MARY BROWN v. POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE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-3408-16T3

MARY BROWN for
ADEBAYO EISAPE (DECEASED)

        Petitioner-Appellant,

v.

POLICE AND FIREMEN'S
RETIREMENT SYSTEM,

        Respondent-Respondent,

and

GRACE OYAMENDAN EISAPE,

        Intervenor-Respondent.

              Argued April 25, 2018 – Decided May 30, 2018

              Before Judges Fuentes, Koblitz and Manahan.

              On appeal from the Board of Trustees, Police
              and Firemen's Retirement Systems, Department
              of Treasury, PFRS No. 3-64564.

              Michael B.      Blacker     argued    the   cause    for
              appellant.

              John A. Lo Forese, Deputy Attorney General,
              argued the cause for respondent Police and
              Firemen's Retirement System (Gubir S. Grewal,
              Attorney General, attorney; Melissa H. Raksa,
           Assistant Attorney General, of counsel; John
           A. Lo Forese, on the brief).

           Donald O. Egbuchulam argued the cause for
           respondent Grace Oyamendan Eisape.

PER CURIAM

    Petitioner Mary Brown appeals from a decision of the Board

of Trustees of the Police and Firemen's Retirement System (PFRS)

that was adopted from the findings of fact and conclusions of law

of the administrative law judge's (ALJ) initial decision denying

her spousal survivor benefits as the claimed widow of decedent

Adebayo Eisape, a former member of the PFRS.         We affirm.

    Petitioner and decedent were married on January 30, 1986, in

New Brunswick, New Jersey.       They lived together for about a year

before they separated.     At the time of the separation, petitioner

was pregnant with another man's child.

    After the separation, decedent submitted an affidavit in

furtherance   of   his   New   York   divorce   action   establishing   his

residence in that state.       Decedent filed an affidavit of service

of the complaint relative to petitioner with the court.                 The

affidavit stated that service took place at a particular address

in Brooklyn, in May 1987.         The affidavit was signed by Isaac

Allison.   On August 7, 1987, the New York court granted a divorce

to decedent by default predicated upon petitioner's failure to

plead or to otherwise respond to the complaint.

                                      2                            A-3408-16T3
     In    November   1987,   decedent   married   Renee   Carla    Tucker.

According to Tucker, decedent used the name Isaac Allison at his

job and had a "mail drop" in New York.       Decedent told Tucker that

he was previously married but divorced in August 1987.             Decedent

later divorced Tucker and then married his third wife, Bashirat

Musa, who he divorced in May 2006.          In October 2009, decedent

married his fourth wife, Grace Oyamendan.          Decedent was married

to Oyamendan until the time of his death on June 29, 2012.

     When petitioner learned of decedent's death, she contacted

PFRS claiming to be the widow. In November 2014, the PFRS rejected

petitioner's assertion, determining Oyamendan to be the widow.

Petitioner contested the decision.       An ALJ conducted a testimonial

hearing.    At the conclusion of the hearing, the ALJ made findings

of fact and determined that petitioner failed to prove by clear

and convincing evidence that the New York divorce was invalid.

     On March 13, 2017, the PFRS adopted the ALJ's recommendation

that Oyamendan is the widow of decedent, and that she is entitled

to the widow's survivor benefit provided in 
N.J.S.A. 43:16A-9(1).

     On April 17, 2017, petitioner filed a notice of appeal,

raising the following points:

            POINT I

            PETITIONER HAS OVERCOME THE PRESUMPTIION OF
            VALIDITY OF MR. EISAPE'S SUBSEQUENT MARRIAGES
            BY CLEAR AND CONVINCING EVIDENCE.

                                    3                               A-3408-16T3
             POINT II

             NO SUFFICIENT OR SUBSTANTIAL CREDIBLE EVIDENCE
             WAS PRESENTED BELOW TO SUPPORT THE DECISION
             OF THE PFRS BOARD.

       An administrative agency's determination is presumptively

correct, and on review of the facts, a court will not substitute

its own judgment for that of an agency where the agency's findings

are supported by sufficient credible evidence.               Gerba v. Bd. of

Trs., Pub. Employees' Ret. Sys., 
83 N.J. 174, 189 (1980).

       "If the Appellate Division is satisfied after its review that

the evidence and the inferences to be drawn therefrom support the

agency head's decision, then it must affirm even if the court

feels that it would have reached a different result."               Campbell

v. N.J. Racing Comm'n, 
169 N.J. 579, 587 (2001) (quoting Clowes

v. Terminix Int'l, Inc., 
109 N.J. 576, 588 (1988)).

       Only where an agency's decision is arbitrary or capricious,

or unsupported by sufficient credible evidence in the record, may

it be reversed.     Henry v. Rahway State Prison, 
81 N.J. 571, 579-

80 (1980) (citing Campbell v. Department of Civil Service, 
39 N.J.
 556,   562   (1963)).    Moreover,       the   party   who   challenges   the

administrative decision bears the burden of showing that it was

"arbitrary, unreasonable or capricious."          Boyle v. Riti, 
175 N.J.

Super. 158, 166 (App. Div. 1980) (citations omitted).



                                     4                               A-3408-16T3
       Generally,    the    following       three   inquiries      are   made    to

determine     whether   a   decision    was    "arbitrary,     unreasonable      or

capricious."     First, whether the agency's action violates express

or implied legislative policies.               Second, whether the record

contains substantial evidence to support the findings on which the

agency   based   its    action.     Finally,        whether   in   applying     the

legislative policies to the facts, the agency clearly erred in

reaching a conclusion that could reasonably have been made on a

showing of the relevant factors.              In re Proposed Quest Academy

Charter School, 
216 N.J. 370, 385-86 (2013) (quoting Mazza v. Bd.

of Trs., 
143 N.J. 22, 25 (1995)).

       A "widow" is defined as a woman "to whom a member . . . was

married to the date of his death and who has not remarried."


N.J.S.A. 43:16A-1(24)(b).         A widow is entitled to fifty percent

of the member's final compensation during her widowhood.                 
N.J.S.A.

43:16A-9(1).

       Our Supreme Court has made clear "that irrespective of the

factual context in which the issue may arise, the last of two or

more marriages is presumptively valid."               Newburgh v. Arrigo, 
88 N.J.   529,    538   (1982).      To    overcome      such    presumption,      the

challenging party has the burden of proving by clear and convincing

evidence that the prior valid marriage was not terminated by death

or divorce before the latest marriage.              Ibid.     The Court further

                                        5                                 A-3408-16T3
held when challenging the validity of a divorce in a foreign

jurisdiction, the burden rests with the challenger to prove all

defects, including lack of jurisdiction.     Ibid.   Satisfaction of

the clear and convincing standard requires clear evidence which

causes one to be convinced that the allegations sought to be proved

are true.1

      Further, our Supreme Court has held that "[t]here remains

little, if any, interest in encouraging the resurrection of the

deceased marriages, even if pronounced dead by other tribunals

whose processes are not completely consistent with our own." Kazin

v. Kazin, 
81 N.J. 85, 98 (1979).

      Here, petitioner argues that New York lacked jurisdiction

over the divorce action as decedent was a New Jersey resident up

until 1987.2     Second, petitioner contends decedent's "mail drop"

address was not sufficient proof of residency.       In reaching her

decision, the ALJ found:

             Here, petitioner has failed to overcome her
             burden of proving, by clear and convincing
             evidence, that her marriage to Eisape was not
             terminated.   In short, the record is bereft
             of testimonial or documentary evidence that
             would produce a firm belief or conviction in
             a trier of fact that the [j]udgment of


1
  See New Jersey Model Civil Charges, Sec. 1.19, revised August
2011.
2
    N.Y. C.L.S. Dom. Rel. §230.

                                   6                         A-3408-16T3
         [d]ivorce is invalid, due       to   fraud   or
         otherwise. I so CONCLUDE.

              Next, the subject divorce decree was
         issued by a court of competent jurisdiction
         in the State of New York. There is no evidence
         that petitioner attempted to appeal that
         judgment. Certainly, this tribunal does not
         have the jurisdiction to set that judgment
         aside or disregard it. Therefore, I CONCLUDE
         that until such time that the [j]udgment of
         [d]ivorce is declared invalid, it is deemed
         to be in place.

    The PFRS accepted these findings and conclusions without

modifications.   Having considered the administrative record in

light of our standard of review and controlling law, we discern

no basis for error.

    Affirmed.




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