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Ex parte Weisberg

Supreme Court of Alabama

January 10, 2020

Ex parte Scott Ross Weisberg
v.
Sari Tamers Weisberg In re: Scott Ross Weisberg

          Jefferson Circuit Court, DR-14-902038; Court of Civil Appeals, 2160689

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          PER CURIAM.

         WRIT QUASHED. NO OPINION.

          Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.

          SELLERS, Justice (dissenting).

         Scott Ross Weisberg ("the former husband") petitioned this Court for a writ of certiorari after the Court of Civil Appeals affirmed, without an opinion, a judgment entered by the Jefferson Circuit Court divorcing the former husband from Sari Tamers Weisberg ("the former wife"). Weisberg v. Weisberg (No. 2160689, Jan. 11, 2019), ___ So.3d ___ (Ala. Civ. App. 2019) (table). We granted the former husband's petition to consider the trial court's award to the former wife of one-half of disability-insurance benefits the former husband may collect in the future. The Court now quashes the writ. I respectfully dissent from the Court's decision to quash the writ.

         During the marriage, the former husband, a medical doctor, acquired disability-insurance policies, the premiums for which were paid with marital funds. In 2013, the former husband was participating in the Boston Marathon when two bombs were detonated near the finish line. As a result of the bombing, the former husband suffers from multiple medical conditions that have affected his ability to practice medicine.

         In December 2014, the former husband filed a complaint seeking a divorce from the former wife. The former husband testified during the divorce proceedings that he had submitted claims for disability benefits under his disability policies but that his insurers had not paid the claims. He also testified that he had sued the insurers in an effort to obtain disability benefits and that his action against the insurers was pending at the time of the divorce trial.

         The trial court entered a judgment divorcing the parties, ordering joint legal custody of the parties' minor children, ordering the former husband to pay child support, and dividing the parties' property. The judgment did not award alimony, but expressly reserved that issue for future consideration. After the parties filed postjudgment motions, the trial court entered an amended judgment containing the following provision regarding the former husband's disability claims:

"[The former husband] has pending claims which are presently being litigated by the [former husband]. The insurance policies were acquired and paid for during the course of the marriage and are an asset of the marriage. The [former husband] has policies with the following companies: Metropolitan Life Insurance Company ('MetLife'), Guardian Life Insurance Company of America and Berkshire Life Insurance Company of America. [The former wife] is hereby awarded one-half (1/2) and/or Fifty Percent (50%) of any and all proceeds (past, present or future) received by [the former husband] or that the [former husband] may be entitled [to] regarding any claims, lawsuits, settlement or damages that were filed or occurred during the marriage of the parties. Any and all litigation costs, attorney fees or similar expenses associated with any of [the former husband's] claims shall be deducted as follows: Sixty Percent (60%) from [the former husband's] share of any proceeds and Forty Percent (40%) from [the former wife's]."

         The former husband urges this Court to adopt the "analytic approach" in considering whether disability-insurance benefits are divisible marital property. He argues that, under the analytic approach, the trial court should not have awarded the former wife one-half of the benefits he may recover from his disability-insurance policies. In my view, the former husband sufficiently raised the issue of the divisibility of the disability-insurance benefits in the trial court and in the Court of Civil Appeals so as to preserve the issue for this Court's review.

         In Smith v. Smith, 959 So.2d 1146 (Ala. Civ. App. 2006), the Court of Civil Appeals discussed various approaches used to determine whether a portion of proceeds from a spouse's personal-injury claim can be awarded to the other spouse in a divorce judgment. The husband in Smith had agreed during the marriage to accept a payment in settlement of a personal-injury claim arising out of injuries he sustained in an automobile accident that had occurred during the marriage. According to the Court of Civil Appeals:

"Courts of other states have utilized three different approaches in determining whether to treat a payment in settlement of a spouse's personal-injury claim as marital property or as the separate property of the injured spouse. See Golden v. Golden, 681 So.2d [605, ] 609 [(Ala. Civ. App. 1996)] (Crawley, J., dissenting). One approach, sometimes referred to as the mechanistic approach, deems the settlement payment to be marital property if it is acquired during the marriage. See Bladow v. Bladow, 665 N.W.2d 724 (N.D. 2003); and In re Marriage of Simon, 856 P.2d 47 (Colo. Ct. App. 1993). Another approach, sometimes referred to as the unitary approach, deems the settlement payment to be the injured spouse's separate property regardless of when the settlement payment is acquired. See, e.g., Fleitz v. Fleitz, 200 A.D.2d 874, 606 N.Y.S.2d 825 (1994). The third approach is sometimes referred to as the analytic approach. See Bollaci v. Nieporte-Bollaci, 863 So.2d 440 (Fla. Dist. Ct. App. 2003); Tynes v. Tynes, 860 So.2d 325 (Miss. Ct. App. 2003); and Sullivan v. Sullivan, 159 S.W.3d 529 (Mo.Ct.App. 2005). Under the analytic approach, 'to the extent that its purpose is to compensate an individual for pain, suffering, disability, disfigurement, or other debilitation of the mind or body, a personal injury award constitutes the separate nonmarital property of an injured spouse.' Hardy v. Hardy, 186 W.Va. 496, 501, 413 S.E.2d 151, 156 (1991); and Staton v. Staton, 218 W.Va. 201, 206, 624 S.E.2d 548, 553 (2005). Likewise, the portion of a personal-injury settlement intended to compensate the injured spouse for loss of future wages is deemed to be that spouse's separate property under the analytic approach. Bandow v. Bandow, 794 P.2d 1346, 1348-49 (Alaska 1990). However, 'economic losses, such as past wages and medical expenses, which diminish the marital estate are distributable as marital property when recovered in a personal injury award or settlement' under the analytic approach. Hardy, 186 W.Va. at 501, 413 S.E.2d at 156."

959 So.2d at 1149. The Court of Civil Appeals in Smith adopted the analytic approach with respect to settlements of personal-injury claims. As the former husband points out, courts in other jurisdictions have analyzed disability-insurance benefits the same way they analyze personal-injury damages. See Hardin v. Hardin, 301 Ga. 532, 534, 801 S.E.2d 774, 776 (2017) (stating that "'[p]roceeds from private disability ... insurance policies are generally treated like personal injury and workers' compensation awards'" (quoting 2 Brett R. Turner, Equitable Distribution of Property § 6:90 (3d ed. November 2016))); Lachney v. Lachney, 529 So.2d 59, 66 (La. Ct. App. 1988) ("[J]urisprudence ...


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