IN THE MATTER OF THE ESTATE OF RONNY MOHAMMED SALEH

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0030-16T3

IN THE MATTER OF THE
ESTATE OF RONNY MOHAMMED SALEH.
__________________________________

IN THE MATTER OF THE ESTATE OF
RONNY SALEH,

        Plaintiff-Appellant,

v.

HANNIA SALEH,

     Defendant-Respondent.
__________________________________

              Submitted November 27, 2017 – Decided February 13, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Probate Part, Middlesex
              County, Docket No. 248322.

              Richard A. Amdur, Jr., attorney for appellant.

              Santoro and Santoro, attorneys for respondent
              (David J. Michelson, of counsel and on the
              brief).

PER CURIAM

        Upon cross-motions for summary judgment, the trial court

dismissed plaintiff's posthumous complaint to annul the marriage
between defendant Hannia Saleh and her late husband, Ronny Saleh,

who died on May 21, 2014.      Ronny's estate seeks annulment in order

to secure a $48,000 life insurance death benefit that was paid to

defendant.1

     In argument before Judge Frank M. Ciuffani, the parties agreed

that there were no genuine issues of material fact and the case

was susceptible to disposition on summary judgment. In his written

opinion, Judge Ciuffani adopted plaintiff's extensive statement

of material facts.    We presume the reader's familiarity with those

facts and shall not restate them at length here.

     In   short,   defendant   and   Ronny   had   a   troubled    marriage.

Ronny's family members alleged that defendant used Ronny to obtain

citizenship; lied to Ronny about her intention to raise a family

with him; and benefitted financially from the marriage.            Defendant

entered the country from Costa Rica in 2003 on a tourist visa.              It

expired long before her marriage to Ronny in 2006.                The couple

lived together from 2006 until 2011, when she moved out.            However,

they continued to file joint tax returns until 2013.               Defendant

ultimately obtained legal status and then citizenship in 2012.

     In 2013, Ronny started a new job, which offered life insurance

coverage as a fringe benefit.        Although Ronny purportedly signed


1
  To avoid confusion, we utilize the decedent's first name.                 We
intend no disrespect in doing so.

                                     2                               A-0030-16T3
a form that year designating his brother as beneficiary, neither

Ronny's employer nor the insurer received it before Ronny's death

in 2014. His death certificate noted he was married but separated.

The insurer paid the death benefit to defendant.       Absent a named

beneficiary, the policy authorized the insurer, at its option, to

pay the death benefit to the insured's estate, or surviving family

members, first of whom was a spouse.      After the disbursement was

already made, Ronny's brother sought payment based on Ronny's

alleged   intent,   as   expressed   in    the   unfiled   beneficiary

designation form, and in a purported 2011 will that named only his

brother and sister as beneficiaries.        The insurer rejected the

claim.2

     Judge Ciuffani held that plaintiff had failed to present, by

clear and convincing evidence, a sufficient factual basis for its

claim that defendant fraudulently entered into a sham marriage to

gain legal status and citizenship.        The court also declined to

disturb the disposition of the insurance proceeds.




2
  Notably, plaintiff did not file suit against the insurer. See

N.J.S.A. 17B:24-5 (stating that an insurer is discharged of any
claims against it under the policy when it pays a life insurance
benefit in accordance with the policy's terms); Vasconi v. Guardian
Life Ins. Co., 
124 N.J. 338, 348 (1991) (citing 
N.J.S.A. 17B:24-5
and Hirsch v. Travelers Ins. Co., 
153 N.J. Super. 545, 549 (App.
Div. 1977)).

                                 3                             A-0030-16T3
     On appeal, plaintiff renews its prior contention that it

presented sufficient circumstantial evidence of fraud.          Plaintiff

also argues that the court should have implemented Ronny's alleged

intention regarding his insurance policy.       We are unpersuaded.

     When reviewing a grant of summary judgment, we employ the

same standard as the motion judge under Rule 4:46-2(c).          Henry v.

N.J. Dep't of Human Servs., 
204 N.J. 320, 330 (2010).       Mindful of

the plaintiff's burden of persuasion at trial,           see Brill v.

Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995), we must

determine whether the evidence is "so one-sided that one party

must prevail as a matter of law."       Id. at 533 (quoting Anderson

v. Liberty Lobby, Inc., 
477 U.S. 242, 252 (1986)).

     In this case, plaintiff bears the burden to establish, by

clear and convincing evidence, not only that defendant procured

her marriage to Ronny by fraud as to the essentials of marriage,

but also that the parties did not subsequently ratify the marriage.

Williams v. Witt, 
98 N.J. Super. 1, 3 (App. Div. 1967); 
N.J.S.A.

2A:34-1(d) (stating that a judgment of nullity may be rendered

when there was "fraud as to the essentials of marriage" and the

marriage was not subsequently ratified).        Substantially for the

reasons   stated   in   Judge   Ciuffani's   cogent   written    opinion,

plaintiff has failed to present sufficient evidence to warrant a

trial on the annulment claim.      As Judge Ciuffani noted, there was

                                    4                             A-0030-16T3
no testimony as to defendant's intentions at the time of the

marriage;   defendant    expressly     based   her   application   for

citizenship on lawful residence, not marriage;3 the couple lived

together; they shared finances; and despite their difficulties,

Ronny made no effort to annul or dissolve the marriage.

     Alternatively, plaintiff contends that the trial court should

have given effect to Ronny's purported intent to designate his

brother as insurance policy beneficiary.4      We reject the argument

for many of the reasons the trial court noted.

     The payment of a life insurance benefit is generally governed

by contract.   See Metro. Life Ins. Co. v. Woolf, 
138 N.J. Eq. 450,

454-55 (E. & A. 1946).    The rule is tempered by the doctrine of

substantial compliance; so, our courts will effectuate a change

of beneficiary where the insured has substantially complied with

the relevant policy provisions.       Haynes v. Metro. Life Ins. Co.,


166 N.J. Super. 308, 313 (App. Div. 1979).       However, the insured

must have "made every reasonable effort to effect [the] change of


3
  Defendant relied upon her being a lawful permanent resident for
at least five years, as opposed to being a lawful permanent
resident for three years while married and living with the same
citizen for the last three years.
4
  We infer the plaintiff sought disgorgement of the insurance
proceeds, although plaintiff did not expressly request such
relief. Indeed, its complaint sought only an order of annulment,
the return of any of Ronny's personal assets, and any further
equitable and just relief.

                                  5                           A-0030-16T3
beneficiary."   Ibid.    There is no proof that Ronny did so here.

There is no confirmation of receipt from the employer or the

insurer, nor is there any evidence that Ronny attempted to confirm

that his alleged beneficiary designation was effective.

     A change of beneficiary may also be implied and effectuated,

in the narrow circumstance where an insured has divorced his or

her spouse; the divorcing spouse waived, in a property settlement

agreement, any interest in the other's estate in the case of death;

but the insured neglected to remove the divorced spouse as a

beneficiary before the insured's death.       Vasconi, 
124 N.J. at 340.

In that case, the Court gave force to the "probable intent of the

decedent," and required a divorced spouse to rebut a presumption

that she was not an intended beneficiary.        Id. at 349.

     We   recognize     that   Ronny's   will,   and   the     unreceived

designation form are evidence of Ronny's alleged intent that his

insurance proceeds go to his brother.     However, unlike in Vasconi,

there was no entry of a final judgment of divorce here, let alone

a formal property settlement agreement waiving interest in a

divorced spouse's estate.      See DeCeglia v. Estate of Colletti, 
265 N.J. Super. 128, 135 (App. Div. 1993) (declining to effectuate

oral expression of intent to change beneficiary in a case which

"does not involve any comparable written agreement between the

policyholder    and   beneficiaries,     or   any   form     of   written

                                    6                             A-0030-16T3
communication    from    the    policyholder    to    the     insurer    expressly

requesting a change in the beneficiary designations").                   There was

merely   a    separation.       Ronny    may   have    held     out   hope     of    a

reconciliation.      He may have wished to provide for his wife,

notwithstanding their separation.

     We have declined to extend Vasconi beyond its facts.                     In Fox

v. Lincoln Financial Group., 
439 N.J. Super. 380, 389 (App. Div.

2015),   we   declined   to     infer   or   give    effect    to   an   insured's

purported intention to change the beneficiary from his sister to

his new wife, absent formal submission of a change of beneficiary

form to the insurer.           In DeCeglia, 
265 N.J. Super. at 136, we

declined to give effect to a mere oral expression of intent to

change beneficiary.         Likewise, we discern no compelling reason

here to set aside the terms of the policy, and effectuate a

questionable expression of intent that lacks the finality and

formality present in Vasconi.

     Affirmed.




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