dissenting.
Although I agree with the majority opinion’s conclusion that the “analytical approach” applies to this case, I disagree with its decision to affirm summary judgment by employing law not recognized by the trial court to facts that the trial court did not consider. Under these circumstances, I believe that the trial court’s order must, at the very least, be reversed and vacated, and the case should be remanded to allow the trial court to consider the facts relevant to the appropriate legal analysis for the first time. Accordingly, I respectfully dissent.
The law regarding the “anaytical approach” to determine whether a disability award is marital or non-marital property is fairly defined. Compensation, including disability awards, paid to the injured spouse for lost wages, lost earning capacity, and medical and hospital expenses as compensation for economic loss during the marriage is marital property See Dees v. Dees, 259 Ga. 177, 178 (377 SE2d 845) (1989). Retirement benefits, including benefits that have not yet vested, are comparable to the element of compensation for lost wages, lost earning capacity, and medical and hospital expenses, which has been held to be marital property under the “analytical approach.” Any part of a disability payment that does not represent retirement proceeds “must be divided into two portions: that given as compensation for lost marital wages and the portion given as compensation for lost postmarital wages or personal pain and suffering. The former portion is marital property, but the latter portion is separate property.” 2 Brett R. Turner, Equitable Distribution of Property § 6:52 (3d ed.). Division and classification of portions is a difficult, fact-intensive analysis best left to finders of fact. As the majority correctly states, when the relevant insurance policy or settlement does not allocate the compensation among loss of earnings, personal injury, and retirement (like the policy in the present case), it is for the factfinder in the divorce case to make such an allocation, and allocation of undifferentiated compensation generally is a question of fact not susceptible to summary judgment.
Based on this law, the majority concludes that, “[bjecause [H]us-band received a lump[-]sum disability policy [payment] for a disability that extended through the remainder of marriage and beyond, at least part of the insurance proceeds compensated the [marital estate] for [H]usband’s reduced earning capacity during marriage.” Hatcher v. Hatcher, 933 P2d 1222, 1226 (Ariz. App. 1996). In shorthand, at *543least some part of the disability payment in this case was marital property An analysis of the trial court’s order indicates that it failed to apply this law at all to its ruling in the case. Instead, although the trial court claimed to be applying the analytical method, it based its decision on two determinations, finding: (1) “the 1.5 million dollars was paid to plaintiff solely to remedy his injury and sustain him for the remainder of his life[— a finding reinforced] by the fact that nothing in the policy indicates that it was tied to [Husband’s] lost wages or earning capacity”; and (2) the fact that the insurance proceeds were placed into a joint account did not make them marital property because “the [trial] court doubts” that Husband would have done so if he knew that Wife was going to leave him three years later. Again, in shorthand, the trial court determined that no part of the disability payment was marital property
So, the majority opinion tacitly disagrees with the trial court’s legal analysis. For this reason alone, the trial court’s order should, at the very least, be vacated and the case remanded for consideration in light of the appropriate legal analysis. Instead, the majority goes on to apply a legal analysis never employed by the trial court to facts the trial court never considered in its own ruling. Because the majority opinion finds that at least some component of the disability payment was marital property in the form of lost wages, it takes on the task of becoming the original factfinder to determine what amount those lost wages might be. This is a function that should be performed by the trial court. Because it omitted part of the requisite legal analysis, the trial court, itself, has yet to consider the valuation of the marital component of the disability payment.
Whereas the majority recognizes that, as an initial matter, some component of the disability payment was marital property in the form of lost wages, the trial court never recognized this presumption and concluded the opposite. The majority, nonetheless, continues its analysis by playing the role of initial factfinder and rebuts the presumption it raises by determining that all payments “serve as compensation for [Husband’s] post-marital lost wages and his pain and suffering” — non-marital property as a matter of law. (Maj. op. at 541.) The majority does so after recognizing the difficulty associated with allocation in this context but disregarding any allegations of fact. The majority, in short, takes its analysis one large step too far.
This case should be remanded in order to give the trial court its first opportunity to properly consider both the appropriate legal analysis and the facts that are relevant to that analysis.
I am authorized to state that Justice Hunstein joins in this dissent.
*544Decided June 19, 2017. Waldrop & Bootcheck, Michael S. Waldrop, for appellant. Coxen & Worthington, Stephen L. Coxen, for appellee.