 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Marriage of Raymond J. Tullier3/17/1999
n had he not been injured. Id.
In Heslop v. Heslop, 967 S.W.2d 249 (Mo.App. W.D. 1998), the issue was whether a sum received by the husband in settlement of a claim under the Federal Employers' Liability Act was marital property. Id. at 250. The appellate court recognized the "statutory presumption" (inferably ' 452.330.3, RSMo 1994) that all property acquired during marriage is marital property. Id. at 254. Consequently, the husband was required to prove by clear and convincing evidence that a portion of the settlement was non-marital. Id. Upon reviewing the evidence, the appellate court held the husband "did not establish that any of the monies he received in settlement were for future lost earnings." Id. Consequently, the appellate court denied the husband's contention that a portion of the award was non-marital. Id.
In the instant case there was evidence that Raymond was earning "around $16,000" per year at the time he was injured. If (1) he had not been injured, and (2) he had continued to earn $16,000 per year until entry of the dissolution judgment, he would have earned some $128,000 during that eight-year period. Such earnings would have been marital property. Doyle v. Doyle, 786 S.W.2d 620, 622 (Mo.App. S.D. 1990). Consequently, under the analytic method of classifying recoveries, there was evidence that at least half the 1990 recovery was marital property, as said portion replaced wages Raymond would have earned before the dissolution.
There was no evidence as to how much of the 1990 recovery was for medical expenses; however, Raymond testified he went to "specialists" to find out why he was having blackouts. He also revealed "they did an MRI" to determine whether he had "carotid artery damage because it was a facial injury ." Obviously, those events resulted in medical expenses during the marriage.
Additionally, there was evidence that some portion of the 1990 recovery may have been attributable to a potential claim by Elizabeth for loss of consortium.
Significantly, nowhere in Raymond's first point or the argument following it does this court find any hint as to what portion of the 1990 recovery replaced earnings Raymond would have earned after dissolution of the marriage. Raymond tells this court only that "all or a substantial portion" of the award should have been classified as his separate property.
The trial court aptly noted the insufficiency of the evidence to establish what portion, if any, of the 1990 recovery was intended to replace future earnings Raymond will lose after dissolution of the marriage. In that regard, the instant case is like Heslop, 967 S.W.2d at 254 (discussed earlier).
Because (a) at least half the 1990 recovery apparently replaced earnings Raymond lost during the marriage, (b) some portion of the 1990 recovery obviously reimbursed Raymond for medical expenses incurred during the marriage, (c) some portion of the 1990 recovery may have been attributable to Elizabeth's potential claim for loss of consortium, (d) the burden was on Raymond to prove what portion of the 1990 recovery was intended to replace wages he would have earned after the dissolution, and (e) there was insufficient evidence to satisfy that burden -- even after the trial court called the deficiency to Raymond's attention and gave him an opportunity to present additional evidence at the second hearing -- this court holds the trial court did not err in refusing to classify some portion of the 1990 recovery as Raymond's separate property.
It may have occurred to an alert reader that even had Raymond demonstrated that a specific part of the 1990 recovery was intended to replace wages he would have earned after t
Page 1 2 3 4 5 6 7 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|