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Spann v. Spann11/10/1992
Rehearing Denied February 2, 1993.
Certiorari Dismissed April, 20, 1993.
ROY MACK SPANN, APPELLEE/COUNTER-APPELLANT,
v.
BEATRICE SPANN, APPELLANT/COUNTER-APPELLEE.
Appeal from the District Court of Muskogee County; James E. Edmondson, Judge.
D.D. Hayes, Juliet N. Brennan, Muskogee, for appellee/counter-appellant.
Jerry Dick, Oklahoma City, for appellant/counter-appellee.
AFFIRMED.
MEMORANDUM OPINION
The opinion of the court was delivered by: JONES, Judge.
The central issue in this appeal is whether a personal injury award is the separate property of the injured spouse. The parties were in their sixties when they divorced in 1989 after a twenty-four year marriage. In 1974, Appellee was injured in an accident and recovered $700,000.00 from a lawsuit which was placed into a revocable trust account. Neither party worked thereafter, but paid their living expenses from interest drawn from the personal injury award and from workers' compensation. At the time of the divorce , the revocable trust account contained $575,000.00 and Appellant was named the trust beneficiary.
The District Court entered its judgment on February 26, 1991, ordering Appellee to pay Appellant support alimony of $1,200.00 per month until August, 1991, when the payments would be reduced to $1,000.00 per month for life. Appellant was also ordered to maintain sufficient funds to cover the alimony and to retain Appellant as the revocable trust beneficiary. Mr. Spann was ordered to continue medical coverage on Mrs. Spann, an amount which equated to approximately one half of the steel workers' pension. The Court determined Appellee's social security pension, his workers' compensation award, and proceeds from his personal injury lawsuit held in trust, were his separate property.
Appellant filed a Motion for New Trial, alleging the trial court erred in failing to include the $575,000.00 as part of the marital estate; failing to award the Defendant an equitable division of property; failing to award a proper amount of support alimony; and, several other issues which are not applicable to this appeal. On April 4, 1991, the District Court denied the Motion for New Trial. Appellant was awarded attorney fees in the amount of $11,095.00.
In this Opinion we discuss only those issues raised as error by the parties to this appeal.
In her appeal brief, Appellant claims the District Court erred in failing to include Appellee's pension proceeds, the workers' compensation award, and the $575,000.00 cash fund as part of the marital estate. Appellant also appeals the support alimony award as being inadequate. The question of whether pension proceeds should be classified as separate property was not raised in the Motion for New Trial and is now considered waived. See Federal Corporation v. Independent School District, 606 P.2d 1141 (Okl.App. 1978).
The question of whether a personal injury award is separate property in a dissolution proceeding has not been specifically addressed in Oklahoma. The most useful analysis appears in workers' compensation cases. The Court in Crocker v. Crocker, 824 P.2d 1117 (Okl. 1991), discussed several different approaches which courts in other jurisdictions have used to determine whether personal injury awards in general are divisible marital property. The one most applicable to this case is the "unitary approach" which defines a personal injury award as separate property because it is uniquely personal to the
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