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IN RE MARRIAGE OF POWELL12/22/1988
Michael L. Powell appeals from the division of property and the award of maintenance in a divorce action.
Brenda Powell and Michael Powell were married on December 12, 1965. At the time, Brenda was working as a bank teller. In 1976, the couple purchased a bowling alley and supported themselves from the income from the alley and other miscellaneous jobs. In 1981 and 1983, Michael suffered from
emotional problems which led to his hospitalization. While undergoing treatment in 1983, Michael suffered an accident which fractured three vertebrae in his neck. As a result of this accident, Michael became paralyzed from the armpits down. He did retain large motor control in one arm, but required 24-hour care. Using her inheritance funds, Brenda supported the family and also purchased two vans to transport Michael.
On November 21, 1983, Michael was declared incapacitated by reason of schizophrenia and/or quadriplegia and Brenda was appointed his guardian and conservator. She filed a personal injury action on Michael's behalf and a loss of consortium action for herself against the health care providers. The case was settled in July 1986. Brenda received $143,750 for loss of consortium and Michael received a lump sum payment of $98,418.05, after deductions for medical expenses and attorney fees of approximately $150,000. The conservatorship was to receive additional monthly payments of $17,250 per month for one year, and $1,776 per month, subject to three percent annual increases, for the remainder of Michael's life. Michael also received social security disability benefits of $623 per month. All money received by the couple was commingled and placed in joint accounts.
Brenda provided most of Michael's care until 1987, when she was forced to obtain outside assistance in his care because of a slipped disc in her back. She continued to maintain the bowling alley with the help of Michael's brothers.
On October 26, 1987, Brenda filed a petition for divorce in Trego County and had Michael served in Graham County, the county of their residence. On November 12, 1987, Brenda filed a motion to be relieved as guardian and conservator and Michael joined in this motion, requesting that his sister be appointed in Brenda's place. On January 6, 1988, Brenda was relieved of her guardian and conservator duties. On January 12, 1988, a hearing was held on the divorce petition. On January 27, 1988, Michael filed a petition seeking restoration of his capacity and was ordered restored on that date. Michael was represented by his own attorney at the divorce hearing and in his motion to restore capacity.
The divorce decree was filed on February 1, 1988. The cash funds, minus $37,000, were equally divided between the parties.
The annuity was assigned to Michael. After deducting medical costs, a lump sum settlement of $172,500 due on July 23, 1988, was ordered divided equally between the parties. Brenda was awarded maintenance of $800 per month for five years.
Michael claims the trial court erred in holding the personal injury settlement was marital property and that the court abused its discretion in awarding Brenda half of the personal injury settlement and maintenance of $800 per month. In his reply brief, Michael contends the trial court lacked jurisdiction over him because the petition was filed in an improper county and because he was incapacitated at the time of the filing and hearing.
Brenda has filed a motion with this court seeking dismissal of the appeal, contending Michael acquiesced in the judgment dividing marital property by accepting his allocated assets without reservation. The gist of acquiescence sufficie
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