Boyce v. Boyce

• Decision Date: 11 May 1988
• Docket Number: No. 85-1535.,85-1535.
• Citation: 541 A.2d 614
• Parties: Lincoln G. BOYCE, Appellant, v. Daisy Taylor BOYCE, Appellee.
• Court: D.C. Court of Appeals

541 A.2d 614

Lincoln G. BOYCE, Appellant, v. Daisy Taylor BOYCE, Appellee.

No. 85-1535.

District of Columbia Court of Appeals.

Argued March 24, 1987.

Decided May 11, 1988.

A. Palmer Ifill, Washington, D.C., for appellant.

Glenn H. Carlson, with whom Diane E. Cafferty, Washington, D.C., was on the brief, for appellee.

Before TERRY, ROGERS^* and STEADMAN, Associate Judges.

TERRY, Associate Judge:

In this divorce case, we consider a question of first impression in the District of Columbia: whether an inchoate personal injury claim is marital property or the separate property of the injured spouse. The trial court chose the latter alternative. We disagree, and accordingly we reverse that portion of its judgment.

After twenty-one years of marriage, Lincoln and Daisy Boyce went their separate ways. The couple had split up and reconciled on previous occasions, but in June 1982 they separated permanently, and in October 1985 they were divorced. During their marriage Mrs. Boyce worked as a registered nurse for various hospitals in the Washington area, and Mr. Boyce drove a taxicab, although he had a bachelor of science degree in zoology from a local university. The Boyces had two children, Cheryl and Leighton. At the time of the divorce, Cheryl was attending a private high school, and Leighton was in his third year of college.

In March 1984 Mrs. Boyce was severely injured in an automobile accident. Her injuries resulted in permanent disability, and she now receives $834 per month in disability retirement payments. When the divorce was granted in this case, however, she had not yet settled her personal injury claim. In fact, she had not yet filed a claim for lost wages with her insurance company, although she fully expected to do so.

In dividing the marital property,¹ the court ruled that Mrs. Boyce's inchoate personal injury claim was not a marital asset because there was "no way of valuing it." Furthermore, her pain and suffering from this accident were "intensely personal," and any recovery for pain and suffering should therefore belong solely to Mrs. Boyce. Finally, the court said, Mr. Boyce could not expect any recovery for loss of consortium resulting from Mrs. Boyce's injuries since the couple had separated before the accident.²

II.

The major issue presented on this appeal, and the only one we decide, involves Mrs. Boyce's potential recovery for the injuries she sustained in the March 1984 automobile accident. Mr. Boyce argues that this inchoate claim was marital property, and that the trial court erred in holding that it was Mrs. Boyce's separate property.

The issue of whether an inchoate personal injury claim is marital property or separate property has never been decided by this court.³ The appropriate starting point for our analysis is the statute which governs the distribution of property in divorce cases. D.C.Code § 16-910 (1981) provides in pertinent part:

Upon the entry of a final decree of annulment or divorce in the absence of a valid antenuptial or post-nuptial agreement or a decree of legal separation disposing the property of the spouses, the court shall:

(a) assign to each party his or her sole and separate property acquired prior to the marriage, and his or her sole and separate property acquired during the marriage by gift, bequest, devise, or descent, and any increase thereof, or property acquired in exchange therefor; and

(b) distribute all other property accumulated during the marriage, regardless of whether title is held individually or by the parties in a form of joint tenancy or tenancy by the entireties, in a manner that is equitable, just and reasonable, after considering all relevant factors including, but not limited to [several listed factors].

Under this statute, if a husband and wife have assets which do not fall within the specific definition of "sole and separate property," those assets are deemed to be marital property and thus subject to distribution by the court in accordance with subsection (b). Our task, then, is to determine the category in which to place Mrs. Boyce's inchoate tort claim.⁴

That task is made easier by the language of the statute. Mrs. Boyce's claim arose during the Boyces' marriage, but it was not acquired "by gift, bequest, devise, or descent. . . or. . . in exchange therefor. . . ." D.C.Code § 16-910(a). Accordingly, since it does not fit within the definition of sole and separate property, we hold that the inchoate claim was marital property, and that the trial court's ruling to the contrary was erroneous.⁵

We find support for our holding in the decisions of other courts which, in applying "equitable distribution" statutes similar to ours, have also ruled that inchoate personal injury claims arising during a marriage are marital property. E.g., In re Burt, 144 Ill.App.3d 177, 178-179, 98 Ill.Dec. 746, 747, 494 N.E.2d 868, 869 (1986); Heilman v. Heilman, 95 Mich.App. 728, 729-733, 291 N.W.2d 183, 184-185 (1980); Di Tolvo v. Di Tolvo, 131 N.J.Super. 72, 77-79, 328 A.2d 625, 628 (1974).⁶ The Burt case, for example involved a husband who, after filing for divorce, was seriously injured in an automobile accident. By the time the divorce was granted, the husband had not yet settled his personal injury claim. The court ruled that, notwithstanding the contingent nature and the non-assignability of that claim,⁷ it was nevertheless property. Furthermore, since it did not fall within the statutory definition of separate property, the inchoate claim was a marital asset. 144 Ill.App.3d at 181-182, 98 Ill.Dec. at 749, 494 N.E.2d at 871.

Di Tolvo also involved a tort claim that was not resolved until after the divorce. The trial court, faced with distributing a property interest of unknown value, simply allocated a fixed percentage of any future recovery to each spouse. On appeal, the trial court's distribution scheme was upheld with only minor modifications not relevant here. 131 N.J.Super. at 82-83, 328 A.2d at 631. Similarly, Heilman dealt with a husband's product liability claim which was unresolved at the time of the divorce. The trial court ordered the proceeds, if any, from this claim to be put in escrow, with the final distribution of the recovery to be determined at a later hearing. In upholding that ruling, the Michigan Court of Appeals relied on Di Tolvo for the proposition that the husband's cause of action was marital property. 95 Mich.App. at 731-733, 291 N.W.2d at 185.⁸

In sum, we hold that Mrs. Boyce's inchoate personal injury claim was marital property, and that the trial court's decision to the contrary must therefore be reversed. On remand, however, the trial court is not obligated to grant Mr. Boyce a share in the future proceeds from Mrs. Boyce's claim. See Barbour v. Barbour, 464 A.2d 915, 921-922 (D.C. 1983) (affirming trial court's decision not to award husband a share of his wife's pension). Instead, the court must simply consider this claim as a marital asset, along with all of the other marital assets, when determining the relative property rights of the parties.

III.

We recognize that some courts in other jurisdictions, wrestling with the same issue facing us today, have reached different conclusions. For various reasons, however, we decline to follow their lead.

Some courts apply what is known as the "analytic" approach. This method, which originated in community property states, finds both separate and marital property elements in the inchoate claim. See Jurek v. Jurek, 124 Ariz. 596, 598, 606 P.2d 812, 814 (1980); Brown v. Brown, 100 Wash.2d 729, 738-739, 675 P.2d 1207, 1213 (1984). To date, only one court in an equitable distribution state has applied the analytic approach to an inchoate claim. Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639 (1981) (rejecting the holding of Di Tolvo, supra, that such a claim is entirely marital property).⁹ Under the analytic approach, any recovery for lost wages or medical expenses paid with marital funds is classified as marital property; these damages constitute the actual loss of marital property resulting from the injury. On the other hand, recovery for pain and suffering and for the physical injury itself is classified as separate property; these elements of the inchoate claim are viewed as either falling outside the definition of property, Amato v. Amato, supra, 180 N.J.Super. at ___, 434 A.2d at 642, or as an exchange for the injured spouse's separate property, viz., his or her healthy body. Jurek v. Jurek, supra, 124 Ariz. at 598, 606 P.2d at 814.

We join the majority of courts in equitable distribution states in rejecting the analytic approach, and instead hold that the entire inchoate claim is marital property. As we have noted, most authorities now conclude that a cause of action for personal injury is a chose in action (a form of property), and we decline to follow Amato's holding to the contrary. Furthermore, we cannot hold that an injured spouse's recovery for pain and suffering would be an exchange for that spouse's separate property. Our statute defines separate property as property "acquired prior to the marriage" or "acquired during the marriage by gift, bequest, devise, or descent . . . [or] in exchange therefor. . . ." D.C. Code § 16-910(a) (1981). A spouse's healthy body, however, is not generally viewed as acquired property, and we are not inclined to say that it is. See Platek v. Platek, supra note 6, 309 Pa.Super. at 20-22, 454 A.2d at 1061 (construing similar statutory provision).

Another line of cases, focusing on the uncertain value of an inchoate claim, holds that the entire claim is the injured spouse's separate property. McNevin v. McNevin, 447 N.E.2d 611, 616 (Ind.Ct.App. 1983); Fries v. Fries, 288 N.W.2d 77, 81 (N.D. 1980); Hurley v. Hurley, 342 Pa.Super. 156, 159-162, 492 A.2d 439, 441-442 (1985); Wegner v. Wegner, 391 N.W.2d 690, 694 (S.D. 1986). The rationale for such a holding is illustrated by the following passage from Fries:

There is no...