Mead v. Mead

• Decision Date: 14 December 1983
• Docket Number: 83-270,Nos. 83-269,s. 83-269
• Citation: 442 So.2d 870
• Parties: Mary Ann MEAD, Plaintiff-Appellant, v. Barry Dale MEAD, Defendant-Appellee. and Barry Dale MEAD, Plaintiff-Appellee, v. Mary Ann MEAD, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 870

442 So.2d 870

Mary Ann MEAD, Plaintiff-Appellant, v. Barry Dale MEAD, Defendant-Appellee. and Barry Dale MEAD, Plaintiff-Appellee, v. Mary Ann MEAD, Defendant-Appellant.

Nos. 83-269, 83-270.

Court of Appeal of Louisiana Third Circuit.

Dec. 14, 1983.

Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.

Neblett, Beard & Arsenault, Richard W. Beard, Alexandria, for defendant-appellee.

Before CUTRER, DOUCET and LABORDE, JJ.

LABORDE, Judge.

Mary Ann Mead (plaintiff) instituted suit against Barry Dale Mead (defendant) for separation from bed and board. Defendant, in a separate action as plaintiff, subsequently filed suit for divorce. These actions were consolidated for trial. After hearing both actions, the trial court granted the wife a separation on grounds of abandonment and the husband a divorce upon a showing that the parties had lived separate and apart in excess of one year. Plaintiff, Mary Ann Mead, appeals the portion of the trial court judgment dismissing her purported community property interest in the proceeds of a worker's compensation settlement received by defendant, Barry Dale Mead, resulting from a personal injury sustained on his job three months prior to dissolution of the community. We are presented with determining whether the funds are separate or community property of the former community. The trial court held that the proceeds were the separate property of defendant, Barry Dale Mead. We affirm.

The facts establish that plaintiff, Mary Ann Mead, and defendant, Barry Dale Mead, were married on January 19, 1977 and one child was born of the marriage. The parties physically separated on November 22, 1978 and failed to reconcile. On December 7, 1979 defendant was accidently electrocuted while in the course of his employment and sustained severe physical injuries. Plaintiff then filed suit for separation on February 29, 1980 alleging that defendant abandoned her. The trial court granted the plaintiff a restraining order enjoining defendant from alienating or encumbering any and all community property. Defendant, subsequently filed an action on March 4, 1980, as plaintiff, for absolute divorce. The cases were consolidated for decision.

On May 13, 1982 defendant received $285,000 in the form of a worker's compensation compromise settlement from his employer. Defendant's attorney then paid out all of defendant's related bills and turned the net proceeds over to defendant who in turn gave $10,000 to plaintiff. Plaintiff then convoked a rule nisi to have defendant show cause why he and his attorney should not be held in contempt of court for violating the restraining order enjoining defendant from alienating community property. The trial court held that neither defendant nor his attorney violated the restraining order since plaintiff had no right, of a community nature, in defendant's settlement funds. Subsequently, a separation and divorce was granted as prayed for in the respective petitions, except that the settlement proceeds were held to be the separate property of defendant.

Plaintiff relies on five assignments of error to raise the issue as to whether defendant's compensation settlement is community or separate property and whether she is entitled to a one-half community interest therein.

Assignment # 1

On the morning of trial, counsel for defendant filed an "amended answer to amending petition" over plaintiff's objection. Defendant asserted in the amended answer that the $10,000, which he gave to plaintiff on May 14, 1982, was a compromise which extinguished any interest that plaintiff may have had in the compensation settlement. Plaintiff objected when the trial court received defendant's amended answer, contending that the purported amendment was supplemental in nature and that notice of such supplemental allegations on the morning before trial was unreasonable.

The general rule concerning this issue is that the trial court has much discretion in allowing or refusing an amendment after an answer is filed and such ruling will not be disturbed unless there has been an abuse of discretion. Independent, Inc. v. Watson, 394 So.2d 710 (La.App. 3rd Cir.1981). In the instant case, plaintiff personally received $10,000 representing the alleged compromise and her attorney was well aware of the facts surrounding the allegations in the amending answer. The same defenses were discussed previously at the hearing on the contempt rule and at pre-trial conference prior to trial. The trial court found that the amended answer did not raise any new issues nor could it in any way cause surprise or do injustice. We agree. Therefore, the trial judge did not abuse his discretion in allowing the amended answer. This assignment is without merit.

Assignments # 3, 4, and 5

The particular issue presented by these assignments is whether the husband's personal injury settlement constitutes separate or community property since the injury occurred prior to dissolution of the community regime.

Prior to January 1, 1980, personal injury awards inuring to the husband were deemed community property, whereas in similar instances involving the wife, the same was deemed her separate property. ¹ In West v. Ortego, 325 So.2d 242 (La.1975) the Louisiana Supreme Court considered this former legislation with reference to a husband's recovery of workmen's compensation benefits. The court concluded that LSA-C.C. articles 2334 and 2402, now repealed were not enacted in contemplation of the issue at hand and resorted to equity, i.e., "to natural law and reason ..." to resolve the case. The court reasoned:

"Applying the foregoing principles, we conclude that where a husband's settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.

Ascertaining the post-dissolution portion of the settlement in the case at hand is quite simple in view of the fact that the bulk of the prospective compensation settlement represents weekly fixed sums. Ascertaining the respective portions of a non-workmen's compensation personal injury settlement (or jury verdict, for that matter), while not quite as simple, is nonetheless possible."

In the instant case, the trial court concluded that the defendant's personal injury settlement was his separate property by virtue of the newly enacted LSA-C.C. art. 2344 which provides:

"Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.

Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse." (Emphasis Added)

Since the injury giving rise to these proceeds occurred prior to this enactment, plaintiff contends that the former LSA-C.C. articles 2334 and 2401 govern the proceeds, thereby making the settlement proceeds community property. We disagree. Even considering the issue in light of the former articles we find as the Supreme Court did in West, supra, that when a settlement is...