Richardson v. Richardson
| Decision Date | 17 June 1987 |
| Docket Number | No. 85-0166,85-0166 |
| Citation | 407 N.W.2d 231,139 Wis.2d 778 |
| Parties | In re the MARRIAGE OF Maureen RICHARDSON, Petitioner-Respondent-Petitioner v. Edward S. RICHARDSON, Appellant. |
| Court | Wisconsin Supreme Court |
William T. Henderson (argued), for petitioner-respondent-petitioner; Collins & Henderson, Beloit, on brief.
Linda S. Balisle (argued), for appellant; Stolper, Koritzinsky, Brewster & Neider, S.C., Madison, on brief.
This is a review of an unpublished decision of the court of appeals filed on April 24, 1986, reversing that portion of a divorce judgment of the circuit court for Rock county, Patrick J. Rude, Circuit Court Judge, dividing a personal injury claim for medical malpractice between the parties.
The personal injury claim arose out of a medical procedure that was performed on Mrs. Richardson during the marriage that rendered her unable to bear children. The parties consulted an attorney and retained the attorney with money from their joint funds. Thereafter the parties filed for divorce. At the time of the divorce the claim had not been settled or brought to judgment.
The circuit court held that any recovery in the personal injury action for money advanced to pursue the lawsuit or for loss of earnings up to the date of the divorce was property of the parties subject to property division upon divorce under sec. 767.255, Stats. 1985-86, to be divided equally by the parties. The circuit court further held that any recovery attributable to the loss of the injured spouse's (wife's) body functions (that is, damages for her inability to bear children, her future earnings, or her pain and suffering) is the property of the injured spouse (wife) alone, not property of the parties subject to division.
The court of appeals held that the entire claim for medical malpractice is property subject to division under sec. 767.255, reversed the circuit court judgment, and remanded the case to the circuit court for division of the claim.
Like the court of appeals, we hold that a personal injury claim for medical malpractice is property subject to division upon divorce under sec. 767.255. In contrast to the court of appeals, however, we conclude that the nature of a claim for personal injury renders the presumption of equal distribution established in sec. 767.255 inapplicable. We conclude that in dividing a personal injury claim (before settlement of or judgment on the claim), a circuit court should presume that the injured spouse is entitled to the entire amount recovered for loss of bodily function, future earnings (that is after the date of divorce) and pain and suffering; that the "uninjured" spouse is entitled to the entire amount recovered for loss of consortium; and that the amounts recovered for medical and other expenses and loss of earnings incurred during the marriage are to be distributed equally. Accordingly, we affirm the decision of the court of appeals reversing the judgment, but we do so on grounds that the court of appeals did not consider. Because the circuit court viewed part of the claim as being property not subject to division, we reverse that portion of the judgment of the circuit court distributing the claim and remand the case to the circuit court for further proceedings consistent with this opinion. We recognize that, applying our rationale, the circuit court on remand should distribute the claim in the same way as it did previously applying its rationale. We remand, however, because it is possible, although not likely in this case, that the circuit court might find that the statutory factors warrant alteration of the presumption that the injured spouse is entitled to the entire amount recovered for loss of bodily function, future earnings and pain and suffering.
Our analysis begins with the property division statute, sec. 767.255. 1 Under the statute the property of the parties subject to division by the circuit court includes all property other than property acquired by either party prior to or during the course of the marriage as a gift, bequest, devise or inheritance or other property obtained by either party with funds so acquired. These excluded forms of property are not to be divided between the parties unless the circuit court finds "that refusal to divide such property will create a hardship on the other party or on the children of the marriage."
Both parties agree that a personal injury claim does not fit within any of the forms of property expressly excluded from division under sec. 767.255. Nevertheless, Mrs. Richardson would have this court conclude that certain component parts of her personal injury claim do not constitute property. She urges us to adopt the approach of the New Jersey court in Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639, 643-644 (1981). That court concluded that monies to be realized for pain, suffering, disfigurement, disability or other debilitation of the mind or body, and future earnings represent personal property of the injured spouse to be distributed in their entirety to the injured spouse. The New Jersey court further concluded that monies to be realized for losses such as past wage loss and medical or other expenses which had diminished the estate during marriage are property subject to division on divorce. The Amato court reasoned that there is no equitable basis for having the uninjured and estranged spouse who has his or her own claim for loss of consortium share monetary recovery for pain, suffering, bodily injury and lost future earnings suffered by the injured spouse.
We conclude that Mrs. Richardson's reasoning turns not on the definition of property but on the nature of a personal injury claim. She is arguing that to comply with the equitable approach to property division mandated by the legislature, a court must distribute certain parts of a personal injury claim entirely to the injured party. Mrs. Richardson fails to offer a definition of property, a rationale or relevant precedent justifying the exclusion of a claim for personal injury from the concept of "property" under sec. 767.255. 2 Accordingly we conclude that a claim for personal injury is property subject to division under sec. 767.255. 3
Having concluded that a personal injury claim is property subject to division under sec. 767.255, we should, according to Mr. Richardson, end our inquiry here. Mr. Richardson argues that there is no need to treat a claim for personal injury any differently than any other type of property. He urges us to allow the circuit court to divide the personal injury claim exercising its discretion under sec. 767.255.
Following Mr. Richardson's approach, each circuit court would decide in each case whether and how to divide a personal injury claim upon divorce by beginning, as sec. 767.255 requires, with the presumption that the claim should be equally divided and then determining, after considering the factors enumerated in sec. 767.255, whether it should alter the presumption of equal distribution with regard to the personal injury claim. Ordinarily, letting each circuit court decide whether to alter the presumption of equal distribution enables each circuit court to tailor the distribution to suit the characteristics of the litigants in the case before it. In this case, however, different circuit courts might distribute personal injury claims differently because they disagree about the significance of general characteristics found in most personal injury claims. Each circuit court faced with the necessity of deciding how to distribute a personal injury claim which has not resulted in a judgment or settlement at the time of divorce faces the same question: whether the unique nature of certain components of a personal injury claim constitute a relevant factor under sec. 767.255(12) warranting alteration of the presumption of equal distribution.
Elementary considerations of fairness and certainty require us to give guidance to the circuit court in applying sec. 767.255 to the distribution of a personal injury claim. To ignore this court's institutional responsibility to provide guidance in this situation might lead to the question of the distribution of a personal...
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