Harmon v. Harmon
| Decision Date | 28 July 1978 |
| Citation | 391 A.2d 552,161 N.J.Super. 206 |
| Parties | Evelyn Bartholomew HARMON, Plaintiff-Appellant, v. Lester A. HARMON, Jr., Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Jeffrey Simms, Bloomfield, for plaintiff-appellant (Rudd, Simms & Grillos, Bloomfield, attorneys).
S. Herman Cohen, Bloomfield, for defendant-respondent.
Before Judges FRITZ, BOTTER and ARD.
Plaintiff Evelyn Bartholomew Harmon appeals from that portion of the final judgment of divorce dealing with equitable distribution. On this appeal her contentions are A. The personal injury award received by plaintiff-appellant as a result of an automobile accident in which defendant-respondent was the tort feasor should be exempt from equitable distribution.
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.
The trial judge distributed the property as follows:
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 26-61275. 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 N.J.S.A. 2A:34-23. We agree.
In DiTolvo v. DiTolvo, 131 N.J.Super. 72, 328 A.2d 625 (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, 375 A.2d 659 (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, 328 A.2d 625 (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, 375 A.2d at 664.)
Plaintiff's argument that the judge erred in allowing "the tort-feasor spouse to reap the benefits of the injured spouse's award" 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, 246 A.2d 713 (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, 328 A.2d at 631.
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 Keeping in mind the guidelines established in Painter, supra for equitable distribution, the Court orders the following distribution: * * * .
Incorporating the criteria of Painter v. Painter, 65 N.J. 196, 320 A.2d 484 (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, 320 A.2d at 492) 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, 164 A.2d 650 (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, 164 A.2d at 651)
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, 320 A.2d 496, 503 (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 alimony). In addition, Mrs. Harmon receives disability benefits of $130 a month. In Kruger v. Kruger, supra, it was held that all personal property, tangible and intangible, in which a spouse acquires an interest is includable as property available for equitable distribution. It specifically held that the husband's retirement pay and disability benefits were "property" "legally and beneficially acquired" during marriage and subject to equitable distribution upon divorce. We discern no basis to exclude from distribution the aforementioned employee benefits, Social Security and disability benefits of both parties. Including these items in the equitable distribution process will undoubtedly affect the final determination.
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...
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