Mears v. Mears, 1667

Decision Date17 April 1991
Docket NumberNo. 1667,1667
CourtSouth Carolina Court of Appeals
PartiesJohn Harry MEARS, Respondent, v. Mary B. Felkel MEARS, Appellant. . Heard

Thomas B. Bryant, III, Orangeburg, for appellant.

C. Bradley Hutto and Karen J. Williams, Orangeburg, for respondent.

CURETON, Judge:

In its post-divorce property division order, the trial court held the husband's claim for wrongful discharge against a former employer was not marital property. The wife appeals. We reverse and remand.

The parties were married in 1965. The wife initially filed for a divorce in April, 1988, but that action was stricken from the docket pursuant to administrative order. Thereafter, the husband commenced the present divorce action on December 20, 1988, and the court granted the husband a divorce on February 10, 1989. The decree reserved all equitable distribution issues for later hearing and determination.

The husband worked for nearly five years for an entity referred to in the record as "Company". The company fired him in August, 1985, and the circumstances of his firing gave rise to a cause of action against the company. The record reflects the parties were not aware of the cause of action at the time of their divorce, but became aware of it later. On March 10, 1989, the husband hired a lawyer to pursue the claim. The case settled on April 13, 1989, for $82,900.

A hearing was held on the property issues in June, 1989, whereupon all property issues except the wife's entitlement to share in the settlement proceeds were resolved by agreement of the parties. The trial court determined the wife had no interest in the settlement proceeds. It emphasized neither party was aware of the claim during the marriage and the husband had not suppressed the claim or acted in bad faith. The trial judge stated:

I find that a potential claim against an employer which is not pursued prior to commencement of marital litigation is not marital property, particularly where both parties had similar understandings as to the nature and potential for the existence of a claim and there is no evidence of deception or bad faith.

This case presents the novel issue of whether or not an action for wrongful discharge, which accrued prior to the commencement of marital litigation but became known to the parties and was pursued to fruition subsequent to the valuation date for marital property, is marital property.

We must first decide whether an action for wrongful discharge, which is in the nature of a chose in action, is "property" under our Equitable Apportionment of Marital Property Act. S.C.Code Ann. Section 20-7-473 (Supp.1990) defines marital property, with five exceptions, as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation." Of course, the claim in the instant action fits none of the exceptions.

In construing a statute, a court will give its words their plain and ordinary meanings without resort to subtle or forced construction to limit or expand the statute's operation. Bryant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988). If a term in a statute has a well recognized meaning in law different from its ordinary meaning, the term is accorded its legal meaning. Allen v. Columbia Fin. Management, 297 S.C. 481, 377 S.E.2d 352 (Ct.App.1988).

The word "property" is in law a generic term of extensive application. It is not confined to tangible or corporeal objects, but is a word of unusually broad meaning. It is a general term to designate the right of ownership and includes every subject of whatever nature, upon which such a right can legally attach. It includes choses in action and is employed to signify any valuable right or interest protected by law and the subject matter or things in which rights or interests exists. Lott v. Claussens, Inc., 251 S.C. 478, 163 S.E.2d 615 (1968); Peeples v. Orkin Exterminating Co., 244 S.C. 173, 135 S.E.2d 845 (1964); Gibbes v. Nat'l Hosp. Serv., 202 S.C. 304, 24 S.E.2d 513 (1943). Turning now to the meaning of "acquired" in the statute, "acquisition" may be defined as "the act of getting or obtaining something, which may be already in existence, or may be brought into existence through the means employed to acquire it." Verner v. Muller, 89 S.C. 117, 119, 71 S.E. 654, 656 (1911).

In determining the husband's claim should not be included in the equitable distribution estate, the trial court discussed the cases of Orszula v. Orszula, 292 S.C. 264, 356 S.E.2d 114 (1987) and Phillips v. Phillips, 290 S.C. 455, 351 S.E.2d 178 (Ct.App.1986). The court factually distinguished both cases from the case at bar.

In Orszula, our Supreme Court concluded a check in settlement of the husband's workers' compensation claim which was intended to compensate the husband for lost wages during the marriage was marital property. The trial court concluded, however, Orszula was distinguishable because the settlement was "compensation for a claim which occurred during the marriage, was known by both parties to exist, and was intended to compensate husband for lost earnings during the marriage." It further stated, "[h]owever, in this case there was no such award during the marriage and this is not a workers' compensation or personal injury award."

In the Phillips case, this Court held proceeds from the settlement of an automobile accident claim received by the parties during the marriage was marital property. The trial court held that case did not constitute precedent because it was decided prior to the effective date of the Equitable Apportionment Statute. It also distinguished the case on its facts, finding the claims in Phillips were pursued by the parties during the marriage, the settlement was consummated during the marriage, and both parties signed the release and endorsed the check.

Our research of the cases dealing with this issue from other jurisdictions show disparate treatment in the handling of unliquidated claims in property divisions. In Lynch v. Lynch, 122 A.D.2d 589, 505 N.Y.S.2d 741 (1986), the parties disputed the classification of the husband's potential recovery from his lawsuit against his former employer for breach of a long term employment contract. The trial court treated the entire recovery as marital property. In holding the potential recovery should be treated as the husband's separate property, the appellate court concluded that because the claim related almost entirely to employment in which the husband would have engaged subsequent to commencement of the divorce action (the statutory cut-off date for determining marital property in New York), the claim was for salary and benefits for periods of employment that would have taken place after the valuation date and therefore not subject to equitable distribution as marital property.

In Dillard v. Dillard, 28 Ark.App. 217, 772 S.W.2d 355 (1989), the husband who worked for a power company throughout the parties' marriage was terminated and began receiving severance pay a few months before the parties' divorce. The Arkansas Court of Appeals held the severance pay was marital property because it was earned through the husband's years of service and because he began receiving it before the divorce. The court concluded such pay earned during marriage is marital even if received after the divorce.

Also, in the Arkansas case of Goode v. Goode, 286 Ark. 463, 692 S.W.2d 757 (1985), the Arkansas Supreme Court held a workers' compensation claim resulting from an injury during the marriage is marital property, although the claim had not been adjudicated or paid by the time of the divorce. In deciding claims not yet finalized at the time of divorce are nevertheless marital property, the court agreed with an Illinois court that reached the same conclusion:

We cannot condone a result which invites workmen's compensation claimants to protract the arbitration for their award so as to shield that award from...

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  • Hunnicutt v. Hunnicutt
    • United States
    • Court of Appeals of South Carolina
    • January 12, 2006
    ... ... benefit. See, e.g. , Mears v. Mears , 305 ... S.C. 150, 156, 406 S.E.2d 376, 380 (Ct. App. 1991), ... overruled ... ...
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