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Abood v. Abood9/2/2005
e Aboods consulted their neighbor, broker Margaret Price, but did not ultimately fund an account with her, choosing instead to invest through Merrill Lynch. Price testified that the Aboods wanted the money "to be invested and to grow in value for the future." Price also testified that Kimberly spoke to her about a separate account and that they decided to create a joint account as "a matter of convenience," and that "they thought that it would just be easier to do the investments together, rather than to do separate pots of money." Kenneth Jones, the couple's financial advisor at Merrill Lynch, similarly testified that the Aboods wanted to save their money "for the long term."
The nature of the personal injury settlement is also relevant. We have held that "the purpose for which the [tort] recovery is received controls its classification."
If the recovery is compensation for non-economic damages, the settlement is separate property of the claimant spouse. This principle recognizes the intensely personal nature of these sorts of injuries, and suggests that courts should be hesitant to find that a recipient intended to donate to the marriage the funds that she received in compensation for her injuries. Kimberly testified that the settlement was intended to compensate her for her physical injuries, which were described in detail in General Motors Corp. v. Farnsworth. Thus, the personal nature of the settlement funds supports the superior court's conclusion that Kimberly did not intend to donate her personal property to the marriage.
Kimberly testified that the funds were invested to provide for her future medical needs. This testimony reflects an intent to retain the funds as separate property. Patrick argues that setting aside money for Kimberly's future medical expenses was an investment for a marital purpose and indicates an intent to treat the funds as marital property. But this contention, absent evidence of an intent to benefit the marriage, is not so persuasive that the superior court was obliged to accept it. The potential for future medical expenses results from the discrete, premarital event for which Kimberly received the settlement money. Because Kimberly will incur future medical expenses attributable to the accident regardless of her marital status, the superior court could properly find a lack of intent by Kimberly to donate the settlement funds to the marriage. Kimberly's medical expenses not covered by insurance were paid out of marital funds and were not "reimbursed" with settlement funds. But the use of marital funds to pay a spouse's ongoing medical expenses does not compel a finding that the spouse intended to donate to the marriage the separate settlement proceeds the receiving spouse testifies were set aside to pay for future medical expense attributable to the premarital injury.
Patrick argues that the superior court erred in according weight to Kimberly's trial testimony that she intended to preserve the settlement funds as separate property and that she assumed Patrick knew of this intent. We have said that, in attempting "to give effect to the intention of the parties, looking to their testimony as to their subjective intentions or understandings will normally accomplish no more than a restatement of their conflicting positions." Thus, self-serving testimony is ordinarily not probative. But we have not foreclosed the consideration of trial testimony of prior intentions in all circumstances. Here, the circumstances and purposes of the settlement corroborate Kimberly's testimony. Furthermore, " t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."
It was not error f
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