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11/17/87 DEWAYATT E. PERSINGER v. CAROL HARL

Filed : November 17, 1987.

DEWAYATT E. PERSINGER, APPELLANT (PETITIONER BELOW),
v.
CAROL HARL PERSINGER, APPELLEE (RESPONDENT BELOW)



APPEAL FROM THE PIKE CIRCUIT COURT, The Honorable Marvin D. Stratton, Judge, Cause No. 83-C-92

William G. Conover, P.j., Stanley B. Miller, J., concurs., V. Sue Shields, P.j., concurs in result.

Author: Conover

MEMORANDUM DECISION

WILLIAM G. CONOVER, P.J.

Defendant-Appellant Estate of DeWayatt E. Persinger (Husband's estate) appeals a Relief from Judgment Order in favor of Carol Harl Persinger (Wife) setting aside a divorce decree.

We reverse.

ISSUES

Because we reverse, we address only one consolidated issue, whether the trial court erred in granting Wife's Trial Rule 60(B) motion to set aside the dissolution decree.

FACTS

Husband and Wife were married on June 19, 1955, in Arlington, Virginia. Thereafter, the couple resided at 1021 Eighth Street in Arlington until 1957. At that time they moved to Alexandria, Virginia, then separated in September 1965. They stayed in contact until 1972 when Husband moved to Pike County, Indiana. Husband and Wife last saw each other at Wife's daughter's wedding in 1974. Husband visited Wife's residence on several occasions while daughter's wedding plans were extant.

In June 1983, Husband filed for divorce from Wife in the Pike Circuit Court. He filed an affidavit stating Wife's last known address was the Arlington, Virginia, address the parties had left in 1957, coupled with a statement he could not locate Wife after using due diligence. Notice sent to this address was returned for insufficient address. The court then ordered notice by publication in a Pike County newspaper. When Wife failed to appear, the court entered a default judgment granting the divorce only. The judgment did not affect either party's rights in their separate property.

Husband died in 1985. Wife, learning of the divorce action just after Husband's death, immediately filed her motion for relief from the divorce judgment. The trial court determined the dissolution decree was void and set aside its prior judgment. Husband's estate appeals.

Discussion AND DECISION

Husband's estate contends the trial court erred in granting Wife's T.R. 60(B) motion for relief from judgment. A T.R. 60(B) motion is addressed to the trial court's equitable discretion. The burden is upon the movant to affirmatively demonstrate relief ...


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