Douglas Allen Tignor v Patricia Lynn Smith Tignor

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Bray and Bumgardner
DOUGLAS ALLEN TIGNOR
MEMORANDUM OPINION* BY
v. 	Record No. 2861-99-3 	JUDGE RICHARD S. BRAY
JULY 18, 2000
PATRICIA LYNN SMITH TIGNOR
FROM THE CIRCUIT COURT OF SCOTT COUNTY
Ford C. Quillen, Judge
(John H. Qualls, on brief), for appellant.
Appellant submitting on brief.
No brief or argument for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Douglas Allen Tignor (husband) and Patricia Lynn Smith Tignor
(wife) were divorced by decree of the trial court entered November
4, 1999, as amended December 2, 1999, which included an award to
wife of "30.3% of the marital share of [husband's lump sum]
workers' compensation recovery," pursuant to the provisions of
Code § 20-107.3(H). 	On appeal, husband contends that the court
erroneously classified such "lump sum . . . settlement" as marital
property. 	We agree and reverse the disputed award.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.

The relevant facts, before this Court on an "Amended
Statement of Facts," together with related documentary evidence,
are substantially uncontroverted.
The parties married on June 21, 1991. 	Thereafter, on August
30, 1996, husband suffered an industrial injury while employed
with Vanderpool Electric Company in Tennessee, resulting in an
award of compensation and other benefits pursuant to the Tennessee
"Workers' Compensation Law." 	By "Final Decree" entered May 17,
1999, amended June 8, 1999, the "Chancery Court for Washington
County at Johnson City, Tennessee," approved a "lump sum
settlement" of husband's compensation claim, finding
that at the time of said accident, [husband]
was earning an average weekly wage of
approximately $381.72, which would entitle
[husband] to a compensation rate of $254.48
per week under the Workers' Compensation Law
of Tennessee; that [husband] was away from
his employment as a result of said injury
for a period of 71.6 weeks for which
[husband] has received benefits for
temporary total disability in the amount of
$18,228.43; that the medical evidence shows
that [husband] has sustained a 40% permanent
physical impairment to the right upper
extremity as a result of said accident and
injury; that the parties hereto have agreed
upon a lump sum settlement of all matters in
controversy by allowing [husband] permanent
partial disability benefits of 64.8% to the
right arm, the equivalent of a total of
129.676 weeks at a rate of $254.48 per week,
which would amount to $33,000.00, and . . .
that said settlement is in all respects in
accordance with . . . the Workers'
Compensation Law of Tennessee, [and] in the
best interest of [husband] . . . .
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The Tennessee decree further confirmed that husband "has
incurred doctor and hospital bills to the extent of $30,703.90"
that "have been or will be paid by the Compensation Carrier" and
ordered he "be solely responsible for any future medical
benefits incurred."
On December 12, 1997, following the industrial accident and
during the pendency of husband's related claim, the parties
separated, and, on September 17, 1998, wife lodged a bill of
complaint for divorce in the trial court. 	The parties did not
thereafter reconcile and were divorced by the decree now in issue,
which, in pertinent part, classified husband's entire lump sum
compensation award, $33,000, as marital property, awarding her
30.3%, $10,000. 	On appeal, husband pursues his argument raised
before the trial court, contending that the lump sum award did not
constitute marital property, as contemplated by Code
§ 20-107.3(H).
Code § 20-107.3(H) provides:
In addition to the monetary award made
pursuant to subsection D, and upon
consideration of the factors set forth in
subsection E, the court may direct payment
of a percentage of the marital share of any
. . . workers' compensation recovery of
either party, whether such recovery is
payable in a lump sum or over a period of
time. 	However, the court shall only direct
that payment be made as such recovery is
payable . . . . 	"Marital share" means that
part of the total . . . workers'
compensation recovery attributable to lost
wages or medical expenses to the extent not
covered by health insurance accruing during
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the marriage and before the last separation
of the parties, if at such time or
thereafter at least one of the parties
intended that the separation be permanent.
(Emphasis added.)
The instant record discloses that, prior to the settlement,
husband received $254.48 per week in temporary permanent
disability benefits, based upon an average weekly salary of
$381.72, for a period of 71.6 weeks. 	Additionally, he received
$30,703.90 in medical benefits. 	Such sums fully compensated
husband for any recovery attributable to lost wages or medical
expenses that accrued during the marriage and before the last
separation of the parties. 	Thus, no portion of the
post-separation lump sum settlement was subject to distribution
as a "marital share."
Accordingly, we reverse the award and remand the
proceedings to the trial court for further consideration
consistent with this opinion.
Reversed and remanded.
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