Indiana Alternatives to Divorce: A Modern Appellate Case

While not a fraud case but annulment using bigamous marriage for its grounds, Thomas v. Smith (html format) still has something to teach us about annulments in Indiana.

First, the facts:

On January 30, 1991, Leslie and Michelle participated in a marriage ceremony in Boone County, Kentucky. However, no legal marriage actually occurred because Michelle remained married to Albert Dula until April 15, 1991, the date the divorce decree was issued. After the marriage ceremony, Michelle and Leslie acquired the Tuppence Trail property in Lawrenceburg, Indiana, but it was held in Michelle’s name alone.

They discovered the marriage was not valid in 1996 when Michelle had to produce a divorce decree in order to clear her credit record. However, neither Michelle nor Leslie thereafter attempted to enter into a valid marriage. Instead, they acted as two single persons cohabitating by filing taxes as single persons. After learning of the void marriage, they acquired another piece of real estate in June 1996 on Ventura Drive in Lawrenceburg, Indiana, which was also titled solely in Michelle’s name, and they adopted three minor children. Michelle also had a son named Joshua from her previous marriage, who was nineteen years old at the time of the final hearing.

That the wife filed the annulment case is interesting to me. Here is what the trial court did:
...On November 12, 2002, the trial court issued a decree of annulment, which awarded custody of the minor children to Leslie, provided for $169 per week in child support payments from Michelle based on her weekly income of $700, and divided Michelle and Leslie’s real and personal property. Specifically, Leslie received the Ventura Drive property, the 1983 Chevrolet pickup truck, the 1997 Mercury van, the bass boat and all funds in his 401(k) plan. Michelle received the two other parcels of real property, all cash investments, all furniture in her possession, the lawnmower, the 1987 Honda, the 1993 BMW and all funds in her 401(k) plan. The trial court also found Joshua to be emancipated because he was over eighteen years of age, not attending school, and supporting himself at the time of the hearing. Thus, the trial court did not give Michelle credit for Joshua’s support against the support payments she was ordered to make for the other three children.

Which lead the wife to file her appeal. Notice that the annulment court determined child support and custody. Since the trial court's power to determine custody and support were not contested by mother, I am not discussing these points.

What the wife did contest that deals explicitly with the topic of annulment is the division of property. The Indiana Court of Appeals describes wife's issue as "[s]pecifically, Michelle argues that the trial court lacked subject matter jurisdiction to divide the property because her marriage to Leslie was bigamous and therefore void."

However, those who are in bigamous relationships are not entirely without a remedy. Indiana Code section 32-17-4-1 permits parties who have never been married to file a partition action as to real property. Additionally, the trial court may equitably divide property acquired during the bigamous relationship if one of the parties requests such action. Rance, 587 N.E.2d at 152.

Similarly, we note that in accordance with Trial Rule 15(B), when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ***

In this case, while the marriage between Michelle and Leslie was void, the division of property was litigated by the consent of the parties. Michelle not only failed to object to such a division of the property, she presented extensive evidence and arguments at the hearing and in the motion to correct error as to why she was entitled to certain assets....

At this point, somebody has to say oops as it appears that property division does not come within the authority of an annulment court. Then IC 31-11-10-4 means exactly what is says: only the procedures of the dissolution of marriage article apply to annulment cases.