Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 1 of 17

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Michael C. Keating

Keating & LaPlante, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

B. Michael Macer

Benjamin R. Aylsworth

Biesecker Dutkanych & Macer, 

LLC

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Claudette Branson,

Appellant-Petitioner,

v.

Malcolm D. Branson, II,

Appellee-Respondent.

October 6, 2016

Court of Appeals Case No.

82A01-1601-DR-122

Appeal from the Vanderburgh 

Superior Court

The Honorable Robert J. Tornatta, 

Judge

Trial Court Cause No.

82D06-1408-DR-777

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 2 of 17

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Claudette Branson (Wife), appeals the trial court’s 

division of the marital estate following the dissolution of her marriage to 

Appellee-Respondent, Malcom D. Branson II (Husband).

[2] We affirm.

ISSUE

[3] Wife raises one issue on appeal, which we restate as follows: Whether the trial 

court abused its discretion in its division of the marital estate.

FACTS AND PROCEDURAL HISTORY

[4] On July 1, 1978, Husband and Wife were married. At some point, they 

purchased their marital home, located at 3525 Koring Road in Evansville, 

Vanderburgh County, Indiana. In February of 1982, Husband and Wife 

adopted a three-month-old girl, who passed away during her freshman year of 

college at age nineteen. The marriage produced no other children.

[5] For most of their marriage, both parties were employed, and they are in 

agreement that both are talented and hard-working individuals. Husband has a 

bachelor’s degree from Indiana University and a master’s degree in teaching. 

At the time of their marriage, Husband taught high school and coached 

basketball. He spent the next two decades working at Hague Equipment, 

Marshall Glove, and Anchor Industries. Then, in 2006, Husband went to work 

for Old National Bank, where he earned approximately $80,000 per year. 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 3 of 17

Husband’s years of employment resulted in multiple, well-funded retirement 

and investment accounts. Wife has a bachelor’s degree from University of 

Southern Indiana. Right after college, Wife worked at Mead Johnson for four 

years before being recruited by Operation City Beautiful, a non-profit

organization. After ten years, Wife obtained new employment as the executive 

director of St. Mary’s Medical Center Foundation. During her tenure at St. 

Mary’s, Wife’s yearly earnings ranged from $5,552 up to $96,246.1

 In 1998, 

Wife left her job at St. Mary’s in order to spend more time with the parties’ 

daughter before she graduated high school and left home for college. In 2000, 

just a few months prior to their daughter’s death, Wife created her own 

business, a public relations firm. Wife spent ten years trying to build her 

business, and Husband assisted with the financial aspects. However, the 

business was never profitable, and Wife relied on the parties’ investment and 

mutual funds to keep it afloat. 

[6] Throughout their marriage, Husband and Wife received substantial inheritances 

and financial gifts from members of their families. In 1994, Husband and Wife 

inherited approximately $166,000 from Husband’s father. With this money, 

Husband and Wife remodeled the basement in the marital home, paid off credit 

cards, and paid for living expenses. Over the course of several years, Wife’s 

mother also gifted large sums of money to Husband and Wife, which totaled 

 

1

 Wife’s Social Security Statement indicates that in 1996, she had Taxed Medicare Earnings of $96,246 but 

Taxed Social Security earnings of 62,700.
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 4 of 17

approximately $160,000. This money was used, in part, to pay off credit cards, 

take vacations, and for other living expenses. Despite the financial 

contributions from family members and their “fairly good income,” there is no 

dispute that Husband and Wife lived above their means during the marriage. 

(Tr. p. 89). The parties amassed substantial credit card debt, with Wife in 

particular maintaining open credit accounts with at least ten department stores. 

As part of her employment, Wife had “to dress the part” and entertain clients 

and donors. (Tr. p. 134). Husband and Wife also regularly spent money on 

interior design/art, fine dining, attending sporting events, and involvement in 

civics clubs and charitable events/donations. Husband and Wife refinanced 

their house several times in order to pay off the credit card debt. Husband even 

cancelled the credit cards, but Wife reopened them and accumulated new debt. 

Admittedly, Wife stated that her spending was largely a result of “keeping up 

with the Jones[es].” (Tr. p. 134).

[7] In 2009, Husband lost his job with Old National Bank and received a $55,000 

severance payment. Thereafter, Husband remained unemployed for two years. 

During this time, Wife wrapped up her public relations business and did not 

seek new employment. Notwithstanding their drastic decrease in income, 

Husband and Wife maintained the same lifestyle. Thus, in order to pay their 

bills and other living expenses, Husband withdrew large sums of money from 

his retirement and investment accounts. In 2011, Husband was hired as a sales 

representative for Evansville Baseball, LLC (i.e., the Evansville Otters). 

Although he was promoted to vice president by his second year of employment,
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 5 of 17

it took several years before his salary was comparable to that of his former jobs. 

As such, Husband continued withdrawing money from his retirement accounts 

to cover the parties’ expenses. All told, Husband withdrew more than $227,000 

from retirement and investment accounts, which was used to pay marital debts 

and expenses. 

[8] In January of 2012, Wife’s mother suffered a massive stroke, and Wife became 

her caretaker. Wife discussed with Husband her desire to sell the marital 

residence so that they could both move in to her mother’s three-bedroom 

condominium, located at 704 Bent Grass Boulevard in Elkhart. Husband had 

no interest in doing this. For several months, Wife went back and forth, 

spending several nights per week at both her mother’s home and the marital 

home. By April of 2012, Wife had removed a number of her possessions from 

the marital home and moved in with her mother. On October 30, 2012, Wife 

filed a petition to dissolve the marriage. This petition remained pending for 

more than a year. During this time, Wife continued to live with and care for 

her mother, and the parties made ongoing efforts to reconcile. Typically, 

Husband spent several nights per week at the condo with Wife and her mother, 

and he helped care for Wife’s mother. On December 30, 2013, the dissolution 

petition was dismissed. Although the divorce was called off, Wife did not 

return to the marital home as she continued to care for her mother.

[9] On August 2, 2014, Wife’s mother passed away, bequeathing half of her 

substantial estate to Wife. Wife received a one-half interest in her mother’s 

condo, but because Wife desired to remain in the condo, she took a lesser share 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 6 of 17

of the cash assets of the estate in order to buy out her brother’s interest. 

Including the value of the condo (i.e., $225,000), along with her share of her 

mother’s trust account, bonds, retirement accounts, and life insurance, Wife 

inherited $495,265. Less than one month later, on August 29, 2014, Wife filed 

a petition to dissolve the parties’ marriage. During the pendency of the divorce, 

Husband made payments on the marital debt, and on several occasions he 

deposited money into Wife’s checking account. On September 15 and October 

12, 2015, the trial court conducted the final hearing. At the hearing, Husband 

requested an equal division of all marital assets, including Wife’s inheritance. 

Wife, however, desired to keep the entirety of her inheritance.

[10] On October 14, 2015, the trial court concluded the final dissolution hearing by 

meeting with the parties’ attorneys on a few pending matters. That day, the 

trial court issued its Final Decree of Dissolution of Marriage, dissolving the 

parties’ marriage. In dividing the marital estate, the trial court concluded that 

“[i]t should deviate slightly in favor of the Wife” based on “the economic 

circumstances of the parties including the fact that the Wife is three (3) years 

away from qualifying for Medicare and she will derive little net economic 

benefit from her social security because of insurance that she will have to 

purchase for the next three (3) years.” (Appellant’s App. p. 11). However, the 

trial court also noted that due to her inheritance,

Wife has a paid for residence, while the Husband, at his age, still 

has a substantial mortgage balance and other secured liens 

against his residence, and the [c]ourt believes it would be 

manifestly unfair for the Husband to receive no benefits from the 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 7 of 17

Wife’s inheritance, while leaving him with substantial debt and 

leaving the Wife virtually debt free.

(Appellant’s App. p. 10). Accordingly, the trial court’s intent in distributing the 

estate between the parties was to ensure that “both parties should have a paid 

for residence and no ongoing payments on marital indebtedness existing at the 

time of their separation.” (Appellant’s App. p. 11). Thus, the trial court 

awarded Husband with the marital residence, his vehicle, and various life 

insurance policies, retirement accounts, and investment funds—the value of 

which totaled $346,325. The trial court awarded Wife with her inherited condo 

and the rest of her inheritance funds, along with her vehicle and her retirement 

accounts—the total value of which was $538,865. However, the trial court also 

ordered Wife to pay off the entirety of the marital debt, including the mortgage 

on the marital residence and associated home equity loans and all of the credit 

cards, which totaled $149,184. Thus, Wife’s net share of the estate equaled 

$389,681. In other words, Wife received 53% of the marital estate, and 

Husband received 47%.

[11] On October 22, 2015, Wife filed a Motion to Reconsider or, in the Alternative, 

Motion to Reopen Evidence. On November 2, 2015, Husband filed a Motion 

to Place Entry of Record for Hearing Held 10/14/15. On December 15, 2015, 

the trial court held a hearing. The trial court advised the parties “that it is 

uncomfortable not placing an entry of record given the amount of time that has 

passed since the conclusion of the final hearing.” (Appellant’s App. pp. 4-5). 

The trial court also noted its “concern[] that both parties own their respective 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 8 of 17

[residences], free and clear, and the Wife being able to afford health insurance.” 

(Appellant’s App. p. 5). The trial court set the matter for further hearing in 

order for Wife’s counsel “to provide specifics as to why the court should not 

place entry of record.” (Appellant’s App. p. 5). The subsequent hearing was 

conducted on December 21, 2015, at the close of which, the trial court “place[d] 

Decree of Dissolution of Marriage of Record with Modifications.” (Appellant’s 

App. p. 5). The trial court noted its “extreme reluctance” to “award[] an 

additional share of the marital pot to the [W]ife” because her “proclivity to 

spend” will cause her to “be in financial distress at some point in the future” 

regardless of the award. (Appellant’s App. p. 19). Nevertheless, the modified 

Decree of Dissolution, which was filed on December 29, 2015, transferred a 

$5,000 investment account from Husband to Wife, and ordered Husband to 

assume a credit card debt of $3,781. The purpose of this modification was due 

to the court’s concern that Wife

has legitimate health issues and being 62, is not eligible for 

Medicare. She is in a “Catch 22” of needing to work for income, 

but not being able to afford health insurance if she does. The 

[H]usband on the other hand is 67, and while he is employed full 

time, he had planned to be at least semi-retired at this stage of 

life.

(Appellant’s App. p. 19). This shift in assets and liabilities resulted in a total 

award of $337,544 (46%) to Husband and $398,462 (54%) to Wife.

[12] Wife now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 9 of 17

DISCUSSION AND DECISION

I. Standard of Review

[13] On appeal, Wife challenges the trial court’s division of the marital estate. The 

division of marital assets is a matter left to the trial court’s discretion, and we 

will reverse only upon a showing that the trial court has abused that discretion. 

O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). We do not 

reweigh evidence or assess the credibility of witnesses, and we consider only the 

evidence most favorable to the trial court’s judgment. Id. “A party challenging 

the trial court’s division of marital property must overcome a strong 

presumption that the trial court ‘considered and complied with the applicable 

statute, and the presumption is one of the strongest presumptions applicable to 

our consideration on appeal.’” Id.

[14] In this case, although requested by neither party, the trial court entered specific 

findings of fact and conclusions thereon. “Sua sponte findings control only the 

issues they cover, and a general judgment will control as to the issues upon 

which there are no findings.” Estudillo v. Estudillo, 956 N.E.2d 1084, 1089-90 

(Ind. Ct. App. 2011). As to the issues upon which there are findings, our trial 

court engages in a two-tiered standard of review. Id. at 1090. We must 

determine whether the evidence supports the factual findings and, then, 

whether those findings support the trial court’s conclusions. Id. Our court will 

“not set aside the [trial court’s] findings or judgment unless clearly erroneous, 

and due regard shall be given to the opportunity of the trial court to judge the 

credibility of the witnesses.” Ind. Trial Rule 52(A). Findings and conclusions 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 10 of 17

are clearly erroneous if there are no facts or inferences in the record to support 

them. Estudillo, 956 N.E.2d at 1090. “To determine that a finding or 

conclusion is clearly erroneous, an appellate court’s review must leave it with 

the firm conviction that a mistake has been made.” Id.

II. The Marital Estate

[15] In Indiana, the division of marital property in an action for dissolution is a twostep process. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), 

trans. denied. First, the trial court must ascertain what property is to be included 

in the marital estate. Id. The marital estate consists of property that is:

(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.

Ind. Code § 31-15-7-4(a). Thus, any property that is acquired by either party at 

any point preceding the marriage and up to the final separation date must be 

included in the marital pot for division. O’Connell, 889 N.E.2d at 11.

This “one-pot” theory insures that all assets are subject to the 

trial court’s power to divide and award. While the trial court 

may ultimately determine that a particular asset should be 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 11 of 17

awarded solely to one spouse, it must first include the asset in its

consideration of the marital estate to be divided.

Id. (quoting Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App. 2007)). In general, 

the marital estate closes on the date the dissolution petition was filed. 

Thompson, 811 N.E.2d at 913.

[16] Second, after determining what constitutes marital property, the trial court must 

divide the marital property under a presumption that an equal split is just and 

reasonable. Id. at 912 (citing I.C. § 31-15-7-5). The presumption for an equal 

division may be rebutted by a party who presents relevant evidence that such a 

division would not be just and reasonable. I.C. § 31-15-7-5. In determining 

whether to deviate from an equal division of marital property, the trial court 

should consider evidence of the following factors:

(1) The contribution of each spouse to the acquisition of the 

property, regardless of whether the contribution was income 

producing.

(2) The extent to which the property was acquired by each 

spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the 

disposition of the property is to become effective, including 

the desirability of awarding the family residence or the right 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 12 of 17

to dwell in the family residence for such periods as the court 

considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to 

the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the 

parties.

I.C. § 31-15-7-5.

III. Division of the Parties’ Assets

[17] Despite the fact that Wife was awarded 54% of the estate, which amounts to a 

net value of $398,462, she claims on appeal that the trial court abused its 

discretion by ordering her “to pay virtually all of the marital debt.” 

(Appellant’s Br. p. 8). In so doing, the trial court essentially reduced the 

amount of her $495,265 inheritance by $145,403. Wife does not dispute that 

her inheritance is considered marital property and is, therefore, subject to 

division by the trial court. However, she insists that she is entitled to receive 

the full benefit of the inheritance because it was “never co-mingled or treated as 

a marital asset.” (Appellant’s Br. p. 10). Thus, she contends that the trial court 

erroneously “failed to consider the extent marital property was acquired by 

[Wife] by inheritance” in fashioning an equitable division of property. 

(Appellant’s Br. p. 10).
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 13 of 17

[18] Wife posits that the present case is analogous to Maxwell v. Maxwell, 850 N.E.2d 

969, 973-74 (Ind. Ct. App. 2006), trans. denied, in which our court affirmed the 

trial court’s decision to deviate from the presumption of an equal division by 

awarding a husband with the entirety of his inheritance. In Maxwell, the 

husband received his inheritance after he had moved out of the marital 

residence, and he was in possession of the inheritance for only a few months of 

the parties’ marriage, which had lasted more than thirty years. Id. at 974. 

Furthermore, the inheritance had not been co-mingled with any marital assets, 

and the Wife had “contributed nothing to its acquisition, directly or indirectly.” 

Id. Therefore, this court agreed that it was appropriate for the trial court to “set 

side” the inheritance exclusively to the husband, making his share of the marital 

estate nearly 64%. Id. at 973-74.

[19] Relying on Maxwell, Wife argues that it was an abuse of discretion to require 

her “to pay all of the marital debt including debts secured by assets awarded to 

[Husband], thereby greatly diminishing [her] inheritance” for a number of 

reasons. (Appellant’s Br. p. 11). Specifically, she points out that she moved out 

of the marital residence more than two years prior to receiving the inheritance 

and had only been in possession of the inheritance for less than a month at the 

time she filed to dissolve her marriage of thirty-six years. Also, she argues that 

she did not inherit her condominium free and clear as she had to purchase her 

brother’s interest for $100,000, and being required to pay the marital debt will 

reduce the amount of liquid assets she will have as she ages. She notes that she 

was gainfully employed throughout most of the marriage, and at the time of the 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 14 of 17

final hearing, Husband “was in good health, and was employed earning in 

excess of $70,000 per year” whereas she “suffered from health issues and was 

unemployed with few prospects.” (Appellant’s Br. p. 12). Additionally, Wife 

argues that it was improper for the trial court to consider her proclivity to spend 

in light of the fact that it did not find that she dissipated marital assets. She also 

asserts that the marital debt she was ordered to pay “remained at the time of the 

final hearing only because [Husband] paid off his debts in full while only 

making the minimum payments on [Wife’s].” (Appellant’s Br. p. 12). Wife 

argues that the largest credit card bill—which had a balance of $10,858—arose 

from her public relations business, for which Husband handled the finances. 

Finally, Wife posits that she should not be required to pay the marital debt in 

order that she may appreciate the full value of her inheritance because she

is a woman who has not worked for a number of years, who has 

health issues, and no good job prospects, and who will be forced 

to sell the condominium that she inherited (and purchased[2]

) . . . 

so [that] her former [H]usband, who is gainfully employed at 

approximately $70,000 per year, can be debt free. The trial 

court[’]s wish that each party own a residence free and clear will 

soon be unattainable due to the court’s orders regarding division 

of inheritance and payment of bills.

 

2

 We are unpersuaded by Wife’s contention that she “purchased” her condominium. (Appellant’s Br. p. 13). 

Rather, in exchange for reducing her share of the cash assets of her inheritance by $100,000, Wife gained her 

brother’s share of the condominium—a value of $112,500. Thus, Wife’s overall share of her inheritance was 

not reduced because she had to purchase her brother’s interest in the condo. Instead of inheriting additional 

liquid assets, Wife chose to receive unencumbered real estate.
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 15 of 17

(Appellant’s Br. p. 13). We disagree.

[20] Contrary to Wife’s claim, the trial court clearly took her inheritance into 

account in determining how to divide the marital estate, and thus Wife’s 

argument is simply a request that we reweigh evidence, which we will not do. 

See O’Connell, 889 N.E.2d at 10. The trial court exercised its discretion to 

deviate from an equal division in Wife’s favor in order to compensate for her

medical issues, the cost of her health insurance, and her lack of gainful 

employment. The trial court accordingly awarded 54% of the estate to Wife, 

which included the entirety of her inheritance. However, the trial court 

determined that only a slight deviation was warranted and found that “it would 

be manifestly unfair for the Husband to receive no benefits from the Wife’s 

inheritance.” (Appellant’s App. p. 10). As such, the trial court ordered Wife to 

pay the marital debt “in order to reflect the disparate division of the marital 

estate to arrive at the approximate percentages.” (Appellant’s App. p. 13).

[21] The remainder of the trial court’s findings and the evidence support the trial 

court’s decision to require Wife to pay the marital debt with her inheritance. In 

support of its award, the trial court considered “the relationship that the 

Husband had with the Wife’s now deceased mother from whom she inherited 

substantial assets” as well as “the fact that some of the gifts received by the 

parties from the Wife’s parents during the marriage were in the form of checks 

made out individually to the Husband.” (Appellant’s App. pp. 10-11). 

Additional evidence revealed that Husband had a close relationship with Wife’s 

mother; he helped her manage her finances, and he even assisted with her care 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 16 of 17

following her stroke. Although Wife had moved out of the marital residence 

two years before her mother died, Husband often spent several nights per week 

at the condo with Wife and her mother. During the time that Wife was caring 

for her mother, she was unemployed, and Husband worked to cover the parties’ 

bills and living expenses. Thus, unlike in Maxwell, it cannot be said that 

Husband contributed nothing, directly or indirectly, to the acquisition of the 

inheritance.

[22] Moreover, the trial court found that both parties admittedly “spent 

extravagantly to maintain a lifestyle beyond their means, but expenditures by 

the Wife exceeded those made by the Husband as evidenced by credit card 

purchases, many of which still remain unpaid.” (Appellant’s App. pp. 9-10). 

We find that it was well within the discretion of the trial court to consider 

Wife’s disposition of marital assets (i.e., her proclivity for spending) in 

fashioning an equitable award. See I.C. § 31-15-7-5(4). Also, as found by the 

trial court, “[t]he parties invaded approximately $227,000 of their investment 

and retirement accounts to survive and maintain [their] life[]styles while 

unemployed or underemployed.” (Appellant’s App. p. 10). Even after Wife 

filed the petition to dissolve the marriage, the evidence establishes that Husband 

alone made payments on the marital debt. He also paid the premiums on 

Wife’s health insurance, and he deposited money into her checking account. 

We find no merit in Wife’s complaint that Husband paid off the debt in his 

name while only making the minimum payments on the credit cards in her 

name. Notwithstanding the name on the particular account, Husband’s 
Court of Appeals of Indiana | Memorandum Decision 82A01-1601-DR-122 | October 6, 2016 Page 17 of 17

payments decreased the total amount of marital debt that would have been 

subject to division by the trial court. Finally, although Wife was unemployed at 

the time of the final hearing, and had been so for several years, the trial court 

found that she was capable of becoming “re-employed, even if at a more 

sedentary type job.” (Appellant’s App. p. 10).

[23] The trial court was under no obligation to set off the inheritance for Wife. See 

Fobar v. Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). Rather, there is a 

presumption that an equal division of marital assets is just and reasonable, and 

in this case, the trial court set forth adequate reasons for “slightly” deviating 

from that presumption in favor of Wife. Thompson, 811 N.E.2d at 912-13. 

(Appellant’s App. p. 11). Accordingly, we find no abuse of discretion in the 

trial court’s division of the marital estate.

CONCLUSION

[24] Based on the foregoing, we conclude that the trial court acted within its 

discretion in dividing the marital estate.

[25] Affirmed.

[26] Bailey, J. and Barnes, J. concur