dissenting. The majority court holds a spouse’s “unliquidated” personal injury claim is marital property, subject to distribution at the time of the parties’ divorce. Because I do not believe such a holding is consistent with Arkansas’s marital property law nor is supported by the prevailing view in other jurisdictions, I dissent.
While the parties in this appeal provide little research on the subject, my own limited research reveals only one other jurisdiction that has held a spouse’s chose in action for personal injuries constituted property subject to equitable distribution in a divorce proceeding. See Heilman v. Heilman, 95 Mich. App. 728, 291 N.W.2d 183 (1980). On the other hand, several jurisdictions have rejected the idea that an unliquidated claim — even if it could be characterized as property — is property that is susceptible of division at the time of divorce. See Queen v. Queen, 308 Md. 574, 521 A.2d 320 (1987) (court held due to the personal nature of the injuries giving rise to a permanent partial disability award, it could not conclude that the General Assembly intended a noninjured spouse to share in the compensation for the injured spouse’s loss of future earning capacity representing a time period beyond the dissolution of the marriage); McNevin v. McNevin, 447 N.E.2d 611 (Ind. App. 1983) (court held that even if spouse’s personal injury claim is classified as a property interest, it fails to qualify as marital property because it was not susceptible to division at the time of dissolution); Fries v. Fries, 288 N.W.2d 77 (N.D. 1980) (court held a pending personal injury claim is far too speculative to include in a property division of a marital estate).1
Aside from how other jurisdictions have treated the issue, I believe a close study of Arkansas’s marital property law, Ark. Code Ann. § 9-12-315 (1987), reveals the General Assembly never intended that a contingent or unliquidated claim should be marital property. In construing § 9-12-315 (formerly Ark. Stat. Ann. § 34-1214 (Supp. 1985)), this court has held all marital property shall be distributed at the time a divorce decree is entered. Forrest v. Forrest, 279 Ark. 115, 649 S.W.2d 173 (1983). Obviously, a spouse’s claim for personal damages is a mere expectancy, not susceptible of division. For example, in the instant case, the appellee has filed no suit, no settlement has been offered and, indeed, no liability against a third-party tortfeasor has been established. Under such circumstances, how does a judge evaluate the spouse’s claim under § 9-12-315(a)(1)(A), which requires the judge to consider certain factors when equitably distributing the parties’ other property interests?
Other questions arise as well. What if the injured spouse ultimately loses on his or her claim, and instead, the opposing third party, by counterclaim, obtains a judgment against the injured spouse? Is the noninjured spouse, then, required to assume part of the judgment against the injured spouse, since the inception of the liability, i.e., the accident and resulting injury to the third-party claimants, occurred during the parties’ marriage? Obviously, if unliquidated personal injury claims are now divisible as marital property, the trial court must retain jurisdiction to divide the proceeds, if any, that might be received by the injured spouse. That being true, what effect does such an award have on the other properties previously divided and distributed at the time the divorce decree was entered? Should the trial judge attempt to speculate as to the amount the injured spouse might expect to receive so as to insure the judge, using the required factors under § 9-12-315(a)(1)(A), is fair and equitable when dividing the parties’ property at the time of the divorce? Also, should the judge estimate the amount of the injured spouse’s potential award so the judge can more fairly decide if alimony should be awarded?
While the majority ignores the importance of answering such questions because they are not before the court, I believe to consider and to answer these questions serves to reveal why unliquidated or contingent claims of any nature should not be held marital property. In Lowrey v. Lowrey, 260 Ark. 128, 538 S.W.2d 36 (1976), the court, under prior statutory law, held that an unliquidated personal injury claim of a spouse was not property subject to division between divorcing parties. Later, the court in Goode v. Goode, 286 Ark. 463, 692 S.W.2d 757 (1985), overruled the Lowrey holding, and, in my view, the court clearly was wrong in doing so.
In conclusion, I note that the General Assembly, in enacting . Act 676 of 1987, has amended § 9-12-315(b) to except from the definition of marital property any benefits received or to be received from a workers’ compensation claim or a personal inquiry claim when those benefits are for any degree of permanent disability or future medical expenses. Act 676 is obviously the General Assembly’s response to this court’s decision in Goode. While Act 676 will lessen the impact and effect of today’s decision and the holding in Goode, the Act will not alleviate the problems and the litigation which will ensue as a result of the majority’s holding. By allowing contingent claims to be characterized as marital property, we have only created more work and litigation for attorneys and the judicial system. At the same time, we have extended indefinitely the divorce process, which in most instances means extending existing strife and rift between the divorcing parties.
Because I believe the trial court was correct in declaring the appellee’s personal injury claim was not marital property, I dissent from the majority opinion’s holding.
Hickman and Purtle, JJ., join in this dissent.None of the cases cited should be confused with those where a spouse’s personal injury claim was settled or otherwise liquidated, so an award actually was received during the parties’ marriage. Under these circumstances, the general rule clearly appears to be that such an award is marital property. See L. Golden, Equitable Division of Property, § 6.25 (1983); Gan v. Gan, 83 Ill. App. 3d 265, 404 N.E.2d 306 (1980); Maricle v. Maricle, 221 Neb. 552, 378 N.W.2d 855 (1985); Nixon v. Nixon, 525 S.W.2d 835 (Mo. Ct. App. 1985); and Orszula v. Orszula, 356 S.E.2d 114 (S.C. 1987). Cf., however, Amato v. Amato, 180 N.J. Super. 210, 434 A.2d 639 (1981), Brown v. Brown, 100 Wash. 2d 729, 675 P.2d 1207 (1984); and Johnson v. Johnson, 346 S.E.2d 430 (N.C. 1986), wherein these jurisdictions have held a spouse’s personal injury claim is not marital property, except certain components such as lost wages and medical expenses.