On appeal from Superior Court, Law Division, Mercer County.
King, Gaulkin and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
[220 NJSuper Page 361] The sole issue on this appeal is the proper distribution of the net proceeds of a wrongful death action among the surviving spouse and three children of the decedent Franklin J. Wolff. The judge who presided over the wrongful death trial, which
resulted in a verdict of $327,670, also determined the motion for distribution of the net recovery of $231,881.32.
In determining the motion, the judge considered the arguments of counsel, the trial transcripts and certifications from Debbie Wolff and Regina Wolff, her mother. He ordered distribution of 70% of the net recovery to the surviving spouse and 30% to the three surviving children to be divided equally among them. For the reasons hereinafter given, we reverse this order for distribution and remand for a plenary hearing.
The record reveals the following basically uncontroverted evidence. The decedent's life expectancy as of the time of his death was 19.9 years. Regina Wolff was 53 years old when her husband of 34 years died. Her life expectancy exceeds that of her late husband. The three children of the marriage are Janet Sitko, Keith Wolff and Debbie Wolff.
Janet was 32 years old when her father died. She graduated high school, married at age 18 and has lived in her own home since her marriage. Both she and her husband are employed. She maintained a close relationship with her father who babysat for her with varying frequency since 1973. In 1978, Mr. Wolff also helped in painting the interior of the Sitko home.
Keith, 24 years old at his father's death, is married and has one child. He and his wife are employed. He maintained a good relationship with his father who just one week before his death planted a garden for his son.
Debbie was 12 years old when her father died. She was very close to him, received "much attention and affection" from him and states they were "inseperatable [ sic ]." She is now employed as a payroll clerk for the State of New Jersey and earns a minimal income.
There is conflict concerning Debbie Wolff's desire to attend college. She claims she wants to attend college and that her father desired that she obtain a college education; however, she is unable to because she was forced out of her mother's home and must work to support herself. Mrs. Wolff, in a certification
to the court, claims this is not so, alleging that Debbie is a poor student who took no college-oriented courses and never expressed an interest in college. She also states her husband never indicated Debbie wanted to attend college. She claims the interest in college developed upon the disputed claim for distribution of the proceeds of the jury verdict. She indicates that her daughter is on her own, of her own volition, and that she disapproves of her lifestyle. Nevertheless, she is amenable to the establishment of a trust fund in an amount fixed by the court provided the fund is dedicated solely for educational purposes.
Appellant contends that the trial court's allocation of funds to the surviving parties was an abuse of discretion and a violation of the provisions of N.J.S.A. 2A:31-4 and the case law ...