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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Marvin Mitchell

Richard J. Dick

Mitchell Dick McNelis, LLC

Indianapolis, Indiana 

ATTORNEY FOR APPELLEE

R. Brock Jordan

Densborn Blachly LLP

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

In re the Marriage of:

Milana Staletovich Riggs,

Appellant-Petitioner,

v.

Leon O. Riggs,1

Appellee-Respondent.

May 22, 2017

Court of Appeals Case No.

49A02-1605-DR-1057

Appeal from the 

Marion Superior Court

The Honorable 

Patrick J. Dietrick, Judge

Trial Court Cause No.

49Dl2-1506-DR-2l278

 

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. 
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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. 
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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.
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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.
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(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 
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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 . . . .”). 
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[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 
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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. 
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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, 
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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, 
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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 twopart 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 
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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 
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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 
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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 
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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 
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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.
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I N T H E

COURT OF APPEALS OF INDIANA

In re the Marriage of:

Milana Staletovich Riggs,

Appellant-Petitioner,

v.

Leon O. Riggs,

Appellee-Respondent.

Court of Appeals Case No.

49A02-1605-DR-1057

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 
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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 
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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 20 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.