In re the MARRIAGE OF Brant E. FIELDS, Appellant, and Joyce K. Fields, Appellee.
No. 88CA0452.
Colorado Court of Appeals, Div. I.
April 27, 1989.
Rehearing Denied May 18, 1989.
Certiorari Granted Sept. 18, 1989.
In view of our disposition of the foregoing issues, it is unnecessary for us to discuss the particular arguments made in regard to the apportionment of Miller‘s lien. Similarly, we need not reach the issue of whether the trial court committed error by reversing its prior grаnt of ITC‘s motion for an extension of time since that issue has been rendered moot by our decision. We also find no merit to Delaware‘s argument that ITC waived the apportionment and partial redemption issues by failing to plead thеm in its answer. Regardless of whether Delaware‘s assertion is correct, those issues were tried on their merits without objection from the parties and, therefore, can be treated as if raised by the pleadings under
That part of the judgment awarding attorney fees to Delaware is reversed. In all other respects, the judgment is affirmed.
JONES and REED, JJ., concur.
Canges & Iwashko, P.C., E. Michael Canges and Jo Lauren Seavy, Denver, for appellee.
PLANK, Judge.
In this dissolution of marriage action, Brant E. Fields (husband) appeals the order of the trial court regarding the apportionment of custody evaluation report costs. As to that order, we reverse and remand for more adequate findings. We also consider a question of first impression in Colorado: Whether an unliquidated personal injury claim is marital property or the separate property of the injured spouse. The trial court determined that the claim was marital property. We agree and accordingly affirm that portion of its judgment, but reverse and remand for additional findings in support of the court‘s division of that property.
I.
The husband first contends that the trial court erred in failing to address apportionment of the cost of the custody еvaluation. We agree.
At the hearing, the trial court initially stated that the husband would pay the retainer but that “the cost would be apportioned at the time of final orders.” However, at the hearing on permanent orders when the husbаnd testified that he had paid over $5600 in custody evaluation costs, the court failed to mention or refer to the costs he had incurred. Furthermore, in a motion for a new trial, the husband again brought the evaluation costs into issue. The trial сourt did not address this matter or indicate that the payment was considered in the distribution of the assets of the marital estate. Thus, we cannot determine from the record what credit or consideration was given to the husband for the costs he had incurred in paying for the custody evaluation. Accordingly, this matter must be remanded to the trial court to make the required findings pursuant to
II.
The major issue presented on this appeal is whether an unliquidated personal injury claim is mаrital property, in whole or in part, within the meaning of
The parties were married on May 16, 1984. On January 29, 1986, the date that the parties separated, the cause of action on the husband‘s personal injury claim arose. The determinаtion that the cause of action was marital property was made in the permanent orders entered by the trial court on February 19, 1988. At the time of permanent orders, the personal injury claim had not been set for trial, and no offer of settlement of any kind had been made or discussed. The husband argues that the trial court erred in determining this claim was marital property. We disagree.
The starting point for our analysis is the statute which governs the distribution of property in dissоlution cases.
“For purposes of this article only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;
(c) Property acquired by a spouse after a decree of legal separation; and (d) Property excluded by valid agreement of the parties.”
In addition, pursuant to
The presumption of marital property is overcome only by establishing that the property was acquired by a method listed in
Consistent with the statutory scheme, this court held in In re Marriage of Fjeldheim, 676 P.2d 1234 (Colo.App.1983), that a personal injury settlement offer was marital property because the injury оccurred and the offer was made prior to the date of the hearing for entry of final orders. In analyzing whether a personal injury settlement offer was marital property, the court adopted the “literal approach” in construing
However, the husband argues that his pending tort claim lacks the necessary attributes of property and that, therefore, Fjeldheim is not dispositive. The husband points out that at the time оf entry of permanent orders, the tort claim had no cash value, no loan value, no redemption value, no lump sum value, no value realizable after death, and no known settlement value. Accordingly, he argues that it should not have been held to be property within the meaning of
In interpreting “equitable distribution” statutes, courts in other states have ruled that unliquidated personal injury claims arising during a marriage are marital property. See Boyce v. Boyce, 541 A.2d 614 (D.C.App.1988); In re Marriage of Burt, 144 Ill.App.3d 177, 98 Ill.Dec. 746, 494 N.E.2d 868 (1986).
Another line of cases, focusing on the uncertain value of the claim, hold that the entire claim is the injured spouse‘s separate property. See, e.g., Hurley v. Hurley, 342 Pa.Super. 156, 492 A.2d 439 (1985). The courts which follow this rationale have done so because of the uncertainty encountered in placing a monetary value on a claim without engaging in conjecture and speculation. Hurley v. Hurley, supra.
We do not view the uncertainty encountered in valuing the claim as requiring its classification as separаte property. The Colorado Supreme Court has held that pension benefits, despite their contingent nature, are marital property. In In re Marriage of Gallo, 752 P.2d 47 (Colo.1988) the court stated:
“[T]his court has joined other courts in stating that contingencies should be taken into account when the court disposes of the marital property between the parties, not when determining which assets belong in the marital estate.”
See In re Marriage of Grubb, 745 P.2d 661 (Colo.1987).
As a result, the personal injury claim is subject to disposition, along with other marital propеrty, pursuant to the provisions set forth in
The trial court has discretion in providing a just and equitable property settlement under
In light of the foregoing, we conclude that in order to determine whаt the equitable share of the personal injury claim
Here, the trial court did not articulate the reasons for allocating to each party a 50% interest in this property. Accordingly, on remand, the trial court should make specific findings supporting its division оf this property based upon the criteria which we have set forth in this opinion.
III.
We are advised that the trial court recently awarded custody of the minor child to the father. Accordingly, we decline to consider all assignments of еrror relating to this issue.
The trial court ruling that husband‘s unliquidated personal injury claim is marital property is affirmed. The judgment is reversed and the cause is remanded for entry of findings on the division of that personal injury claim and on the division of custody evaluation costs consistent with the views expressed in this opinion.
PIERCE, J., concurs.
RULAND, J., concurs in part and dissents in part.
RULAND, Judge, concurring in part and dissenting in part.
I agree with the disposition of this appeal as to the costs of the evaluation report, but I respectfully dissent from Part II of the majority opinion.
In this jurisdiction, the right of a sрouse to recover damages arising out of the tortious conduct of another has, in effect, been treated as a separate property right. Thus, for example, one spouse has no right to recover damagеs for the pain and suffering incurred by the other; rather, that spouse‘s claim is separate and is limited to loss of consortium. See
In my view,
As stated in Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639 (1981):
“Nothing is more personal than the entirely subjective sensations of agonizing pain, mental аnguish, embarrassment because of scarring or disfigurement, and outrage attending a severe bodily injury.
Mental injury, as well, has many of these characteristics. ... None of these, including the frustrations of diminution or loss of normal body functions or movements, can be sensed, or need they be borne, by anyone but the injured spouse. Why, then, should the law, seeking to be equitable, coin these factors into money to even partially benefit the uninjured and estranged spouse? In such case, the law would literally heap insult upon injury. The uninjured spouse hаs his or her separate and equally personal right to an action for loss of consortium.”
The rule of Amato was approved by the Supreme Court of New Jersey in Landwehr v. Landwehr, 111 N.J. 491, 545 A.2d 738 (N.J.1988). Hence, I would reverse the trial court‘s ruling that the husband‘s personal injury claim is marital property and I would remand with directions to the trial court to order distribution of any proceeds realized from the claim consistent with the views expressed in this dissent.