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Ceasar v. Ceasar5/18/2000
The issues raised in this appeal of a divorce relate to the trial court's award of a brokerage account to the husband as his separate property. The money deposited to the account was some of the damages recovered from the settlement of a third party personal injury claim growing out of the husband's on the job injury. As the money deposited to the account was for the recovery of personal injuries including the recovery of lost earning capacity during the marriage there was a commingling of money belonging to the husband's separate estate and the community estate. See Tex. Fam. Code Ann. ยง 3.001(3) (Vernon 1998). The question on appeal is whether or not the trial court abused its discretion in finding that the remaining balance was the husband's separate property. We conclude that it did not and affirm the judgment.
The husband lost his leg in a work-related injury and received worker 's compensation benefits. The husband pressed a third-party action that he settled. The settlement agreement did not prorate the money paid among the elements of damages claimed. After paying attorney's fees and reimbursing the compensation carrier for both the medical expenses it had incurred on the his behalf and the weekly benefits it had paid him, the husband opened an account with a stock broker depositing the balance of the money he had received in the settlement. The husband testified that he always intended the account to be his separate property, but he had opened the account in both his and his wife's name so that she would receive the account if something should happen to him.
The husband called an accountant as a witness to trace the community estate's interest in the brokerage account. The accountant presented three different opinions as to the extent of the community estate's interest. Each was based in part upon an estimate of the husband's annual gross income before his injury. In arriving at each opinion the accountant assumed that if the husband's injury had not occurred his income would have increased by three percent a year. In each opinion the accountant estimated the total of gross income lost because of the injury from the settlement until the approximate date of trial. From the estimated gross income the accountant deducted both income taxes that would have been owed and worker 's compensation weekly benefits received after the settlement of the third party action, added to the net amount the income earned by the brokerage account, and subtracted the remainder from the amount of money that the parties had withdrawn from the account.
Each opinion assumed that all withdrawals should be charged to the community estate. The first opinion was based upon an estimated gross income of $30,000; the second upon an estimated gross income of $40,000; and the last upon an estimated gross income of $36,314, an average of the husband's income, according to income tax withholding statements, for the four years preceding his injury. Based upon these calculations the accountant first opined that the community estate had withdrawn $84,291 more than its share of the account; second, that there remained $34,187 in the account that belonged to the community estate; and lastly, that the community estate had withdrawn $9,284 more than its share. The accountant concluded that the community estate had no remaining interest in the brokerage account.
The trial court found the brokerage account was the husband's separate property and that the division of property was just and right regardless of the characterization of any item as community or separate.
The husband employed the community-out-first theory to trace the community estate's interest in the brokerage account. Th
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