Heilman v. Heilman, Docket No. 78-5016
| Decision Date | 04 March 1980 |
| Docket Number | Docket No. 78-5016 |
| Citation | 95 Mich.App. 728,291 N.W.2d 183 |
| Parties | Marlene HEILMAN, Plaintiff-Appellee, v. Edward HEILMAN, Defendant-Appellant. 95 Mich.App. 728, 291 N.W.2d 183 |
| Court | Court of Appeal of Michigan — District of US |
[95 MICHAPP 729] Marvin L. Berris, Detroit, for defendant-appellant.
David W. Sinclair, Detroit, for plaintiff-appellee.
Before MacKENZIE, P. J., and V. J. BRENNAN and WALSH, JJ.
Defendant, Edward Heilman, appeals the property settlement provisions of the November 8, 1978, judgment of divorce which dissolved the parties' marriage.
[95 MICHAPP 730] During the marriage, defendant suffered the loss of his right eye in a work-related accident. In 1976, along with his wife, plaintiff Marlene Heilman, he instituted a products liability action against the manufacturer of the industrial press involved in the accident. Plaintiff's complaint for divorce was filed in 1977. At the time of the judgment of divorce, the products liability action was still pending in the Wayne County Circuit Court.
With respect to division of property, the judgment of divorce provides:
On appeal, defendant challenges the trial court's ruling that the personal injury claim was a part of the marital estate. In his excellent opinion, the [95 MICHAPP 731] trial judge set forth the basis for his ruling. We are in full agreement with the judge's conclusion.
It is not disputed that the trial court in a divorce proceeding is authorized to divide the parties' personal property between them. M.C.L. § 552.19; M.S.A. § 25.99; Engemann v. Engemann, 53 Mich.App 588, 594, 219 N.W.2d 777 (1974). It is also clear that a right of action is "as much property as any tangible possession". Dunlap v. Toledo, Ann Arbor & Grand Trunk R. Co., 50 Mich. 470, 474, 15 N.W. 555 (1883). We concur in the trial court's determination that the following principle set forth in DiTolvo v. DiTolvo, 131 N.J.Super. 72, 79, 328 A.2d 625, 629 (1974), is valid and applicable in Michigan:
"We * * * hold that for purposes of equitable distribution incident to a divorce, a spouse's chose in action for personal injuries and the other spouse's per quod claim constitute property subject to such distribution."
Defendant argues that, if the trial court did not err in ruling that the chose in action was part of the marital estate, then the court nevertheless abused its discretion in two related respects. First, defendant suggests that the court abused its discretion in determining that plaintiff would perhaps be entitled to a portion of the ultimate recovery in defendant's personal injury action. Defendant's injuries, however, affected his earning capacity during the marriage and, therefore, possibly reduced the amount of assets that may have become a part of the marital estate if the injury had not occurred. The court, therefore, did not abuse its discretion in ruling that plaintiff had some possible interest in defendant's future recovery in the personal injury action.
Second, defendant alleges abuse of discretion in [95 MICHAPP 732] the trial court's delay in determining the exact percentage of the personal injury recovery, if any, to which each party will be entitled.
In distributing marital property, the...
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