      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


      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 1 of 8
      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.

      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 2 of 8
        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.


Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 3 of 8
      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.


      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 4 of 8
[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

      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 5 of 8
       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


       Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 6 of 8
                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.

       Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016            Page 7 of 8
                                                 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.
       Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1323 | November 18, 2016   Page 8 of 8
