Harmon v. HarmonHarmon v. Harmon
Plaintiff Evelyn Bartholomew Harmon appeals from that portion of the final judgment of divorce dealing with equitable distribution. On this appeal her contentions are:
B. The award of thirty-five percent of the personal injury recovery to the defendant-respondent was excessive and constitutes an abuse of discretion by the trial court.
A brief review of the undisputed facts is necessary to fully appreciate our determination of this cause. The parties were married on May 10, 1941 in Bloomfield. New Jersey. The issue of this marriage are emancipated. During most of the marriage the husband worked as a cash register repairman, and the wife, although working during the early years of the marriage as a secretary, was primarily a homemaker responsible for the care of the home and the two children of the marriage.
On July 28, 1972 the wife, while a passenger in a motor vehicle operated by her husband, was seriously injured as a result of a collision with another vehicle. Her injuries required hospitalization and an operation. The operation took place some time in June 1974.
Mrs. Harmon filed a negligence action against her husband and the driver of the other car shortly after her operation. There was no per quod count by the husband. The negligence action was settled for $66,000. The insurance carrier for each side contributed equally. Mrs. Harmon realized the net amount of approximately $42,000. Payment was received on or about December 12, 1974.
Mr. Harmon left his wife about July 8, 1974. The complaint for divorce was filed on August 7, 1975, some 13 months after the desertion. Judgment of divorce was entered on January 26, 1977; however, the trial judge held under advisement the question of equitable distribution. Each party was ordered to file a summary of assets and a memorandum of law. On April 19, 1977 the judge filed a letter opinion ordering distribution. A judgment consistent with that opinion was filed on May 11, 1977.
| To Defendant | |
| Checking account | $ 200.00 |
| Stocks jointly held | 3,651.21 |
| 1 cemetery plot | 300.00 |
| Automobile | 900.00 |
| Furniture in his possession | 200.00 |
| Cash from bank accounts | 14,464.53 |
| Total | $19,715.74 |
| To Plaintiff | |
| 1 cemetery plot | $ 300.00 |
| Furniture in her possession | 1,000.00 |
| Cash from bank accounts | 35,972.55 |
| Total | $37,272.55 |
In explaining his order of distribution, the judge stated:
The above allocation gives to each party their personal possessions plus one of the cemetery plots. In addition the Husband will have possession of the stocks formerly jointly held. The $14,464.53 figure given to Defendant represents 35% of the Plaintiff‘s accident recovery. Plaintiff retains 65% of the accident recovery plus the $9,109.84 formerly in account number XX-XXXXX. Since Plaintiff has already had the use of that $9,109.84, her net award will be $28,162.71.
The trial judge held that the settlement monies from plaintiff‘s motor vehicle accident was a marital asset subject to equitable distribution in accordance with
In DiTolvo v. DiTolvo, 131 N.J. Super. 72 (App. Div. 1974), we held that a cause of action for personal injuries resulting from an accident occurring during the marriage is marital property for distribution purposes. Our holding was cited with approval in Kruger v. Kruger, 73 N.J. 464 (1977). In holding disability benefits to be subject to marital distribution, the court said in Kruger:
* * * Furthermore, there does not appear to be any reason to justify a difference between receipt of these payments from a lump
sum award, including damages for permanent injury, arising out of a negligence action, Di Tolvo v. Di Tolvo, 131 N.J. Super. 72 (App. Div. 1974), which is properly classifiable as property subject to equitable distribution. The statute contemplates that the property which is acquired during the marriage shall be subject to equitable distribution, irrespective of the reason for the payment. * * * [at 472]
Plaintiff‘s argument that the judge erred in allowing “the tort-feasor spouse to reap the benefits of the injured spouse‘s ward” does not square with the facts. The record clearly indicates that the money in question was the result of a settlement without a judicial determination of fault. We need not pass upon the question of the husband‘s entitlement to equitable distribution upon an adjudication of his negligence. Plaintiff‘s reference to the South Carolina litigation is not properly before us. We have searched the record and find no reference to it. It will not be considered. Wallach v. Williams, 52 N.J. 504 (1968). Plaintiff next contends that assuming, arguendo, the personal injury settlement is subject to distribution, the apportionment which distributes 35% of the settlement to the husband is disproportionate and inequitable. In DiTolvo, supra, the uninjured wife received only 20% of the recovery in the negligence action. She received this percentage even though “she `did live through’ the results of her husband‘s accident.” 131 N.J. Super. at 83.
In contrast with DiTolvo, Harmon left his wife while she was recuperating from her operation. Her injury and operation were extremely serious, and apparently her disability is permanent. In addition, we do not know whether the trial judge considered the possibility or probability of a recurrence of physical difficulties which might entail additional medical expense or disability.
Although our eyebrows are figuratively raised over the seemingly generous percentage of the settlement distributed to the husband, we cannot evaluate it for two reasons. The trial judge failed to make findings of fact or indicate the basis of his conclusions. He simply stated:
Incorporating the criteria of Painter v. Painter, 65 N.J. 196 (1974), by reference does not assist an appellate tribunal in examining a claim of abuse of judicial discretion. Painter lists with approbation 13 criteria used by the trial court as well as four criteria of § 307 of the Uniform Marriage and Divorce Act. The court went on to say (at 212) that “These factors are obviously intended to be illustrative and not exhaustive.” Obviously all of the criteria in Painter are not relevant to the facts of this case. In addition, we lack knowledge of what pertinent facts the trial judge applied to the criteria. As we noted in Reiser v. Simon, 63 N.J. Super. 297 (App. Div. 1960):
* * * A trial judge must be explicit in his recital of the evidence and in his factual findings and must so correlate them to his legal conclusions that * * * the judgment entered manifestly appears to be undergirded by legal proof of substantial probative value and by specific factual findings thereon. * * * [at 300-301]
Secondly, we are unable to consider the propriety of the percentage of distribution because specific property which appears to be eligible for distribution was not included as marital assets. In Rothman v. Rothman, 65 N.J. 219, 232 (1974), it was held:
In receiving and considering evidence designed to equip him to make an equitable distribution of marital assets, a trial judge enters upon a three-step proceeding. Assuming that some allocation is to be made, he must first decide what specific property of each spouse is eligible for distribution. Secondly, he must determine its value for purposes of such distribution. Thirdly, he must decide how such allocation can most equitably be made.
The evidence in this case reveals that the husband receives employee benefits of $469 a month and Social Security benefits of $308 a month (he pays $140 a month
Accordingly, the matter is remanded in order that all marital assets are marshaled and included in the order of distribution. Furthermore, the distribution should be made in accordance with the criteria set down in Painter as well as any additional factors the trial judge considers pertinent.
We note an ambiguity in the record. In his opinion the trial judge refers to an item of $9,109.84 which he indicates was formerly in account number XX-XXXXX. He states, “Since Plaintiff has already had the use of that $9,109.84, her net award will be $28,162.71.” The record is not clear as to whether this is a portion of the settlement monies or jointly-owned marital assets which were spent prior to the distribution. Regardless, if this be a dissipated asset of the marriage before equitable distribution, we question its inclusion. A plenary hearing with oral testimony will eliminate questions of this nature. See Hallberg v. Hallberg, 113 N.J. Super. 205 (App. Div. 1971).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
BOTTER, J.A.D. (concurring).
I concur in the remand. The treatment of the disability pension in Kruger v. Kruger, 73 N.J. 464 (1977), and its express approval (at 472) of
I have no trouble in finding, to the extent it can be identified and isolated, that a portion of the proceeds which represents reimbursement for medical expenses and lost earnings of the injured spouse should be distributable. Without the personal injuries marital assets would not have been expended for medical care and lost wages would have been received by the marriage partners. However, in my view, that part of a settlement or award which represents compensation for pain and suffering and disability should be deemed the personal property of the injured spouse only, not subject to distribution. The principal reason is that the purpose of the payment is to make the injured person whole, to restore that person to the condition which preceded the injury to the extent possible by pecuniary means. The payment simply fills a gap or loss in the physical and mental well being of the injured spouse. It does not represent an accumulated asset or surplus of marital property.
This portion of the proceeds received by Mrs. Harmon is the monetary equivalent of her pain and suffering and disability, past and future, as the case may be. It is not a profit to be shared. If Mrs. Harmon had lost an arm, the compensation for that loss would represent the arm. To give a portion of that compensation to the uninjured spouse would deprive Mrs. Harmon of so much of her arm‘s equivalent. It is one thing to share “property acquired” during the marriage. It is another to share with a divorced spouse that which represents a portion of an injured spouse‘s health. The literal terms of a statute should not compel this result.
We look to the community property states for guidance, as did the Supreme Court in Kruger, 73 N.J. at 470 and
The literal language of the statute ought not limit our inquiry to the time when the compensation is received. The purpose for which the property is received should control. Insurance funds, for example, paid to replace property destroyed by fire would remain the separate property of a spouse if the destroyed property had been owned by the
Formerly, most community property states considered proceeds of a personal injury claim received during marriage as community property. See 4A Powell, Real Property (Rev. Ed. 1977), ¶ 624.4 at 733-734. This view has since been rejected in a number of such states. The current majority view is to treat such proceeds as the separate property of the injured spouse except for the portion which represents reimbursement for medical expenses and loss of wages to the community. See Fredrickson & Watson Constr. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 (Sup. Ct. 1940); Soto v. Vandeventer, 56 N.M. 483, 245 P.2d 826 (Sup. Ct. 1952); Graham v. Franco, 488 S.W.2d 390 (Tex. Sup. Ct. 1972). Two other community property states, Idaho and Washington, have modified their position to provide that the recovery is the separate property of the injured spouse when the other spouse is the tortfeasor. Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (Sup. Ct. 1974); Freehe v. Freehe, 81 Wash. 2d 183, 500 P.2d 771 (Sup. Ct. 1972). In Louisiana statutes provide that a wife‘s personal injury recovery is separate property while a husband‘s recovery is community property unless he is living apart from his wife through her fault.
Only Arizona and California now treat a personal injury recovery exclusively as community property. Heinke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (Sup. Ct. 1970); In re Pinto, 28 Cal. App.3d 86, 104 Cal. Rptr. 371 (D. Ct. App. 1972). But California‘s law has followed an uneven course. In 1957 the legislature changed the law to provide that all damages recovered for personal injuries are the separate property of the injured spouse. Compare Cal. Stats. 1957, c. 2334, § 1,
Thus, it can no longer be said, as in Di Tolvo v. Di Tolvo, supra, 131 N.J. Super. at 81, that the majority of community property states treat a personal injury claim as community property. In Soto v. Vandeventer, supra, 56 N.M. at 488-494, 245 P.2d at 829-832, the Supreme Court of New Mexico noted that commentators have uniformly criticized the rule which allows an uninjured spouse to share in that portion of the recovery which represents compensation for pain, disability and loss of future earnings. See also 2 American Law of Property, supra, § 7.16 at 159-160, where the separate property view is called the “sounder view.” It is there noted that treating the recovery for personal injuries
In my view, treating the personal injury recovery as community property contravenes the common law concern for the individual personality of spouses, where such recovery is intended merely to compensate for an injury to one of the spouses. Moreover, to the extent that the injury compensates for earnings which will be lost after the dissolution of the marriage, a former spouse ought not share in the recovery.
Accordingly, while I concur in the remand for the reasons given by the majority, if I were free to do so I would determine on the remand what part of the proceeds represented the net return of hospital expenses, and I would treat the remainder as the separate property of Mrs. Harmon.