IN THE MATTER ESTATE OF RICHARD S. GINSBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5154-03T35154-03T3

IN THE MATTER OF THE

ESTATE OF RICHARD S.

GINSBERG, Deceased.

_____________________________

RHEA ALMEIDA,

Plaintiff-Appellant,

v.

RICHARD S. GINSBERG,

Defendant-Respondent.

____________________________________________________________

 

Argued September 14, 2005 - Decided

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part and Probate Part,

Somerset County, FM-18-1030-98, 02-01067.

Andrew T. Fede and Robert T. Corcoran argued the

cause for appellant (Contant, Atkins & Fede and

Robert T. Corcoran, attorneys; Mr. Fede and Mr.

Corcoran, of counsel; Mr. Fede and Brian P. McCann,

on the brief).

Jeffrey L. Knapp argued the cause for respondent

the Estate of Richard S. Ginsberg (The Knapp Law

Firm, attorneys; Mr. Knapp and Donna P. Legband,

of counsel; Mr. Knapp and Jerome P. Neidhardt,

on the brief).

PER CURIAM

Rhea Almeida and Richard Ginsberg were married on September 15, 1979, and two children were born of the marriage: Arielle, born March 14, 1984, and Lara, born July 7, 1987. The parties were divorced on April 17, 2001. On August 31, 2002, Richard Ginsberg died in a kayaking accident. Plaintiff Rhea Almeida appeals from various orders entered in these consolidated matters.

Plaintiff presents the following arguments on appeal:

POINT I

THIS COURT SHOULD FIND THAT JUDGE ASHRAFI ERRED AS A MATTER OF LAW WHEN HE MODIFIED THE JUNE 24, 2002 ORDER CONTRARY TO THE DOCTRINE[S] OF RES JUDICATA AND COLLATERAL ESTOPPEL.

A. JUDGE ASHRAFI SHOULD HAVE APPLIED RES JUDICATA TO BAR THE ESTATE'S ATTEMPT TO RELITIGATE ON THE PAPERS IN THE PROBATE ACTION THE CONTROVERSY OVER THE LIFE INSURANCE TRUSTEE THAT THE DECEDENT AND ALMEIDA FULLY AND FAIRLY LITIGATED.

B. JUDGE ASHRAFI SHOULD HAVE APPLIED COLLATERAL ESTOPEL TO BAR THE ESTATE'S ATTEMPT TO RELITIGATE IN THE PROBATE ACTION THE CONTROVERSY OVER THE LIFE INSURANCE TRUST THAT THE DECEDENT AND ALMEIDA FULLY AND FAIRLY LITIGATED.

POINT II

THE ESTATE'S CLAIMS SEEKING A MODIFICATION OF THE JUNE 24, 2002 ORDER ARE BARRED BY THE ENTIRE CONTROVERSY DOCTRINE.

POINT III

THIS COURT SHOULD FIND THAT JUDGE ASHRAFI ABUSED HIS DISCRETION WHEN HE DENIED ALMEIDA'S MOTION FOR RECONSIDERATION; THUS REWARDING THE DECEDENT FOR DISOBEYING THE JUNE 24, 2002 ORDER.

POINT IV

JUDGE DERMAN ERRED WHEN SHE DENIED ALMEIDA'S REQUEST FOR DISCOVERY UNDER R. 4:50-1 BECAUSE ALMEIDA CLEARLY ESTABLISHED A PRIMA FACIE CASE OF FRAUD, ENTITLING HER TO THE POST-JUDGMENT DISCOVERY RELIEF THAT SHE REQUESTED.

POINT V

ALMEIDA'S REQUEST TO CONDUCT LIMITED POST-JUDGMENT DISCOVERY WAS EQUITABLE AND WAS PRESENTED WITHIN THE APPROPRIATE PROCEDURAL TIME LIMITATIONS AND ALMEIDA IS THEREFORE ENTITLED TO RELIEF UNDER R. 4:50-1(f).

We have carefully considered each of these arguments in light of the record and the applicable law, and we are satisfied that the orders appealed from are based on findings of fact which are adequately supported by credible evidence, R. 2:11-3(e)(1)(A); that plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion, R. 2:11-3(e)(1)(E), and that we should affirm on all issues substantially for the reasons expressed by the trial judges.

The dual judgment of divorce entered on April 17, 2001, specifically incorporated and confirmed a written property settlement agreement (PSA) between the parties. Paragraph 11 of the PSA required each of the parties to maintain life insurance for the benefit of the children and to name "a local banking institution as the trustee" until Lara's emancipation. The relevant portion of the PSA reads as follows:

LIFE INSURANCE

11. The Husband shall maintain independent life insurance naming the children as the beneficiaries in the amount of $500,000 naming a local banking institution as the trustee to benefits payable to a minor until Lara's emancipation. In addition, the Husband shall name the children the beneficiaries of his life insurance coverage offered through his employment up to $300,000 naming his sister as trustee to benefits payable to a minor until Lara is emancipated. The wife shall maintain independent life insurance naming the children as beneficiaries in the amount of $500,000 naming a local banking institution as the trustee to benefits payable to a minor until Lara's emancipation.

In an order dated June 24, 2002, Judge Rubin required each of the parties to "designate the unemancipated children as beneficiaries and the other party as trustee of such policy or policies totaling $500,000 face value." As noted in the order, the PSA was modified by Judge Rubin because he believed that it was "unenforceable in part as presently framed." During the proceedings on June 17, 2002, both parties acknowledged that they had been unable to find "a local banking institution" that was willing to serve as trustee. Thus, in an effort to effectuate the intent of the parties' agreement, and to avoid an adverse impact on the children, Judge Rubin reasoned that it was necessary to modify paragraph 11 of the PSA:

At this particular point, it's clear, I think, that the local banking institution can't be named. So if we leave things as they are, the agreement as it stands would not be possible to enforce, and that . . . would create a situation that would frustrate the intent of the agreement, frustrate both parties, and have an adverse impact on the children of the marriage who are intended to be beneficiaries in the event one or the other party dies until such time as both children are emancipated.

My judgment is as follows [with] regard to the life insurance: I'm going to name each party as a trustee of each other's life insurance, and I will require that a bond be posted. That will cost some money. But it will ensure that the children will obtain the benefits of the policy in the event either one of the parties dies.

So that the plaintiff will be the trustee of the defendant's policy for the benefit of the children. The defendant will be the trustee of . . . plaintiff's policy for the benefit of the children in the event something happens to plaintiff. Both parties will be required to post a bond. That satisfies that problem.

Subsequently, following the death of Richard Ginsberg, Judge Ashrafi ordered that plaintiff and the Peapack-Gladstone Bank are to serve as co-trustees of the irrevocable insurance trust established by Richard Ginsberg for the benefit of the children. The statement of reasons attached to the order signed by Judge Ashrafi on January 2, 2003, includes the following:

Although Judge Rubin's ruling is clear on its face and that the ex-spouse should be designated as trustee, several factors warrant approval of Richard Ginsberg's actions in designating the Peapack-Gladstone Bank and his ex-wife, Rhea Almeida, as co-trustees.

First, at the June 17 hearing, Judge Rubin was apparently told that no banking institution would undertake to act as trustee. This information was incorrect. The Peapack-Gladstone Bank is willing to act as trustee of a life insurance trust. Mr. Ginsberg, acting pro se, simply did not have adequate knowledge at the time of the hearing to discuss with the court available options. The premise upon which the court entered its Order of June 24 -- namely that paragraph 11 of the Settlement Agreement could not be enforced as framed -- was not correct.

Second, the parties' Property Settlement Agreement clearly contemplated appointment of a financial institution rather than Rhea Almeida as trustee. Mr. Ginsberg was never delinquent in maintaining a life insurance policy in the designated amount for the benefit of his daughters. He made reasonable efforts to comply with the terms of the Property Settlement Agreement but ran into an obstacle. The solution reached in the Family Part of designating Rhea Almeida as sole trustee was reasonable under the circumstances but not necessitated by Richard Ginsberg's intransigence in complying with the Settlement Agreement.

Third, Mr. Ginsberg's designation of Rhea Almeida as co-trustee of the irrevocable trust shows a good faith effort to comply with the spirit, if not the specific terms, of the June 24, 2002, Order of Judge Rubin. Had his accidental death not intervened, he may have been able to seek reconsideration of the particulars of the Order by presenting to Judge Rubin the executed irrevocable trust document as proof of his good faith and his intention to comply.

Fourth, Rhea Almeida has not shown any harm or prejudice to her, and this court can find none, if the designation of the irrevocable trust is enforced. The only detriment to Ms. Almeida is that she will not have unfettered control of the trust benefits. There is no good reason, however, that she should have full control. It was not contemplated in the parties' Settlement Agreement, and nothing in Judge Rubin's Order suggests that circumstances had changed so that her sole control of the proceeds was now in the best interests of the children. Ms. Almeida's only argument before this court is that Judge Rubin ordered the result she seeks. She has not presented one fact to support a benefit for the children if the bank is excluded as a co-trustee.

Fifth, as both a potential creditor and a potential debtor to the estate of Richard Ginsberg, Ms. Almeida is viewed as having conflicts. The participation of an institutional co-trustee is likely to reduce future litigation concerning the disposition of the trust funds.

Finally, Orders in matrimonial cases are routinely subject to adjustment as circumstances change, especially those involving the welfare of children. Here, circumstances have changed drastically with the death of Richard Ginsberg and the availability of insurance proceeds. The adjustment sought by the estate is reasonable and in the best interests of the children.

The record fully supports Judge Ashrafi's findings and conclusions. Clearly, plaintiff was named as sole trustee only because there appeared to be no alternative. We find no improper exercise of discretion by the trial court, nor any error of law requiring our correction.

Plaintiff also claims that Judge Derman erred when she denied plaintiff's request to obtain post-judgment discovery regarding decedent's life insurance policies. According to plaintiff, "[t]here was simply too much mystery surrounding the decedent's life insurance benefits, and the beneficiary designations." Plaintiff's post-judgment motion was filed on September 19, 2003, more than two years after the parties were divorced. In addition, plaintiff acknowledges that the decedent stated in response to a matrimonial interrogatory on the issue of life insurance coverage, "that he had coverage through USAA with a face value of $1,200,000, and . . . additional coverage of $500,000 through American Home Products." Once again, we find no abuse of discretion or misapplication of the law in the trial judge's denial of plaintiff's motion.

Finally, plaintiff claims "the trial court erred in not delineating the retirement accounts to be equally distributed as per the parties property settlement agreement." As part of the settlement agreement reached on January 13, 2004, the parties agreed:

The retirement assets shall be divided per the parties' property settlement agreement. The parties shall provide proof of the balances in their retirement accounts as of 12/31/03 and if any of these accounts were cashed in or closed, they're going to provide proof of the balances at the time they were cashed in.

The division is going to occur pursuant to the terms of the property settlement agreement.

The April 12, 2004 order signed by Judge Derman memorialized the January 13, 2004 settlement agreement. Nevertheless, in her supplemental brief, plaintiff contends that "the list of retirement accounts referenced in Almeida's counsel's April 26, 2004, correspondence (to Mr. Knapp) should be specifically delineated as the accounts which are to be distributed as per the parties property settlement agreement." A consent order, however, is not ordinarily appealable. Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); DeAngelis v. Rose, 320 N.J. Super. 263, 280-81 (App. Div. 1999). Moreover, we are in agreement with the approach taken by the trial judge. In her letter of June 7, 2004, Judge Derman noted it was important for the court to "cease the bickering over the form of [o]rder and give deference to the settlement. Any further issues [can] be handled by post-judgment motions."

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In this case, the record fully supports the findings made by the trial judges.

Affirmed.

 

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A-5154-03T3

October 25, 2005