Weisfeld v. Weisfeld

513 So. 2d 1278, 56 U.S.L.W. 2203
CourtDistrict Court of Appeal of Florida
DecidedSeptember 8, 1987
Docket86-2038
StatusPublished
Cited by16 cases

This text of 513 So. 2d 1278 (Weisfeld v. Weisfeld) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weisfeld v. Weisfeld, 513 So. 2d 1278, 56 U.S.L.W. 2203 (Fla. Ct. App. 1987).

Opinion

513 So.2d 1278 (1987)

Pauline S. WEISFELD, Appellant,
v.
David J. WEISFELD, Appellee.

No. 86-2038.

District Court of Appeal of Florida, Third District.

September 8, 1987.
Rehearing Denied November 9, 1987.

*1279 Baldwin & Friedman and Kenneth Friedman, North Miami Beach, for appellant.

Maurice Jay Kutner, Miami, for appellee.

Before HENDRY, NESBITT and BASKIN, JJ.

NESBITT, Judge.

Mrs. Weisfeld appeals the trial court's final judgment of marriage dissolution awarding Mr. Weisfeld exclusive possession of the parties' marital residence and funds derived from a workers' compensation award. Mr. Weisfeld cross-appeals the restrictions placed upon his exclusive possession. We reverse.

Mr. and Mrs. Weisfeld were married in 1956. Mr. Weisfeld, who practices as a psychologist, was injured in an accident in 1979. His condition deteriorated, and surgery in May 1980 left him paralyzed and confined to a wheelchair. The parties modified their marital residence to accommodate Mr. Weisfeld's condition and to permit him to conduct his practice from the home. In 1981, Mr. Weisfeld received a workers' compensation award of $150,000 for his injury. In 1983, Mrs. Weisfeld filed a petition for dissolution of the marriage. The trial court dissolved the marriage. At the time of the final judgment, Mr. Weisfeld was earning $990 per month in disability payments, $1,300 per month from his private practice and $9,300 per year from investments. Mrs. Weisfeld was earning $1,200 per month as a nursery school teacher, and was working towards a master's degree.

In its final judgment, the court awarded Mr. Weisfeld exclusive possession of the marital home to terminate upon his death, remarriage, or cohabitation with a female. *1280 The court also awarded to Mr. Weisfeld funds derived from the workers' compensation award made to him as compensation for his accident. The trial court awarded Mrs. Weisfeld rehabilitative alimony of $100 per week for two years and awarded her $5,000 in attorney's fees.

I. Workers' Compensation Award

Mrs. Weisfeld contends that the trial court erred in holding that the funds derived from Mr. Weisfeld's workers' compensation awards are not marital property subject to equitable distribution. We agree.

Although this appears to be a case of first impression in Florida, many other states have considered this issue and decided that workers' compensation awards, like personal injury awards, may properly be characterized as marital property.[1]Goode v. Goode, 286 Ark. 463, 692 S.W.2d 757 (1985); Lukas v. Lukas, 83 Ill. App.3d 606, 404 N.E.2d 545 (1980); Johnson v. Johnson, 638 S.W.2d 703 (Ky. 1982); Queen v. Queen, 308 Md. 574, 521 A.2d 320 (1987); Smith v. Smith, 113 Mich. App. 148, 317 N.W.2d 324 (1982); Hafner v. Hafner, 406 N.W.2d 590 (Minn. Ct. App. 1987); In re Marriage of Blankenship, 682 P.2d 1354 (Mont. 1984); Hughes v. Hughes, 132 N.J. Super. 559, 334 A.2d 379 (1975); Orszula v. Orszula, 356 S.E.2d 114 (S.C. 1987); Patt v. Patt, 689 S.W.2d 505 (Tex. Ct. App. 1985); B. Goldberg, Valuation of Divorce Assets § 12.10 (1984 & Supp. 1987); L. Golden, Equitable Distribution of Property §§ 6.24-27 (1983); see Elser & Anton, Distribution of Personal Injury Awards upon Divorce, 56 Fla.B.J. 552 (1982); see also Campbell v. Campbell, 255 Ga. 461, 339 S.E.2d 591 (1986) (personal injury award); In re Marriage of Burt, 144 Ill. App.3d 177, 98 Ill. Dec. 746, 494 N.E.2d 868 (1986) (same); Van De Loo v. Van De Loo, 346 N.W.2d 173 (Minn. Ct. App. 1984) (same); Trapani v. Trapani, 684 S.W.2d 500 (Mo. Ct. App. 1984) (same); Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986) (same); Landwehr v. Landwehr, 200 N.J. Super. 56, 490 A.2d 342 (1985) (same); Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982) (same); Bero v. Bero, 134 Vt. 533, 367 A.2d 165 (1976) (same); Brown v. Brown, 100 Wash.2d 729, 675 P.2d 1207 (1984) (same); cf. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986) (vested and matured pensions and retirement benefits, which essentially represent the fruits of deferred income during marriage, are marital property). See generally Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workers' Compensation, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 U.C.L.A.L.Rev. 1250 (1986). But see Ettinger v. Ettinger, 107 Misc.2d 675, 435 N.Y.S.2d 916 (N.Y. Sup. Ct. 1981); N.Y.Dom.Rel.Law § 236(B)(1)(d)(2) (McKinney Supp. 1986); cf. De Mello v. De Mello, 3 Haw. App. 165, 646 P.2d 409 (1982) (husband's claim for workers' compensation for injury prior to marriage dissolution not marital property where unpaid until after dissolution); Cal.Civ.Code § 4800(b)(4) (upon dissolution, personal injury awards are the separate property of the injured spouse unless, in the interests of justice, a different dispensation is required). In considering the issue of whether an injured spouse's personal injury or workers' compensation award may properly be characterized as marital property states have followed two different approaches aptly characterized as either the mechanistic or the analytical approach. 2 Valuation and Distribution of Marital Property § 23.07[1][a] *1281 (J. McCahey ed. 1985); see Johnson, 346 S.E.2d at 435.

Under the mechanistic approach, all property, including workers' compensation or personal injury awards, acquired during marriage is deemed to be marital property unless it is specifically excepted by statute. E.g., Goode, 692 S.W.2d at 757; In re Marriage of Burt, 494 N.E.2d at 868; Lukas, 404 N.E.2d at 545; Johnson, 638 S.W.2d at 703; Quiggins v. Quiggins, 637 S.W.2d 666, 668-69 (Ky. 1982); Platek, 454 A.2d at 1059; Orszula, 356 S.E.2d at 114; see Queen, 521 A.2d at 324. Since few states have statutes specifically excluding personal injury awards, but see, e.g., Tex.Fam. Code Ann. § 5.01(a)(3) (Vernon 1975), in states adhering to the so-called mechanistic approach, workers' compensation or personal injury awards are generally characterized in their entirety as marital property.

Under the analytical approach, whether the award is marital property does not depend on a formalistic view which looks only to the timing of the acquisition of the award.

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Bluebook (online)
513 So. 2d 1278, 56 U.S.L.W. 2203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weisfeld-v-weisfeld-fladistctapp-1987.