ELIZABETH M. STARR v. JOSEPH J. STARR 2011 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4466-09T1

ELIZABETH M. STARR,

Plaintiff-Respondent,

v.

JOSEPH J. STARR,

Defendant-Appellant.

_____________________________________________________________

April 1, 2011

Submitted March 22, 2011 - Decided

Before Judges Graves and St. John.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Atlantic

County, Docket No. FM-01-701-97.

Clifford E. Lazzaro & Associates, P.C.,

attorneys for appellant (Clifford E. Lazzaro,

on the brief).

Jacobs & Barbone, P.A., attorneys for

respondent (Edwin J. Jacobs, Jr., on the

brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant Joseph Starr appeals from a Family Part order dated April 30, 2010. The order required defendant "to secure a life insurance policy in the amount of $150,000" with his former wife, plaintiff Elizabeth Starr, named as the beneficiary by August 30, 2010. The order further stated that a $150,000 judgment, voidable upon the death of plaintiff, would be entered against defendant if he failed to obtain the policy. For the reasons that follow, we affirm.

The parties' final judgment of divorce (JOD) is dated August 18, 1998. The JOD states that "the parties knowingly, willingly and voluntarily entered into a Settlement Agreement" and sets forth the terms thereof, including defendant's obligation to "pay permanent alimony to plaintiff in the amount of $3,500.00 per month." After enumerating the terms of the settlement agreement, the JOD provides as follows:

In addition to the terms of the parties' Settlement Agreement which are set forth above;

IT IS FURTHER ORDERED AND ADJUDGED as follows:

F. Defendant shall designate plaintiff as a beneficiary of $150,000.00 of the proceeds of the group life insurance made available to him through his employment. Defendant shall provide proof of this designation by August 15, 1998.

In 2005, defendant was "informed that [his] job was being phased out," and he entered into a written Separation Agreement with his employer. Pursuant to paragraph four of the Separation Agreement, defendant had "thirty-one (31) days from the last day of the month in which he [was] actively at work" to convert his group life insurance policy to an individual policy. However, defendant chose not to exercise the option.

On March 16, 2010, plaintiff filed a notice of motion to enforce litigant's rights pursuant to Rule 1:10-3. In a supporting certification, plaintiff stated that her attorney received written confirmation that defendant had failed to convert his group life insurance policy to an individual policy, and she requested an order:

1. Requiring defendant to secure a life insurance policy in the amount of $150,000.00 naming plaintiff as the beneficiary and to provide proof of same within 14 days;

2. Requiring defendant to provide plaintiff with proof of life insurance on an annual basis;

3. Requiring defendant to give his authorization to the life insurance company to allow plaintiff to contact the company directly;

4. Entering a Judgment against defendant, his Estate and his businesses in the amount of $150,000.00.

Defendant opposed the motion, arguing that the JOD only required him to designate plaintiff as the beneficiary of the group life insurance policy which was no longer available to him. Defendant also claimed that the plain language of the JOD did not require him to obtain an "individual or non-employment group life insurance policy" for the benefit of plaintiff.

Following oral argument, the court determined that the clear purpose of the life insurance provision in the JOD was to secure defendant's alimony payments. The court also found that defendant had a continuing obligation to secure his alimony obligation.

On appeal, defendant advances the same arguments that he made to the trial court. He claims that once the group life insurance policy was no longer available to him, he had no affirmative obligation under the JOD "to convert the group life insurance to an individual life insurance policy, or to obtain any other life insurance." We do not agree.

Pursuant to N.J.S.A. 2A:34-23, in any pending matrimonial action or after the entry of a judgment of divorce, a "court may make such order as to the alimony or maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders." Moreover, trial courts are specifically authorized to order either spouse "to maintain life insurance for the protection of the former spouse" in the event of the payor spouse's death. N.J.S.A. 2A:34-25. The purpose of life insurance is to assure a sufficient fund for the payor's support obligation should he die before fulfilling that responsibility. Jacobitti v. Jacobitti, 135 N.J. 571, 580 (1994).

As the Supreme Court has noted, "the function of alimony can be maintained after the obligor's death by substituting insurance proceeds, and such a provision is commonly made in property settlement agreements as well." In re Estate of Roccamonte, 174 N.J. 381, 398 (2002). Of course, "each case must stand on its own facts and deference must be given to the trial court's ability to weigh the equities and take appropriate action." Meerwarth v. Meerwarth, 71 N.J. 541, 544 (1976). In this case, the trial court properly recognized the need to maintain some form of security, and we find no error or mistaken exercise of discretion by the court in granting plaintiff's motion.

A