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In re Marriage of Peterman11/30/1988
COURT OF APPEALS OF OREGON
CA No. A47286
1988.OR.40361 ; 94 Or. App. 190; 764 P.2d 962
November 30, 1988
IN THE MATTER OF THE MARRIAGE OF WILLIAM LANE PETERMAN, RESPONDENT, AND CATHERINE LEE PETERMAN, APPELLANT
Appeal from Circuit Court, Lane County. Pierre Van Rysselberghe, Judge. No. 15-87-04571.
James H. Anderson and Thompson and Anderson, Eugene, filed the brief for appellant.
Elmer B. Sahlstrom, Eugene, argued the cause for respondent. With him on the brief was Sahlstrom & Dugdale, Eugene.
Warden, Presiding Judge, and Graber and Riggs, Judges.
Warden
In this action for dissolution of marriage, wife appeals the trial court's division of property. The issues are whether wife's structured settlement from a personal injury action should be considered a marital asset and whether she overcame the disputable presumption of equal contribution to the acquisition of assets.
The parties were married for 10 years and had lived together for three years before the marriage. At the time of the dissolution, both husband and wife were 40 years of age. There are no children born of this marriage. Husband came into the marriage owning a duplex, and during the marriage the parties accumulated various other assets.
While working for her husband at a construction site, wife received serious injuries when she fell two stories and landed on her head on a concrete slab. She brought an action pursuant to ORS 656.154 against the owner of the property and others. Husband did not join wife's action, did not make a separate claim, and did not file a separate action against the third parties for loss of consortium. In 1985, wife's lawsuit was settled. The settlement provided for future fixed sum payments, in addition to payments already made, as compensation for wife's past and future pain and suffering, loss of earning capacity and future medical expenses. The initial payment was $165,000, made in March, 1985. After payment of
$15,000 to SAIF and $80,000 in attorney fees, wife netted $70,000. She purchased a house on Marcola Road with that money and made other family expenditures.
The court attempted to make an equal distribution of the marital assets. It included the settlement and the Marcola Road house in the assets, after finding that wife did not overcome the disputable presumption that husband contributed equally to the acquisition of the personal injury award. To equalize the disparity resulting from the awards of real and personal property, the court gave husband a $15,000 judgment lien against the future proceeds of wife's injury settlement. The judgment awarded no spousal support.
Oregon courts have not decided whether a pre-separation injury settlement awarded solely to one party of the marriage is a marital asset for purposes of distribution. In Langan and Langan, 89 Or App 320, 324, 748 P2d 1035 (1988), we held that, even if a pre-dissolution personal injury claim was not a marital asset, it was property subject to the court's property division determination. ORS 107.105(1)(f).
Nonetheless, here wife overcame the presumption that husband contributed equally to the acquisition of the award. Husband had no part in the action or the settlement and claimed no damages for loss of consortium. The future payments would compensate wife for pain and suffering c
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