MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 18 2016, 6:59 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
A. David Hutson
Hutson Legal
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David John Macintosh, Jr., November 18, 2016
Appellant-Petitioner, Court of Appeals Case No.
72A01-1606-DR-1323
v. Appeal from the Scott Circuit
Court
Pamela Jo Macintosh, The Honorable Roger L. Duvall,
Appellee-Respondent. Judge
Trial Court Cause No.
72C01-1601-DR-6
Najam, Judge.
Statement of the Case
[1] David MacIntosh, Jr. (“Husband”) appeals the dissolution court’s final decree,
which ended his marriage to Pamela Jo MacIntosh (“Wife”). Husband
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presents two dispositive issues for our review, namely, whether the dissolution
court erred when it assessed the value of the marital residence and when it
excluded Wife’s inheritance from the marital pot. We reverse and remand with
instructions.
Facts and Procedural History
[2] Husband and Wife were married in 2008. Husband and Wife each brought
assets to the marriage, and they built a house together on land Wife had
inherited from her father. In 2013, Wife received an inheritance of $250,000,
which she kept in a separate bank account. Wife spent approximately $160,000
of the inheritance to pay off the mortgage debt on the marital residence and to
buy flooring, a hot tub, an above-ground pool, and other improvements to the
marital residence. There were no children born of the marriage.
[3] On January 11, 2016, Husband filed a petition for dissolution of the marriage.
During the final hearing, the parties stipulated that the marital residence was
worth $275,000. Following that hearing, the dissolution court issued a
dissolution decree stating in relevant part as follows:
5. The remaining issue involves the division of the marital
estate. During the period of the marriage both parties sold or
disposed of existing residences and the proceeds of those
properties merged into the marital estate.
6. [Wife] received a significant inheritance from her Father
and the court will set aside that inheritance (and the use of the
proceeds in constructing the marital residence) from the marital
estate and not consider that inheritance a marital asset.
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7. The Court has considered and will treat the above[-
]ground pool, the deck with that pool and the hot tub as personal
property and not a part of the value of the real estate . . . . The
Court depreciates those assets to 75% of the value assigned by
[Husband] given their age and their incorporation into the realty.
8. The Court finds the value of the 2014 Chevrolet Silverado
to be $28,000.00.
9. [Husband] should retain his military pension free and clear
of any claims by [Wife].
10. [Wife] is entitled to the inheritance from her Father free
and clear of any claims by [Husband].
11. [Husband] shall receive the stainless steel sink and may
remove that sink within 60 days. . . . [Husband] shall receive the
55[-]inch Samsung TV and the pool table. Other than this
specific order, the parties shall retain that property now in their
possession free and clear of claims by the other party.
12. The balance of the marital estate shall be divided as set
forth in the attached exhibit. Each party shall keep that property
listed to them in the exhibit free and clear of the other party and
be responsible for those debts listed in the exhibit and hold the
other party harmless.
13. [Wife] shall pay to [Husband] an equalization payment of
$22,046.09 within 60 days of this Decree of Dissolution of
Marriage. [Wife] shall also refinance the home mortgage during
that time to remove [Husband]’s name from that liability.
14. Each party shall execute such deed, title or other
document of ownership to transfer the real and personal property
consistent with the ownership ordered by this Decree of
Dissolution of Marriage.
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Appellant’s App. at 5-7. And in its division of the marital estate, the dissolution
court: assessed the value of the marital residence at $50,000; awarded assets to
Wife in the amount of $165,760.28, including the marital residence, and debts
in the amount of $45,951.70; awarded assets to Husband in the amount of
$92,018.44 and debts in the amount of $16,302.03; and, after an equalization
payment of $22,046.09 from Wife to Husband, purported to award one-half of
the marital estate to Wife and one-half to Husband. This appeal ensued.
Discussion and Decision
[4] Initially, we note that Mother has not filed an appellee’s brief. Accordingly, we
will reverse the trial court’s judgment if the appellant presents a case of prima
facie error. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). Prima
facie error is error at first sight, on first appearance, or on the face of it. Id.
Where an appellant does not meet this burden, we will affirm. Id.
[5] It is well-established in Indiana that all marital property goes into the marital
pot for division, whether it was owned by either spouse prior to the marriage,
acquired by either spouse after the marriage and prior to final separation of the
parties, or acquired by their joint efforts. Ind. Code § 31-15-7-4(a) (2016); Hill v.
Hill, 863 N.E.2d 456, 460 (Ind. Ct. App. 2007). This “one-pot” theory insures
that all assets are subject to the trial court’s power to divide and award. Hill,
863 N.E.2d at 460. While the trial court may ultimately determine that a
particular asset should be awarded solely to one spouse, it must first include the
asset in its consideration of the marital estate to be divided. Id.
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[6] After determining what constitutes marital property, the trial court must then
divide the marital property under the presumption that an equal division is just
and reasonable. Barton v. Barton, 47 N.E.3d 368, 379 (Ind. Ct. App. 2015),
trans. denied. This presumption may be rebutted by relevant evidence that an
equal division would not be just and reasonable. I.C. § 31-15-7-5. However,
the trial court must state its reasons for deviating from the presumption of an
equal division in its findings and judgment. Barton, 47 N.E.3d at 379.
[7] Here, Husband first contends that the dissolution court erred when it concluded
that the marital residence was worth $50,000 despite the parties’ stipulation at
the final hearing that it was worth $275,000. A stipulation is binding on both
the parties and the trial court, and establishes a particular matter as a fact.
Coleman v. Atchison, 9 N.E.3d 224, 229 (Ind. Ct. App. 2014). The trial court
erred when it did not value the marital residence at $275,000.
[8] Further, as Husband correctly points out, the dissolution court explicitly
excluded Wife’s inheritance from the marital pot, including “the use of the
proceeds in constructing the marital residence.” Appellant’s App. at 6. The
decree states that “the court will set aside that inheritance . . . from the marital
estate and not consider that inheritance a marital asset.” Id. Because the law
requires that Wife’s inheritance be included in the marital estate, Hill, 863
N.E.2d at 460, we reverse and remand with instructions to the dissolution court
to include Wife’s inheritance in the marital pot. Also on remand, the
dissolution court shall assess the value of the marital residence at $275,000.
The dissolution court then shall divide the marital property under the
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presumption that an equal division is just and reasonable. Barton, 47 N.E.3d at
379. If the dissolution court decides that the evidence warrants a deviation
from an equal division, the court must state its reasons for that deviation. Id.
[9] Because this issue is likely to recur on remand, we also address Husband’s
contention that, once included in the marital pot, the dissolution court may not
deviate from the presumptive fifty-fifty division of the marital pot based on
Wife’s inheritance. In particular, Husband maintains that, “because the
proceeds of [the] inheritance were commingled with marital assets,” the court
may not set over the inheritance proceeds to Wife. Appellant’s Br. at 18. In
support of that contention, Husband cites Castaneda v. Castaneda, 615 N.E.2d
467, 470-71 (Ind. Ct. App. 1993), where this court affirmed the dissolution
court’s deviation from the presumptive fifty-fifty division of marital property
based upon the wife’s inheritance. But, while the evidence in Castaneda showed
that the wife kept the inheritance proceeds in a separate account and “did not
treat [the money] as marital property,” nothing in Castaneda prohibits setting
aside an inheritance to one party where the proceeds are commingled with
marital assets. Id.
[10] Rather, as we observed in Hyde v. Hyde, 751 N.E.2d 761, 766 (Ind. Ct. App.
2001),
[a]lthough the courts in Castaneda and Scott[ v. Scott, 668 N.E.2d
691 (Ind. Ct. App. 1996)] affirmed setting aside the party’s
inheritance because the funds were never co-mingled with the
marital assets, both of those cases recognize that while a trial
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court must include the inheritance in the marital pot, the decision
of whether to set over the inheritance to a party is discretionary.
Thus, here, the trial court has discretion to set over the inheritance to Wife. But
the starting point is for the court to include the inheritance in the marital pot. If
the court then determines that setting aside that inheritance to Wife is just and
proper, the court must explain its determination and any deviation from the
presumptive fifty-fifty split accordingly.1
[11] Reversed and remanded with instructions.
Vaidik, C.J., concurs.
Baker, J., concurs with separate opinion.
1
Of course, on remand, the final division of property may be the same or similar to the effective distribution
in the dissolution court’s original order.
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IN THE
COURT OF APPEALS OF INDIANA
David John Macintosh, Jr., Court of Appeals Case No.
72A01-1606-DR-1323
Appellant-Petitioner,
v.
Pamela Jo Macintosh,
Appellee-Respondent.
Baker, Judge, concurring.
[12] I fully concur with the majority opinion. I write separately to explain that,
while I am compelled to agree that this judgment must be reversed and
remanded given the analytical errors in the trial court’s order, it is possible that
the trial court could reach essentially the same result on remand. It may well be
that, when the correct analysis is applied, including the placement of all assets
into the marital pot and the valuation of the marital residence as stipulated to
by the parties, the final division of property may be remarkably similar to the
trial court’s original order. See Barton, 47 N.E.3d at 379 (holding that the trial
court is not required to split the marital assets equally so long as it states its
reasons for the unequal division of property and the division is just and
reasonable). Regardless of the outcome, the errors of analysis must be rectified
on remand.
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David John Macintosh, Jr. v. Pamela Jo Macintosh (mem. dec.)
Combined Opinion