McDonald v. McDonald

Opinion

This appeal poses the single (heretofore undecided) question whether a workers’ compensation permanent disability lump sum award of $92,500 to a husband, received by him while living separate from his wife against whom he had a proceeding for dissolution of the marriage pending, is the separate property of the husband. The trial court inferentially so found. The wife contends that the award is the community property of the spouses, but she concedes that, under Civil Code section 5126, subdivision (a)(2), the $56,250 the husband received about the same time in settlement of his personal injury action against the third party tortfeasor is properly the husband’s separate property.^[1]

While this court, as the lower appellate court in this state, would be bound by the aforementioned decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 , 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ]), we do not believe that we are so bound in this case in view of footnote 7 in the quite recent decision of that court in the case of In re Marriage of Jones, 13 Cal.3d 457 , 464 [ 119 Cal.Rptr. 108 , 531 P.2d 420 ], and in view of the rationale of that decision, which was expressly followed in the companion case of In re Marriage of Loehr, 13 Cal.3d 465 , 467 [ 119 Cal.Rptr. 113 , 531 P.2d 421 ].^[2]

Footnote 7 in Jones reads: “In arguing that section 5126 is limited to damages for tortious injury, petitioner relies on Northwestern R. Co. v. Industrial Acc. Com. (1920) 184 Cal. 484 , 486 [ 194 P. 31 ] and Estate of Simoni (1963) 220 Cal.App.2d 339 , 344 [ 33 Cal.Rptr. 845 ], which held that workmen’s compensation disability benefits were community property. Both cases, however, dealt with benefits received during the marriage. No decisions have determined whether an employee’s right to future workmen’s compensation benefits constitutes a community asset subject to division upon dissolution of the marriage.” (13 Cal.3d at p. 464.)

In Jones, our Supreme Court held that “upon dissolution of marriage, the right of the disabled spouse to future [military] disability payment

In the case of In re Marriage of Olhausen, 48 Cal.App.3d 190 [ 121 Cal.Rptr. 444 ], another local division of this statewide court held that, notwithstanding the fact that the injured policeman there contributed by payroll deductions during his marriage to his purely disability retirement benefits, such benefits, when received after dissolution of his marriage, were not community property. (Id. at pp. 191-192, 194.)

We recognize that these cases do not control our decision in this case. They all relate solely to disability retirement benefits and they all treat such benefits as separate property only upon dissolution of marriage. But a workers’ compensation permanent disability award is likewise based on disability. The source of the disability is different, but the award rests, among other things, on actual incapacity to perform the tasks usually encountered in one’s employment and on physical impairment of the body as well. (See Lab. Code, § 4660, subd. (a); Granado v. Workmen’s Comp. App. Bd., 69 Cal.2d 399 , 404 [ 71 Cal.Rptr. 678 , 445 P.2d 294 ]; Russell v. Banker’s Life Co., 46 Cal.App.3d 405 , 416 [ 120 Cal.Rptr. 627 ].) It does not, however, include pain and suffering as personal injury damages do (see Capelouto v. Kaiser Foundation Hospitals, 1 Cal.3d 889 , 892-893 [ 103 Cal.Rptr. 856 , 500 P.2d 880 ]), but otherwise it corresponds generally in its foundation to the basis for such damages.^[3] (See Roedder v. Lindsley, 28 Cal.2d 820 , 822 [ 172 P.2d 353 ].)