417 S.E.2d 638 | S.C. Ct. App. | 1992
The primary issue in this case is whether the husband’s personal injury award is marital property subject to equitable distribution. The trial court held it was and the husband has appealed. We affirm.
The parties were separated in March 1989 at which time the wife filed an action for separate maintenance. A pendente lite order was issued by the family court in April 1989 which essentially preserved the status quo between the parties as to property matters. The husband instituted an action for divorce and equitable division of marital property in April 1990. The wife filed an answer and counterclaim in May 1990 requesting a divorce and equitable division of the marital property. The parties were divorced in July 1990. Although the trial court found both parties had committed adultery, it granted the divorce on the ground of a one year continuous
In July 1984, the husband was involved in an accident that occurred when a tree fell on the truck he was driving. A suit by the husband against the South Carolina Department of Highways and Public Transportation resulted in a jury verdict for $300,000. During the appellate process, the case was settled in December 1989 for $325,000. In January 1990, the wife filed a legal malpractice suit against the husband’s attorney for failure to file a loss of consortium claim in the husband’s suit. The wife settled for $10,000. The husband netted $179,881 from his personal injury settlement and the wife received $6,000 from her malpractice settlement. The trial court found both of these settlements were marital property.
While the husband raises several arguments on appeal, the only one with merit is whether his personal injury settlement should have been classified as marital property. He premises his argument on the assertion that the settlement is not compensation for economic losses (i.e. reimbursement for lost wages and medical or other expenses) to the marital partnership, but rather represents uniquely personal losses to him for pain and suffering, mental anguish, disfigurement, and post-divorce loss of earning capacity. He relies on the North Carolina case of Little v. Little, 74 N.C. App. 12, 327 S.E. (2d) 283 (1985) and the New Jersey case of Amato v. Amato, 180 N.J. Super. 210, 434 A. (2d) 639 (1981) to bolster his argument.
Although our Supreme Court in Orszula v. Orszula
A rapidly increasing number of courts have taken the middle road adopted by our sister states of North Carolina and Georgia.
Nevertheless, in the face of the apparent equity argument for adopting the analytic approach, our research reveals personal injury awards are generally considered marital property regardless of the purpose of the award in jurisdictions having equitable distribution statutes which make all property acquired during the marriage presumptively marital, unless the award is statutorily exempted. Clayton v. Clayton, 297 Ark. 342, 760 S.W. (2d) 875 (1988); In re Marriage of Fjeldheim, 676 P. (2d) 1234 (Colo. App. 1983); In re Marriage of Burt, 144
The husband argues that because the South Carolina Supreme Court in Orszula referred to the Little decision from North Carolina the court implicitly recognized a distinction between economic and non-economic losses in personal injury awards. We read Orszula differently. While the court referred to the Little case,
The Supreme Court may want to revisit Orszula in view of the husband’s argument. However, we are effectively locked into what the North Carolina Supreme Court in Johnson referred to as the “mechanistic approach.”
We reject the husband’s invitation to adopt the analytical approach in classifying the husband’s personal injury settlement and hold the entire award is marital property.
We hold all other issues raised by the husband in his appeal are either abandoned or manifestly without merit under S.C. Code Ann. § 14-8-250 (Supp. 1991).
The order of the court is
Affirmed.
The wife has not appealed the inclusion of the proceeds of the legal malpractice settlement in the marital estate.
Orszula v. Orszula, 292 S.C. 264, 356 S.E. (2d) 114 (1987).
See Covington v. Covington, — S.C. —, 412 S.E. (2d) 455 (Ct. App. 1991) (medical malpractice claim); cf. Mears v. Mears, — S.C. —, 406 S.E. (2d) 376 (Ct. App. 1991) (wrongful discharge claim), aff'd, 417 S.E. (2d) 574 (S.C. Sup. Ct. 1992); Phillips v. Phillips, 290 S.C. 455, 351 S.E. (2d) 178 (Ct. App. 1986) (pei’sonal injury claim).
Johnson v. Johnson, 259 Ga. 658, 386 S.E. (2d) 136 (1989); Johnson v. Johnson, 317 N.C. 437, 346 S.E. (2d) 430 (1986).
Although later North Carolina cases adopted the analytic approach to classifying personal injury awards, Little did not. The Little court simply recognized the approach had been adopted by other jurisdictions. It found itself bound to include the personal injury award in the marital estate because the trial judge had made an unappealed ruling that the award compensated the husband for lost wages, which even in those jurisdictions utilizing the analytic approach is classified as marital property. Little, 327 S.E. (2d) at 288.
The court referred to the approach as “literal” and “looks to the general statutory definitions of marital and separate property and concludes that since the award was acquired during the marriage and does not fall into the definition of separate property or into any exception to the definition of marital property, it must be marital property.” Johnson, 346 S.E. (2d) at 435.
Mears v. Mears, — S.C. —, —, 406 S.E. (2d) 376, 380 (Ct. App. 1991), aff'd, 417 S.E. (2d) 574 (1992).