Lopiano v. Lopiano

NORCOTT, J.,

with whom MCDONALD, J., joins, dissenting. I disagree with the majority that portions of a personal injury award that represent both postdissolution lost wages and pain and suffering should constitute property under General Statutes § 46b-81. Accordingly, I would reverse the judgment of the trial court. As a secondary matter, I also am troubled by the way in which the majority characterizes the “property” that stems from the plaintiffs personal injury action.

Connecticut adheres to an equitable distribution scheme, as reflected in § 46b-81, which grants the court discretion in dividing between the parties all “property” belonging to either individual party. The majority correctly notes that while we have placed limits on what may be considered property under § 46b-81; see, e.g., Simmons v. Simmons, 244 Conn. 158, 165, 708 A.2d 949 (1998); this court previously has determined that the definition of property should be interpreted broadly. Krafick v. Krafick, 234 Conn. 783, 795, 663 A.2d 365 (1995).

Nevertheless, I believe that in the present case, the majority incorrectly has expanded the definition of property by including moneys that represent both post-dissolution future lost wages and pain and suffering. The unique factual circumstances of this case involve a plaintiff who suffered a 100 percent physical disability, and the money he received through the personal injury action for pain and suffering provided to compensate *390him for that disability. The pain and suffering is the plaintiffs alone — it is the person, not the marital estate, that has suffered a 100 percent disability. Likewise, the money received in the personal injury action for postdissolution lost wages also is designed to compensate the plaintiff for his projected inability to earn a living. Any award that is intended to compensate him for what he will not be able to earn after the dissolution of the marriage should not be included in the property divided through dissolution proceedings because that which the award represents — his future wages if he could earn them — would not be included in the present dissolution.

As a secondary matter, I also am concerned by the majority’s characterization of the “property” that stems from the plaintiffs personal injury action. In that action, the trial court reduced the jury award in the plaintiffs favor, and he appealed that reduction. At the time of the property distribution in the subsequent dissolution proceeding, the personal injury action remained unresolved on appeal. Therefore, because the final resolution in the personal injury action was unknown, the plaintiff did not possess an actual award, and the maj ority’s characterization of it as such is incorrect.

In examining the principle of finality of judgments, we previously have noted that “[a] final award is ‘[o]ne which conclusively determines the matter submitted and leaves nothing to be done except to execute and carry out the terns of [the] award.’ ” Marone v. Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998), quoting Black’s Law Dictionary (6th Ed. 1990). Accordingly, the potential recovery that stemmed from the personal injury action and could be divided between the plaintiff and the defendant in the dissolution action in the present case was not an actual award. Instead, the plaintiff possessed merely the right to the underlying personal injury cause of action.

*391The majority states that “[w]e recognize that this case does not raise, and therefore, we do not answer, the question of whether an inchoate personal injury claim (one that is not a present interest, but which may ripen) is property under § 46b-81.” (Emphasis in original.) I believe, however, that this case does raise the issue of whether an inchoate personal injury claim is property under § 46b-81, and that the majority answers that question in the affirmative. The majority notes that a majority of courts in equitable distribution states permit the allocation of inchoate personal injury claims in dissolution actions. I believe that by the majority’s decision today, this court has joined those courts, although the majority does not admit it is doing so.

Accordingly, I respectfully dissent.