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COVINGTON v. COVINGTON12/9/1991
t part of the appealed order which foreclosed the wife's right to bring this action for equitable division of the marital estate.
II.
The trial judge sustained the objection to the proffered testimony based upon his holding that the divorce decree limited the wife's right in equitable distribution of the marital estate. We have reversed this ruling. We, therefore,
Our Supreme Court has held that entitlement to
This court held in the case of Mears v. Mears, ___ S.C. ___, 406 S.E.2d 376 (Ct. App. 1991) that a chose in action or right of action for wrongful discharge is marital property despite the fact that the suit had not been instituted prior to the institution of marital litigation which establishes the time for evaluating marital property. Mears involved an action for wrongful discharge which is neither a workers' compensation claim nor a
We, accordingly, find that the trial judge erred in sustaining the objection to the proffered evidence. This ruling is reversed. The case, accordingly, is remanded for purposes of equitable division of the husband's recovery for personal injuries in his malpractice action.
III.
Since the case is reversed for consideration of the equitable division of the husband's recovery in the malpractice action, we also reverse the ruling that the wife is not entitled to attorney fees. Upon remand the trial judge shall take testimony relating to the amount of attorney fees which should be awarded the wife and order the payment thereof.
We find no merit to the remaining questions presented by the wife on this appeal.
CONCLUSION
For the reasons above stated, we affirm in part, reverse the holdings of the trial judge that (1) the wife was foreclosed in this petition to seek equitable distribution of the husband's right of action and (2) the trial judge's sustaining of the objection to the proffer of evidence about the husband's trial and recovery in his
Affirmed in part, reversed in part, and remanded.
GOOLSBY, J., and LITTLEJOHN, Acting Judge, concur.
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