Di Tolvo v. Di Tolvo

• Decision Date: 07 November 1974
• Parties: , 75 A.L.R.3d 484 Rocco DI TOLVO, Plaintiff-Appellant, v. Bernadette DI TOLVO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 72

131 N.J.Super. 72

328 A.2d 625, 75 A.L.R.3d 484

Rocco DI TOLVO, Plaintiff-Appellant, v. Bernadette DI TOLVO, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 15, 1974.

Decided Nov. 7, 1974.

Ozzard, Rizzolo, Klein, Mauro & Savo, Somerville, for appellant (Michael V. Camerino, Somerville, on the brief).

Frank J. Stanley, III, Somerville, for respondent (Robert E. Powers, Somerville, on the brief).

Before Judges CARTON, CRANE and KOLE.

The opinion of the court was delivered by

KOLE, J.A.D.

Plaintiff husband was granted a no fault divorce by reason of 18 months separation, by judgment of May 24, 1973. He was ordered to pay $81 a week for alimony and support of his children, as follows: $21 a week for alimony and $20 a week for each of three children, or an aggregate of $60 a week for the three children. The payments were to be made through the probation department of the county. Only two of the provisions of the judgment need be referred to in order to determine this appeal.

The judgment provided that, in addition to the support and alimony specifically awarded, the husband shall pay 50% Of his net salary raises to defendant wife as additional alimony and shall advise the probation department every six months of his net salary raises, if any. It further awarded the wife 20% Of the net recovery, if any, received by the husband by reason of a personal injury action that had been instituted against third parties. The husband had sustained such injuries in an automobile accident while the parties were married. Prior to the filing of the divorce complaint both spouses had instituted a negligence action against the claimed tortfeasors in the automobile accident matter. The husband sued for damages for personal injury, medical expenses, loss of earnings and property damage. His wife joined in the action to recover for loss of her husband's services and consortium.

The tort litigation was settled for $7,500 after the judgment of divorce was entered. The wife consented to the settlement. After a hearing before a Law Division judge, that court allocated the $7,500 settlement, in the presence of counsel for both husband and wife, in such manner that 6 1/2% Of the $7,500 was allocated to the wife for her Per quod claim, with the balance being allocated to the husband.

Plaintiff husband appeals, first, from the part of the judgment which automatically increases the alimony award to the wife by one-half of any pay increase he receives. We conclude that the court erred in ordering alimony to be increased in this fashion.

Alimony is an allowance in periodic installments and takes into account many factors other than the amount of money earned or to be earned by the husband. Painter v. Painter, 65 N.J. 196, 213, 320 A.2d 484 (1974); Chalmers v. Chalmers, 65 N.J. 186, 192, 320 A.2d 478 (1974); Rothman v. Rothman, 65 N.J. 219, 229, 320 A.2d 496 (1974); Capodanno v. Capodanno, 58 N.J. 113, 118--119, 275 A.2d 441 (1971); Greenberg v. Greenberg, 126 N.J.Super. 96, 99--100, 312 A.2d 878 (App.Div.1973). Orders for alimony or support operate for the present and may always be altered or modified upon a change of circumstances, in which a salary increase of the husband may be only one factor. Chalmers v. Chalmers, Supra; Bartok v. Bartok, 52 N.J.Super. 266, 145 A.2d 487 (App.Div.1958); Hallberg v. Hallberg, 113 N.J.Super. 205, 273 A.2d 389 (App.Div.1971); Turi v. Turi, 34 N.J.Super. 313, 323, 112 A.2d 278 (App.Div.1955); Testut v. Testut, 32 N.J.Super. 95, 107 A.2d 811 (App.Div.1954), 34 N.J.Super. 95, 111 A.2d 513 (App.Div.1955).

In effect, what the court did was to make an automatic percentage distribution of the husband's increase in future earnings by way of an equivalent increase in alimony. It thus confused the concept of equitable distribution with that of alimony and support, leaving no room for the usual proceeding involving a modification of an alimony award, which requires an application and a court hearing before the change is made. The effect of this part of the court's judgment is to authorize the probation department to amend the judgment as to alimony without court approval when the department has evidence of an increase in the husband's salary. Cf. Plath v. Plath, 99 N.J.Super. 394, 240 A.2d 171 (App.Div.1968). The advance determination by the court of an automatic increase in alimony is contrary to established principles relating to alimony and the modification thereof. Moreover, it makes it difficult, if not impossible, for the court to enforce such an increase in later proceedings in aid of litigants' rights under R. 4:79--9.

With respect to alimony and support, the appropriate procedure is for the court to establish a fixed dollar award. That amount is subject to modification upward or downward upon application of either party to the court, either directly or through the probation department, when changed circumstances are established. The requirement in the judgment that the husband report his earnings to the probation department, however, is unassailable. It gives that department, as well as the wife, the information necessary to determine whether and when a subsequent application for modification should be made. We note in this case that a consent order was entered on March 27, 1974 amending the judgment to delete $20 a week for the support of one of the children who left to reside with his father.

Plaintiff husband also appeals from that portion of the judgment which awards defendant wife 20% Of the recovery in the negligence action. We have concluded that the judgment in this respect should be affirmed, with some modification.

The statute here involved, N.J.S.A. 2A:34--23, as amended by L.1971, c. 212, authorizes the court, incident to the grant of divorce, to distribute equitably 'the property, real and personal, which is legally and beneficially acquired' by the spouses or either of them during the marriage. Thus, regardless of its source, any personal property in which a spouse acquires an interest during the marriage may be distributed, in whole or in part, by the court to the other spouse irrespective of who in fact has title to the property or interest. The period of acquisition of property available for distribution begins with the marriage and ends when the divorce complaint is filed. Painter v. Painter, Supra, 65 N.J. at 217--218, 320 A.2d 484.

Painter held that the Legislature used the word 'acquired' in a 'comprehensive sense' to include property title to which is received by gift or inheritance 'or indeed in any other way.' Id. at 215, 320 A.2d at 494. It refused to presume a legislative intent to import community property state concepts by indirection in the equitable distribution provisions of the 1971 act, saying that 'we think it preferable to accept the statute literally as written, giving to the word 'acquired' the more comprehensive meaning as set forth above.' Id. at 217, 320 A.2d at 495.

In view of this expansive view of property acquired during marriage with respect to the equitable distribution provisions of the statute, 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. That provides that personal property 'includes * * * choses in action * * * and everything except real property as herein defined which may be the subject of ownership.'

Thus, a cause of 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. See Tinker v. Hobbs, 80 Ariz. 166, 294 P.2d 659 (Sup.Ct.1956); Carver v. Ferguson, 254 P.2d 44 (D.Ct.App. 3rd Dist. Cal.1953), involving however, community property statutes. The damage claim of the injured person for injuries, loss of earnings and medical expenses belongs to him; the Per quod claim respecting loss of consortium is that of his spouse. See Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 235 A.2d 465 (1967).

Accordingly, at the time the divorce complaint was filed, the husband was the owner of the main aspect of the chose in action. The wife's interest was only in that portion of any recovery which would compensate her for her Per quod claim. Since she agreed to the settlement of the negligence action, we are not faced with the problem of whether, after the divorce, the spouse with the Per quod claim would have any degree of control of the action or its settlement. However, we think not. Such control would inject unnecessary complexities in the management of a cause of action that is primarily that of the injured spouse.

We note that, since there is no statutory provision to the contrary, a claim for damages in tort for personal injuries cannot be made the subject of assignment before judgment. Goldfarb v. Reicher, 112 N.J.L. 413, 171 A. 149 (Sup.Ct.1934), aff'd o.b. 113 N.J.L. 399, 174 A. 507 (E. & A. 1934); U.S. Cas. Co. v. Hyrne, 117 N.J.L. 547, 189 A. 645 (E. & A. 1937); Weller & Lichtenstein v. Jersey City Ry. Co., 68 N.J.Eq. 659, 61 A. 459 (E. & A. 1905). See N.J.S.A. 2A:25--1. What we hold in this case in no way changes this basic principle. Nor does it in any wise modify the other usual incidents and rights with respect to an automobile negligence action. See Patusco v. Prince Macaroni, Inc., Supra; 4A Collier on Bankruptcy (14 ed.), § 90 at 390. The new divorce act does not affect these aspects of the tort action. We merely hold that for purposes of equitable distribution incident to a divorce, a spouse's close in action for personal injuries and the other spouse's Per quod claim constitute property subject to such...