• April 15, 2011

by Corwin Kruse

            In a recent decision, the court of appeals held that outliving your prognosis isn’t, in and of itself, a change of circumstances that justifies reopening a judgment.  Shortly after Laura Daigle started a divorce action, her husband Brian was diagnosed with colon cancer and given six to twelve months to live.  As part of the property division, the Daigle’s agreed that if Brian died first, Laura would be awarded the homestead, however if the house was sold before Brian died, each of the parties would get half the equity. 

            A year after his diagnosis, Brian was still alive and brought a motion to reopen the judgment, arguing that it was no longer equitable, and asking the court to order the homestead to be sold or awarding him half of the equity in the house at the time of the divorce.  The district court denied his motion, finding that he had failed to show that his current health substantially altered the information known at the time of the judgment.

            The court of appeals affirmed, finding that Brian still suffered from colon cancer and, although he had lived longer than expected, there was no evidence that the nature or severity of his illness had changed.  Because of this, he had not shown the development of new circumstances making the original judgment inequitable.

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