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Damone v. Damone9/14/2001
Supreme Court On Appeal from Windsor Family Court September Term, 2000
Defendant Phillip Damone appeals the final decree issued in his divorce proceeding by the Windsor Family Court. Defendant claims the court: (1) abused its discretion and acted inequitably in refusing to enforce the parties' agreement regarding the distribution of the proceeds from a medical malpractice settlement, and in distributing to plaintiff, Robin Damone, proceeds from this settlement which were intended to compensate defendant for his pain and suffering; (2) erred by including proceeds from the settlement when it determined, for purposes of equitable distribution of the marital property, what constituted the marital estate, and made clearly erroneous findings regarding the settlement proceeds; (3) abused its discretion in its determination of the maintenance award to the plaintiff; and (4) erred in admitting and relying upon statements made by a guardian ad litem (GAL) regarding the preferences of the parties' children. We agree with defendant that it was error for the family court to disregard the parties' agreement as to the distribution of the personal injury settlement award and, thus, the court erred in including the personal injury settlement proceeds in the marital estate as property subject to distribution between the parties. As a result of the court's error in its property distribution, its determination of plaintiff's maintenance award must also be remanded for reconsideration. Because defendant did not properly object to the admission of the GAL's statements in the hearing, this claim of error was not properly preserved for review, so we do not address it on appeal. We remand for redistribution of the marital estate and a redetermination of plaintiff's maintenance award.
The parties were married in 1985, while in their late teens, and separated in January 1998. They have two children from the marriage. The marital home was purchased in 1986 for $65,000, and while the parties disagreed on the fair market value of the home at the time of their divorce, the court found the value to be $72,000, with a mortgage balance of $58,000. They acquired a few second-hand cars, and amassed $19,153 in consumer debt. Plaintiff has a retirement account which was valued at $582.41. Defendant's pension plan through his employer was valued at $4,853.55. The remaining components of the marital estate, with one notable exception, were valued at $12,135.96.
The most significant asset considered by the court in evaluating the marital estate was the proceeds from a personal injury action based on medical malpractice suffered by Phillip. The action sought damages for the past, present, and future pain and suffering for Phillip and for loss of consortium suffered by Robin, and attorney's fees. In 1991, a tumor was discovered in Phillip's back. He underwent surgery to remove the tumor, spending two days in the hospital, and was working again two weeks later. In 1992, when he continued to have back problems, he underwent another surgery and three more tumors were removed. After four months of recovery from this surgery, which included six weeks of five-day-per-week radiation treatment, he returned to work but suffered continued pain in his back. He was again admitted to the hospital to address fluid build-up around the surgical site. On his first day home, he began to feel nauseous and was taken by ambulance back to the hospital, where he underwent a spinal tap. He was diagnosed with a severe staph infection, and underwent another surgery to remove the infection. He was hospitalized for ten days. Upon his return home he spent the next two months self-administering antibiotics intravenously thrice daily to insure the infec
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