Adopting the Court's approach, the trial judge will simply take the tortfeasor-spouse's conduct into account in dividing the community estate. The fraudulently transferred, converted, or wasted community property is rightly returned to the community through a resulting trust, a money judgment against the tortfeasor-spouse, or, as here, a judgment against a third party. These reimbursed funds are community property, in which the tortfeasor-spouse retains a property interest. While the trial court may consider the tortfeasor-spouse's actions in making a just and right property division, his or her separate property will not be affected. I believe that the wronged spouse should be able to reach the defrauding spouse's separate property to recover punitive damages, in addition to a share of the community, for actual fraud on the community.
Punitive damages punish wrongdoers and serve as an example to others.
Our duty in civil cases, then, . . . is to ensure that defendants who deserve to be punished in fact receive an appropriate level of punishment . . . . In a related context, a partner in a partnership may recover punitive damages from other partners for breach of their fiduciary duty, a duty analogous to that owed between spouses. I see no reason to reach a different result in the divorce context. This Court is able to fashion remedies to right wrongs. Presented with this opportunity, the Court today fails to do so.