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Contento v. Contento

Decided: April 28, 1986.

IDA CONTENTO, PLAINTIFF,
v.
CATHERINE CONTENTO AND MARY FESTA, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ANTHONY CONTENTO. CATHERINE CONTENTO, PLAINTIFF, V. MARY FESTA, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ANTHONY CONTENTO, DEFENDANT



Kleiner, J.s.c.

Kleiner

This opinion amplifies with greater specificity a previous letter opinion issued at the conclusion of a nonjury trial.

The novel question presented in this suit for a declaratory judgment arises from a dispute over the distribution of proceeds derived from the settlement of a wrongful death action which involved, in part, claims asserted pursuant to the decision in Green v. Bittner, 85 N.J. 1 (1980).

Ordinarily the question of the method, manner, and to whom wrongful death action proceeds are to be distributed is governed by N.J.S.A. 2A:31-4 and is generally cognizable in the Superior Court, Law Division, before the court to which the wrongful death action was originally assigned.

The unusual factual background of this litigation, however, resulted in the institution of a suit for declaratory judgment as to distribution in the Chancery Division.

Anthony Contento died a resident of Cumberland County on March 19, 1982. On June 23, 1972, he married Catherine Contento and resided with her in a jointly owned marital residence in Cape May County until July 26, 1979, when his wife vacated the marital residence and established a new residence in Lucerne County, Pennsylvania. There were no children born of this marriage.

Prior to leaving Cape May County, Catherine Contento consulted an attorney to discuss the prospective sale of the marital home, a division of marital personal property and her rights and obligations as a woman living separate and apart from her husband.

Ultimately a contract of sale for the conveyance of the marital home was prepared and was executed by Anthony and Catherine Contento. When the marital residence was sold, the parties divided their personal property and equally divided the net proceeds of the sale of the marital residence.

In October, 1979, due to a period of unemployment resulting from ill health Catherine Contento applied for public assistance with the Lucerne County Welfare Board. As part of her application, she signed a complaint for support under the Uniform Reciprocal Support Act, which complaint was forwarded by authorities in Lucerne County, Pennsylvania, to the Probation Department of Cape May County where her husband was still a resident. Although Anthony Contento was served with the complaint for support, prior to the date that he was required to appear, the Cape May County Probation Department was advised by the Lucerne County Probation Department that Catherine Contento's application for support had been withdrawn. Catherine Contento testified in the present trial that her application for support was not pursued as she had returned to gainful employment and was no longer in need of public assistance. The support complaint was administratively dismissed by the Cape May County Juvenile and Domestic Relations Division in February 1980.

Subsequent to the above events, until March 19, 1982, when Anthony Contento died, Catherine Contento made no further application for support and received no voluntary support payments from her husband. Testimony at trial clearly indicated that other than a few periodic telephone conversations and one instance in which Catherine Contento actually saw Anthony, there was no other communication or contact between them prior to his death.

Anthony Contento died as a result of an alleged act of medical malpractice while a patient at Newcomb Hospital, Vineland, New Jersey. On March 24, 1982, Catherine Contento applied for letters of administration pursuant to an affidavit alleging that her deceased husband's estate consisted of assets not exceeding $10,000. Letters of administration were issued by the Surrogate of Cumberland County.

On January 8, 1983, Anthony Contento's two emancipated sisters and his one emancipated brother consulted an attorney in Atlantic City, New Jersey, to discuss a possible claim under our wrongful death statute, N.J.S.A. 2A:31-1 et seq. Credible testimony at trial reveals that Anthony Contento's siblings believed that Anthony Contento and Catherine may have been divorced and they so advised their attorney. Their attorney undertook an investigation of the wrongful death claim and further attempted to determine the viability of the Contento marriage. Between January 8, 1983, and March 14, 1984, the attorney was unable to contact Catherine Contento but was satisfied from his investigation that Anthony had left surviving a widow. Insofar as the statute of limitations was about to expire, he immediately filed a complaint which was designated a "medical negligence" complaint with the Clerk of the Superior Court. He ...


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