Trial Court No. 49D10-0911-DR-052404.
Brent E. Dickson, Chief Justice of Indiana. Dickson, C.J., and Rucker and Massa, JJ., concur., David, J., dissents to the denial of transfer with separate opinion, in which Rush, J., joins.
Brent E. Dickson, Chief Justice of Indiana
PUBLISHED ORDER DENYING PETITION TO TRANSFER
This matter is before the Indiana Supreme Court on a petition to transfer jurisdiction filed by the Appellant pursuant to Appellate Rule 57, following the Court of Appeals opinion issued on September 12, 2013. See
Luttrell v. Luttrell, 994 N.E.2d 298 (Ind.Ct.App. 2013). The Court has reviewed the decision of the Court of Appeals. Any record on appeal that was submitted has been made available to the Court, along with all briefs filed in the Court of Appeals and all the materials filed in connection with the request to transfer jurisdiction. Also, the Court has heard oral argument on the transfer petition. Each member of the Court has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each has voted on the petition to transfer.
Being duly advised, the Court now DENIES the Appellant's petition to transfer jurisdiction. This appeal is at an end.
The Court DIRECTS the Clerk to certify the Court of Appeals opinion as final and to send copies of this order to all counsel of record. The Clerk is also directed to post this order to the Court's website, and Thomson/Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.
Dickson, C.J., and Rucker and Massa, JJ., concur.
David, J., dissents to the denial of transfer with separate opinion, in which Rush, J., joins.
I respectfully dissent from the denial of transfer. To provide guidance to trial courts, I believe we should address the issue of whether a lump-sum Social Security Disability Insurance payment is a marital asset subject to division upon divorce, or a factor to be considered.
In Severs v. Severs, we stated in dicta that " any assignment or division of social security benefits to satisfy a marital property settlement under Indiana law is barred by 42 U.S.C. § 407" of the Social Security Act. 837 N.E.2d 498, 501 (Ind. 2005). 42 U.S.C. § 407(a) provides that
[t]he right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other ...