Family Law

Day v. Day

PUBLISHED:   AFFIRMING

HARRIS, SENIOR JUDGE, PRESIDING; LAMBERT AND VANMETER CONCUR

COUNTY: KENTON

Ex-Husband appealed from TC?s decree of dissolution, arguing that TC erred by determining that his entire workers? compensation settlement was marital property.

FACTS:

Husband suffered a work-related back injury four months prior to parties? separation.  He filed application for worker?s compensation (WC) benefits after the separation, and the WC settlement agreement was approved after Wife had petitioned for dissolution of marriage. Husband received a gross settlement of $30,000.00 for his injury, which included compensation for future and past income benefits, waiver of future medical benefits, waiver of his right to reopen, and a waiver of his right to vocational rehabilitation.  TC entered a decree thereafter, finding the entirety of the WC settlement marital and awarding half of it to Wife.  In amended findings and conclusions of law, TC found that Husband dissipated $11,300.00 of his WC settlement, and he appealed.

ANALYSIS:

Case law has established that WC benefits in either the form of a lump sum settlement or ongoing benefits are marital property. Husband argued that the WC settlement was not divided in just proportions.  CA noted that TC divided the WC settlement equally, that TC found that H had dissipated funds from his WC settlement, and that TC recited that it considered the KRS 403.190 factors. CA also noted that TC specifically stated that the marriage was not of a short duration, that Husband had not demonstrated that he was totally disabled, that he had the ability to obtain appropriate job skills but chose not to do so, and that the parties contributed equally to the marriage.  CA provided that they may have weighed the evidence differently, but TC did not abuse its discretion in dividing the WC settlement equally. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.