On certification to the Superior Court, Appellate Division, whose opinion is reported at
Garibaldi, Wilentz, Clifford, Handler, Pollock, O'Hern, Stein
[135 NJ Page 572] The opinion of the Court was delivered by
N.J.S.A. 2A:34-25 provides that "alimony shall terminate on the death of the payer spouse." In this case a trial court ordered a divorced man to create a trust fund from which monthly alimony payments would be made to his ex-wife so long as she lives, even if she outlives her ex-husband. The court did so by invoking another part of N.J.S.A. 2A:34-25, which provides that a court may order a spouse to maintain life insurance to protect the former spouse "in the event of the payer spouse's death." Plaintiff, Edmund E. Jacobitti, asserts that the court was statutorily barred from ordering the creation of the trust. We hold that under the specific facts of this case, it was not.
Edmund and Stella Marie Jacobitti were married in 1975 and divorced in early 1991. At trial, Edmund, a retired physician, was in apparent good health despite his eighty-seven years. Stella, nineteen years younger than Edmund, however, was confined to a wheelchair due to the debilitating effects of multiple sclerosis.
Although Edmund's precise net worth is not known, he is unquestionably wealthy. In an ante-nuptial agreement executed in 1975, Edmund represented that he had assets in excess of $1,325,000 and an annual income in excess of $100,000. The trial court, however, determined that when the agreement had been executed, Edmund had failed to make complete disclosure of his net worth; it therefore found the ante-nuptial agreement to be unconscionable and unenforceable. Stella asserts that at the time of the trial, Edmund was worth six- to nine-million dollars and had an annual income in excess of $300,000. To avoid disclosure of his wealth at trial, Edmund's counsel stipulated that Edmund had the "capacity financially to make any payment for support or alimony that the court may reasonably fix."
Stella, on the other hand, is impecunious. Her physical condition is progressively deteriorating. Except for the $75,000 she
received in equitable distribution, Stella is totally dependent on the alimony that she will receive from Edmund.
The trial court found that Stella was entitled to $4,200 per month in alimony. Finding that it had statutory authority "to create trusts in circumstances where there is no certainty that the breadwinner will continue to be able to make payments for a period of time into the future," the court ordered Edmund to place $500,000 in trust to cover all the income to be paid to Stella each month. On Stella's death, the corpus would be distributed to Edmund, his estate, or a designated charity. The court provided, however, that the corpus could be invaded to pay Stella's monthly health-care expenses that exceeded $1,000.
Because of Edmund's advanced age, the trial court ordered Edmund to create the trust rather than ordering Edmund to purchase a life-insurance policy naming Stella as the beneficiary. As the Appellate Division noted, the then-eighty-seven-year old Edmund was "undoubtedly too old to obtain life insurance to secure continuation of defendant's alimony payments after death." Thus, the trust was a more effective alternative.
Edmund appealed the order to create the trust, alleging that it required him to pay alimony after his death, which is expressly prohibited under N.J.S.A. 2A:34-25. The Appellate Division affirmed the creation of the trust, but remanded to the trial court to amend the order to establish a trust "sufficiently funded" to secure monthly payments of $4,200 to Stella for as long as she lives. 263 N.J. Super. 608, 615 (1993). It further provided that unless Edmund agreed otherwise, on Stella's death the trust proceeds would revert to him, his heirs, or other legal designees, but not to charity. Id. at 617.
Both parties petitioned for certification. We granted only Edmund's petition, N.J. (1993), limited to the "issue of the validity of the alimony-payment trust."
We now hold that under the unique circumstances of this case, Jacobitti's trust is the appropriate equitable remedy to fulfill
the Legislature's intent in authorizing life insurance for the protection of a dependent spouse "in the event of the payer spouse's death." See N.J.S.A. 2A:34-25.
Alimony is an allowance for support and maintenance that, traditionally, a "husband is required to supply to his wife when she is living separate and apart or has been divorced from him." Davis v. Davis, 184 N.J. Super. 430, 436, 446 A.2d 540 (App. Div. 1982). Certainly the traditional roles of husband as bread-winner and wife as dependent no longer apply in every divorce situation, but they do apply to ...