dissenting.
Respectfully, I dissent from so much of the majority opinion as holds that the personal injury award to Debra Weakley for pain and suffering from an injury sustained during marriage is not marital property.
The majority opinion has classified this award as nonmarital “[a]s a matter of fairness.” However, we have previously decided that the statute, KRS 403.190(2), controls what property shall be classified as marital or nonmarital, and that the fairness doctrine is not germane to the determination. Stallings v. Stallings, Ky., 606 S.W.2d 163 (1980). If we abandon this approach to classifying property as marital or nonmarital for purposes of divorce, the alternative is chaos, because, more often than not, the concept of “fairness” in divorce cases is almost totally subjective.
A cause of action for damages for personal injury is nothing more than a chose in action. See definition of “chose in action,” Black’s Law Dictionary, 5th ed. It is a valuable right which may be reduced to money damages, and as such it is a form of property acquired as of the date of the injury. “Choses in action are personal property.” Button v. Drake, 302 Ky. 517, 195 S.W.2d 66, 69 (1946).
The cause of action for pain and suffering from personal injury is property of a different nature only in that its ultimate value depends on how long and how serious the pain and suffering caused by the injury shall extend, and in this respect it is divisible between pain and suffering that shall accrue during the marriage and pain and suffering that shall accrue after the marriage is terminated. This should be the line of division in deciding which portion of the chose in action is marital and which is nonmarital, just as it should be in the case of a claim for future disability in workers’ compensation, or a claim for permanent impairment of earning power in a tort action.
KRS 403.190(2) provides the sole authority for deciding what is, or is not, marital property. It defines marital property as “all property acquired by either spouse subsequent to the marriage,” with certain specified exceptions. The majority opinion has conceded that “[mjoney received as damages for a personal injury is not one of the enumerated exceptions.” Consequently, we should have no choice but to treat this chose of action as marital property to the extent that it is a claim related to the period of coverture, as with all other property.
In this case the trial judge treated the chose in action, the claim for pain and suffering, as marital property. There was no proof offered that any portion of the award related to future pain and suffering extended beyond the period of coverture. Absent such proof, the trial judge’s decision should be affirmed.