                                                                            FILED
                                                                     Oct 03 2017, 11:05 am

                                                                            CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Marvin Mitchell                                            R. Brock Jordan
Richard J. Dick                                            Densborn Blachly LLP
Mitchell Dick McNelis, LLC                                 Indianapolis, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Milana Staletovich Riggs,                                  October 3, 2017
Appellant-Claimant,                                        Court of Appeals Case No.
                                                           49A02-1703-EU-458
        v.                                                 Appeal from the Marion Superior
                                                           Court
Cynthia Hill, in her capacity as                           The Honorable Steven R.
the Personal Representative of                             Eichholtz, Judge
the Estate of Leon O. Riggs,                               Trial Court Cause No.
Appellee-Respondent                                        49D08-1601-EU-2099




Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017                     Page 1 of 13
[1]   Milana Stelatovich Riggs was married to Leon Riggs in 1968. In 1969, a

      Mexican court issued a document purporting to dissolve their marriage. In

      1973, Milana and Leon filed cross-petitions to dissolve the marriage; neither

      petition was resolved. In 1977, Leon filed a declaratory judgment action

      seeking a declaration as to the validity of the Mexican dissolution document;

      this pleading also remained unresolved. From 1970 until 2015, Leon filed his

      taxes as a single individual and structured his finances and business as though

      he were single. In 2015, after Leon had been suffering from dementia for some

      time, Milana filed a petition to dissolve the marriage. Before that proceeding

      could be resolved, Leon died. After his death, Milana filed an election to take

      against the will as a surviving spouse in the probate action. The personal

      representative of Leon’s estate filed a motion for summary judgment, arguing

      that Milana was barred by equitable doctrines from electing to take against the

      will as a surviving spouse.


[2]   The probate court granted summary judgment in favor of the personal

      representative, and Milana now appeals. She argues that the probate court

      erroneously struck some of her designated evidence based upon the Dead

      Man’s Statute and that summary judgment is not warranted on the doctrine of

      laches. Finding no error, we affirm.


                                                      Facts
[3]   As this court explained in a related dissolution appeal, “Leon and Milana were

      married in April 1968, and they lived together as husband and wife for one


      Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 2 of 13
      year. In April 1969, the couple separated and never again lived together. There

      were no children of the marriage.” Riggs v. Riggs, 49A02-1605-DR-1057, slip

      op. p. 2 (Ind. Ct. App. May 22, 2017), trans. denied.


[4]   In 1969, Milana went to Mexico and met with an attorney. A Mexican court

      issued a divorce decree in December 1969. In 1969, Leon’s tax filing status was

      married; from 1970 until his death in 2015, his filing status was single. In 1973,

      Milana filed a petition in Indiana to dissolve the parties’ marriage; Leon filed a

      cross-claim seeking the same relief. In 1977, Leon filed a complaint for a

      declaratory judgment seeking a determination of the validity of the Mexican

      divorce decree. Neither the 1973 nor the 1977 actions proceeded to an ultimate

      determination, leaving open the question of the validity of the Mexican decree.


[5]   In 2015, Milana filed another petition to dissolve the marriage. By that time,

      Leon was suffering from dementia, required constant care, and was not

      competent to participate in the dissolution action. Id. Leon died testate on

      December 4, 2015; at the time of his death, no dissolution decree had been

      entered. The trial court dismissed the dissolution action for lack of jurisdiction

      following Leon’s death; Milana appealed that determination and this Court

      affirmed. Id.


[6]   Following Leon’s death, Leon’s daughter, Cynthia Hill, was appointed personal

      representative of his estate (the Personal Representative). On February 24,

      2016, Milana filed an election to take against Leon’s will, claiming to have been

      married to Leon at the time of his death, renouncing all provisions in his will,


      Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 3 of 13
      and electing to take her legal share in his estate. She also filed claims against

      his estate, seeking compensation under five separate theories.


[7]   On March 29, 2016, the Personal Representative filed a motion to strike

      Milana’s election to take against the will, and on May 6, 2016, the probate

      court agreed to treat the motion as a summary judgment motion. In the

      summary judgment motion, the Personal Representative argued that the

      equitable doctrines of laches, unclean hands, and equitable estoppel prevent

      Milana from taking against the will as Leon’s surviving spouse.


[8]   Milana responded in opposition to summary judgment, designating her own

      affidavit and portions of her deposition from the 1970s litigation in support.

      The Personal Representative moved to strike Milana’s affidavit and deposition

      pursuant to the Indiana Dead Man’s Statute. The probate court granted the

      motion to strike. Milana also filed a cross-motion for summary judgment on

      October 20, 2016, arguing that she is entitled to relief on her election against the

      will as a matter of law and that the Personal Representative is estopped from

      arguing that the Mexican divorce decree was valid.


[9]   Following a hearing, the probate court granted the Personal Representative’s

      summary judgment motion and denied Milana’s cross-motion for summary

      judgment on February 14, 2017. In relevant part, the probate court found and

      concluded as follows:


                     The Court agrees with the Personal Representative’s
              position that the issue before this court is not to determine
              whether or not the Mexican decree is valid. The issue before the
      Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 4 of 13
        court is whether or not Milana or the estate are barred from
        seeking or contesting the spousal election as a result of the
        application of the equitable doctrines of laches, estoppel, or
        unclean hands.


                                                  ***


             . . . The personal representative has failed to show
        Milana’s claim is barred by estoppel or unclean hands.


              The deciding issue in this case is whether or not Milana is
        barred from claiming against the estate as the surviving spouse
        under the doctrine of laches.


                                                  ***


                Milana and Leon recognized questions about the Mexican
        decree as evidenced by her decision to file for divorce and Leon’s
        Cross Claim for divorce in 1973, Leon’s action for Declaratory
        Judgment in 1977, and the 2015 dissolution action. . . . [Milana]
        correctly asserts that even if she questioned the validity of the
        Mexican divorce, she had no duty to bring an action to determine
        its validity. However, the Court states again that the issue here is
        not the validity of the Mexican divorce. A determination of the
        issues in this case will not establish a marriage exists or a divorce
        occurred through laches, estoppel or unclean hands.


               Milana filed an action for dissolution in 1973, which was
        not resolved. She was a party to an action to determine if the
        Mexican divorce was valid in 1977, which was not resolved. She
        was aware of an issue of the unresolved status of her and Leon’s
        marital status. Thirty-five years [passed] before Milana brought a
        second dissolution action, which was resolved . . . by Leon’s
        death. The Court therefore concludes that under these

Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 5 of 13
               circumstances the doctrine of laches bars Milana’s claim as a
               surviving spouse.


                      Considering Milana’s motion for summary judgment the
               court concludes that the estate is not asserting a claim against
               Milana, and therefore the estate is not barred from contesting her
               claim to take against the will as the surviving spouse.


       Appealed Order p. 2-3. Milana now appeals.


                                     Discussion and Decision
                                          I. Motion to Strike
[10]   Milana first argues that the probate court erroneously granted the Personal

       Representative’s motion to strike the affidavit and deposition she designated in

       opposition to the summary judgment motion. The decision to admit or exclude

       evidence is within the trial court’s sound discretion, and we will reverse only if

       the trial court’s decision is against the logic and effect of the facts and

       circumstances before the court. E.g., Stowers v. Clinton Cent. Sch. Corp., 855

       N.E.2d 739, 749 (Ind. Ct. App. 2006).


[11]   The trial court struck Milana’s affidavit and deposition based on the Dead

       Man’s Statute, which provides, in relevant part, that “a person: (1) who is a

       necessary party to the issue or record; and (2) whose interest is adverse to the

       estate; is not a competent witness as to matters against the estate.” Ind. Code §

       35-45-2-4(d). Our Supreme Court has explained that this statute “establishes as

       a matter of legislative policy that claimants to the estate of a deceased person

       should not be permitted to present a court with their version of their dealings
       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017     Page 6 of 13
       with the decedent.” In re Estate of Rickert, 934 N.E.2d 726, 731 (Ind. 2010). The

       central purpose of the Dead Man’s Statute “is to ensure that when one party to

       a transaction has had her lips sealed by death the other party’s lips are sealed by

       law.” Taylor v. Taylor, 643 N.E.2d 893, 896 (Ind. 1994).


[12]   In In re Sutherland’s Estate, our Supreme Court considered a case in which a

       decedent’s survivor asked for a determination of heirship so that she could share

       in the decedent’s estate. 246 Ind. 234, 204 N.E.2d 520 (Ind. 1965). The

       survivor alleged that a common law marriage existed between her and the

       decedent and that she should be allowed to inherit as his wife. In support of her

       claim of a common law marriage, the survivor offered her own testimony about

       her history and relationship with the decedent. Our Supreme Court found that

       the trial court erred by permitting her to testify in this regard:


               Testimony of the appellee as to ‘any matter’ which occurred prior
               to the death of the decedent is excluded under this statute. This
               includes transactions or actions as well as conversations.


               One of the objects of these statutes is to prevent a person from
               testifying against an estate as to acts or conversations of the
               decedent when his lips are sealed by death. It is, in fact, a statute
               for the prevention of fraud.


               To say that ‘the litigation herein is not for the purpose of
               obtaining a judgment or allowance for or against the estate of the
               decedent’ is not true. It is the very purpose of the appellee, as
               widow in this proceeding, to gain a widow’s share in the estate.
               What she would gain would even have priority over the claims of
               creditors who are likewise incompetent to testify under the same
               statute. It does affect the amount to be distributed by the estate.

       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 7 of 13
       Id. at 240-41, 204 N.E.2d at 523. In other words, the Dead Man’s Statute

       prohibits the testimony of an alleged surviving spouse about her relationship

       with the decedent where she is seeking to inherit a portion of the decedent’s

       estate. See also Taylor, 643 N.E.2d at 896 (holding that, absent waiver of the

       right to raise the Dead Man’s Statute, a surviving spouse’s election to take

       against the will would render her testimony incompetent). We decline Milana’s

       invitation to consider the Sutherland opinion to be outdated and/or no longer

       good law. It is apparent that our Supreme Court still considers the Sutherland

       holding to be good law, inasmuch as it echoed that rule in Taylor, albeit without

       citing to Sutherland in support. Id.


[13]   Milana argues that, even if the Dead Man’s Statute applies and renders her

       testimony incompetent, the Personal Representative has waived the argument.

       Milana notes that the Personal Representative initially included argument

       regarding Milana’s deposition in her memorandum in support of the motion to

       strike Milana’s election to take against the will. Milana acknowledges,

       however, that the Personal Representative withdrew the motion, which

       necessarily also withdrew the memorandum in support. According to Milana,

       only the motion and not the accompanying memorandum was withdrawn, but

       we find that this argument elevates form over substance to an untenable degree.

       Because the motion and memorandum in support were withdrawn, the

       Personal Representative has not waived the right to raise the Dead Man’s

       Statute. Accordingly, the probate court did not err by granting the Personal

       Representative’s motion to strike Milana’s affidavit and deposition.


       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 8 of 13
                                      II. Summary Judgment
[14]   Milana raises several arguments with respect to the trial court’s summary

       judgment order. Our standard of review on summary judgment is well

       established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[15]   Milana first argues that the trial court erred by granting summary judgment in

       favor of the Personal Representative based upon the doctrine of laches. The

       doctrine of laches may be raised to prevent a person from asserting a claim that

       he or she would normally be entitled to assert. Gabriel v. Gabriel, 947 N.E.2d

       1001, 1007 (Ind. Ct. App. 2011). Laches is “neglect for an unreasonable length

       of time, under circumstances permitting diligence, to do what in law should

       have been done.” Id. The rationale behind the doctrine of laches is as follows:


               [A] person who, for an unreasonable length of time, has
               neglected to assert a claim against another waives the right to

       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 9 of 13
                assert a claim when the delay prejudices the person against
                whom she would assert it. Laches requires evidence of
                (1) inexcusable delay in asserting a right; (2) an implied waiver
                arising from a knowing acquiescence in existing conditions; and
                (3) a change in circumstances causing prejudice to the adverse
                party.


       Id.


[16]   In this case, the following facts are undisputed:


             • In 1969, Milana went to Mexico. While she was there, she met with an
               attorney and discussed the dissolution of her marriage to Leon. The
               result of that trip was a Mexican document purporting to dissolve the
               marriage.
             • Beginning in 1970 and continuing until his death in 2015, Leon’s tax
               filing status was single. He structured his estate and business succession
               plans based upon an assumption that he was single.
             • In 1973, Milana filed a petition in Indiana to dissolve their marriage.
               Leon filed a cross-petition seeking the same relief. This proceeding was
               not litigated to a final judgment.1
             • In 1977, Leon filed a declaratory judgment action seeking a declaration
               as to the validity of the Mexican document. This proceeding was not
               litigated to a final judgment.
             • In 2015, after Leon was suffering from dementia and in the final months
               of his life, Milana filed a petition to dissolve the marriage.




       1
         Milana argues that because she, rather than the Personal Representative, designated evidence regarding the
       1970s litigation in the summary judgment proceedings, the probate court should not have relied on it in
       determining whether summary judgment was warranted. We disagree. There is no genuine dispute as to the
       existence of either the 1973 or 1977 legal proceedings and they were in the record before the probate court;
       therefore, the probate court did not err by relying on this evidence.

       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017                      Page 10 of 13
       We agree with the trial court that whether or not the Mexican document is a

       valid dissolution of marriage order is not a question that we need to (or could,

       based on this record) answer. Instead, we must determine the effect of that

       document over the ensuing decades.


[17]   Milana seeks to claim a share of Leon’s estate as his surviving spouse. But she

       has known for over four decades that the legal status of their marriage was, at

       the least, unresolved. Had she wanted to assert a claim that she has legal rights

       as Leon’s spouse (and is also saddled with the concomitant legal

       responsibilities), she should have done so years, if not decades, ago. Based on

       that evidence, the following is true as a matter of law:


           • Forty-six years is an inexcusable delay for Milana to assert her rights as
             Leon’s legal spouse.
           • Milana knew that the legal status of her marriage was unresolved (as
             evidenced by the 1970s litigation), and acquiesced to the legally unsettled
             nature of that relationship, thereby impliedly waiving her right to claim
             that she is Leon’s legal spouse.
           • For forty-five years, Leon conducted his finances and business under the
             assumption that he was single. Additionally, by the time Milana filed
             her final petition to dissolve the marriage, Leon was suffering from
             severe dementia, and by the time she finally sought to claim her rights as
             his legal spouse, he was dead. All of this together constitutes a change in
             circumstances causing prejudice to Leon.

       In other words, the undisputed evidence fulfills all elements of a laches claim.

       Therefore, we find that the probate court did not err by finding that the material

       facts are undisputed and that the Personal Representative is entitled to

       judgment as a matter of law based upon the doctrine of laches.


       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017   Page 11 of 13
[18]   Because we find that summary judgment was properly granted in the Personal

       Representative’s favor on the issue of laches, we need not consider Milana’s

       remaining arguments with respect to the Personal Representative’s summary

       judgment motion. We will, however, briefly address her claim that the trial

       court should have granted her cross-motion for summary judgment based upon

       the doctrine of judicial estoppel. The doctrine of judicial estoppel provides that,

       “absent a good explanation, a party should not be permitted to gain an

       advantage by litigating on one theory and then pursue an incompatible theory

       in subsequent litigation.” Morgan Cty. Hosp. v. Upham, 884 N.E.2d 275, 280

       (Ind. Ct. App. 2008) (internal quotation omitted).


[19]   Milana observes that in 1973, Leon admitted that he was married when he filed

       his cross-petition to dissolve the marriage. She argues that his estate should

       now be estopped from arguing that he was not married at the time of his death.

       But the Personal Representative has never argued that Leon was legally

       divorced from Milana. Instead, she has consistently maintained that it is

       irrelevant whether the Mexican document was valid or void, contending that

       the dispositive issue is “whether various equitable doctrines preclude Milana

       from seeking a spousal election based on her unreasonable delay in seeking an

       adjudication of the Divorce Decree’s validity.” Appellee’s Br. p. 33. We agree,

       and decline to apply judicial estoppel under these circumstances. 2




       2
        Milana also argues that the probate court was required to grant her cross-motion because the Personal
       Representative did not designate any evidence in opposition. But “[i]t is well-settled that a trial court is not

       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017                           Page 12 of 13
[20]   The judgment of the probate court is affirmed.


       Bailey, J., and Altice, J., concur.




       required to grant an unopposed motion for summary judgment.” Techna-Fit, Inc. v. Fluid Transfer Prods., Inc.,
       45 N.E.3d 399, 409 (Ind. Ct. App. 2015). Therefore, we decline to reverse on this basis.

       Court of Appeals of Indiana | Opinion 49A02-1703-EU-458 | October 3, 2017                       Page 13 of 13
