NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 [plaintiff'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
2 A-2303-16T3 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
3 A-2303-16T3 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
4 A-2303-16T3 "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,
5 A-2303-16T3 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
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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 [plaintiff'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
2 A-2303-16T3 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
3 A-2303-16T3 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
4 A-2303-16T3 "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,
5 A-2303-16T3 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
6 A-2303-16T3 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
7 A-2303-16T3 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.
8 A-2303-16T3