SHARON S. HOLMES v. KEVIN J. HOLMES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5765-06T25765-06T2

SHARON S. HOLMES,

Plaintiff-Respondent,

v.

KEVIN J. HOLMES,

Defendant,

and

AVIANNA A. HOLMES, an Infant, by

her mother and Natural Guardian,

ALONA TRAYLOR HOLMES, and

ALONA TRAYLOR HOLMES, Individually,

Defendants-Appellants.

___________________________________

 

Argued May 6, 2008 - Decided

Before Judges Skillman and Yannotti.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-250-03E.

Patrick J. Caserta argued the cause for appellants.

Marc J. Friedman argued the cause for respondent.

PER CURIAM

Plaintiff and the decedent Kevin Holmes were divorced in 2003. They had one child, Brielle. The property settlement agreement incorporated in their judgment of divorce required the decedent to maintain life insurance of $150,000 for Brielle until she was emancipated and $50,000 for plaintiff during the period alimony was payable.

After the divorce, the decedent had another child, Avianna, with his then-girlfriend, Alona Traylor Holmes.

On November 1, 2006, the decedent was hospitalized with heart failure, had open heart surgery and suffered a stroke. While in intensive care, he married Alona in December 2006.

Because the decedent was hospitalized in grave condition and had just remarried, plaintiff became concerned about the status of the life insurance coverage he was required to maintain under their property settlement agreement. Therefore, she obtained an order to show cause that appointed her attorney-in-fact to execute whatever paperwork was necessary to insure that she and Brielle were the beneficiaries of his life insurance. The order also restrained any insurer from releasing proceeds from the insurance on decedent's life to anyone other than plaintiff individually and as trustee for Brielle. The order was served on the decedent in the hospital, his residence and the residence of his mother.

On January 30, 2007 counsel for United Parcel Service (UPS), which was the decedent's employer, forwarded plaintiff's counsel a summary of the decedent's benefits coverage, which showed Brielle as the sole named beneficiary of a life insurance policy issued by the Prudential Insurance Company in the amount of $119,180.

On February 9, 2007, the decedent made an online change of the beneficiaries of this life insurance policy. He changed it to 33% Brielle (his first child), 34% defendant Alona (his second and then-current wife) and 33% defendant Avianna (his second child).

The decedent did not respond to the order to show cause, and the trial court entered an order on February 16, 2007, enforcing the terms of the property settlement agreement and continuing the restraints. Plaintiff tried to serve the decedent, who was still in the hospital, with the order, but service was refused.

The decedent died on March 30, 2007.

Plaintiff then filed what she characterized as a "motion to enforce litigant's rights." The motion sought to substitute the "Estate of Kevin J. Holmes and Alona Traylor-Holmes as Administratrix/Executrix of the Estate of Kevin J. Holmes" as defendant for the decedent. The motion also sought to join as defendants "Alona Traylor-Holmes, Individually; Avianna A. Holmes, an infant by and through Alona Traylor-Holmes, her Guardian" as well as UPS and Prudential. In addition to seeking joinder of Alona and Avianna as defendants, the motion sought substantive relief against them, including "[s]etting aside the defendant's February 9, 2007 change of beneficiary designation of Alona Traylor-Holmes, Avianna A. Holmes, and Brielle Holmes as beneficiaries of his life insurance benefit in the percentages of thirty-four (34%) percent, thirty-three (33%) and thirty-three (33%), respectively, as violative of the Judgment of Divorce."

Two days before the return date, counsel for Alona and Avianna sent a letter to the trial court indicating that he had been retained to represent them and that they had no objection to their joinder in the action. The letter also advised the court that Alona was neither the executrix nor administratrix of the decedent's estate. In addition, the letter stated:

I trust everyone understands I will need adequate time to investigate the plaintiff's factual allegations, to explore any additional factual issues that I feel are relevant and to research the legal issues. It is my belief that the questions before the court would be best addressed by way of a plenary hearing after the parties have an opportunity to engage in some discovery.

. . . .

. . . [S]hould anyone object to my proposed resolution of the pending motion, I would ask to have the entire application adjourned for at least 4 weeks in order to allow me sufficient time to investigate the facts and prepare an appropriate

response.

On the return date of the motion, the trial court entered an order which not only joined Alona and Avianna as defendants in the action but also granted all the substantive relief plaintiff sought in her motion. In particular, the order adjudicated the invalidity of the decedent's change in the beneficiary designation of his life insurance policy and directed payment to plaintiff for Brielle of the full $119,180 amount of the policy. The order also adjudicated various liabilities of the decedent's estate even though no representative of the estate had been appointed.

Avianna and Alona appeal, asserting, among other things, that they were denied a fair opportunity to respond to plaintiff's claims against them.

Our court rules generally afford a defendant thirty-five days after service of process within which to file an answer. R. 4:6-1(a). A new defendant brought into an action by third-party complaint is allowed the same amount of time to file an answer. See Pressler, Current N.J. Court Rules, comment 1 on R. 4:8-1 (2008).

Alona and Avianna were not parties to this action. Plaintiff's motion sought to join them for the first time. Plaintiff's motion also made new factual allegations -- the decedent's execution of the change of beneficiary designation on February 9, 2007 and his death on March 30, 2007 -- and asserted new claims for relief -- a declaration of invalidity of that change of beneficiary designation and payment of full amount of the policy to plaintiff for Brielle. Consequently, Alona and Avianna were entitled to file an answer after their joinder in the action before the trial court adjudicated plaintiff's claims against them.

Alona and Avianna assert that they had a right to conduct discovery to determine whether Brielle was emancipated and whether plaintiff was remarried as of the date of the decedent's death, which would have affected his continuing obligation to maintain life insurance coverage to secure his support obligations under the property settlement agreement. They also assert a right to conduct discovery to determine whether the decedent had any other life insurance coverage in addition to the Prudential policy. We would expect that any such discovery could be conducted expeditiously and that the case could be brought before the trial court for a final decision on the merits within a short period of time.

Because we reverse solely on the ground that the trial court failed to give Alona and Avianna an opportunity to respond to the claims against them, we do not address the other points raised in their appellate brief.

 
Accordingly, we affirm paragraphs one and two of the June 27, 2007 order, which appointed plaintiff as guardian for Brielle and Alona as guardian for Avianna, for purposes of this litigation, and the first sentence of paragraph three, which joined Alona and Avianna as parties to the action. We reverse the order in all other respects.

Although the trial court granted plaintiff's motion to join Avianna and Alona Holmes as defendants, it did not amend the caption. To clarify the party designations on this appeal, we amend the caption to reflect the trial court's joinder of these new parties and their status in this appeal.

We were advised at oral argument that the issuer of the policy, Prudential, has paid the full amount of the policy into court pending the outcome of the appeal.

Because Avianna and Alona consented to their joinder, there is no need to consider whether plaintiff's claims against them should have been asserted by a new complaint rather than as part of plaintiff's matrimonial action against the decedent.

(continued)

(continued)

7

A-5765-06T2

May 27, 2008