Indiana Appeals

Indiana Court of Appeals Holds Enhanced Pension Not Marital Property

In Granzow v. Granzow, the Indiana Court of Appeals affirmed, inter alia, the trial court's holding that the husband's enhanced pension was not marital property.  On August 1, 2003, Mr. Granzow filed for dissolution of marriage.  On Feburary 25, 2004, Mr. Granzow reached his thirtieth year of employment, at which point he was entitled to an enhanced pension, valued at $371,566.  The trial court found that "[T]he enhancement portion of the pension is not a marital asset subject to division.  The enhancement was not a vested entitledment when the parties separated in the spring of 2003.  The enhancement was not a vested entitlement when their divorce case was filed on August 1, 2003, nor was it vested entitlement when the parties were divorced on February 4, 2004.  The vesting did not occur until February 25, 2004, when [Husband] attained thirty (30) years of service with United States Steel."  The Court of Appeals affirmed.

Indiana Court of Appeals Denies Interest to Employee for Late Workers Compensation Payments

In Bowles v. Griffin Industries, the Court of Appeals upheld the Workers Compensation Board of Indiana's ruling that an injured employee is not entitled to pre-judgment interest on temporary and total disability benefits that were allegedly paid late.  The Court stressed that its ruling does not preclude the board or a court from awarding post judgment interest on late payments under particular facts.

Indiana Court of Appeals Absolves Good Faith Creditor.

In Porter County Dev. Corp. v. Citibank, the Court of Appeals held that when a creditor accepts payment for valuable consideration in good faith and without any knowledge of misappropriation, it is not liable to the victim of the misappropriation for repayment.  The facts showed that an employee of the Porter County Development Corporation misappropriated money from the corporation and placed them in his checking account.  The employee then made three payments to Citibank for personal credit cards from these funds.  Citibank was unaware of any wrongdoing at all relevant times.

In finding no liability on the part of the good faith creditor, the Court went against the established, but antiquated, precedent of Porter v. Roseman (Ind. 1905) and Peoples State Bank v. Kelly (Ind. Ct. App. 1922), applying modern case law from Rhode Island, Georgia, Ohio, Pennsylvania, Maryland and the Seventh Circuit. 

Indiana Court of Appeals Allows for Unequal Division of Marital Assets Despite the lack of any Rebuttal to the Statutory Presumption of Equal Division

In Galloway v. Galloway, the Court of Appeals affirmed the trial court's determination that the husband should not receive any of his wife's retirement benefits despite the fact that the wife did not present any evidence to rebut the statutory presumption of equal division.  The court reasoned that because neither the husband nor the wife valued the pension plan and because neither placed a value on husband's fledgling auction business, the court did not abuse its discretion by considering them as equal assets.  The court reminded the parties and all attorneys that the burden of producing evidence as to the value of the marital property rests squarely on the shoulders of the parties and their attorneys.

Seventh Circuit Upholds City of Gary's "Sexually Oriented Business" Ordinance

In Andy's Restaurant & Lounge, Inc. v. City of Gary, the Seventh Circuit upheld under both the First Amendment of the Constitution and Indiana Law, the Gary City "Sexually Oriented Business" Ordinance.  The ordinance applies to all sexually oriented businesses (adult book stores, arcades, novelty stores, theaters, and dancing establishments), requires all such businesses to obtain licenses (revocable upon a violation of the ordinance) and prohibits physical contact between semi-nude employees and customers, prohibits the placement of doors, curtains or other materials on private booths so that an employee is able to look into a booth at all times.  The ordinance also contains numerous sanitation provisions, including a prohibition on rugs or carpet, a requirement of non-porous, easily cleanable surfaces, and waste disposal procedures as well as other obligations for employees, such as ensuring that no sexual activity occurs on the premises.      

While the ordinance did not fall neatly into either the "zoning ordinance" line of First Amendment cases under which the court would use a "time, manner, place" analysis nor the intermediate analysis used for public indecency statutes, because the parties briefed the former, the court relied upon it in its analysis. The court first found that the ordinance was content neutral in that it was not a direct regulation of speech but was rather a regulation of the secondary effects. The court next found that the law was designed to serve a substantial governmental interest and did not unreasonably limit alternative venues of communication.  Because the Indiana law issues were not properly before the court, they were dismissed.