On appeal from the Division of Workers' Compensation.
King, Simpson and Scalera. The opinion of the court was delivered by King, P.J.A.D.
In this case we consider the effect of an annulment on workers' compensation dependency death benefits. We conclude that the grant of a legitimate annulment of the remarriage reinstates the entitlement of the deceased worker's widow to dependency death benefits which she had been receiving before entering into the voidable second marriage.
These are the relevant facts. The deceased, Charles Sites, worked for Johns-Manville when he died from a compensable accident on April 16, 1973. On January 18, 1979 the judge of compensation awarded his widow, Angie Sites, dependency death benefits under our workers' compensation statute. See N.J.S.A. 34:15-13(a). The award was 50% of her deceased husband's wages of $180 a week, or $90 a week for 450 weeks, a sum of $40,500. After that period, compensation would be paid pursuant to N.J.S.A. 34:15-13(j) which requires downward adjustment if the surviving spouse has earnings from employment.
On July 1, 1978, about six months before the entry of the workers' compensation judgment for dependency benefits, the appellant, Angie Sites, remarried. After the judgment was entered her deceased husband's employer paid the accrued benefits to the date of remarriage only.
On May 6, 1982 Judge Gaynor, sitting in the Chancery Division of this court, entered a judgment annulling Angie Sites remarriage. The ground for annulment of the unconsumated marriage was fraud -- the appellant's new husband "was physically and incurably impotent, therefore precluding sexual intercourse." This condition had never been disclosed before the marriage. The judgment of annulment also recited that "as a result of an agreement between the parties that the defendant pay the plaintiff [Angie Sites] $8,000 forthwith in full and final satisfaction of any and all claims past, present, and future, including any claim to alimony which may have arisen as a result of the ceremony of marriage."
On April 14, 1983 the appellant Angie Sites filed a notice of motion in the Division to restore payment of the dependency benefits as of July 1, 1978, the date payments had stopped because of the remarriage. The judge of compensation denied restoration of dependency benefits, relying on Flaxman v. Flaxman, 57 N.J. 458 (1971).
In Flaxman the Supreme Court held that the right of a divorced wife to alimony from her former husband under a separation agreement incorporated into the divorce decree was not revived by annulment of her second marriage on grounds which rendered it voidable. Id. at 463. As in the case before us, the facts in Flaxman were undisputed. The parties entered into a separation agreement which provided that the wife would retain custody of the two children and that the husband would pay both child support and alimony. Under the agreement, alimony was to terminate if the wife divorced her husband and remarried. Plaintiff wife sued for divorce and obtained a final judgment which incorporated the separation agreement. Two months later plaintiff remarried; a year later this remarriage was annulled. The annulment was based on the second husband's fraud because he never intended to have children or consummate the marriage.
In denying the reinstatement of alimony the Court's primary concern was that if it held otherwise, "a husband, whose divorced wife had remarried, could never be certain that the financial responsibility for his former wife would not shift back to him." Id. at 463. The Court held that a husband may rely upon his former wife's remarriage safely assuming that his financial obligations to her were ended and proceed to reorder his financial affairs. In a companion case decided the same day, the Court underscored a concern expressed in Flaxman that allowing an annulment to revive alimony payments would sometimes allow a wife to choose between sources of support. Sharpe v. Sharpe, 57 N.J. 468 (1971). In Sharpe, as in Flaxman, the second marriage was voidable and not void. The plaintiff wife had grounds for either divorce or annulment. Choosing a divorce would have allowed her to look to her second husband for alimony and, under the result which she urged, an annulment would have revived the alimony due from her first husband. "[I]n justice to her former husband, who has had no say in that choice," the Court declined to allow her this option. 57 N.J. at 471.
Appellant Angie Sites asserts that there is absolutely "no case law in this jurisdiction dealing with this Workers' Compensation issue." Urging that the context within which these cases arise is crucial to their resolution, she turns to other jurisdictions which have decided this issue in the context of both dependency benefits from workers' compensation and alimony. Plaintiff discusses at length two Arizona cases, Means v. Industrial Commission, 110 Ariz. 72, 515 P. 2d 29 (1973), and Hodges v. Hodges, 118 Ariz. 572, 578 P. 2d 1001 (Ariz.App.1978). In Means the Supreme Court of Arizona reversed an intermediate appellate court and reinstated a widow's award of workers' compensation benefits which had terminated upon her remarriage and which the Arizona Industrial ...