{ "id": 1156787, "name": "In re MARRIAGE OF JAMES PACE, Petitioner-Appellant, and MARLENE PACE, Respondent-Appellee", "name_abbreviation": "In re Marriage of Pace", "decision_date": "1996-04-08", "docket_number": "No. 1 \u2014 93 \u2014 3134", "first_page": "932", "last_page": "938", "citations": [ { "type": "official", "cite": "278 Ill. App. 3d 932" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "631 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "trial court can take into consideration the \"personal nature\" of the pain and suffering of the injured spouse in dividing proceeds of a personal injury award" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871936 ], "year": 1994, "pin_cites": [ { "parenthetical": "trial court can take into consideration the \"personal nature\" of the pain and suffering of the injured spouse in dividing proceeds of a personal injury award" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0336-01" ] }, { "cite": "634 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5373551 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "789" }, { "page": "791" }, { "page": "793" }, { "page": "793-94" }, { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0787-01" ] }, { "cite": "494 N.E.2d 868", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 177", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499945 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0177-01" ] }, { "cite": "434 A.2d 639", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1981, "opinion_index": 0 }, { "cite": "180 N.J. Super. 210", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 891624 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nj-super/180/0210-01" ] }, { "cite": "404 N.E.2d 306", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553834 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "266" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0265-01" ] }, { "cite": "494 N.E.2d 234", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "144 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3500334 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/ill-app-3d/144/0270-01" ] }, { "cite": "634 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "261 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5373551 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "794" }, { "page": "794" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/261/0787-01" ] }, { "cite": "404 N.E.2d 306", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "83 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553834 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/ill-app-3d/83/0265-01" ] } ], "analysis": { "cardinality": 655, "char_count": 14590, "ocr_confidence": 0.75, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.31043373571200483 }, "sha256": "22416766b0f5bda908aca9fa7e973f808c1b0286a2d5719d6377153105b68f66", "simhash": "1:0dab789e6d42eff6", "word_count": 2370 }, "last_updated": "2023-07-14T17:33:42.611238+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF JAMES PACE, Petitioner-Appellant, and MARLENE PACE, Respondent-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPetitioner, James Pace (James), appeals from a judgment of dissolution of his marriage to respondent, Marlene Pace (Marlene), entered by the circuit court of Cook County. On appeal, James contends that the trial court erred in determining that his personal injury settlement monies are marital property and awarding Marlene 25% of such monies. We affirm the judgment of the trial court.\nThe record reveals the following relevant facts. James and Marlene were married on June 12, 1971. Three children were born of the marriage; two are emancipated and one is a minor. James was employed as a laborer for Flying Tiger Airlines beginning in 1973. On December 2, 1982, James was involved in a catastrophic accident at work, wherein his leg was severed. James\u2019 leg was reattached; however, as a result of severe pain, his leg was eventually amputated in 1987. As a result of the accident, James underwent at least five operations, and he continues to suffer pain in his legs and shoulders. In addition, James suffers phantom pains in the amputated leg area, arthritis, and diabetes. James ceased employment in 1989.\nMarlene worked outside the marital home throughout the marriage earning minimum wages. Marlene is currently unemployed, and is in fair health. At the time of dissolution, she had completed l/2 years of college.\nThe parties separated in June 1989, when James moved out of the marital home.\nJames filed certain personal injury lawsuits as a result of his accident. The cases ultimately settled in November 1991, for approximately $2 million. Following deduction of attorney fees, James was awarded $6,100 per month, tax free for life, with 240 payments guaranteed, beginning December 1, 1991. Additionally, James was guaranteed the following disbursements:\n$50,000 payable November 1, 1996;\n$50,000 payable November 1, 2001;\n$75,000 payable November 1, 2006; and\n$126,512 payable November 1, 2011.\nThe trial court determined that James\u2019 personal injury settlement constituted marital property and awarded 25% of the settlement monies to Marlene. It is this portion of the judgment of dissolution that James timely appeals.\nOn appeal, James contends that the trial court erred in determining that his personal injury settlement monies are marital property and in awarding 25% of such monies to Marlene. James urges this court to adopt the \u201canalytical approach\u201d used in jurisdictions other than Illinois to conclude that his settlement award is nonmarital property intended to compensate him for pain and suffering.\nSection 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) creates a rebuttable presumption that all property acquired after marriage is marital property. 750 ILCS 5/503(b) (West 1992). Personal injury awards do not fall under any of the statutory exceptions defining nonmarital property under section 503(a) of the Act. See 750 ILCS 5/503(a) (West 1992).\nIn In re Marriage of Gan, 83 Ill. App. 3d 265, 404 N.E.2d 306 (1980), this court determined that property received by a spouse as the result of an action for personal injury is marital property. There, Vernon Gan was disabled in 1973 as a result of personal injuries received in an automobile accident. In 1976, Vernon received a settlement in the amount of $31,000 for his claim. Vernon applied $26,000 of his settlement to the balance of the mortgage to prevent foreclosure of the parties\u2019 farm and spent the remainder of the settlement on other marital debts and expenses. Gan, 83 Ill. App. 3d at 266.\nThe Gans\u2019 marriage was dissolved in 1978. At the time of dissolution, two of the parties\u2019 sons were minors, and three lived at home. Prior to the property settlement hearing, the parties sold the farm for $65,000, realizing approximately $38,000. The trial court found that the farm and the proceeds from the sale thereof were marital property and awarded Cleta Gan the proceeds. On appeal, Vernon asserted that the $26,000 paid by him out of the settlement of his personal injury claim to prevent foreclosure of the mortgage was nonmarital property because the award was designed to compensate him for pain and suffering; therefore, he argued, he was entitled to it as his separate property out of the proceeds of the sale of the farm.\nThis court distinguished Gan from the New Jersey case Amato v. Amato, 180 N.J. Super. 210, 434 A.2d 639 (1981), upon which Vernon relied. There, the reviewing court reversed an order which declared a cause of action of one spouse for medical malpractice to be a part of the marital estate in a dissolution proceeding. The reviewing court remanded the cause to the trial court to apportion the value of the cause of action between that which would be compensation for past loss of compensation and medical expense, forming the marital estate, and that which would compensate for pain and suffering and mental and physical disabilities, which would be the sole property of the injured spouse.\nThis court rejected the Amato approach, on the grounds that (1) it was contrary to the exceptions delineated in section 503(a) of the Act; and (2) it would not serve the strong public policy of enabling the family to be supported. Thus, in accordance with the statutory presumption, this court concluded that personal injury settlement proceeds must be deemed marital property. Gan, 83 Ill. App. 3d at 270.\nSubsequently, in In re Marriage of Burt, 144 Ill. App. 3d 177, 494 N.E.2d 868 (1986), this court determined that a personal injury settlement awarded to a party during the pendency of dissolution proceedings is marital property. There, Douglas Burt filed a petition for dissolution of his marriage to Marjorie in August 1983. In March 1984, while the petition was pending, Douglas was seriously injured in an automobile collision. On June 4, 1984, an order of dissolution reserving other matters was entered. After entry of the dissolution, but prior to the determination as to the division of assets, child support and maintenance, Douglas obtained a structured settlement of his personal injury claim in the amount of $230,000. A significant portion of the settlement was allocated for future pain and suffering and for future disability and loss of earnings. The trial court ruled that the proceeds of the settlement were marital property and ordered that the proceeds be used to pay various expenses, then awarded one-half interest in the value of the annuity as well as one-half of the cash balance of the settlement to Marjorie. Douglas appealed, again relying on Amato, arguing that to the extent the settlement included claims for future pain, suffering and loss of income, it was not marital property.\nOn appeal, the Burt court distinguished the case from Gan, in that in Gan, a settlement was already effectuated at the time of dissolution. However, the court determined that the difference was merely a technicality, because the purpose of the compensation is to reimburse the injured spouse for losses which affect the size of the marital estate, rather than to make the injured spouse whole as to aspects that are unique to him. The Burt court determined that Illinois law supported the rationale that neither the contingent nature of the cause of action nor its lack of assignability prevents it from being marital property:\n\"As stated in Gan, the public policy of providing for the support of the family of the injured spouse is better preserved by including the entire cause of action in the marital estate.\u201d Burt, 144 Ill. App. 3d at 182.\nJames urges this court to follow the recent case of In re Marriage of Waggoner, 261 Ill. App. 3d 787, 634 N.E.2d 1198 (1994), wherein our fifth district adopted the analytical approach regarding the apportionment of a permanent total disability award. There, Ann and Daryl Waggoner were married in June 1982. In January 1988, Daryl injured his back at work and filed a workers\u2019 compensation claim. At the time of the trial on the dissolution proceedings, Daryl\u2019s permanent total disability workers\u2019 compensation claim remained pending and undetermined. In its judgment of dissolution, the trial court ordered Daryl to pay Ann one-half of his final workers\u2019 compensation award or settlement. Waggoner, 261 Ill. App. 3d at 789.\nOn appeal, Daryl contended that the workers\u2019 compensation award was not marital property. Daryl argued that permanent disability benefits are designed to compensate the injured employee for his or her inability to earn income. Daryl argued that part of the permanent award did not accrue during the marriage of the parties. Waggoner, 261 Ill. App. 3d at 791.\nThis court described the use of the time of the accrual of the claim as the \"mechanical\u201d approach, as opposed to the analytical approach used by other jurisdictions, which shifts the focus to the purpose of the award. The court explained that the analytical approach classifies compensation for future loss of wages as nonmarital property, consistent with the general rule that future wages are not marital property. Waggoner, 261 Ill. App. 3d at 793, citing 1 H. Gitlin, Gitlin on Divorce 149 (1993).\nAcknowledging that Gan involved a personal injury settlement rather than a worker\u2019s compensation permanent disability award, the Waggoner court nevertheless distinguished Gan on the grounds that the latter case involved a situation where most of the personal injury settlement money was used to pay off a mortgage on a jointly held farm, and the rest used on other marital debts, prior to dissolution. In addition, in Gan, the record did not indicate that the personal injury award was attributable to compensation for Vernon Gan\u2019s pain and suffering, disfigurement, medical expenses, or loss of future earnings. Thus, there was nothing to support an apportionment that favored the injured spouse. Waggoner, 261 Ill. App. 3d at 793-94.\nThe Waggoner court adopted the analytical approach, reversed the trial court\u2019s order categorizing Daryl\u2019s pending permanent disability claim as marital property, and remanded the cause to the trial court to determine what portion of the award was marital property subject to distribution. Waggoner, 261 Ill. App. 3d at 794.\nThe present case is distinguishable from Waggoner, in that it involves the settlement of a personal injury action, not a statutory worker\u2019s compensation permanent disability award. Furthermore, the trial court here has awarded Marlene 25% of James\u2019 award, not 50%, as in Waggoner. Based on this distribution, we may believe that the trial court has taken into account James\u2019 pain and suffering and personal expenses, as well as Marlene\u2019s earning potential, and apportioned the award accordingly. See In re Marriage of Murphy, 259 Ill. App. 3d 336, 631 N.E.2d 893 (1994) (trial court can take into consideration the \"personal nature\u201d of the pain and suffering of the injured spouse in dividing proceeds of a personal injury award). We are not convinced that the circumstances of the present case require this court to abandon Burt and its progeny in favor of the approach used by the Waggoner court.\nWe therefore find that James\u2019 personal injury settlement is marital property under Illinois law and affirm the judgment of the trial court.\nAffirmed.\nBRADEN, J., concurs.\nJames initially obtained an itemized jury verdict in his favor, which was subsequently vacated upon entry of the settlement agreement.", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" }, { "text": "JUSTICE WOLFSON,\nspecially concurring:\nI agree with the result reached by the majority because I believe the trial judge actually used the analytical approach in determining whether the personal injury settlement was marital property. I write this specially concurring opinion because the majority leaves Cook County trial judges in doubt as to which approach to take. My own preference is the analytical approach of In re Marriage of Waggoner, 261 Ill. App. 3d 787, 634 N.E.2d 1198 (1994).\nWaggoner departs from previous Illinois decisions on whether personal injury and worker's compensation claims are marital propWaggoner departs from previous Illinois decisions on whether personal injury and worker's compensation claims are marital property. Until Waggoner, our courts took the mechanical approach, holding that the entirety of any claim acquired during the marriage was marital property.\nWaggoner adopted the analytical approach as \"the more enlightened, sensible view.\u201d (In re Waggoner, 261 Ill. App. 3d at 794.) It held that the trial court should have determined what portion of the permanent total disability award was marital property. Once that is determined, it is the task of the trial judge to \"distribute [the proceeds] in an equitable manner.\u201d In re Waggoner, 261 Ill. App. 3d at 794.\nFor example, said the court, the analytical approach usually means portions of an award which are for wage loss and medical payments incurred during the marriage are classified as marital property. Portions of an award which are for the purpose of replacing wages lost after dissolution are classified as nonmarital. It is not clear whether the court thought that pain and suffering felt by the injured spouse should be marital property. A text writer cited by the Waggoner court is of the opinion that pain and suffering are personal to the claimant and \"compensation for these elements should be regarded as nonmarital property.\u201d 1 H. Gitlin, Gitlin on Divorce 149 (1993).\nWaggoner limited an earlier fifth district case, In re Marriage of Gan, 83 Ill. App. 3d 265, 404 N.E.2d 306 (1980), to its facts. Gan used the mechanical approach in a personal injury case where most of the settlement money had been used to pay off a mortgage on a jointly held farm, and the rest had been used on other marital debts. In addition, there were no facts in the record to support an apportionment of the settlement proceeds.\nWe are left with a division of authority in this state. The fourth district holds that the entire settlement becomes marital when the claim accrues. In re Marriage of Burt, 144 Ill. App. 3d 270, 494 N.E.2d 234 (1986).\nOur supreme court has not considered this question, and no first district case resolves the issue. Trial judges in the first district are left without controlling authority. This case, then, represents a lost opportunity.", "type": "concurrence", "author": "JUSTICE WOLFSON," } ], "attorneys": [ "John F. Martoccio, of Hinsdale, for appellant.", "Jerome Marvin Kaplan and Lesly F. Datlow, both of Chicago, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF JAMES PACE, Petitioner-Appellant, and MARLENE PACE, Respondent-Appellee.\nFirst District (1st Division)\nNo. 1 \u2014 93 \u2014 3134\nOpinion filed April 8, 1996.\nWOLFSON, J., specially concurring.\nJohn F. Martoccio, of Hinsdale, for appellant.\nJerome Marvin Kaplan and Lesly F. Datlow, both of Chicago, for appellee." }, "file_name": "0932-01", "first_page_order": 950, "last_page_order": 956 }