 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Beckley v. Beckley2/10/2005
he marital estate statute, the majority also creates risks of uncertainty as to various other types of property outside the marital estate. If the presumption applies here to the FELA award, will it also apply to a personal injury settlement intended to provide compensation for future losses and/or suffering; to an unvested interest in an employee pension plan; or to various other property interests received after final separation and before the final dissolution decree such as an inheritance, an investment that realizes substantial appreciation, or lottery winnings?
Today's creation of the artificial presumption as a tool of appellate review is unnecessary. Our review of a trial court's determination as to the extent of the marital estate is properly guided by Indiana Trial Rule 52(A), not by evaluating whether one spouse or another adequately overcame a presumption. The Rule states that "the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Id.
Among the trial court's extensive findings of fact regarding the husband's FELA settlement, the court noted that the husband was seeking a $750,000 settlement based upon lost future earnings and earning capacity, loss of hospitalization and medical benefits, pain and suffering, and disability. Finding of Fact in order of September 10, 2002. It further found that the $250,000 settlement ultimately reached included an agreement not to return to work/resignation, and a release of claims "for hearing loss (known or unknown), any and all occupational claims, claims under the ADA and all other claims." Id. at . The court did not, however, make any findings identifying which portion of the settlement represented losses incurred during the marriage and which was for future losses.
The trial court concluded that "due to the fact that the eventual $250,000.00 settlement that was reached includes more tha future lost wages, the settlement is in fact a marital asset," and thus subject to division. Conclusions of Law in order of September 10, 2002. This conclusion was based on the trial court's belief that "if a personal injury settlement includes pain and suffering and is not limited to future lost wages, the settlement is a marital asset. Smith v. Smith [676 N.E.2d 388 (Ind. Ct. App. 1997)]." Id.at . But this Court today expressly disapproves Smith and holds instead that any part of the settlement "representing future losses is not marital property subject to distribution" and that "only that portion of the award intended as compensation for past losses, that is, losses incurred during the marriage, is included in the marital estate." [Slip opin. at 5.] Because the trial court's conclusions are thus clearly erroneous as a matter of law, its judgment should be vacated and this cause remanded for a redistribution of marital property.
Instead of remanding for further consideration, however, the majority creates an evidentiary presumption and finds that the husband failed to sustain his burden of proof to rebut this new presumption-one that did not exist at the time the parties presented their evidence and the trial court evaluated it. At the least, the parties and the trial court should be given an opportunity to apply this new presumption to the facts of this case. I believe that remand is appropriate.
Page 1 2 3 4 5 Indiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|