concurring and dissent ing.
I disagree with the majority's decision to remand this case to the trial court in order to permit the trial judge to state his reasons, based on the evidence, for deviating from the presumption of an equal division of all the property, including the inheritance. I would remand with direction to the trial court to divide the property, including the inheritance, equally.
The majority is correct in concluding that our statute mandates an equal distribution of property unless a party who asserts a greater interest therein presents relevant evidence that an equal division would be unjust and unreasonable. In this regard, I have examined the evidence and testimony at the hearing. Carol and Robert were the only witnesses. I find no evidence presented by Robert-indeed I find no attempt by Robert to present evidence-on why an equal division of all the property, including the inheritance, would be unjust and unreasonable. Robert's testimony identified the assets, some of the sources of the assets, and his estimates as to their value. His only reference to the inheritance-which, after all, is a major issue in this case-were his comments on two occasions that Carol should not receive any part of it. Certainly, there was nothing in Carol's testimony which aided Robert's case. Since Robert failed to carry his burden of presenting any evidence which would justify an unequal division of the property, the trial court has no other choice but to divide the property equally. If on remand the trial court does state a reason for an unequal division, we would have to reverse on appeal because such reason could not be based on the evidence presented at the trial.
The majority was also correct in finding that Robert had the burden of proving an equal division of the inheritance was unjust and unreasonable. The statute does not distinguish between gifts and inheritances received by a party early in the marriage and those received late. There is a statutory presumption that those gifts and inheritances must be divided equally irrespective of when they were received. Thus, the fact that the inheritance was received several months before separation does not establish that an equal distribution is unfair and unjust. Robert had the burden of showing the unfairness of an equal distribution, and he failed to do so. Cases cited by the trial court in its findings-McBride v. McBride (1981), Ind.App., 427 N.E.2d 1148 and Osborne v. Osborne (1978), 174 Ind.App. 599, 369 N.E.2d 653-which held that the husbands were entitled to their inheritances unless the wives presented evidence that they had contributed to the acquisition, preservation or enhancement of the inherited property-are no longer pertinent because of our current statute. Carol in this case, had no such burden-it rested upon Robert.
I concur with the decision of the majority on all of the other issues decided.