution court's finding that the divorce decree is valid, we proceed to determine the issues raised in the probate court.
Those two issues are:
I. Does our revocation by divorce statute apply when the will was executed before the testator marries?
II. Did the court err in overruling Pamela's motion to...
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