SAMUEL CHERNIN v. BETTE CHERNIN

NOT FOR PUBLICATION WITHOUT THE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-2303-16T3


SAMUEL CHERNIN,

        Plaintiff-Appellant,

v.

BETTE CHERNIN,

     Defendant-Respondent.
_______________________________

              Submitted March 19, 2018 - Decided June 5, 2018

              Before Judges Messano and Accurso.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen
              County, Docket No. FM-02-26072-90.

              Franzblau Dratch, PC, attorneys for
              appellant (Patrick T. Collins, on the
              briefs).

              Callagy Law, PC, attorneys for respondent
              (Brian P. McCann, on the brief).

PER CURIAM

        Plaintiff Samuel Chernin appeals from a series of post

judgment orders denying his motions to be relieved of his

permanent alimony obligation to defendant Bette Chernin and his
agreement to maintain a life insurance policy while his

obligation remained.   Because we agree with the Family judge

that plaintiff did not establish changed circumstances entitling

him to relief, we affirm.

    These parties were before us two years ago, when defendant

appealed another judge's order terminating her alimony based on

retroactive application of the 2014 amendments to the alimony

statute.   We summarized the undisputed facts at that time as

follows:

           The parties were married in 1958 and
           divorced in 1992. In their property
           settlement agreement incorporated in the
           judgment of divorce, they agreed plaintiff
           would pay permanent alimony of $100,000 per
           year until July 1, 1997, when the payment
           would increase to $150,000 annually. The
           agreement also required plaintiff to
           maintain $800,000 in life insurance payable
           to defendant for so long as plaintiff's
           alimony obligation remained.

                In 1996, plaintiff moved to terminate
           his alimony retroactively based on
           defendant's cohabitation. Following a five-
           day plenary hearing, Judge Torack granted
           defendant's motion in part. Finding
           defendant was cohabiting, the judge ordered
           defendant to reimburse plaintiff for past
           overpayments going back to the date of
           inception of alimony in the sum of $81,200,
           and reduced plaintiff's ongoing alimony
           obligation by $12,000 annually.

                Plaintiff appealed, contending the
           court erred in reducing his obligation
           instead of terminating it in accordance with

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         the test adopted in Gayet v. Gayet, 
92 N.J.
         149 (1983). Defendant cross-appealed,
         arguing the court erred in concluding she
         derived any economic benefit from her
         cohabitation. She argued her alimony should
         not have been reduced, and, in any event,
         should not have been reduced retroactively
         to the date of inception of the obligation
         instead of to the date defendant filed his
         motion.

              In an unreported opinion, we rejected
         plaintiff's argument that his alimony should
         have been terminated, noting "there was no
         express language in the parties' property
         settlement agreement that cohabitation would
         result in the termination of alimony."
         Chernin v. Chernin, No. A-4249-96 (App. Div.
         Feb. 27, 1998) (slip op. at 3). We affirmed
         the reduction of alimony in accordance with
         the trial court's judgment of defendant's
         reduced need based on her cohabitation, but
         we reversed that part of the order
         retroactively modifying the obligation
         beyond the filing date of plaintiff's
         motion. Id. at 3-4. Plaintiff's petition
         for certification was denied by the Supreme
         Court. Chernin v. Chernin, 
156 N.J. 381
         (1998).

         [Chernin v. Chernin, No. A-2470-14 (App.
         Div. Mar. 2, 2016) (slip op. at 2-3).]

    Because we concluded the 2014 amendments to the alimony

statute did not apply, and plaintiff conceded his age at that

point would not provide a basis for changed circumstances under

Lepis v. Lepis, 
83 N.J. 139 (1980), as he continued to work and

could well afford the alimony, we reversed and remanded "for

entry of an order reinstating plaintiff's alimony obligation


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retroactive to that order on such terms as the court deems

equitable and just."   Id. at 9.       We noted, however, that

"[p]laintiff, of course, remains free to move to modify his

alimony obligation upon a showing of changed circumstances."

Ibid.   The Supreme Court denied plaintiff's petition for

certification.    Chernin v. Chernin, 
226 N.J. 213 (2016).

    A few weeks after the Court denied his petition, plaintiff

made a motion to terminate his alimony based on changed

circumstances.    Plaintiff acknowledged his own circumstances had

not changed.   Although then seventy-eight years old, he was

still working and had no plan to retire.       Instead, he claimed

defendant's circumstances had changed.        Despite conceding

defendant remained in the same relationship Judge Torack

considered on plaintiff's 1996 motion, he argued "[i]n the

ensuing nineteen years, their relationship has . . . become the

equal of that of a married couple."

    As to the insurance policy he agreed at the time of the

divorce to maintain in favor of defendant "to the extent of

$800,000.00 for so long as the alimony obligation shall

continue," plaintiff admitted he had let the policy lapse and

contended "securing it would be cost prohibitive for [him] at

[his] age."    He maintained collecting on any such policy would

be a windfall to defendant at this stage and because he was

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"presumably entitled to retire at any time, and thus terminate

[his] alimony obligation," he claimed "it would be neither fair

nor sensible for [him] to be required to provide such coverage."

    Defendant opposed the motion, arguing her continued

cohabitation with the same man she had been cohabiting with in

1996 did not represent any changed circumstances.   She further

pointed to the several concessions plaintiff made to the trial

court and this court in connection with his 2014 application

"that with the exception of the new statutory amendments,

nothing else [had] changed in the intervening twenty years."

Chernin, No. A-2470-14, slip op. at 4.   Defendant cross-moved to

enforce the parties' agreement for plaintiff to maintain life

insurance.

    The trial judge denied plaintiff's motion to reduce his

alimony, finding no changed circumstances, and enforced his

agreement to maintain the $800,000 life insurance policy

specified in the parties' property settlement agreement.

    Specifically, the judge rejected plaintiff's claim that

defendant's relationship "grew from one in which they

technically maintained separate residences," at the time of the

hearing before Judge Torack, "to one in which they behave in all

respects like a married couple."   The judge pointed out Judge

Torack found in 1996 that despite their separate residences,

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defendant and her partner spent six or seven days together

almost every week, dined together almost every night, traveled

together, comingled their finances, treated one another's homes

as their own and maintained an intimate and exclusive

relationship indistinguishable from that of a family as

described in Gayet.   The judge found "nothing had changed" and

plaintiff could not relitigate the same cohabitation claim he

succeeded on twenty years ago.

    As to the insurance policy, the judge noted plaintiff

provided only generalized estimates from an insurance broker

about what a policy might cost for someone plaintiff's age but

nothing specific as to plaintiff.    The judge found she could not

assess plaintiff's claim that such a policy would be

prohibitively expensive without knowing something about

plaintiff's finances, which he had not disclosed.    Judge Torack

found plaintiff's gross income at the time of the divorce was

$364,000 and in 1994 it was $989,000.    The judge concluded

plaintiff offered no reasonable basis for having allowed the

policy to lapse and had not shown why he should be relieved of

an obligation voluntarily undertaken at the time of the parties'

divorce.

    Plaintiff appeals, arguing "the payer [sic] of alimony to a

recipient in a cohabiting relationship is entitled to a review

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of the cohabitants' relationship at least once every twenty

years" and that his "obligation to provide life insurance should

be reduced or terminated."   We reject plaintiff's arguments and

affirm, essentially for the reasons expressed by Judge Francois

in her opinions delivered from the bench on the motions.

    As we stated the last time we reviewed this matter,

plaintiff "remains free to move to modify his alimony obligation

upon a showing of changed circumstances" under Lepis, 
83 N.J. at
 146 (emphasis added).   Plaintiff is not entitled to a review of

his permanent alimony obligation based simply on the passage of

time.   The law is well settled that "[a] prima facie showing of

changed circumstances must be made before a court will order

discovery of an ex-spouse's financial status."   Id. at 157.

    As the record demonstrates plaintiff offered nothing to

suggest that either his own or defendant's circumstances have

changed substantially since Judge Torack found defendant and her

partner "enjoyed a permanent, social, personal, intimate and a

business relationship" akin to that of a family, we agree

plaintiff failed to carry his burden on the motion.   His

assertion that defendant and her partner now "behave in all

respects like a married couple" is obviously insufficient.

    We find no error in the trial judge's finding that

plaintiff failed to demonstrate any entitlement to relief from

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his voluntary obligation to maintain an $800,000 life insurance

policy in favor of defendant so long as his alimony obligation

continued.   The case on which plaintiff relies in this court,

Konczyk v. Konczyk, 
367 N.J. Super. 551 (Ch. Div. 2003), is

plainly inapposite as the question there was "whether plaintiff

. . . , the decedent's ex-wife . . . , is entitled to receive

$15,000 in life insurance proceeds when under the Final Judgment

of Divorce, only $2,000 in alimony remained to be paid to her at

the time of the decedent's death."   Id. at 552-53.   That case,

which involved a specific sum of term alimony, has no

applicability in this matter.

    We agree with the trial court that plaintiff has not

demonstrated his voluntary undertaking in the property

settlement agreement is somehow unenforceable, see Peskin v.

Peskin, 
271 N.J. Super. 261, 276 (App. Div. 1994), or that its

continued enforcement is unjustified in light of changed

circumstances, Lepis, 
83 N.J. at 157.

    Affirmed.




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