Raccio v. Raccio

• Decision Date: 11 December 1987
• Docket Number: No. 251135,251135
• Citation: 41 Conn.Supp. 115,556 A.2d 639
• Court: Connecticut Superior Court
• Parties: Charles RACCIO v. Lori Lynn RACCIO.

Page 639

556 A.2d 639

41 Conn.Supp. 115

Charles RACCIO v. Lori Lynn RACCIO.

No. 251135.

Superior Court of Connecticut Judicial District of New Haven.

Dec. 11, 1987.

Cohen & Gordon, New Haven, for plaintiff.

Jonathan Einhorn, New Haven, for defendant.

DeMAYO, Judge.

This matter came to the court as a "limited contested" case, with the parties stipulating that the marriage had broken down irretrievably. The parties also agreed that the sole trial issue was whether alimony and/or property should be awarded to the defendant pursuant to General Statutes §§ 46b-81 and 46b-82.

Since the legal issue involved is one of first impression in Connecticut, the court ordered briefs to be filed. Ordinarily, a decision on the law would delay a dissolution of the marriage. Therefore at the request of the parties, at the conclusion of the trial, the court dissolved the marriage on the grounds of irretrievable breakdown and permitted the defendant to resume her maiden name.

The legal question arose in the following context. Shortly after the parties were married, the plaintiff was the victim of an industrial accident at his place of employment. The injuries he received rendered him totally and permanently disabled. As a further consequence of his injuries, the plaintiff also suffered psychological damage. In addition to seeking remedies under the Workers' Compensation Act, the plaintiff has brought suit against the alleged tortfeasor on a product liability theory. This case is presently pending in Superior Court at New Haven.

At trial, the defendant offered evidence of this pending lawsuit and requested that alimony and/or property be awarded from the proceeds of the litigation since the plaintiff was virtually insolvent and existed on his compensation award. The plaintiff objected to the admission of that evidence and the court overruled the objection, pending a determination of the issue after argument and briefs.

The first question for the court to decide is whether an unliquidated personal injury action may be the subject of an award pursuant to General Statutes § 46b-81, which provides in pertinent part: "At the time of entering a decree ... dissolving a marriage ... the Superior Court may assign to either the husband or wife all or any part of the estate of the other...." (Emphasis added.)

I

The plaintiff relies on the recent Supreme Court decision in Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987). In that case, the court disallowed either a property division or alimony based on a possible future inheritance, stating: "We decline to adopt the position that the challenged order in the present case, involving a contingent award of expected property, can be upheld as a property transfer authorized by § 46b-81. As we have stated, § 46b-81 authorizes the court to assign to either spouse 'all or any part of the estate of the other,' and prescribes that, in fixing the value of such 'property,' the court shall consider, inter alia, 'the opportunity of each for future acquisition of capital assets and income.' The terms 'estate' and 'property,' as used in the statutes, connote presently existing interests." Id., at 230, 527 A.2d 1184. (Emphasis in original.)

There is, however, a distinction between the mere expectancy of an inheritance and a pending personal injury claim, even though that claim is unliquidated. That distinction which prevented this court from rejecting the defendant's argument out of hand, derives from the language of Connecticut General Statutes § 46b-81, which refers to an award being made to one spouse from the "estate of the other." (Emphasis added.)

The word "estate" has consistently been used in the statutes pertaining to alimony and property awards in matrimonial matters since the early 1800s. Estate is generally used in a probate context and has been defined as "the sum total of the property formerly owned by the decedent which, after his death, remains subject to administration and distribution." Clayman v. Prochaska, 2 Conn.App. 430, 437, 479 A.2d 1214 (1984), citing 2 W. Locke & P. Kohn, Conn. Probate Practice § 375, p. 280 (1951).

Under this definition an unliquidated tort claim would be considered part of the estate of the decedent, since the executor or administrator of his estate has title to the personal property of the decedent, including choses in action, and may sue thereon. Lynch v. Skelly, 138 Conn. 376, 379, 85 A.2d 251 (1951). It hardly merits stating that a decedent's estate does not include an expectancy of an inheritance.

The plaintiff argues in his brief that a chose in action is not property. However, if the plaintiff were to die while his personal injury case was still pending, his estate would include it and it would, in all likelihood, be pursued by his executor or administrator. It would be inventoried in Probate Court as part of his estate. Further, a Connecticut case does state, although in dicta, that a chose in action is property. Commonwealth Fuel Co. v. McNeil, 103 Conn. 390, 405, 130 A. 794 (1925).

Although there is a variety of decisions on this subject in other jurisdictions, the majority rule is that awards for personal injury, where the injury occurred during the marriage, are treated as marital property. 1 Valuation and Distribution of Marital Property § 18.05, pp. 18-75 (J. McCahey ed.1984); Little v. Little, 74 N.C.App. 12, 16, 327 S.E.2d 283 (1985).

An Illinois court in In re Marriage of Dettore, 86 Ill.App.3d 540, 541-42, 42 Ill.Dec. 51, 408 N.E.2d 429 (1980), held that a pending workers' compensation award was divisible property. The court noted that where the claim accrued during the marriage, precedent allowed divisibility of such awards received during marriage. The court then reasoned that to disallow division in a marriage dissolution award would create the risk of a claimant controlling the date of his settlement, thereby shielding it "from equitable distribution by the dissolution court." Id.

Some states prorate the award of the proceeds of a personal injury action. "To the extent that a personal injury award for loss of earnings and permanent impairment of ability to earn money is applicable to the years while the marriage existed, it is marital property. To the extent [that it] can be prorated to the remaining years of life expectancy following [divorce], it is nonmarital." Weakley v. Weakley, 731 S.W.2d 243, 244 (Ky.1987). The portion of the award compensating the wife for her pain and suffering was not divided. The court in Weakley likened a tort recovery for loss of wages and permanent impairment of the ability to earn money as similar to a workers' compensation award, since the latter is also intended to replace money which otherwise would have been earned during the marriage and thus become marital property. Id., at 244.

Courts in several states permit an award against a personal injury claim in dissolution cases, but limit the award to that portion of the recovery representing lost wages and medical expenses. In Jurek v. Jurek, 124 Ariz. 596, 606 P.2d 812 (1980), the cause of action arose during the marriage but after the divorce action had been filed. The pending cause of action was nevertheless considered divisible marital property with respect to the amount representing compensation for medical care and loss of wages. In an Idaho case, the court concluded that that portion of workers' compensation benefits awarded during marriage for earning power lost during the marriage was divisible marital property, but compensation for impairment of future earning power was not divisible. Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981). Similar conclusions have been reached by courts in Minnesota (Van de Loo v. Van de Loo, 346 N.W.2d 173 (Minn.App.1984)), and Washington (Brown v. Brown, 100 Wash.2d 729, 675 P.2d 1207 (1984)).

Of the states that have refused to award one spouse a share of the other's personal injury action, the refusal is usually based on a specific exclusion in state statutes. In denying a spousal claim, a Pennsylvania court, in Hurley v. Hurley, 342 Pa.Super. 156, 492 A.2d 439 (1985), concluded that the legislature intended to preclude division since state law excluded from the definition of marital property "property acquired after separation until date of divorce." In that case the injury was sustained and the suit was initiated during the marriage, but the award was received after separation but prior to divorce.

The court in a North Carolina case denied a claim for division on the grounds that a state statute defines personal injury recoveries of married persons as their sole and separate property. The divorce statute allowed division of marital property but not of separate property. Johnson v. Johnson, 75 N.C.App. 659, 331 S.E.2d 211 (1985).

In Unkle v. Unkle, 305 Md. 587, 505 A.2d 849 (1986), division of the personal injury claim was denied because the court construed the state family law section to exclude the claim since it was not "acquired" during the marriage. Other states that have statutes specifically addressing the divisibility of personal injury claims include Delaware, California, New York and Louisiana.

Some state statutes define the marital property that is subject to divisibility in dissolution actions and specify those nondivisible exceptions, and a few courts have designated a tort recovery as marital property on the basis of the failure of the legislature to include it within the listed exceptions. Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975). In re Marriage of Fjeldheim, 676 P.2d 1234 (Colo.App.1983).

Finally, there have been decisions that denied a spouse access to a personal injury claim on the ground that its actual value was too speculative. Fries v. Fries, 288 N.W.2d 77 (N.D.1980); McNevin v. McNevin, 447 N.E.2d 611 (Ind.App.1983).

In summary then, states have denied a spouse an award of any part of a personal injury claim for the following reasons: (1) The court's...