On appeal from the Superior Court of New Jersey, Chancery Division, Essex County.
Fritz, Botter and Ard. Botter, J.A.D. (concurring).
[161 NJSuper Page 207] 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 tortfeasor 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:
Stocks jointly held 3,651.21
Furniture in his possession 200.00
Cash from bank accounts ...