NO COMMON LAW OF DIVORCE

Henry VIII (at left) and Cardinal Wolsey

Not long ago I wrote a two-installment Article on what I called “Common Law Divorce,” the phenomenon of unmarried former domestic partners flocking to the courts to disentangle their property interests. The topic had nothing to do with married people filing for a divorce pursuant to statutory authority. The inspiration for this Article is the COA’s June 30, 2016 NFP decision in ArcelorMittal Pension Plan v. Hickey. Despite the case title on appeal, the litigation began as an action for dissolution of marriage. Why the decision is NFP is beyond my understanding.

Michael Hickey was a retired steelworker with a pension apparently in pay status as a single life annuity when he filed to dissolve his marriage to Jackie Hickey. A decision footnote indicates that Jackie “expressly waived” her right to a survivor annuity at the time of Michael’s retirement. Jackie would later have reason to regret that waiver.

When the divorce case was about 30 months old, the parties appeared for their scheduled final hearing. They were unprepared to address some property issues, and the trial court bifurcated the proceedings by dissolving the marriage and scheduling the property disposition for a later date. After the property division was submitted the trial court ordered, in relevant part, that Jackie be awarded 33.5% of Michael’s pension benefits and directed Michael’s lawyer to prepare the QDRO to accomplish that division. I do not know whether the Plan limited Jackie to a 33.5% portion of each monthly pension installment (to end at Michael’s death) or whether the Plan afforded Jackie the option of the actuarial equivalent in the form of an annuity payable to her for her lifetime. This seemingly important issue escaped mention in the COA decision.

My unanswered query is relevant only because Michael died a couple of months after the property hearing and before the filing of any QDRO. Suddenly (it would seem) Jackie began to see the advantages of widowhood over divorce. But the marriage was already dissolved. What to do?

Jackie finally lawyered up (for the first time in the divorce case) two months after Michael’s death. With the aid of counsel Jackie later moved (successfully) to substitute Michael’s estate as a party and followed with a motion to set aside the dissolution of the marriage from more than a year earlier. After another eight months there came a hearing on the motion to set aside the dissolution.

Jackie’s theory for her motion to set aside was that the dissolution was rendered void (as a matter of law) due to the willing violation of IC 31-15-2-14, having to do (in relevant part) with the listing in writing of contested issues to be filed with a waiver of final hearing when parties desire a summary decree (of dissolution) followed by a contested submission of those reserved issues. In the case at bar, however, there was no waiver of a final hearing. The parties had appeared for their scheduled final hearing, and the court dissolved the marriage. While there seems to be no applicability of these circumstances to IC 31-15-2-14, the trial court nonetheless granted Jackie’s motion to set aside and concluded in its order (not necessarily authored by the court):

“2. The order [of dissolution] is void. Indiana Code 31-15-2-14 requires that when a divorce proceeding is bifurcated that the parties sign a written waiver of final hearing and a statement explaining what items are agreed upon and which items are still in dispute. No such written agreement was filed in this matter. The statute which allows for a bifurcated hearing in a dissolution is in degradation [sic] of the common law [emphasis added] and must be strictly construed.”

 I doubt that a legal bifurcation of a divorce can come only with a waiver of final hearing.¹ While I agree that statutes respecting the granting of a divorce should be narrowly construed, the supposed derogation (the correct term) of the common law is not cause for a narrow construction. THERE IS NO COMMON LAW OF DIVORCE! THERE IS NO COMMON LAW OF DIVORCE! THERE IS NO COMMON LAW OF DIVORCE!²

It has to do with the history of marriage as a sacrament of the (Catholic) Church and the Church’s stranglehold on the mercy of divorce. Then came Henry VIII who married his brother’s widow (the Spanish royal Catherine of Aragon) and sired a daughter (later known as “Bloody Mary”) but no male heir to the Tudor throne. This was occurring in the historical context of a very young Protestant Reformation.

Henry sequestered Catherine in the Tower (not really a tower) of London and sent Cardinal Wolsey to Rome year after year to entreat the Pope to grant a divorce. Henry’s fertility was likely impaired by syphilis, and he had given up on Catherine as the mother of the desired (legitimate) male heir. The Pope would not willingly offend the Spanish royal family, so Wolsey’s efforts in Rome were unavailing.

Henry became infatuated with Anne Boleyn who would give birth to a daughter later known as Elizabeth the Great. Wishing to marry Anne, Henry came up with the Act of Supremacy in 1534. The Act declared Henry the “Supreme head of the [Catholic] Church in England.” It was clear that Henry meant to grant his own divorce, and he did so with enough involvement of a complicit Parliament to create historical precedent for a divorce by legislative act. And so it was in Indiana for the first few decades of statehood when an applicant for a divorce had to petition the legislature. Around 1850 (I think) there was legislation in Indiana delegating the legislative authority over divorce to civil courts. You can read about the legislative roots of divorce in Taylor v. Taylor, 436 N.E.2d 56, 58 (Ind.1982). Without inherent judicial power over divorce and having only such power as delegated by the legislature, there was no opportunity for a common law of divorce. THERE IS NO COMMON LAW OF DIVORCE!

It seems that I digress to make the point that the trial court’s order in Hickey setting aside the dissolution would not withstand scrutiny. But who would bring scrutiny to the table? Who would object? Remarkably, the Pension Plan sought to intervene in the divorce case and then to obtain relief from the order setting aside the dissolution. In other words, the Pension Plan wanted to restore that state of affairs in which Jackie was divorced.

The trial court denied the Pension Plan’s requested intervention and (accordingly) declined to consider the related motion for relief from the order which had set aside the divorce. The COA unanimously reversed the denial of intervention and remanded for consideration of the motion for relief. According to the Pension Plan, Jackie will get nothing in the way of pension benefits if the divorce is reinstated, even though the trial court awarded her just over one-third of Michael’s benefits. I find fault with Jackie’s legal maneuvers in a friendly environment. And I find fault with the palpable unfairness of the position of the Pension Plan.

Until I change my mind (again), here’s my unsolicited advice to Jackie’s lawyers. First, find alternate grounds for setting aside the dissolution, maybe some prejudice from Jackie’s lack of representation. Second, you must concede the Pension Plan’s standing to intervene but challenge its standing to object to Jackie’s marital status. Remember the legislative roots of divorce and ask your opponent to identify what statute gives it standing to object to a decree of divorce or to a decree setting the divorce aside.³ It may be that the Pension Plan is in the familiar position of having a right (to intervene to protect an asset) without a remedy (to object to Jackie’s marital status).

Addendum of no importance. In my treasure trove of case law I found only two Indiana cases dealing with the death of a party while a divorce case pended or post-final hearing prior to entry of a written decree. The cases are Edwards v. Edwards, 709 N.E.2d 1055 (Ind.Ct.App. 1999) and Murdock v. Estate of Murdock, 935 N.E.2d 270 (Ind.Ct.App. 2010). I’m thinking there’s at least one other case out there involving the killing of one spouse by the other while the divorce was pending. If you have a citation, please share it in a comment.

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¹See IC 31-15-2-1 making the Trial Rules applicable to dissolution cases. Bifurcation is expressly allowed (for jury trials) at TR 42(C) and otherwise not prohibited by rule.

²If you search diligently, you can still find an appellate Opinion or two betraying the author’s deficit of understanding about divorce and the common law. See Johnson v. Johnson, 460 N.E.2d 978, 979 (Ind.Ct.App. 1984), declaring divorce statutes to be “in derogation of the common law.”

³I would offer the example of Marriage of McGee, 998 N.E.2d 270 (Ind.Ct.App. 2013) which held (prior to the legislative amendment of IC 31-15-2-5) that a guardian could not sue for divorce on behalf of an incapacitated adult ward because there was no statutory authorization for such action.