concurring and dissent ing.
I concur with the majority's conclusion that any part of an FELA settlement representing future losses is not marital property, and that any portion intended as compensation for losses incurred during the marriage is included in the marital estate. I disagree, however, with the majority's decision to create a presumption that all assets of either or both parties in a dissolution case are marital property subject to division.
The applicable statute specifies with particularity those assets that are included in the marital estate subject to division. It provides:
In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
Indiana Code § 31-15-7-4(a). This marital estate statute does not establish any presumption that property individually acquired after final separation is subject to distribution. To the contrary, it excludes from distribution all property acquired by either spouse in his or her own right after final separation.
The majority infers a presumption that all assets are subject to division from the *164language of Indiana Code § 81-15-7-5, which begins "The court shall presume that an equal division of the marital property between the parties is just and reasonable." This presumption, however, favors only equal division "of the marital property" eligible for distribution under Indiana Code § 31-15-7-4(a). But it does not establish a presumption of equal division of property not subject to such distribution. Thus, as to property acquired by either party in their own right after final separation, there is absolutely no presumption of equal division. Such property is simply not part of the marital estate and is not subject to division at all.
The majority correctly observes that "a party seeking to rebut the presumption of equal division of marital property bears the burden of proof." [Opin. at 163] (emphasis added). But this presumption applies only to marital property, not to property outside the marital estate-property acquired in a party's own right after final separation. I.C. 31-15-7-4(a).
By creating a presumption that all property owned by either or both spouses is within the marital estate notwithstanding the marital estate statute, the majority also creates risks of uncertainty as to various other types of property outside the marital estate. If the presumption applies here to the FELA award, will it also apply to a personal injury settlement intended to provide compensation for future losses and/or suffering; to an unvest-ed interest in an employee pension plan; or to various other property interests received after final separation and before the final dissolution decree such as an inheritance, an investment that realizes substantial appreciation, or lottery winnings?
Today's creation of the artificial presumption as a tool of appellate review is unnecessary. Our review of a trial court's determination as to the extent of the marital estate is properly guided by Indiana Trial Rule 52(A), not by evaluating whether one spouse or another adequately overcame a presumption. The Rule states that "the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Id.
Among the trial court's extensive findings of fact regarding the husband's FELA settlement, the court noted that the husband was seeking a $750,000 settlement based upon lost future earnings and earning capacity, loss of hospitalization and medical benefits, pain and suffering, and disability. Finding of Fact 16 in order of September 10, 2002. It further found that the $250,000 settlement ultimately reached included an agreement not to return to work/resignation, and a release of claims "for hearing loss (known or unknown), any and all occupational claims, claims under the ADA and all other claims." Id. at T8. The court did not, however, make any findings identifying which portion of the settlement represented losses incurred during the marriage and which was for future losses.
The trial court concluded that "due to the fact that the eventual $250,000.00 settlement that was reached includes more than] future lost wages, the settlement is in fact a marital asset," and thus subject to division. Conclusions of Law 14 in order of September 10, 2002. This conclusion was based on the trial court's belief that "if a personal injury settlement includes pain and suffering and is not limited to future lost wages, the settlement is a marital asset. Smith v. Smith [676 N.E.2d 388 (Ind.Ct.App.1997) ]." Id. at 12. But this Court today expressly disapproves Smith and holds instead that any part of the settlement "representing future losses is not marital property subject to distribu*165tion" and that "only that portion of the award intended as compensation for past losses, that is, losses incurred during the marriage, is included in the marital estate." [Opin. at 162.] Because the trial court's conclusions are thus clearly erroneous as a matter of law, its judgment should be vacated and this cause remanded for a redistribution of marital property.
Instead of remanding for further consideration, however, the majority creates an evidentiary presumption and finds that the husband failed to sustain his burden of proof to rebut this new presumption-one that did not exist at the time the parties presented their evidence and the trial court evaluated it. At the least, the parties and the trial court should be given an opportunity to apply this new presumption to the facts of this case. I believe that remand is appropriate.