- 10 -
terminate in their entirety upon the death of one of the parties.
Petitioner compares State Ex Rel Paxton v. Porter Superior Court,
supra, to Fitzgerald v. Travelers Ins. Co., supra, and concludes
that because Fitzgerald does not contemplate an exception to the
general rule of termination upon death, the two cases are in
conflict. We disagree.
As respondent correctly points out, both of the foregoing
cases have as their foundation the general rule that a divorce
proceeding terminates when a party to such proceeding dies, but
State Ex Rel Paxton v. Porter Superior Court, supra, simply
creates a narrow exception to such rule. State Ex Rel Paxton v.
Porter Superior Court, supra, drew a distinction between the
underlying divorce proceeding and the award of fees; the case
held that the award of attorneys fees is not related to the
merits of the action and does not, “strictly speaking”, form a
part of the judgment or decree in the cause. The court then
concluded that a taxpayer could be obligated for his or her
spouse’s attorney’s fees even after the death of the spouse.
A recent Indiana case, Johnson v. Johnson, supra, reiterated
the general rule that all causes of action in a divorce
proceeding in Indiana terminate on the death of one of the
parties. Specifically, Johnson v. Johnson, supra, considered the
Indiana Supreme Court’s decision in Ex Rel Paxton v. Porter
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011