Jurek v. Jurek

• Decision Date: 30 January 1980
• Docket Number: No. 14108-PR,14108-PR
• Citation: 124 Ariz. 596,606 P.2d 812
• Parties: James T. JUREK, Petitioner, v. Sharon L. JUREK, Respondent.
• Court: Arizona Supreme Court

Page 812

606 P.2d 812

124 Ariz. 596

James T. JUREK, Petitioner, v. Sharon L. JUREK, Respondent.

No. 14108-PR.

Supreme Court of Arizona, In Banc.

Jan. 30, 1980.

Rehearing Denied Feb. 26, 1980.

Ray C. Brown, Tucson, for petitioner.

Bachstein & Coffey by Harry S. Bachstein, Jr., Tucson, for respondent.

HOLOHAN, Vice Chief Justice.

James T. Jurek filed an appeal challenging the disposition of property made by the superior court in its decree of dissolution of the marriage of the parties. The sole question raised on appeal is whether the superior court erred in awarding the wife one-half of any recovery which the husband might receive for a personal injury he received two days after he filed for dissolution.

The Court of Appeals, in a memorandum decision, affirmed the judgment of the trial court. Jurek v. Jurek, 2 CA-CIV 2935, filed October 30, 1978. We granted the appellant's petition for review. The decision of the Court of Appeals is vacated.

The parties had been living separately for approximately four months and on January 28, 1977, the appellant husband filed a petition for dissolution of the marriage. Two days later he sustained an injury which resulted in the loss of his right hand and half of his right forearm. The trial court ruled that the personal injury claim arising out of the husband's injury was a community asset; therefore the wife was entitled to one-half of any proceeds received in satisfaction of the claim. ¹

Initially we reject the husband's assertion that the filing of the dissolution action should alter the scheme of distribution of community assets acquired after the filing of the action but before the granting of the dissolution. This assertion is not supported by the applicable statutes or case law. The appellate courts of this state have consistently held that the community continues to exist, together with its rights and obligations, even when the parties may be living separate and apart. Flowers v. Flowers, 118 Ariz. 577, 578 P.2d 1006 (App.1978); Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977); Guerrero v. Guerrero, 18 Ariz.App. 400, 502 P.2d 1077 (1972); Rodieck v. Rodieck, 9 Ariz.App. 213, 450 P.2d 725 (1969).

The long-standing rule in Arizona has been that a cause of action for injury to the person of either spouse during marriage and the damages recovered therefor are community property. Pacific Construction Co. v. Cochran, 29 Ariz. 554, 243 P. 405 (1926). The rule announced in 1926 has been followed consistently ever since. See Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); Tinker v. Hobbs, 80 Ariz. 166, 294 P.2d 659 (1956); Dawson v. McNaney, 71 Ariz. 79, 223 P.2d 907 (1950); Fox Tucson Theatres Corp. v. Lindsay, 47 Ariz. 388, 56 P.2d 183 (1936); City of Phoenix v. Dickson, 40 Ariz. 403, 12 P.2d 618 (1932).

In Flowers v. Flowers, supra, in a specially concurring opinion Judge Jacobson of the Court of Appeals suggested that the long-standing rule on the community nature of personal injury recoveries was incorrect in light of later developments in the law. Appellant urges that we abandon the rule.

The rule announced in Pacific Construction was based upon the general rule in community property states particularly California. See McFadden v. Santa Ana, O. & T. St. Ry. Co., 87 Cal. 464, 25 P. 681 (1891); Dunbar v. San Francisco-Oakland Terminal Rys., 54 Cal.App. 15, 201 P. 330 (1921); Basler v. Sacramento Gas & Electric Co., 158 Cal. 514, 111 P. 530 (1910). There was no analysis in our early cases of the various component parts which make up a recovery for personal injuries. In other jurisdictions the general rule fell into disfavor. See annotation in 35 A.L.R.2d 1199 (1954); de Funiak and Vaughn, Principles of Community Property § 82 (2d ed. 1971).

The Arizona statutes applicable to the issue define the property interests as:

"All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, is the community property of the husband and wife." A.R.S. § 25-211.

"All property, real and personal, of each spouse, owned by such spouse before marriage, and that acquired afterward by gift, devise or descent, and also the increase, rents, issues and profits thereof, is the separate property of such spouse." A.R.S. § 25-213.

The proper interpretation of these statutes is the essence of the problem. As stated in de Funiak and Vaughn:

"The frequently evident dissatisfaction with the frequently inadequate reasons given for the doctrine that compensation for personal injuries to a spouse is community property lie in an incomplete understanding of the true principles of community property. This incomplete understanding in itself often leads to a too literal interpretation of the local statutes." Id. § 82 at 201.

In construing community property statutes, the basic principles applicable to such property are often ignored. The underlying distinction between onerous and lucrative ² titles is often overlooked. As noted in de Funiak and Vaughn:

"Except for gifts clearly made to the marital community, community property only consists of that which is acquired by onerous title, that is, by labor or industry of the spouses, or which is acquired in exchange for community property (which, of course, was acquired itself by onerous title, again with the exception as to the gift). It must be plainly evident that a right of action for injuries to person, reputation, property, or the like, or the compensation received therefor, is not property acquired by onerous title. The labor and industry of the spouses did not bring it into being. For that matter, it is not property acquired by lucrative title either. What then, is it? Since the right of action for injury to the person, or for that matter, to the reputation, is intended to bring about compensation for the injury, and the compensation is intended to repair or make whole the injury, so far as is possible in such a case, the compensation partakes of the same character as that which has been injured or suffered loss." Id. § 82 at 201 and 202. (Footnotes omitted.)

The rule that a cause of action for personal injuries to either spouse was community property was based on a construction of the meaning of the word "acquired" as used in A.R.S. § 25-211 and its predecessors. The cause of action arose during marriage; therefore it was property "acquired" during marriage, and it was not property acquired by gift, devise, or descent.

In Fredrickson & Watson Const. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 (1940) the Nevada...