¶1concurring in part and dissenting in part
¶2I fully concur with respect to Issues One, Two and Three.
¶3With respect to Issue Four, I concur in part and dissent in part. I disagree with the premise which underlies the majority position and as set forth in Overpeck v. Dowd (1977) 1st Dist., 173 Ind.App. 610, 364 N.E.2d 1043, op. on reh., 173 Ind.App. 610, 368 N.E.2d 1175. In my view, the general principle of waiver by acceptance of benefits is not averted by the mere fact that the acceptor may be required to restore the benefits together with interest and/or damages. To adopt this exception to the rule is to destroy the rule itself. I do not, however, conclude that Sandra is precluded from relief with respect to all aspects of the evaluation of assets made by the trial court. With respect to those assets not received by Sandra, either in whole or in part, I would permit reconsideration by the trial court upon remand. See Conley v. Conley (1963) 135 Ind.App. 279, 192 N.E.2d 771. That reconsideration should not, however, include the taking of new evidence. The reconsideration should be made solely upon evidence now of record.
¶4I respectfully dissent as to Issue Five. Although I readily adhere to the wisdom and practicality embodied in the majority opinion, as influenced by Wagner v. Wagner (1986) 3d Dist. Ind.App., 491 N.E.2d 549, I am unable to join in that opinion. My personal preference would be to reexamine the reasoning and the rule of Logal v. Cruse (1977) 267 Ind. 83, 368 N.E.2d 235, cert. denied (1978), 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 539. It is binding upon us, however. For the reasons set forth in Hudson v. Hudson (1985) 2d Dist. Ind.App., 484 N.E.2d 579, I dissent. If trial courts are to be authorized to act in appropriate matters after an appeal has been perfected, our Supreme Court must arrive at that conclusion and articulate it in a reported decision.