Tonya Renee Nickerson v. Herod Nickerson, Jr.--Appeal from County Court at Law of Anderson County

Opinion filed September 11, 2008

In The

Eleventh Court of Appeals

__________

 No. 11-06-00279-CV

________

TONYA RENEE NICKERSON, Appellant

V.

HEROD NICKERSON, JR., Appellee

On Appeal from the County Court at Law

Anderson County, Texas

Trial Court Cause No. CCL-04-10297

M E M O R A N D U M O P I N I O N

In this divorce case, Tonya Renee Nickerson complains, in one issue, about the trial court=s order in which it found that all money Herod Nickerson, Jr. received as part of a settlement for personal injuries was his separate property. We affirm.

Herod and Tonya were married in September 2001. Herod was injured on February 8, 2003, while working for the Burlington Northern and Sante Fe Railway Company. Herod received a settlement of $390,633.20 from the railroad. The settlement was structured for Herod to receive monthly payments of $2,000 per month for twenty years as well as larger periodic payments. The settlement agreement states that the Burlington Northern and Santa Fe Railway Company Aagrees to pay the Railroad Retirement Board the amount of [$10,407.80] in full and final satisfaction of the lien asserted by the Railroad Retirement Board against the amounts paid to [Herod] in this settlement.@ The settlement agreement further states that Athe entire amount of this payment is apportioned to factors other than for time lost . . . this is a final payment and complete release, and includes any claim [Herod] may have for time lost.@

Herod testified that the settlement from the railroad was all attributed to his injury and that the money he received pursuant to the settlement was not for lost wages. Herod testified that he receives disability payments in the amount of $1,287 per month as compensation for his future lost earnings. The trial court found that the portion of the settlement paid for lost wages was reimbursement to the railroad retirement. The trial court ordered that Aany and all monies [Herod] received or is entitled to receive for any claim resulting in the lawsuit . . . are his sole and separate property.@

A spouse=s separate property consists of Athe recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.@ Tex. Fam. Code Ann. ' 3.001(3) (Vernon 2006). When a spouse receives a settlement from a lawsuit during marriage, some of which could be separate property and some of which could be community property, it is that spouse=s burden to demonstrate which portion of the settlement is his separate property. Cottone v. Cottone, 122 S.W.3d 211, 213 (Tex. App.CHouston [1st Dist.] 2003, no pet.).

Herod testified that the settlement proceeds were all attributed to his injury and were not for lost wages. The settlement agreement with the railroad was admitted into evidence; it detailed the structure of the settlement payments. The settlement agreement stated that the settlement was Herod=s separate property and that the entire portion of the settlement was for factors other than loss of earnings. The trial court did not err in finding that the money Herod received from the railroad in settlement for his injury was his separate property. Tonya=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

September 11, 2008 CHIEF JUSTICE

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.