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Carr v. Carr

Decided: July 24, 1990.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 229 N.J. Super. 370 (1988).

For affirmance and remandment -- Justices Handler, Pollock, O'Hern, Garibaldi and Stein and Judges Bilder and Arnold M. Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.


[120 NJ Page 339] In this case, a wife brought an action for divorce against her husband. Her husband's death before trial effectively terminated

the divorce action. The issue arising from the death of the husband during the pendency of the divorce action is whether the wife is entitled either to statutory equitable distribution of the marital assets under the divorce laws or to a statutory elective share of her deceased husband's estate under the probate code. The courts below concluded that neither statutory scheme provided the surviving wife with an enforceable interest against marital assets legally held by the husband. The wife's plight, likened to a "black hole," gives rise to the ultimate issue: whether, in this situation, the surviving wife is entitled to any relief at all.


Joyce and Thomas Carr were married on December 9, 1966. Thomas Carr owned and operated an engineering firm; Joyce Carr was a housewife. The Carrs did not have any children although Mr. Carr had children from a prior marriage. In June of 1983, after seventeen years of marriage, Mr. Carr left Mrs. Carr. On July 29, 1984, Mrs. Carr filed a complaint for divorce on the grounds of desertion, N.J.S.A. 2A:34-2(b), and sought alimony, equitable distribution of their marital assets, N.J.S.A. 2A:34-23, and counsel fees. She also filed a complaint for divorce from bed and board. N.J.S.A. 2A:34-3. Mrs. Carr was subsequently awarded pendente lite support of $125.00 per week plus medical, insurance, car, and household expenses.

Substitutions of defense counsel and extended discovery prolonged the divorce proceeding. Trial was set eventually for August 19, 1987. On that day, however, defendant did not appear, and his attorney moved to adjourn the trial due to his client's hospitalization and illness. Five days later, Mr. Carr died. He left his entire estate to his children.

After Thomas Carr's death, Joyce Carr filed an order to show cause to substitute the executor of defendant's estate as a defendant, to restrain the disposition of the decedent's estate, to continue pendente lite support payments, and requested a

hearing to resolve the issues of alimony, equitable distribution, and fees.

The Chancery Division, Family Part, held that the divorce action and claims for alimony and equitable distribution were terminated by Mr. Carr's death, and discontinued Mrs. Carr's pendente lite support. The court, however, viewed the action as essentially one of equity and allowed the plaintiff to amend her complaint to pursue alternate equitable remedies "to prevent a failure of justice." It denied defendant's motion to dismiss the plaintiff's actions, enjoined the executor from distributing the assets of the estate to its beneficiaries, and granted plaintiff's motion for attorneys' fees.

Plaintiff then filed an amended complaint seeking distribution of the marital assets based on equitable grounds. She also appealed the trial court's dismissal of the alimony and equitable distribution claims. The Appellate Division, in a reported decision, unanimously affirmed the trial court's opinion. Carr v. Carr, 229 N.J. Super. 370, 551 A.2d 989 (App.Div.1988). The appellate court held that the trial court correctly construed the equitable distribution and elective share statutes to preclude statutory relief in these circumstances but that equitable relief was available to plaintiff. Id. at 374, 551 A.2d 989. We granted defendant's petition for certification. 114 N.J. 520, 555 A.2d 632 (1989).


In this case, plaintiff's initial recourse was to the equitable distribution statute, N.J.S.A. 2A:34-23, since she had brought an action for divorce that specifically included a claim for equitable distribution. The equitable distribution statute provides:

In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of property, both real and personal, which was legally or beneficially acquired by them or either of them during the marriage. [ N.J.S.A. 2A:34-23.]

The courts below, correctly in our view, concluded that the equitable distribution statute does not authorize the distribution of marital assets except upon the divorce of the parties. 229 N.J. Super. at 372-73, 551 A.2d 989. By the plain terms of the statute, a spouse's right to share in marital property by virtue of equitable distribution arises when "a judgment of divorce . . . is entered." The Court has consistently interpreted the statute to authorize a distribution of marital assets only on the condition that the marriage of the parties has been terminated by divorce. Painter v. Painter, 65 N.J. 196, 216 n. 5, 320 A.2d 484 (1974); Rothman v. Rothman, 65 N.J. 219, 228, 320 A.2d 496 (1974); see Grange v. Grange, 160 N.J. Super. 153, 158-59, 388 A.2d 1335 (App.Div.1978).

The current controversy arises because the marriage between the Carrs was terminated not by divorce, but by Mr. Carr's death. Divorce proceedings abate with the death of one of the parties. Castonguay v. Castonguay, 166 N.J. Super. 546, 400 A.2d 130 (App.Div.1979); Jacobson v. Jacobson, 146 N.J. Super. 491, 370 A.2d 65 (Ch.Div.1976); Dunham v. Dunham, 82 N.J. Eq. 395, 89 A. 281 (E. & A.1913). The lower courts held, and the plaintiff concedes, that the death of either party to a divorce terminates the cause of action as to the "status of the marriage relationship" between the parties. Thus, with the death of her husband, a judgment of divorce was no longer attainable by Mrs. Carr and, derivatively, equitable distribution under the statute also became unattainable.

Some New Jersey courts have recognized that in highly unusual circumstances some aspects of statutory equitable distribution and related forms of relief may precede a divorce judgment or survive a spouse's death before divorce. See, e.g., Graf v. Graf, 208 N.J. Super. 240, 505 A.2d 207 (Ch.Div.1985) (prior to a judgment of divorce, court has authority to order sale of personalty when necessary to ensure maintenance and support of wife and children); Fulton v. Fulton, 204 N.J. Super. 544, 499 A.2d 542 (Ch.Div.1985) (after death of husband, [120 NJ Page 343] court allowed entry of final judgment of divorce based on previously-taken testimony); Samuelson v. Samuelson, 198 N.J. Super. 390, 487 A.2d 342 (Ch.Div.1984) (prior to a judgment of divorce, court allowed distribution of interest income of marital property held in escrow account); Witt v. Witt, 165 N.J. Super. 463, 398 A.2d 597 (Ch.Div.1979) (prior to a judgment of divorce, court allowed sale of marital home when both spouses consented); Jacobson v. Jacobson, supra, 146 N.J. Super. 491, 370 A.2d 65 (husband who murders wife during pendency of divorce action may not object to equitable distribution); Olen v. Melia, 141 N.J. Super. 111, 357 A.2d 310 (App.Div.) (final judgment of divorce entered after one party had died prior to the entry of the final order and where trial court had already issued an oral opinion and entered a judgment), certif. denied, 71 N.J. 518, 366 A.2d 673 (1976); Olen v. Olen, 124 N.J. Super. 373, 307 A.2d 121 (App.Div.) (same), certif. denied, 63 N.J. 570, 310 A.2d 484 (1973). The circumstances exemplified by these cases do not undermine the rule that, ordinarily, equitable distribution of marital assets arises only with the adjudication of divorce.*fn1 This case, not surrounded by any of the circumstances that make a surviving spouse's claim unusual or exceptional, is governed by the general rule: statutory equitable distribution is conditioned on the termination of marriage by divorce.

The courts below also concluded that the elective-share provision of the probate code, N.J.S.A. 3B:8-1, did not afford relief to plaintiff. 229 N.J. ...

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