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.
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
(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 judgment...is 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
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
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.