Unkle v. Unkle

• Decision Date: 01 September 1985
• Docket Number: No. 46,46
• Citation: 305 Md. 587,505 A.2d 849
• Parties: , 54 USLW 2534 William Edward UNKLE v. Gypsy Jo UNKLE. ,
• Court: Maryland Court of Appeals

Page 587

305 Md. 587

505 A.2d 849, 54 USLW 2534

William Edward UNKLE v. Gypsy Jo UNKLE.

No. 46, Sept. Term, 1985.

Court of Appeals of Maryland.

March 12, 1986.

C. Michael Magruder, Towson, for appellant.

Elwood E. Swam, Hampstead, for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

MURPHY, Chief Judge.

The Property Disposition in Annulment and Divorce Law, Maryland Code (1984), §§ 8-201 to 8-213 of the Family Law Article, defines "marital property" to mean

"the property, however titled, acquired by 1 or both parties during the marriage.

(2) 'Marital property' does not include property:

(i) acquired before the marriage;

(ii) acquired by inheritance or gift from a third party;

(iii) excluded by valid agreement; or

(iv) directly traceable to any of these sources." § 8-201(e).

The primary issue in this case is whether a spouse's inchoate personal injury claim which accrued during marriage is "marital property" within the contemplation of the statute.

I.

William and Gypsy Unkle were divorced a vinculo matrimonii on October 11, 1984 by the Circuit Court for Carroll County. In its decree the court (Burns, J.) ordered that any monies realized by William "by and through a personal injury claim ... for injuries suffered at Wild World, Inc. in August 1983 ... are determined to be marital property." The court specified that William was to receive 80 percent and Gypsy 20 percent "of any recovery on the personal injury claim," to be distributed on an "if, as and when paid basis."

The evidence at trial showed that William suffered two broken legs in the accident, that he missed approximately seven and one-half months from work and accumulated medical expenses of $1,824.36. At the time of William's accident, he and Gypsy were separated. William resided with his parents during his period of recuperation. He said that he received no assistance from Gypsy during his convalescence. William retained an attorney to represent him in the personal injury case, but no suit had been filed prior to the issuance of the divorce decree.

William contended on his appeal to the Court of Special Appeals that the trial court erred in including his inchoate personal injury claim in its entirety as marital property. We granted certiorari prior to disposition of the appeal by the intermediate appellate court to consider the significant issue raised in the case.

II.

Our cases have generally construed the word "property" broadly, defining it as a term of wide and comprehensive signification embracing " 'everything which has exchangeable value or goes to make up a man's wealth--every interest or estate which the law regards of sufficient value for judicial recognition.' " Deering v. Deering, 292 Md. 115, 125, 437 A.2d 883 (1981) (quoting Diffendall v. Diffendall, 239 Md. 32, 36, 209 A.2d 914 (1965)). In Bouse v. Hutzler, 180 Md. 682, 686, 26 A.2d 767 (1942), we said that the word "property," when used without express or implied qualifications, "may reasonably be construed to involve obligations, rights and other intangibles as well as physical things."

In Deering, we recognized a spouse's pension rights to be a form of marital property subject to equitable distribution. 292 Md. at 128, 437 A.2d 883. In that case, involving consolidated appeals, appellant wives appealed from decrees which denied them any monetary award based on their husbands' pensions which were unmatured, fully vested pension rights based on obligatory contributions deducted from their pay. Id. at 118-120, 437 A.2d 883. Citing Weir v. Weir, 173 N.J.Super. 130, 413 A.2d 638 (1980) and In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976) (en banc), we concluded that a spouse's pension rights, "to the extent accumulated during the marriage," constitute a form of "marital property" subject to distribution. 292 Md. at 128, 437 A.2d 883. In so holding, we noted that regardless of the type of retirement plan, vested or unvested, noncontributory or contributory, the critical issue was "whether a property right has been acquired during the marriage and whether equity warrants its inclusion in the marital estate in light of its limitations." Id. at 127, 437 A.2d 883 (citing Weir, supra, 413 A.2d at 640). We said that as

" 'pension benefits represent a form of deferred compensation for services rendered, the employee's right to such benefits is a contractual right, derived from the terms of the employment contract. Since a contractual right is not an expectancy but a chose in action, a form of property, ... an employee acquires a [judicially recognized] property right to pension benefits when he enters upon the performance of his employment contract.' " Id. [292 Md.] at 127, 437 A.2d 883 (citing Brown, supra, 126 Cal.Rptr. at 637, 544 P.2d at 565).

In Archer v. Archer, 303 Md. 347, 493 A.2d 1074 (1985), we held that a medical degree/license does not constitute marital property within the ambit of § 8-201(e). We there indicated that only a mere expectancy of future enhanced income resulted from the attainment of a professional degree; that it was but an intellectual attainment, personal to the holder, which had no exchange value on an open market and could not be sold, transferred, pledged, assigned or inherited. We said that such a degree simply did not possess any of the basic characteristics of property.

III.

While we have never determined whether a personal injury claim accruing during marriage constitutes marital property under § 8-201(e), other jurisdictions have considered the question under statutes of varying import and with varying results. Some courts have flatly concluded that a personal injury award or settlement is not marital property but rather the sole and separate property of the injured spouse. See, e.g., Johnson v. Johnson, 75 N.C.App. 659, 331 S.E.2d 211 (1985) (purpose of the statute is to require married persons to share their maritally acquired property with each other and not to require either party to contribute his or her bodily health obtained prior to marriage to the marital assets subject to distribution); Gloria B.S. v. Richard G.S., 458 A.2d 707 (Del.Fam.Ct.1983) (workmen's compensation benefits for loss of an eye and disfigurement acquired by husband during the marriage not marital property subject to equitable distribution; husband's body is separate property and compensation received for damage or loss to it is his separate property). Other courts have concluded that an unliquidated personal injury claim which is merely pending at the time of the divorce, and therefore not then susceptible of division, cannot be marital property because of its speculative nature. See, e.g., McNevin v. McNevin, 447 N.E.2d 611 (Ind.App.1983); Fries v. Fries, 288 N.W.2d 77 (N.D.1980); Hurley v. Hurley, 342 Pa.Super. 156, 492 A.2d 439 (1985).

New Jersey courts have held that potential damages in a personal injury case for pain and suffering, loss of earnings, and medical expenses constitute a chose in action and, as such, are marital property acquired by the injured spouse during the marriage under that state's statute, subject to equitable distribution if and when the proceeds materialized. Landwehr v. Landwehr, 200 N.J.Super. 56, 490 A.2d 342 (1985); Harmon v. Harmon, 161 N.J.Super. 206, 391 A.2d 552 (1978); DiTolvo v. DiTolvo, 131 N.J.Super. 72, 328 A.2d 625 (1974). According to Little v. Little, 74 N.C.App. 12, 327 S.E.2d 283, 287-88 (1985), this is the majority rule, i.e., that claims and awards for personal injuries resulting from occurrences during the marriage are marital property, unless the statute provides that such claims are the separate property of the injured spouse. In re Marriage of Fjeldheim, 676 P.2d 1234, 1236 (Colo.App.1983) holds that a personal injury settlement offer as compensation for pain and suffering is marital property if it arises from an accident which occurred during the marriage. Gan v. Gan, 83 Ill.App.3d 265, 38 Ill.Dec. 882, 404 N.E.2d 306 (1980); Nixon v. Nixon, 525 S.W.2d 835 (Mo.Ct.App.1975); Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982) clearly support this conclusion.

Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639 (1981), another New Jersey intermediate appellate court case, decided after DiTolvo but before Landwehr, reached a different result. That case involved a spouse's unliquidated claim for medical malpractice. The court concluded that an inchoate personal injury claim, not being saleable or assignable prior to judgment, is not a property right. Instead, the money received for the claim is "the legal substitute for pain, suffering and the mental and physical disabilities incurred." 434 A.2d at 642. The right, the court said, is peculiar to the injured person, to seek to be restored or made whole, as he was before the injury. As to this, the court held that "monies realized by way of settlement or judgment from a tortfeasor as compensation for pain, suffering, disfigurement, disability or other debilitation of the mind or body, represent personal property of the injured spouse not distributable under [the New Jersey marital property statute]." 434 A.2d at 643-44. But as to "[l]osses, such as past wage and medical expenses, which have diminished the marital estate," the court held that such losses "are distributable when recovered." Id., 434 A.2d at 644. Finally, Amato said that the law does not require a plaintiff to receive a lump sum verdict encompassing pain, suffering, medical expenses and lost wages. Consequently, it noted that "[s]pecial jury interrogatories may be utilized to delineate the separate factors of recovery." Id.

Rationale similar to that of Amato has been applied in a number of cases. See, e.g., Jurek v. Jurek, 124 Ariz. 596, 606 P.2d 812 (1980); Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981); Van De Loo v. Van De Loo, 346 N.W.2d 173 (Minn.Ct.App.1984); Soto v. Vandeventer, 56 N.M. 483, 245 P.2d...