# Johnson v. Johnson

> Supreme Court of North Carolina · August 12, 1986 · 317 N.C. 437

URL: https://www.frixlaw.com/law-library/cases/9577824

## Case

- **Full name:** Robert Lee Johnson v. Doris Wilkie Johnson
- **Court:** Supreme Court of North Carolina
- **Decided:** August 12, 1986
- **Citations:** 317 N.C. 437; 346 S.E.2d 430; 1986 N.C. LEXIS 2428
- **Precedential status:** Published
- **Opinion:** Concurrence by Martin
- **Judges:** Meyer, Martin
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Justice Martin
concurring.
I write to state that although the majority does not expressly hold to the contrary, I conclude that the mandate of the statute creates a presumption that a settlement award representing the value of a cause of action which arose during the marriage of the parties and before separation is marital property. N.C.G.S. § 50-20(b)(l)(2) (1985). Additionally, I would like to clarify a premise which the majority relies on but does not discuss. Plaintiffs accident occurred during the course of the marriage and before the parties separated. Because the cause of action was “acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties,” it is presumed marital property, N.C.G.S. § 50-20(b)(l), until, as the majority explains, the injured spouse proves by a preponderance of the evidence that all or part of it is separate property. See Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C.L. Rev. 247 (1983). This is in accord with judicial interpretations of similar statutes in other states. See, e.g., Searcy v. Searcy, 658 S.W. 2d 931 (Mo. App. 1983); Hemily v. *456 Hemily, 403 A. 2d 1139 (D.C. 1979); Painter v. Painter, 65 N.J. 196 , 320 A. 2d 484 (1974). See Sharp, The Partnership Ideal: The Development of Equitable Distribution in North Carolina (publication forthcoming in N.C.L. Rev.). Cf. N.C.G.S. § 50-20(b)(2) (1985). It is important to note analytically that it is the cause of action, and not its proceeds, which is the property at issue here. The parties stipulated: “[T]he plaintiff was injured in an automobile accident on February 28, 1981, and as a result, the plaintiff had a cause of action for personal injuries.” If the cash proceeds were the property sought to be divided, there would be no issue for this Court to decide: the proceeds in the present case were received by plaintiff after the date of separation of the parties and, considered alone, would therefore automatically be considered separate property under N.C.G.S. § 50-20(b)(l). Instead, as the majority tacitly acknowledges, the proceeds merely represent the value of the cause of action, which cause was acquired during marriage and before separation.
In addition to the foregoing, I disagree with a minor aspect of the majority’s opinion. The majority states that:
On remand, the injured spouse, plaintiff-husband, will have the burden of showing what amount or proportion of the whole represents compensation for loss of, or injury to, his “separate property,” to wit, compensation for his pain and suffering, disfigurement, loss of earning capacity subsequent to separation, lost wages subsequent to separation, hospital and medical expenses incurred subsequent to separation. He may satisfy that burden by a preponderance of the evidence.
While I agree that compensation for pain and suffering, loss of earning capacity subsequent to separation, lost wages subsequent to separation, and hospital and medical expenses incurred by the injured party subsequent to separation may be separate property, I do not agree that compensation for “disfigurement” occurring during marriage and prior to separation should always be considered separate property. Disfigurement distinctly may affect the earning capacity of a marital partner, as is recognized in our workers’ compensation statutes. See N.C.G.S. § 97-31(22) (1985) (bodily disfigurement). The earning capacity of married persons who are not separated is presumably marital property. Because disfigurement often is accompanied by pain and suffering acutely *457 personal to the injured party, one could argue that the value of an award compensating a person for disfigurement itself could be divided into components of marital property (the earning capacity aspect) and separate property (the pain and suffering purely personal to the injured party). However, I conclude that any elements of a settlement or award attributable to disfigurement (resulting from a cause of action arising during the marriage but before separation of the parties) should be considered solely representative of the value of loss of earning capacity of the injured spouse. The pain and suffering accompanying disfigurement is properly includable in that part of a settlement or award compensating one for “pain or suffering,” which, I agree, may be the separate property of an injured spouse.
Otherwise, I concur with the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577824. Public record. Not legal advice.