Adeline Margaret Hatten v. Emerson Richard Hatten

 
FOR PUBLICATION
 
 

ATTORNEY FOR APPELLANT :    ATTORNEY FOR APPELLEE:
 
JON M. MYERS    R. TOD GROFF
Starr, Austen, Tribbett, Myers & Miller    Miller, Tolbert, Muehlhausen, Muehlhausen,
Logansport, Indiana     Groff & Damm, PC
            Logansport, Indiana

 
 
     IN THE COURT OF APPEALS OF INDIANA ADELINE MARGARET HATTEN, ) ) Appellant-Petitioner, ) ) vs. ) No. 09A02-0404-CV-314 ) EMERSON RICHARD HATTEN, ) ) Appellee-Respondent. )

 
 
    APPEAL FROM THE CASS CIRCUIT COURT
    The Honorable Julian L. Ridlen, Judge
    Cause No. 09C01-0301-DR-00005

 
 
     April 20, 2005

     PETITION ON REHEARING - FOR PUBLICATION
 

ROBB, Judge

     The nearly forty-year marriage of Adeline Margaret Hatten ("Wife") and Emerson Richard Hatten ("Husband") was dissolved and the trial court ordered a deviation from an equal distribution of the marital property in that Husband was awarded an account at Merrill Lynch. We held that the trial court abused its discretion in setting aside this account to Husband. Hatten v. Hatten, No. 09A02-0404-CV-314 (Ind. Ct. App., Jan. 28, 2005). Husband now petitions for rehearing, alleging a factual error in our opinion leading to a misunderstanding of the basis on which the trial court's award was made. We grant the petition for rehearing for the sole purpose of addressing Husband's contention, but reaffirm our opinion in all respects.
    In our opinion, we stated that "[t]he trial court awarded to Husband the entirety of a Merrill Lynch account funded with money Husband inherited from his mother." Slip op. at 2. We also stated later in the opinion that "[i]n 1988, Husband received an inheritance of approximately $55,000 when his mother passed away, which was used to fund a Merrill Lynch account." Id. Husband points out testimony that the Husband inherited the account directly from his mother's estate, rather than inheriting money that was later placed in a Merrill Lynch account as our opinion would imply. We agree that the testimony supports Husband's assertion, and to the extent the wording of our opinion implies otherwise, we correct that phrasing. However, the nature of Husband's inheritance has no effect on our ultimate result. As stated in our original opinion, the trial court found that the account was separate and distinct from the marital property. However, Husband voluntarily added Wife's name to the account and they enjoyed the mutual benefit of funds withdrawn from the account for ordinary living expenses (a finding also made by the trial court). Under these circumstances, the account was clearly commingled with the marital property. We therefore reaffirm our original holding that the trial court abused its discretion in setting the account aside to Husband.
KIRSCH, C.J., concurs.
BAKER, J., concurs in part and dissents in part with opinion.

 
            
 
IN THE
COURT OF APPEALS OF INDIANA

 
ADELINE HATTEN,    )
)
Appellant-Petitioner,    )
)
vs.    )    No. 09A02-0404-CV-00314
)
EMERSON HATTEN,    )
)
Appellee-Respondent.    )

 
 
BAKER, Judge, concurring and dissenting
 
I join my colleagues in voting to grant the petition for rehearing to correct any factual error. Moreover I continue to believe the trial court sufficiently set forth its reasoning from the presumption of an equal division of the marital property as I stated in my previous dissent.