 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


                                                         Jan 15 2014, 6:11 am




ATTORNEY FOR APPELLANT:                              ATTORNEY FOR APPELLEE:
P. JEFFREY SCHLESINGER                               LARRY D. STASSIN
Merrillville, Indiana                                Dyer, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

BEVERLY CZECH,                                       )
                                                     )
       Appellant,                                    )
                                                     )
           vs.                                       )       No. 45A05-1305-DR-234
                                                     )
JAMES CZECH,                                         )
                                                     )
       Appellee.                                     )

                         APPEAL FROM THE LAKE CIRCUIT COURT
                                The Honorable George Paras
                              Cause No. 45C01-0606-DR-505


                                          January 15, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

       MATHIAS, Judge
          The marriage of Beverly Czech (“Wife”) and James Czech (“Husband”) was

dissolved in Lake Circuit Court. Wife now appeals the trial court’s exclusion of real

property inherited by Husband through intestate succession.

          We reverse and remand to the trial court for proceedings consistent with this

opinion.

                                    Facts and Procedural History

          Beverly Czech (“Wife”) and James Czech (“Husband”) married in 1984. During

the marriage, both of Husband’s parents died intestate,1 leaving, among other things, a

piece of real property located in the state of Missouri (“Missouri property”). Husband

and his two siblings each received one-third shares of the property through intestate

succession.       However, neither Husband nor either of his siblings initiated probate

proceedings in Missouri. Instead, the Missouri property remained titled in Husband’s

deceased father’s name, and Husband and his siblings paid taxes on the property from a

joint checking account into which they all deposited funds. According to the trial court’s

decree of dissolution, Husband and his siblings also “held themselves out as the owners

of the Missouri Property.” Appellant’s App. p. 20.

          Wife filed a petition for dissolution of marriage on June 30, 2006, in Lake Circuit

Court. The parties thereafter attempted reconciliation but were unsuccessful, and the



1
    It appears that both of Husband’s parents had died by some time in the 1990s. Tr. p. 78.
                                                      2
dissolution proceedings resumed on May 11, 2012. On January 31, 2013, the trial court

issued its final decree of dissolution. The decree provided, in relevant part:

       30. A court may only dispose of property in which the parties have a vested
       present interest. If the parties do not own the asset at issue or if their
       interest in the property is only contingent, a court may not include it in the
       marital estate or dispose of it.

       31. The evidence established that the Missouri Property was held by
       Husband’s parents and upon the death of Husband’s last surviving parent
       Husband and his siblings failed to effectuate a transfer of the Missouri
       property to themselves through any type of probate process. While the
       evidence indicated that Husband and his siblings held themselves out as
       owners of the Missouri Property and that Husband issued checks upon a
       bank account into which he and his siblings deposited funds for the real
       estate and personal property taxes associated with such property; the
       property tax payment receipts for the Missouri Property admitted into
       evidence spanning from 2003 to 2011 set forth Husband’s father as the
       person to whom such tax bills are directed.

       32. There is no evidence that Husband holds any present vested interest in
       the Missouri Property or that he acquired a present vested interest in the
       Missouri Property during the marriage. The fact that Husband and his
       siblings could have inherited interests in the Missouri property does not
       translate to an actual inheritance of an interest in the Missouri Property by
       Husband during the course of the Parties’ marriage.

       33. As Husband did not acquire any present vested interest in the Missouri
       Property either before or during the Parties’ marriage; such property does
       not fall within the Marital Estate before the Court.

Appellant’s App. p. 20 (internal citations omitted).

       Wife filed an amended motion to correct error on April 5, 2013, arguing that

“Indiana and Missouri law are contrary to the court’s position, holding that an heir

receives a vested interest upon the death of the owner by intestate succession.”

Appellant’s App. p. 11. The trial court granted Wife’s motion to correct error in part but



                                             3
denied the motion as it related to the inclusion of the Missouri property in the marital

estate.

          Wife now appeals.

                                   Discussion and Decision

          Because the trial court entered written findings and conclusions, we apply a two-

tiered standard of review. First, we determine whether the evidence supports the findings,

and second, whether the findings support the conclusions. In re V.C., 867 N.E.2d 167,

179 (Ind. Ct. App. 2007). We will reverse only if the evidence does not support the

findings, or the findings do not support the judgment. Id. We consider only the evidence

most favorable to the judgment and the reasonable inferences flowing therefrom. Id. We

will not reweigh the evidence or judge the credibility of the witnesses. Id.

          Indiana Code section 31-15-7-4(a) provides:

          In an action for dissolution of marriage . . . 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

          It is well settled that Indiana Code section 31-15-7-4(a) requires inclusion in the

marital estate of all property owned by the parties prior to separation, including property

that one of the parties inherited. See Grathwohl v. Garrity, 871 N.E.2d 297, 301 (Ind. Ct.

App. 2007); Fobar v. Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002); Maxwell v. Maxwell,

850 N.E.2d 969, 973 (Ind. Ct. App. 2006), trans. denied. As long as one of the parties

has a present possessory interest in the property, the property should be included. See

                                               4
Grathwohl, 871 N.E.2d at 301; Hunt v. Hunt, 645 N.E.2d 634, 636-37 (Ind. Ct. App.

1994). Only property that is acquired after the final separation date is excluded from the

marital estate. See Maxwell, 850 N.E.2d at 973.

       Wife argues that the trial court erred in finding that Husband’s interest in the

Missouri property had not vested, and thus, Husband’s interest should be excluded from

the marital estate. We agree.

       Both Indiana law and Missouri law clearly provide that an intestate heir’s interest

in the inherited property vests immediately upon the death of the owner. Thus, when

Husband’s last parent died, Husband’s one-third interest in the Missouri property passed

to him automatically, by operation of law, without any affirmative action of a personal

representative or probate court. See Tippecanoe Loan & Trust Co. v. Carr, 40 Ind. App.

125, 78 N.E. 1043, 1044 (1906) (“The law is well settled in this state that the title to lands

upon the death of the owner intestate, immediately vests in the heirs of such deceased

owner”); Wass v. Hammontree, 77 S.W.2d 1006, 1009 (Mo. 1934) (“Generally, real

estate, on the death of the owner, intestate, vests at once in the heirs and not in the

administrator”). See also 42 Am. Jur. 2d § 127 (“When a decedent dies intestate, the

decedent’s property automatically passes to and title immediately vests in her heirs at

law, subject only to sale, administration and attendant costs provided by the law”); 29

A.L.R.3d 174 (“Where the intestate holds legal title to real estate, the title passes

automatically on his death in accord with the laws of descent”).

       Both the trial court in its decree and Husband in his appellee’s brief cite three

Indiana cases, Wilcox v. Wilcox, Libuano v. Libuano, and Maxwell v. Maxwell, as bases

                                              5
for the conclusion that Husband has no vested interest in the Missouri property, and

therefore the property should be excluded from the marital estate. Husband’s and the

trial court’s reliance on these cases is misplaced. In Wilcox, this court held that a spouse

has no vested present interest in his future earnings and that such earnings may be

excluded from the marital pot. See Wilcox v. Wilcox, 173 Ind. App. 661, 663, 365

N.E.2d 792, 794 (1977). In Libuano, this court held that “the trial court may consider the

future value of an asset, but the final distribution must be just and equitable in light of the

present vested interest of the particular fund. A distribution based on contingent values

could result in no distribution at all.” Libunao v. Libunao, 180 Ind. App. 242, 246-47,

388 N.E.2d 574, 577 (1979). In Maxwell, this court held that the trial court properly

included in the marital estate assets inherited by one of the spouses a few months before

the spouse moved out of the marital residence and a year before the spouse filed a

petition for dissolution, but that “the facts and circumstances justified a deviation from a

50-50 split of the marital estate.” Maxwell v. Maxwell, 850 N.E.2d 969, 971, 973 (Ind.

Ct. App. 2006).

       The facts of the present case are easily distinguishable from the facts in Wilcox

and Libuano. Husband’s interest in the Missouri property was neither contingent upon

some occurrence or lack of occurrence, nor a vested present interest in future earnings, as

in Libuano and Wilcox. Rather, his one-third interest in the property vested at the time of

his last parent’s death, when his marriage was still intact. Maxwell also fails to support

his argument since, there, the trial court actually included the Husband’s inherited

property in the marital estate, and this court affirmed.

                                              6
       Therefore, we conclude that the trial court erred when it found that Husband had

no present vested interest in the Missouri property during the marriage and that the

property was not part of the marital estate.

                                         Conclusion

       For all of these reasons, we remand for the trial court to include the one-third

interest in the Missouri property Husband inherited from his parents in the marital estate,

to value that interest, and to recalculate the division of marital assets accordingly.



BRADFORD, J., and PYLE, J., concur.




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