PR 06210.017 Indiana

A. PR 86-011 Judgment of Divorce -- Lena E~, Claimant Allie S~, W/E, AN ~

DATE: March 4, 1986



Where there was no actual decree of dissolution of marriage. but an entry in the judgment roll and court minutes which stated dissolution granted," and a review of evidence, revealed an intent on the part of the judge to bring about a dissolution, the fact of the dissolution of marriage is based upon the principle that the sufficiency of the writing must be tested by its substance rather than its form. (S~, Allie, ~ -- RAV (G~), to ARC, Progs., 03/04/86.)


By memorandum dated December 19, 1985, our legal opinion was requested concerning whether claimant's second marriage to Ernest E~ was terminated by divorce in 1978. 1_/ In our opinion, the E~ are legally divorced.

Background facts

Claimant has applied for divorced wife's benefits on the account of Allie S~ , from whom she was divorced in 1973. Claimant married Ernest E~ in 1976, and the couple went through divorce proceedings in 1978.

Doubt arose whether the E~ are divorced because of the wording of pertinent court records. There was no decree of dissolution of the marriage. Instead, the judgment roll and court minutes for August 1, 197B both state

Parties in person and by counsel submitted evidence heard, dissolution granted, entry taken under advisement pending receipt of Hospital Report.

(emphasis added). Both documents are signed by the judge.

Interviews with court personnel and counsel indicate that no "Hospital Report" was submitted. However, on December 20, 1978, the same Judge entered a "Decree Relative To Property Rights" in the E~ 's case. This decree recites that the proceeding is an action for dissolution of marriage, an evidentiary hearing was held on July 7, 1978 and "that a dissolution of marriage was granted by the Court on the 1st day of August, 1978, and that the division of their property rights was taken under advisement .... "

The December 20, 1978 decree determines the disposition of the couple's property. Among the 1rems it addresses are outstanding medical bills for Lena E~, which Ernest E~ is directed to pay.


The records of the court are explicit that a dissolution of the marriage was granted on August 1, 1978. The absence of a separate decree and the suggestion of a lack of finality because "entry taken under advisement..." do not require a different result.

In determining whether there is a judgment, including one of divorce, the sufficiency of a writing claimed to be a judgment must be tested by substance rather than its form. Shafer v. Shafer, 37 N,E.2d 6g, 72 (Ind. S.Ct. 1941):

"The Judgment must be entered on the order-book, and specify clearly the relief granted or other determination of the action." It is said..."Whatever may have been requisite formerly, it is evident that the sufficiency of the writing claimed to be a Judgment must, at least under the code, be tested by its substance rather than by its form. If it corresponds with the definition of a judgment as established by the code; if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted. -- its claim to confidence will not be lessened by a want of technical form, nor by the absence of language commonly deemed especially appropriate to formal judicial records .... " [A]ll of the language is part of the Judgment-roll Signed by the judge, and it was clearly intended as a final judgment determining the rights of the parties. The intention of the court to enter judgment and the character of relief granted are clearly and unmistakably discernible. We conclude that the judgment conforms to the reasonable and practical rule above quoted, and that it is a sufficient and final judgment.

(emphasis added). Accord, Rouch v. Richards, 65 N.E.2d 507, 510 (Ind. App. 1946):

Every definite sentence or decision by which the merits of a cause are determined, although it is not technically a a judgment within the meaning of the law .... The judgment [must] sufficiently show directly the character of the act, the nature and scope of the adjudication, and its application to the controversy.

Ind. Code. Ann. §31-1-11.5-9(a) (West's) provides that in a divorce proceeding, once the court has made the required findings, "the court shall enter a dissolution decree .... A dissolution decree shall become final when entered "

In our opinion, the August 1, 1978 written statements by the judge, "dissolution granted," meets the tests under Indiana law, and the E~ were divorced as of that date. Our conclusion is further supported by the later property rights decree. When the judge signed the later order, he corroborated that a dissolution had been granted on August 1. In addition, the property decree strongly indicates that the Hospital Report for which "entry taken under advisement" on August 1, was to be used to determine the medical bills of Lena E~ to be paid as part of the property disposition, and had nothing to do with the merits of whether a divorce would be granted. Other pleadings and orders may be examined to determine the nature or effect of a judgment. See Flora v. Indiana Service Corp., 53 N.E.2d 161 (Ind. S.Ct. lq44).

Moreover, by definition, the adjudication of property rights means that the parties were divorced. Division of marital property could not be ordered absent a divorce. Ind. Code Ann. §§31-1-11.5-3, 31-1-11.5-11 (West's); see Anderson v. Anderson, 399 N.E.2d 391, 398, 401 (Ind. App. 1979); Draime v. Draime, 173 N.E.2d 70, 73 (Ind. App. 1961).

The argument also can be made that the December 20, lq78 decree satisfies the statutory requirement for a dissolution decree. That decree recites that dissolution was granted August 1, 1978. On that date, only entry was reserved. Ind. Code Ann. §31-1-11.5-9(a) provides that a dissolution decree 'may include orders as provided for in this chapter," which includes the matter of property disposition. The conclusion that the judge intended for the property decree, drafted and so-titled by counsel and not the court, to also serve as the decree of dissolution of which he had previously reserved entry is not unreasonable.

Our conclusion that the August 1, 1978 entries represent a sufficient judgment of dissolution is also supported by Everhart v. Cooper, 200 N.E. 705 (Ind. App. 1936). In that divorce case, the docket-and minute entries read: 'Finding for plaintiff that allegations of complaint are true and she is entitled to a divorce." The court also ordered that previous support and attorney fees orders continue until satisfied.

Subsequently, the plaintiff died and the court dismissed the case. Her heirs sought to have the dismissal vacated and a Judgment of divorce entered, based on the docket entry and the claim that the Judge had then made an oral pronouncement of Judgment by saying, "This divorce is granted...but Judgment will not be entered until costs are paid."

The Indiana Court of Appeals held that the evidence was in conflict as to whether the court orally pronounced judgment or merely stated what its judgment would be, and was therefore inconclusive. Id. at 706. In the E~ case, however, the court's written entries stated clearly "dissolution granted." Moreover, unlike Everhart v. Cooper, where the plaintiff died before the case was completed and the proceeding dismissed, the E~m case proceeded to the last step of a divorce proceeding, a decree of property disposition, at which the fact of dissolution was again confirmed by the court in writing. Based on the standard established by the Indiana cases decided after Everhart, the E~ are divorced.

1/ The request for a legal opinion gives the year of the divorce proceedings as 1981.

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PR 06210.017 - Indiana - 09/09/2008
Batch run: 01/27/2009