On appeal from Superior Court of New Jersey, Chancery Division, Bergen County.
Lora, Michels and Larner.
Intervenors-appellants Christine Castonguay, the first wife of defendant Edward Castonguay (now deceased), Deborah Castonguay and Catherine Iacono, two emancipated children born of the marriage between Edward and Christine Castonguay, and Alfred J. Egenhofer, formerly the attorney for Edward Castonguay and now representing the other intervenors-appellants and himself, appeal from an order of the Chancery Division entered August 2, 1978 granting the motion of plaintiff Stella C. Castonguay, the second wife of Edward Castonguay, to dismiss the divorce action commenced by her on February 19, 1976. It is the position of the intervenors that the right of Edward Castonguay to equitable distribution in connection with the divorce action brought against him by Stella C. Castonguay did not abate upon his death.
The record shows that plaintiff Stella C. Castonguay married defendant Edward Castonguay on March 30, 1961. The parties lived together until approximately November 1975 at which time they separated. On February 19, 1976,
plaintiff filed a complaint for divorce on the ground of extreme cruelty.
The divorce action was approved for trial on April 29, 1976, was listed for trial on eight dates thereafter, but was adjourned on each occasion. Defendant, apparently as a result of a barroom altercation, was shot, and died intestate on May 10, 1978.
Some time thereafter, plaintiff moved to dismiss the divorce action. The intervenors resisted, arguing that defendant's right to equitable distribution did not abate with his death. In a written opinion dated July 20, 1978, the trial judge found, among other things, that plaintiff was entitled to dismiss the action, that intervenors had "no standing to oppose the motion having never been parties to the action," and, accordingly, denied intervenors' motion for equitable distribution.
It appears that defendant, at the time of his death, had no apparent assets. However, intervenors asserted below that defendant did, in fact, have an interest in the marital home, notwithstanding title was in plaintiff's name alone, as well as in other property acquired by the parties during the marriage. They contend they are entitled to participate in the matter since they are, respectively, (1) defendant's first wife and a judgment creditor of defendant in the amount of $1,620, and entitled to one-third of defendant's estate upon his death by virtue of a separation agreement entered into in October 1960; (2) daughters of the previous marriage and hence defendant's heirs at law, and (3) defendant's former counsel and a creditor of defendant for legal services rendered.
Intervenors bottom their contention that a claim for equitable distribution does not abate with the death of one of the parties principally on Olen v. Melia , 141 N.J. Super. 111 (App. Div. 1976), certif. den. 71 N.J. 518 (1976), and Jacobsen v. Jacobsen , 146 N.J. Super. 491 (Ch. Div. 1976). However, the cited cases are clearly distinguishable. In Jacobsen, supra , defendant husband was criminally
charged with his wife's death. Initially recognizing that the statutory basis for equitable distribution would appear to foreclose a distribution of marital property where no judgment of divorce has been entered, the trial judge proceeded, nevertheless, to hold that the estate of the deceased wife was entitled to share in the assets of the marriage. The rationale for this determination was essentially that if the husband were to be found guilty of having killed his wife, and the wife's action for equitable ...