556 A.2d 639 | Conn. Super. Ct. | 1987
This matter came to the court as a "limited contested" case, with the parties stipulating that the marriage had broken down irretrievably. The parties also agreed that the sole trial issue was whether alimony and/or property should be awarded to the defendant pursuant to General Statutes §§
Since the legal issue involved is one of first impression in Connecticut, the court ordered briefs to be filed. Ordinarily, a decision on the law would delay a dissolution of the marriage. Therefore at the request of the parties, at the conclusion of the trial, the court dissolved the marriage on the grounds of irretrievable breakdown and permitted the defendant to resume her maiden name.
The legal question arose in the following context. Shortly after the parties were married, the plaintiff was the victim of an industrial accident at his place of employment. The injuries he received rendered him totally and permanently disabled. As a further consequence of his injuries, the plaintiff also suffered psychological damage. In addition to seeking remedies *116 under the Workers' Compensation Act, the plaintiff has brought suit against the alleged tortfeasor on a product liability theory. This case is presently pending in the Superior Court at New Haven.
At trial, the defendant offered evidence of this pending lawsuit and requested that alimony and/or property be awarded from the proceeds of the litigation since the plaintiff was virtually insolvent and existed on his compensation award. The plaintiff objected to the admission of that evidence and the court overruled the objection, pending a determination of the issue after argument and briefs.
The first question for the court to decide is whether an unliquidated personal injury action may be the subject of an award pursuant to General Statutes §
There is, however, a distinction between the mere expectancy of an inheritance and a pending personal injury claim, even though that claim is unliquidated. That distinction, which prevented this court from rejecting the defendant's argument out of hand, derives from the language of General Statutes §
The word "estate" has consistently been used in the statutes pertaining to alimony and property awards in matrimonial matters since the early 1800s. Estate is generally used in a probate context and has been defined as "the sum total of the property formerly owned by the decedent which, after his death, remains subject to administration and distribution." Clayman
v. Prochaska,
Under this definition an unliquidated tort claim would be considered part of the estate of the decedent, since the executor or administrator of his estate has title to the personal property of the decedent, including choses in action, and may sue thereon. Lynch v. Skelly,
The plaintiff argues in his brief that a chose in action is not property. If the plaintiff, however, were to die while his personal injury case was still pending, his estate would include it and it would, in all likelihood, be pursued by his executor or administrator. It would be inventoried in Probate Court as part of his estate. Further, a Connecticut case does state, although in *118
dicta, that a chose in action is property. CommonwealthFuel Co. v. McNeil,
Although there are a variety of decisions on this subject in other jurisdictions, the majority rule is that awards for personal injury, where the injury occurred during the marriage, are treated as marital property. 1 Valuation and Distribution of Marital Property (McCahey Ed. 1984) § 18.05 [5], pp. 18-75; Little v. Little,
An Illinois court in In re Marriage of Dettore,
Some states prorate the award of the proceeds of a personal injury action. "To the extent that a personal injury award for loss of earnings and permanent impairment of ability to earn money is applicable to the years while the marriage existed, it is marital property. To the extent [that it] can be prorated to the remaining years of life expectancy following [divorce], it is non-marital."Weakley v. Weakley,
Courts in several states permit an award against a personal injury claim in dissolution cases, but limit the award to that portion of the recovery representing lost wages and medical expenses. In Jurek v. Jurek,
Of the states that have refused to award one spouse a share of the other's personal injury action, the refusal is usually based on a specific exclusion in state statutes. In denying a spousal claim, a Pennsylvania court, in Hurley v. Hurley,
The court in a North Carolina case denied a claim for division on the grounds that a state statute defines *120
personal injury recoveries of married persons as their sole and separate property. The divorce statute allowed division of marital property but not of separate property.Johnson v. Johnson,
In Unkle v. Unkle,
Some state statutes define the marital property that is subject to divisibility in dissolution actions and specify those nondivisible exceptions, and a few courts have designated a tort recovery as marital property on the basis of the failure of the legislature to include it within the listed exceptions. In re Marriage of Fjeldheim,
Finally, there have been decisions that denied a spouse access to a personal injury claim on the ground that its actual value was too speculative. McNevin v.McNevin,
In summary then, states have denied a spouse an award of any part of a personal injury claim for the following reasons: (1) The court's interpretation of statutory language precluded an award; (2) specific language of a statute excluded the award; (3) such an award as to a pending claim is speculative. Since Connecticut statutes do not exclude such an award, only the last stated reason is pertinent to this case.
Connecticut courts have had no hesitancy in making awards in dissolution cases where there have been *121
uncertainties as to values and amounts, and they were premised on the occurrence of some contingency. Thus, in Thompson v. Thompson,
In Silver v. Silver,
Michigan is among the states that hold a right of action to be property and available for division in a dissolution suit. A leading case from Michigan is Heilman
v. Heilman,
Finally, though its value is undetermined (and it may prove to have none), a personal injury action does constitute a "presently existing interest," as required by the Supreme Court in Rubin. The court rules, therefore, that an unliquidated personal injury action is subject to an award pursuant to §
Although this marriage lasted approximately seven years and the parties lived together for about five years, it is the conclusion of the court that this issue should be resolved in favor of the defendant.
Support for this conclusion is derived from the testimony of the parties with the plaintiff himself giving the most eloquent description of what his wife went through after he was injured.
The defendant had completed two years of college when she left to marry and raise a family. Her husband saw the couple's roles as clearly delineated — he would be the breadwinner, she would keep house and raise the children. He consistently opposed her seeking employment. In the course of the marriage, the defendant experienced six pregnancies, none successful. She had miscarriages and ectopic pregnancies and was obliged to undergo several gynecological surgical procedures. When the plaintiff was injured in the industrial accident, the lives of this young couple were dealt a tragic blow. The husband's disability brought with it financial problems. All of his time was spent in treatment and his wife was confronted with a marital situation that would have driven the average person to run for cover. She attended to her husband, gave him comfort *123 and as he grew frustrated and lashed out at the cutoff of his benefits and became, in his own words, "mentally shot," she attempted to help him.
The couple was forced to move several times because of money shortages and their families loaned them money — the defendant's family contributing $30,000. The plaintiff became obsessed with the injustice he felt and he lived and breathed only for the litigation over his injury. At one point, he could not sleep and was up at odd hours, requiring the defendant to sleep only when he did.
At some point it was discovered that the defendant had a serious gynecological defect caused by DES. This led the defendant to consider joining a class action brought by other DES victims and although the parties disagree on this point, the defendant claims she did not pursue this avenue of relief because of the plaintiff's assurances that he would look after her from his recovery and his concerns that her suit might have an adverse effect on his suit.
The defendant sought counseling to save her own sanity and the marriage, but the plaintiff did not see this as worth the trouble and he never met with the counselor.
At this time, the defendant has no marketable skills, little job training and is handicapped by a precarious health situation. She lives with her parents and manages a candy store, earning $200 a week. She has a loss of consortium claim pending as part of the plaintiff's personal injury action in this court.
While this industrial accident undoubtedly destroyed this marriage and shattered the lives of this couple, the impact on the defendant was and continues to be substantially more than is likely to be addressed by her claim for loss of consortium. *124
This case strongly suggests that there is a weakness in our statutes, for the preferred handling of this case would be for the court to retain jurisdiction over the matter and address the question of the amount to be awarded when the negligence action is tried or settled. This would have the added advantage of discouraging a party from delaying the trial or settlement of his or her lawsuit until a marriage is dissolved. Since the court does not enjoy that option, the following formula is found to be fair and equitable under the circumstances of this case, it being the court's intention to consider the plight of the plaintiff and the need of the defendant.
The defendant is awarded $125,000 out of any net recovery received by the plaintiff in the amount of $375,000 or more. If the plaintiff's net recovery is less than $375,000, the defendant is awarded one third of such recovery. "Net recovery" for the purposes of this award shall be defined as the amount of any settlement proceeds, jury verdict, or court judgment, less court costs, expenses of trial, counsel fees and workers' compensation lien.
Any net recovery of the defendant on her claims for loss of consortium shall be considered a credit in favor of the plaintiff, thereby reducing the defendant's award herein by the amount of such net recovery, so that in