Amato v. Amato

• Citation: 434 A.2d 639,180 N.J.Super. 210
• Parties: Janet T. AMATO, Plaintiff-Appellant, v. John J. AMATO, Defendant-Respondent.
• Decision Date: 05 August 1981
• Court: New Jersey Superior Court – Appellate Division

Page 210

180 N.J.Super. 210

434 A.2d 639

Janet T. AMATO, Plaintiff-Appellant, v. John J. AMATO, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued May 27, 1981.

Decided Aug. 5, 1981.

Arnold Koster, Rahway, for plaintiff-appellant (Shevick, Ravich, Koster, Tobin, Oleckna & Reitman, Rahway, attorneys).

Mortimer Katz, Maplewood, for defendant-respondent.

Before Judges BOTTER, KING and McELROY.

The opinion of the court was delivered by

McELROY, J. A. D.

This matrimonial appeal raises but two issues, both of which concern segments of the equitable distribution award effected below pursuant to N.J.S.A. 2A:34-23. The appellant wife first asserts that, assuming the application of this court's decision in DiTolvo v. DiTolvo, 131 N.J.Super. 72, 328 A.2d 625 (App.Div.1974), the trial judge acted arbitrarily in awarding to her husband 25% of her inchoate right to sue for medical malpractice. She next contends that the judge was equally arbitrary in distributing 47% of the future value of the marital home to her while granting 53% of such value to defendant. With respect to both items appellant complains that the trial judge failed to make any findings of fact to justify the "disproportionate" distributions. See Esposito v. Esposito, 158 N.J.Super. 285, 291, 385 A.2d 1266 (App.Div.1978); Reiser v. Simon, 63 N.J.Super. 297, 300-301, 164 A.2d 650 (App.Div.1960). There is no cross-appeal. Determination of the first point requires us to consider DiTolvo and the effect, if any, of the reference by analogy to that case in Kruger v. Kruger, 73 N.J. 464, 472, 375 A.2d 659 (1977). See the concurring opinion in Harmon v. Harmon, 161 N.J.Super. 206, 212-218, 391 A.2d 552 (App.Div.1978). For the following reasons we reverse and remand.

The parties were married September 14, 1964. Appellant Janet T. Amato filed suit for divorce on January 3, 1979 asserting extreme cruelty. Defendant John J. Amato entered an appearance contesting only the issues of alimony, support, custody, equitable distribution and counsel fees. In a later memorandum defendant set forth the items he contended were subject to equitable distribution. Plaintiff's claim for medical malpractice was not listed in this paper but was asserted as a distributable item prior to trial.

At trial the parties agreed that the marital home had a value of $80,000 upon which a mortgage of $20,000 remained unpaid. The trial record is sparse as to the facts of plaintiff's malpractice claim and nowhere is its exact nature disclosed. Plaintiff stated that no complaint had been filed but she had consulted a lawyer as to this cause of action. The claim appears to stem from a tubal ligation performed during the marriage. Plaintiff testified that she had to undergo four operations, including a colostomy, over a five-month period, and although her bowels are now functioning she has permanent scarring. She stated that in this period she suffered discomfort and pain and incurred an undisclosed amount of medical expense. Plaintiff apparently was unable to work from October 1978 to January 1979 when she returned to employment on a part-time basis. She asserted that during this period defendant refused to let her eat the food at home and made her life unhappy. Defendant testified that in this period immediately preceding the filing of the divorce complaint he ran the household and took care of plaintiff and the children. The trial judge did not attempt to weigh contentions of this sort. The judge, after hearing the testimony, returned from a short recess and, so far as we are here concerned, without stating findings of fact or reasons for his decision, effected equitable distribution of a number of items including the marital home and the malpractice claim.

With respect to the malpractice action the court noted that it was, "a chose in action at this time"; that it "may ultimately be something beneficial"; that it "will be continued to be handled by Mrs. Amato, whose action it is," and that the "net proceeds of that action, if and when anything comes of it, will be divided ... 75% to Mrs. Amato and 25% to Mr. Amato."

The judge ruled that Mrs. Amato and the children should occupy the marital home until the youngest child graduates from high school or discontinues her education before graduation. The judge further held:

And at that time the house will be sold, placed on the market and sold, with the parties having a right of first refusal. I recognize this is a right addressed to each. And if both of them want to exercise it, we may have problems. However, it seems unlikely and I'll set it up that way.

Those proceeds, the net proceeds of the sale when sold which according to my calculations should be in six years, something like that will be divided between the parties on the ratio of 47% to the Plaintiff and 53% to the Defendant.

No reason was given by the judge for this allocation nor was any apparent consideration given to the cost of maintenance of the home or payment of the mortgage and the relation of such items to the respective incomes of the parties.

I

It is clear that with regard to the allocation of interests in the medical malpractice claim, the trial judge was adhering to the holdings in DiTolvo v. DiTolvo and Harmon v. Harmon, supra. DiTolvo would permit equitable allocation of any future tort recovery "irrespective of the value of each spouses's claim that would normally be measured in the negligence action itself. That allocation or distribution supercedes and takes the place of any which may later be made in the negligence action or by way of settlement thereof." Id., 131 N.J.Super. at 79-80, 328 A.2d 625. We are constrained to disagree with this holding.

The issues as to whether a claim for tortious personal injury of one spouse and the attendant per quod right of the other spouse is equitably distributable under N.J.S.A. 2A:34-23, and the manner in which such distribution shall be effected has received the attention of this court only in DiTolvo and Harmon. Our Supreme Court has not addressed the question directly in any case. In Kruger v. Kruger, supra, Justice Schreiber, by way of dictum, analogized the holding in DiTolvo to an award for military disability benefits, there under consideration, to illustrate that both a lump sum personal injury recovery and disability pension benefits are "properly classifiable as property subject to distribution." 73 N.J. at 472, 375 A.2d 659.

The decision in DiTolvo, followed in Harmon, was, perhaps, made complex by the facts. In each case the moneys were received in a lump sum settlement, a mixture of payment for (1) personal suffering and disability suffered by the injured spouse; (2) the mutual right to reimbursement of marital assets lost during the marriage consisting of past lost wages and medical payments paid out of previous marital funds, and (3) the per quod right of the uninjured spouse. The court in DiTolvo viewed all of these factors as personal property acquired during the marriage and thus distributable under N.J.S.A. 2A:34-23.

We agree that the items listed in (2) above are of that nature because past lost wages and medical payments made from marital funds should, in fairness, be considered as prior property lost by both partners. When, and if, such sums are recouped from a tortfeasor there is no equitable reason why the recovery of these joint losses should benefit only the spouse who receives them.

The holding in DiTolvo notwithstanding we cannot view the right to sue for personal injury or to sue for loss of consortium as personal property "acquired during the marriage." N.J.S.A. 2A:34-23. Although the concurring opinion in Harmon, influenced by some of the reasoning in DiTolvo, tended to treat compensation for pain and suffering as "the personal property of the injured spouse only, not subject to distribution" (161 N.J.Super. at 213, 391 A.2d 552), reconsideration of the basic rationale of DiTolvo indicates that treating such right to compensation as a personal property right misconstrues the nature of the chose in action.

The premise upon which the holding in DiTolvo is based is that N.J.S.A. 2A:34-23 authorizes a court to distribute equitably "the property real and personal, which is legally and beneficially acquired" by the spouses or either of them during the marriage. Id., 131 N.J.Super. at 78, 328 A.2d 625. The DiTolvo court reasoned that since Painter v. Painter, 65 N.J. 196, 217, 320 A.2d 484 (1974), holds that the word "acquired" is to be used in a comprehensive sense, "we may resort appropriately to the general statutory definition of 'personal property' in N.J.S.A. 1:1-2 in resolving the issue before us." The DiTolvo court reasoned that since N.J.S.A. 1:1-2 defined personal property as including "choses in action," necessarily, "a cause for action for personal injuries and consequential damages by reason of an accident occurring during marriage is personal property acquired or owned by the injured person. It is also property owned by his spouse, to the extent of the latter's interest therein." Id. at 78, 328 A.2d 625.

In our view of the matter an inchoate personal injury claim, unlike some other rights to sue, is not a property right. The money received is the legal substitute for pain, suffering and the mental and physical disabilities incurred. See Botta v. Brunner, 26 N.J. 82, 92-94, 138 A.2d 713 (1958). It is a right, peculiar to the injured person, to seek to be restored, or made whole, as he was before the injury. The right has none of the attributes of property. Thus, the right cannot be sold or assigned prior to judgment and cannot be transferred from an injured debtor to his trustee in bankruptcy in the absence of a state statute which would permit such transfer. See In re Schmelzer, 350 F.Supp. 429 (D.C.S.D.Ohio, E.D.1972), aff'd 480 F.2d 1074 (6 Cir. 1973). The nonassignability of a right of action for tortious personal injury, because it is not...