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In re Marriage of Raymond J. Tullier3/17/1999
ct:
" here was an issue raised back then that she was going to . . . try to be part of the . . . lawsuit because of that. And as it turned out, we settled. We didn't . . . go to trial."
Describing the economic consequences of the accident, Raymond testified:
"Q. . . . you haven't worked since the time of that accident; is that correct?"
"A. That's correct."
"Q. And what is the form of your income?"
"A. I get SSI and I've got a long-term disability policy with CIGNA."
"Q. Okay. How much do you get in SSI per month?"
"A. . . . Eight twenty-five, I think, a month."
"Q. Okay. And then how much for the disability policy?"
"A. CIGNA is $434."
Raymond avowed that had he not been injured, he would have worked until age 65.
Raymond maintained in the trial court that the 1990 recovery should be considered his separate property in that the recovery was "a replacement of his lost eye, lost memory, and lost future wages."
At the Conclusion of the evidence, the trial court announced it needed "further evidence concerning . . . a valuation of the Merrill Lynch account as of today's date rather than December 31st of '97 . . . and the Disposition of the personal injury settlement." The trial court set a date for a "further evidentiary hearing" on those subjects and others.
On the appointed date, Raymond's lawyer presented an exhibit showing the aggregate market value of the assets in the Merrill Lynch account as of January 30, 1998, was $289,332 plus estimated accrued interest of $427. The "Debit Balance" as of that date was $110,169, leaving a "Net Portfolio Value" of $179,590.
The trial court pointed out there was no additional evidence concerning the 1990 recovery.
Raymond's lawyer responded:
"Judge, we have no paper trail of that. We just have his . . . oral testimony as to the amount of that settlement and what that settlement was for. We were unable to locate any statements . . . in regards to any of that."
The trial court replied:
"I would just point out to you now, because it may save considerable amount of oral argument, that I don't think there's sufficient evidence for me to make a determination as to how much of that settlement is for wages and how much is for reimbursement for injury or medical expenses or loss of consortium or whatever else may be the claim. I don't think there's sufficient evidence in the record for me to make that determination."
The trial court found the parties had "net marital assets" totaling $531,000. The judgment included this:
"[Raymond] deposited the balance of his personal injury settlement into the jointly held Merrill Lynch account. He claims that the settlement incuded an undetermined sum as an award for future lost wages. trial brief asserted that the Merrill Lynch account should by treated as his separate property. Although the court agrees that Missouri has adopted the analytic approach in characterizing a personal injury award per Mistler v. Mistler, 816 S.W.2d 241 (Mo.App. 1991), there was insufficient evidence presented to make that determination in this case. The Merrill Lynch account is jointly titled and the parties used the account for joint living expenses since the settlement. In order to equalize the distribution of marital property [Raymond] is awarded $76,100.00 (42.37%) from that account and [Elizabeth] is awarded 103,490.00 (57.63%) from that acount . Each party remains jointly and severally liable for the account debt, with [Raymond] to pay 42.37% and [Elizabeth] to pa
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