On appeal from the Superior Court, Law Division, Passaic County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter is before the court pursuant to our order of May 1, 1984 granting defendant Isabel Mercado leave to appeal from an order of March 26, 1984 denying her a summary judgment dismissing plaintiff's action seeking to recover hospital expenses of defendant's deceased husband. The only basis for imposition of liability on defendant is that resulting as a matter of law from her relationship to the decedent. Thus we deal with the application of Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137 (1980), concerning the liability of a spouse to a creditor supplying necessary goods and services to the other spouse.
The parties are in agreement that there are no disputed facts in this case. Isabel Mercado was married to Jose Mercado in 1966. Until August 27, 1976 when they separated, the couple lived together in Paterson. They have never since resided together. During the separation the couple made no support payments to each other. The couple had no separation agreement nor did either institute a matrimonial action against the other. On September 20, 1980 Jose Mercado was admitted to St. Joseph's Hospital in Paterson for a stay that lasted until October 11, 1980. He was readmitted to St. Joseph's on July 12, 1981 and remained there until his death on July 26, 1981. The bill owed St. Joseph's for the hospitalization was $16,713.44, none of which was paid.
St. Joseph's assigned the debt to plaintiff which brought this action in the Superior Court, Law Division, seeking to recover for the hospitalization. Plaintiff named four defendants, Isabel Mercado, Evelyn Mercado, Miguel Mercado and Angel Mercado but we are not concerned with the theory on which it proceeded against the latter three defendants. Angel Mercado was never served with a summons and complaint and the action was dismissed as to him. The remaining three defendants moved for summary judgment. The motions of Evelyn and Isabel Mercado were denied and that of Miguel was granted. On March 26, 1984 the trial judge entered an order reflecting his decisions on the summary judgment motions. We granted Isabel Mercado leave to appeal from that order.
In Jersey Shore, Etc. v. Estate of Baum, supra, 84 N.J. at 137, the Supreme Court extended the common law rule imposing liability in certain circumstances on a husband for necessaries furnished his wife to a wife for necessaries furnished the husband. The court declared:
We conclude that the common law rule must yield to the evolving interdependence of married men and women and to the reality that a marriage is a partnership. Consequently, we declare that both spouses are liable for necessary expenses incurred by either spouse in the course of the marriage. As long as the marriage subsists, the financial resources of both spouses should be available to pay a creditor who provides necessary goods and services to either spouse. That conclusion comports with our belief that in most marriages a husband and wife consider themselves as a financial unit in paying necessary expenses incurred by either marital partner. However, a judgment creditor must first seek satisfaction from the income and other property of the spouse who incurred the debt. If those financial resources are insufficient, the creditor may then seek satisfaction from the income and property of the other spouse. [84 N.J. at 141]
Plaintiff's position on this appeal is that the marriage between Isabel Mercado and the decedent "subsisted" at the time of the hospitalizations. It focuses on the fact that Jose and Isabel Mercado, though separated, were not divorced. Thus the marriage legally existed until Jose's death. Defendant contends that in view of the separation and the financial independence of the parties she should not be liable.
We are satisfied that in some circumstances a marriage will cease to subsist for purposes of liability under Jersey Shore, Etc. v. Estate of Baum, supra, 84 N.J. at 137, even though the parties are legally married. This conclusion is compelled from the long recognized pre- Jersey Shore rule as set forth in Smedley v. Sweeten, 11 N.J. Super. 39 (App.Div.1950), that following a separation a creditor:
It follows, of course, that in other circumstances before Jersey Shore a husband was not always liable for necessaries supplied to his wife. Thus, proof of an undissolved marriage does not in itself provide the basis for liability to a creditor supplying a spouse with necessaries. We see nothing in Jersey Shore, Etc. v. Estate of Baum to indicate that the Supreme Court would discard the rule as set forth in Smedley v. Sweeten at least to the extent that Smedley v. Sweeten held that a husband was not always liable for a wife's necessaries simply by reason of the continuation of the marriage.
The issue then is whether notwithstanding the fact that Jose and Isabel Mercado were never divorced the marriage between them may be said to have no longer subsisted under Jersey Shore, Etc. v. Estate of Baum during Jose's hospitalizations. Here the couple had been separated for four years and were not supporting each other. There is no indication in the record that the couple separated for the purpose of allowing Isabel to avoid liability for future hospital bills for Jose. Indeed, at the time of the separation she could not have been liable for such a bill on the basis of her marriage to Jose for only after Jersey Shore, Etc. v. Estate of Baum, decided almost four years ...