Schlake v. SchlakeAnnotate this Case
While they were married, Marcia and Gene Schlake purchased residential property as joint tenants. After the parties divorced, Marcia conveyed a remained interest in her undivided one-half interest to her two children but retained a life estate interest in her one-half interest. Marcia and her children later filed a complaint in partition regarding the property. Gene opposed the partition, noting that the parties’ divorce decree provided that they shall not sell the property unless they both agreed in writing. The district court granted summary judgment in Marcia’s favor and ordered that partition should be made. Gene then filed a motion to vacate the summary judgment order, raising as an affirmative defense that Marcia should be precluded from seeking partition as a matter of equity. The district court overruled the motion to vacate, concluding that Gene’s failure to present such an affirmative defense in response to Marcia’s summary judgment was not grounds to vacate the judgment. The district court then ordered that the premises be sold at public auction. Gene appealed, seeking review of several orders entered by the district court. The Supreme Court dismissed the appeal, holding that none of the orders were properly before the Court for review.