Marriage of Salmond

Filed 8/17/07 Marriage of Salmond CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Sup. Ct., assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Law Offices of Loretta Hersh Selinger, Loretta Hersh Selinger and Eve Lopez for Appellant.

Haslam & Perri and Donald G. Haslam for Respondent.

1. Introduction

Quintin Salmond and Brenda Salmond were both injured in an airplane crash and jointly settled their claims with American Airlines for the total amount of $17,500,000.^[1] Shortly afterwards, they separated and Brenda initiated divorce proceedings.

Brenda appeals, claiming that, based on her interpretation of Family Code section 2603,^[2]the trial court erred by not assigning to her one-half of the American Airlines settlement. We conclude the trial court did not abuse its discretion in assigning to each party the amount they previously agreed should be allocated to each of them as part of the settlement. (In re Marriage of Devlin (1982) 138 Cal.App.3d 804, 807-808 (Devlin).) We also reject Brendas other assignments of error and affirm the judgment.

We preface our discussion by acknowledging the parties brief marriage was invalid. For convenience of analysis, we refer to the parties as spouses and we use the term community property, meaning quasi-marital property. ( 2251.)

2. Factual and Procedural Background

The following sequence of events, as set forth in the trial courts detailed and comprehensive statement of decision, is not generally disputed by the parties.

Quintin married his third wife, Barbara Salmond, in 1996.

Quintin bigamously married Brenda, his fourth wife, in September 1998.^[3]

In December 1998, Quintin and Barbara filed a Joint Petition for Dissolution.

On June 1, 1999, Quintin and Brendas American Airlines flight crashed near Little Rock, Arkansas. Both of them suffered severe injuries. Quintins injuries were the most serious and characterized as life threatening. The treating physician identified 26 different diagnoses for Quintin and 11 for Brenda. About Quintin, the doctor said Quintins injuries were the most extensive of any trauma victim he had treated who had survived, including the most numerous fractures and the most life-threatening injuries in combination.

In June and July 2001, American Airlines settled the Salmonds claims for the total sum of $17,500,000. As part of the settlement, Quintin and Brenda agreed to allocate $9.5 million to Quintin and $3.5 million to Brenda after payment of attorneys fees and some other charges.

Also in July 2001, Quintin and Barbaras Joint Petition was revoked.

Quintin and Brenda separated on August 8, 2001, when Brenda filed a request for a temporary restraining order.

Quintin filed a petition for dissolution against Barbara on September 21, 2001.

Brenda filed a petition for dissolution against Quintin on September 26, 2001.

Quintin obtained a dissolution judgment against Barbara on January 9, 2002, and their marital status terminated on April 27, 2002.

The action between Quintin and Brenda was tried in March 2005. At the trial, both parties and their witnesses testified extensively about the past, present, and future state of their health.

3. Section 2603

There are two parts to section 2603. Subdivision (a) provides: Community estate personal injury damages as used in this section means all money or other property received or to be received by a person in satisfaction of a judgment for damages for the persons personal injuries or pursuant to an agreement for the settlement or compromise of a claim for the damages, if the cause of action for the damages arose during the marriage but is not separate property as described in Section 781, unless the money or other property has been commingled with other assets of the community estate. Section 2603, subdivision (b), specifies that [c]ommunity estate personal injury damages shall be assigned to the party who suffered the injuries unless the court, after taking into account the economic condition and needs of each party, the time that has elapsed since the recovery of the damages or the accrual of the cause of action, and all other facts of the case, determines that the interests of justice require another disposition. In such case, the community estate personal injury damages shall be assigned to the respective parties in such proportions as the court determines to be just, except that at least one-half of the damages shall be assigned to the party who suffered the injuries. Section 2603, subdivision (b), not only recognizes the special nature of community estate personal injury damages, but also vests discretion in the trial court in distributing these damages upon dissolution of the marriage. (Devlin, supra, 138 Cal.App.3d at pp. 807-808.)

As further explained in Devlin, [p]ersonal injury damages received or to be received from a cause of action arising during marriage are community property. [Citations.] Upon dissolution or separation, however, section [2603, subdivision (b)], provides that these proceeds, labeled community property personal injury damages, are to be assigned to the injured spouse unless the court, considering the facts of the case, determines the interests of justice required another disposition. In such case, the community property personal injury damages are assigned to the respective parties in such proportions as the court determines to be fair, except that at least one-half of such damages must be assigned to the spouse who suffered the injuries. [ 2603, subd. (c).] Community property personal injury damages are thus a species unique to the Family Law Act; they are held as community property during marriage, but upon dissolution such damages are subject to special assignment rules. [Citations.] (Devlin, supra, 138 Cal.App.3d at p. 807.)

Brenda contends the trial court should have treated the $17.5 million settlement as a gross recovery shared by the parties because they were injured in the same accident. Brenda misstates the record when she asserts American Airlines insisted that the parties allocate how much each was to receive from the $17,500,000.00. Brenda was the only person to testify that American Airlines wanted the parties to agree to an allocation. All the other witnesses testified that Brenda and Quintin independently agreed to make an allocation with the greater amount being allocated to Quintin because his injuries were more severe. Brenda repeatedly acknowledged that Quintin demanded a greater share of the settlement, at least $10 million, which upset her. They had also discussed a postmarital agreement in which they would each receive separate amounts and Quintin would receive more. The trial court adopted this version of events in its statement of decision. Nevertheless, regardless of the previous allocation, Brenda urges the trial court should have assigned at least half the entire settlement to her.

We disagree. As the trial court recognized, two individuals suffered separate injuries in the same accident, meaning there were actually two sets of damages, the damages sustained by Quintin and the damages sustained by Brenda. The damages were not the same for each person. Using the definition outlined in section 2603, all money received by Quintin or by Brenda pursuant to their individual agreements for the settlement of their individual claims for damages against American Airlines became community estate personal injury damages. The trial court properly assigned all of Quintins damages to Quintin and all of Brendas damages to Brenda.

None of Brendas arguments persuade us otherwise. Brenda does not offer any authority to justify her position that spouses separately injured in the same accident suffer indivisible damages. If the injuries had occurred in different accidents, the damages would not be amalgamated as Brenda proposes to do here. If the spouses have different injuries, then it is entirely proper for the trial court to analyze separately their individual damages under section 2603. As noted by both parties, all of the California cases interpreting section 2603, or its predecessor, Civil Code section 4800, subdivision (c), have involved assigning all or most of an individual personal injury recovery to a single injured spouse. (In re Marriage of Jackson (1989) 212 Cal.App.3d 479, 484; In re Marriage of Jacobson (1984) 161 Cal.App.3d 465, 473-474; In re Marriage of Morris (1983) 139 Cal.App.3d 823, 825-828; Devlin, supra, 138 Cal.App.3d at pp. 810-811; In re Marriage of Mason (1979) 93 Cal.App.3d 215, 223.) Brendas reliance on unpublished Virginia and Ohio cases carries no weight in this court.

Even if section 2603 commands that the trial court shall assign to Brenda as an injured party at least one-half her personal injury damages, under the circumstances of this case, she was assigned all of her own damages. Brenda has not convinced us that the trial court should have determined that the interests of justice favored assigning Brenda one-half of Quintins recovery or one-half of the total settlement. Although Brenda disagrees with the trial courts findings, there was no abuse of discretion in finding the economic condition and needs of each party ( 2603, subd. (b)) were adequately served by the allocation of the settlement. The trial court decided that Quintin was the most injured party at the time of the accident, at trial, and in the future. Substantial evidence in the record supports the trial courts conclusions that Brenda has healed but Quintin never will. His continuing injuries are more significant than hers and will continue to be so for the rest of his life. The other factors, which involve the passage of time and the accrual of the parties claims, are not relevant here.

4. The Underlying Personal Injury Claims and Experts

In related arguments, Brenda maintains it was prejudicial error for the court to deny her motion in limine to prohibit evidence about the parties underlying personal injury claims except for the settlement amount. Similarly, she contends the court erred by denying her motion to quash Quintins expert witness list. She particularly objected to Quintins designation of expert witnesses that Brenda and Quintin had previously retained jointly in the personal injury action.

Concerning these points, Brenda contends that, by operation of section 2552, the section 2603 analysis was confined to the parties circumstances at time of trial. Section 2552, subdivision (a), provides: For the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties, except as provided in subdivision (b), the court shall value the assets and liabilities as near as practicable to the time of trial. Brenda raised this issue below.

Ultimately, however, the trial court recognized that Brendas personal injuries from the crash, their effect upon the settlement negotiations, and her condition at trial and in the future were all issues in the case. As Quintin observes, Brendas challenge to the settlement allocation was based on her theory that she was in a weakened physical, emotional, and mental condition, permitting Quintin to exploit her vulnerability. It exceeds disingenuousness for Brenda to propose that the court could consider only her circumstances at trial and in the future without the historical context of the crash and her rehabilitation and recovery. Quintins injuries, rehabilitation, and recovery were equally pertinent.

Finally, the court properly allowed the testimony of Quintins four experts, previously designated by both Brenda and Quintin.^[4] As she herself concedes, any privilege Brenda could have claimed was waived when she designated them in the personal injury case: [T]he privilege is lost upon designation of the expert as a witness because the decision to use the expert as a witness manifests the clients consent to disclosure of the information. (Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079, citing National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 484-485, relying upon Sanders v. Superior Court (1973) 34 Cal.App.3d 270.) If the experts had testified in the personal injury trial, their testimony would have become part of the public record. For that reason, we do not agree that allowing Quintin to use experts, who were previously retained jointly by Brenda and Quintin, was fundamentally unfair. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 289, citing Conforti & Eisele v. Division of Bldg., etc. (1979) 170 N.J.Super. 64, 405 A.2d 487, 491.) Again Brenda offers no authority to support her contention that her waiver was case-specific, affecting only her federal personal injury action and not the instant dissolution case.

5. Transmutation

Brendas discussion of transmutation is essentially the same as she advanced below in her trial brief. During trial, however, there was only one truncated mention of transmutation as it concerned the draft of the postmarital agreement. In any event, Brenda misses the critical point that the rules regarding the transmutation of separate property to community property do not apply to community property personal injury damages. (Devlin, supra, 138 Cal.App.3d at p. 809.) Section 2603 operates independently of section 852, the statute relating to transmutation, allowing the court to assign the community estate personal injury damages as directed by section 2603. Section 2603 has nothing to do with one spouse changing the community or separate character of marital property.

6. Putative Spouse

Brenda argues finally that Quinton is not a putative spouse and, therefore, may not be entitled to any part of the settlement as quasi-marital property. But Brenda also concedes in her appellants brief the California Supreme Court in Marvin v. Marvin (1976) 18 Cal.3d 660, 680, inferred . . . [section] 2551 should apply equally to both parties, even though one of them knew all along [] the marriage was invalid.

First, we think both parties err in their reference to section 2551, referring to characterization of liabilities for separate or community property, and that they probably mean to refer to section 2251, governing the division of quasi-marital property between putative spouses. We disagree with Brendas assertion that Quintin always knew his marriage to Brenda was invalid. There was evidence in the record to support that he was confused about his marital status with Barbara. Without having an objectively reasonable good faith belief that he was legally married to Brenda (Welch v. State of California (2000) 83 Cal.App.4th 1374, 1378), he may not have consciously deceived Brenda in bad faith.

With those qualifications, in mind, we conclude the court properly applied sections 2251 and 2603 in these circumstances, deciding that Brenda and Quintins individual settlements were community estate personal injury damages and properly assigned according to the agreed allocation between Brenda and Quintin. Additionally, as recognized by Marvin v. Marvin, supra, 18 Cal.3d at page 672, the agreement allocating the settlement proceeds was an enforceable contract between Brenda and Quintin.

7. Disposition

We affirm the judgment and order the parties to bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Miller

J.

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^[1] We use the parties first names for ease of reference.

^[2] All statutory references are to the Family Code unless otherwise stated.

^[3] Brenda did not learn about Quintins marriage to Barbara until September 2004.

^[4] Two experts, Rutledge and Fonseca were treating physicians for Brenda and Quintin and more in the nature of percipient witnesses.