The topic of this Article is the progress, or evolution, of common law divorce in Indiana subsequent to Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind.Ct.App. 1980). It was nearly certain that I would write on the relevant topic of common law divorce, but the catalyst for writing now arrived in the form of the unanimous COA Opinion of May 18, 2016 in Neibert v. Perdomo, the latest (as of this writing) of COA Opinions in the aftermath of Glasgo. Remarkably, I have found no Indiana Supreme Court case on the subject, though Neibert could certainly generate a Transfer Petition. The SCOTSI denied Transfer in Glasgo.
The arguable boldness of Glasgo (authorizing a judicial property division for unwed cohabitants) was tempered in some eyes by the circumstance that Laurel (a man) and Jane Glasgo had once been married (and divorced) before their cohabitation resumed without the benefit of marriage. Would the rule of Glasgo be extended to the property affairs of parties who cohabited without a prior or (more commonly) subsequent marriage? See the example of Chestnut v. Chestnut, 499 N.E.2d 783 (Ind.Ct.App. 1986), a case that is slightly off-topic in that it involves an actual divorce following a short marriage that was preceded by a substantial period of cohabitation. Roger Chestnut wanted to exclude from the divorce property division all that property acquired during premarital cohabitation. He lost in the divorce court and on appeal. Still, the timid COA reserved for another day the question of “whether premarital cohabitation without subsequent marriage gives rise to potential relief.”
The question reserved in Chestnut was answered on “another day” in 1995 with the 2/1 decision of the COA in Bright v. Kuehl, 650 N.E.2d 311 (Ind.Ct.App. 1995). The division in the COA panel pertained to the review of sufficiency of evidence rather than to the central holding in this case of a man suing his former cohabitant (of eight months) for the unauthorized use of his credit cards and checkbook and for other relief. The trial court awarded the man substantial compensatory and punitive damages, all reversed on appeal by a relatively intrepid majority who (unnecessarily) announced the rule that a party who cohabits without marriage is entitled to relief upon a showing of express contract or a “viable” equitable theory such as implied contract or unjust enrichment.
A variant on the common set of factual circumstances and on the common legal theories for relief came in the case of Willett v. Clark, 542 N.E.2d 1354 (Ind.Ct.App. 1989), the case of a “same sex” couple and their post-breakup efforts to divide both real estate and personal property. The case was litigated on the theory of partition. There is rare Indiana authority here for the partition of personalty. Though initially reversed and remanded (for the inadequacy of findings), Willett was later affirmed at 564 N.E.2d 948 (Ind.Ct.App. 1991). Another variant as to the cause of action’s legal theory is found in Turner v. Freed, 792 N.E.2d 943 (Ind.Ct.App 2003), wherein Angela Turner sought compensation for “domestic services” against former cohabitant Danny Turner. Though the COA rightly reversed the trial court’s award of litigation costs to Angela, the panel unanimously affirmed Angela’s money judgment on the theory of unjust enrichment. Viewed critically, Turner appears more like a partition. The “domestic services” holding is (dangerously) bad law and should be disapproved.
The final COA Opinion for this Article is the mentioned one of May 18, 2016 in Neibert v. Perdomo, an “interlocutory” appeal by Craig Neibert of the trial court’s Trial Rule 41(B) dismissal (at the close of his case-in-chief) of his claims versus Jody Perdomo for relief under theories of implied contract and unjust enrichment arising from the renovation of one house and the construction of another. (The survival of Craig’s replevin claim rendered the dismissal partial and his appeal interlocutory.) The unanimous COA panel reversed the partial dismissal and remanded. A practice caveat here is that Craig “rested” without calling Jody (as an adverse witness) thinking that he “reserved” her testimony for an eventual cross-examination. Craig’s lawyer failed to secure a bench order or stipulation that his “resting” was subject to the right to examine Jody, whose lawyer promptly moved for the involuntary dismissal.
During a lengthy period of cohabitation, Craig renovated one house and constructed another. Jody owned all the real estate. With work on the newly built house (in which the couple lived) nearly complete, the relationship ended. Craig sued for compensation for labor, equipment, and materials.
The unanimous COA panel held that Craig had produced sufficient evidence in his truncated case-in-chief to defeat the involuntary dismissal. One important holding is that Craig did not need to establish an “expectation of monetary payment” as part of his equitable claim for compensation. On a secondary issue the COA held that it was an error (abuse of discretion) for the trial court to exclude Craig’s expert witness report on the monetary value of his services. Notably, the witness was present in court and testified on direct and on cross. As of this writing (16 days after the Opinion date), there is no Petition for Transfer by Jody, but time remains.
My Analysis. Given the apparent declining popularity of marriage and the General Assembly’s rejection of the concept of civil unions, there is a large segment of the Hoosier population cohabiting without a well-defined (if any) legal remedy to settle their property affairs at the end of the relationship. A solution for some might be a “Cohabitation Agreement” in the nature of a prenuptial agreement. Whether, or to what extent, Indiana courts would enforce a “Cohabitation Agreement” according to its terms is a matter of speculation. It is unrealistic to expect the Indiana General Assembly to step in with well-reasoned legislation.
On a Related Matter. Here is a single golden nugget of law on the related topic of the fate of the engagement ring when a relationship ends prior to any wedding. Fowler v. Perry, 830 N.E.2d 97 (Ind.Ct.App. 2005) set a clear rule for Indiana. An engagement ring is a conditional gift which vests only at marriage. Indiana will follow a “no fault” approach such that it matters not who broke the engagement or who cheated. Everything should be so simple.
UPDATE. A full citation is now available for Neibert v. Perdomo, 54 N.E.3d 1046 (Ind.Ct.App. 2016), which was cited and followed in McMahel v. Deaton, another “common law divorce” case decided September 14, 2016 in the COA.
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