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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowProvisional orders governing the affairs of parties in a pending divorce action do not permit trial courts to order the sale of property, the Court of Appeals of Indiana has ruled.
Such a scenario occurred in the case of Eric S. Rambo v. Liane K. Rambo, 21A-DC-2472, in which a mold-infested home owned by Eric and Liane Rambo served as a point of controversy in their divorce proceedings.
The couple had moved out of their Decatur home and in with Liane’s parents in 2021 after concerns were raised about mold in the Rambo’s house. An environmental decontamination company collected samples at the house and reported “high levels” of mold that could be “detrimental to the health of occupants.”
The employee who collected the samples later testified that the mold level in the home was the second-highest he had ever seen and that it was “not recommended to stay in the house.”
Despite those results, Eric left Liane and returned to live in the home in July 2021, running his mechanic business from the residence. When he filed for divorce in August 2021, he moved for a number of provisional orders, including asking for “temporary, exclusive possession” of the house.
Liane filed a cross-petition for dissolution and her own motion for provisional orders, asking the Adams Circuit Court to order that the house “be listed for sale ‘as-is’ due to the mold infestation.”
Eric contended that he had not experienced “any detriment from the alleged mold” while living in the house and that his livelihood was centered at the residence. Liane, on the other hand, argued that selling the home would help pay for a variety of costs incurred during the litigation.
The trial court ultimately issued a provisional order that, among other things, required the parties to auction the house in 90 days and to use that time “to rehabilitate the property to maximize its value to marital estate.”
But the Court of Appeals reversed, agreeing with Eric that Indiana Code § 31-15-4-8 does not allow a court to order the sale of property. The COA noted that provisional orders are temporary and put in place during the pendency of dissolution proceedings, only to be terminated when a final dissolution decree is entered.
“The sale of property is not a ‘temporary’ action and cannot be changed as relevant information is developed,” Judge Nancy Vaidik wrote.
Additionally, the appellate panel noted that when the Legislature wants to authorize an order for sale of marital property, it says so. Thus, the judges found that the arguments as to why an order for the sale of property could be a good idea at the provisional stage should be left to lawmakers.
“We must apply the provisional-order statute as it is currently written, and that statute allows only an order for the possession of property, not the sale,” Vaidik concluded. “We therefore reverse the order for the sale of the house, the tractor, and the camper and remand this matter to the trial court for the entry of a revised provisional order.”
The appellate court added in a footnote, “Our holding is limited to situations in which one or both of the parties to a dissolution action object to the sale of property. Parties are free to enter an agreed provisional order for the sale of property.”
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