Landwehr v. Landwehr

O’HERN, J.,

dissenting.

Toward the end of their twenty-two-year marriage, this couple received a twenty-six thousand dollar settlement for personal injury and per quod claims that arose from an automobile accident involving the husband. It was a lump-sum settlement without any itemization, and thus presumably covered all aspects of the husband’s claim of personal injury and lost wages, as well as the wife’s derivative claims. While the husband recuperated, the wife cared for him, worked, and ran the household; the parties stipulated that their attorney in the tort action had assured her that he “would take care of things” concerning her per quod claim. Landwehr v. Landwehr, 200 N.J.Super. 56, 58 (App.Div.1985).

About three years after the accident, the marriage dissolved. Though at trial the parties stipulated that the husband had *505 received the check, ibid., the record does not disclose whether the money was saved, spent, or invested in other marital assets. We do know, however, that about a year after the money was received the parties separated. Within another six months, Mrs. Landwehr filed a divorce complaint.

“[A]ll property, regardless of its source, in which a spouse acquires an interest during the marriage shall be eligible for distribution in the event of divorce.” Painter v. Painter, 65 N.J. 196, 217 (1974). “Regarding equitable distribution, this Court has frequently held that an ‘expansive interpretation [is] to be given to the word “property.” ’ ” Mahoney v. Mahoney, 91 N.J. 488, 495 (1982) (quoting Gauger v. Gauger, 73 N.J. 538, 544 (1977)). In Mahoney, we specifically noted, but did not resolve, the differing decisions concerning the inclusion of personal injury claims in the marital estate. 91 N.J. at 496 (citing Di Tolvo v. Di Tolvo, 131 N.J.Super. 72, 80-82 (App.Div. 1974), and Amato v. Amato, 180 N.J.Super. 210 (App.Div.1981), both of which involved inchoate claims for personal injury). In this case we do not deal with a pending personal injury claim but with the distribution of settlement proceeds received before the marriage was terminated.

No case has held that such proceeds acquired during a marriage are excluded from the marital estate. With but two exceptions, our courts have subjected “a broad range of assets and interests to equitable distribution including vested but unmatured private pensions, Kikkert v. Kikkert, 88 N.J. 4 (1981); military retirement pay and disability benefits, Kruger v. Kruger [ 73 N.J. 464 (1977)]; [and] unliquidated claims for benefits under workers’ compensation, Hughes v. Hughes, 132 N.J.Super. 559 (Ch.Div.1975).” Mahoney, supra, 91 N.J. at 495-96 (footnote omitted). The only exceptions to this mandate arise from the 1980 and 1983 legislative amendments that exclude from equitable distribution gifts not from a spouse and inheritances, primarily because it was thought that neither the donor nor the marital partners would have intended these *506 assets to be included in the marital estate. See N.J.S.A. 2A:34-23 (L. 1980, c. 181, § 1, and L. 1983, c. 519, § 1). Except for these narrow provisions, I see no indication in that legislation to alter our prevailing policy with respect to the equitable distribution of marital property. Certainly, the expectation of the source of the funds, i.e., the tortfeasor, is of no significance to us in this setting.

It is difficult for me to determine whether the majority is creating a sui generis rule requiring the tracing of all personal injury settlements no matter when received or a more generic rule limiting the doctrine of equitable distribution to assets shown to have been earned or acquired in replacement of earned income. I am concerned that the judgment of the Court will reinforce stereotypical or regressive views of the marriage relationship. If the point is that the proceeds of the settlement are applicable only to reconstitute financially the “corporal inviolability” of the injured spouse through currency, supra at 500, what can be said of the spouse who wastes assets of body and mind in furtherance of the marital estate? Would the proceeds of that effort represent a conversion of the bodily identity; is that spouse entitled to an increased share of marital assets to reconstitute the wasted body?

All such views are to my mind too metaphysical for the practical realities of modern marriage, which belie any generalization that an accident victim’s spouse does not share in the pain and suffering. The endless hours of encouragement and support that make the injured spouse whole again can never be fully repaid by damages awarded under the law of torts. Only the fair sharing inherent in marriage itself should provide such compensation.

In Mahoney v. Mahoney, supra, we emphasized that marriage, although “not a business arrangement in which the parties keep track of debits and credits * * *, ‘[ ] is a shared enterprise, a joint undertaking * * * in many ways [ ] akin to a partnership.’ ” 91 N.J. at 500 (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). Like every joint undertaking, mar *507 riage has “its bounds of fairness.” Ibid. I would agree, for example, that a victim of quadriplegia who is deserted by a spouse shortly after the recovery of a substantial award should retain a predominant share of that award. But I would leave the determination of the “bounds of fairness” to the sound discretion of the Family Part. Forty percent may represent the appropriate adjustment here, but that is not the real point of this decision.

In sum, I would hold that the liquidated proceeds of the undifferentiated settlement of a personal injury claim received during marriage that represent compensation for all aspects of the claim, including a spouse’s derivative claim, should be considered part of the shared enterprise of the marriage, especially when the caring spouse has participated in the course of recovery. I would therefore affirm the judgment of the Appellate Division.

The Chief Justice joins in this opinion.

For affirmance — Chief Justice WILENTZ and Justice O’HERN — 2.

For reversal —Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN — 5.