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Chestone v. Chestone

November 27, 1995

ALBERT F. CHESTONE, PLAINTIFF-APPELLANT,
v.
ROSE B. CHESTONE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.

Approved for Publication November 27, 1995. As Corrected January 11, 1996. As Corrected January 19, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by KLEINER, J.A.D.

Plaintiff Albert Chestone appeals from the trial court's order that he maintain his former spouse as survival beneficiary of his pension subsequent to and in spite of the court's order of divorce. Plaintiff is a retired federal employee and distribution of his pension benefits is governed by federal law. The issue before us is whether the trial court erred by refusing to apply relevant federal statutes.

In December 1976, plaintiff, while married to his first wife, retired after thirty years of service as a special agent with the Federal Bureau of Investigation. His federal pension had vested and upon retirement he began to receive about $3,000 per month as retirement benefits. Plaintiff's wife was designated as a survivor annuitant on that pension. To pay the deposit necessary for this designation, plaintiff's monthly benefits were reduced by approximately $1,000.

Plaintiff's wife died in 1980. Subsequent to her death, he met Rose E. Schmelz. Plaintiff and Schmelz developed a romantic relationship. In anticipation of their marriage, they entered into an "Ante-nuptial Agreement," dated January 20, 1988. They were married on February 6, 1988.

The ante-nuptial agreement provided in part:

1. Each party accepts the provisions of any Last Will and Testament that may presently exist or hereafter be made by each of them in full discharge, settlement and satisfaction of any and all other right, title and interest he or she might otherwise have or acquire in each other's estate or property including, but not limited to his or her "marital share", pursuant to NJSA 3B:1-1 et seq. and more specifically this instrument is a waiver of our respective rights to elect against any Will made by the other.

3. In addition to the real property referred to above each party agrees that any asset owned by either party as of the date of the marriage shall remain the separate property of each such party.

In January 1990, plaintiff designated defendant as the survival annuitant of his pension. Plaintiff's monthly benefits were reduced accordingly. The election application bears the following condition on page one: "Important: You cannot change or cancel your election after we have received a valid application." The application states that there are multiple payment options available to the electing annuitant. The application also provides under the heading "Law and Regulations" that "[a] change in beneficiary may be made at any time and without the knowledge or consent of the previous beneficiary, and this right cannot be waived or restricted."

The parties separated on June 24, 1992. Plaintiff filed a complaint for divorce and defendant filed a counterclaim for divorce. The issues at trial were limited to (1) defendant's pretrial claim that she should be entitled to remain as the designated survivor annuitant on plaintiff's pension, and (2) defendant's demand that her counsel fees and accountant fees be paid by plaintiff. The trial Judge reserved decision and rendered a written opinion. A dual judgment of divorce was entered on September 12, 1994. The judgment of divorce, encompassing the Judge's Conclusions, provided in part:

(1) The plaintiff shall continue to name the defendant as the survivor annuity beneficiary of the plaintiff's Civil Service Retirement System Pension and shall take no action to remove the plaintiff as survivor annuity beneficiary. In the event the United States Office of Personnel Management requires additional documentation, both the plaintiff and defendant shall execute any and all documents to effectuate this determination.

(2) The plaintiff shall pay to attorneys for defendant, counsel fees and costs in the sum of $12,000, and $861.00 to [defendant's accountant].

Plaintiff's appeal raises four points of error:

POINT I

THE TRIAL COURT EXCEEDED ITS AUTHORITY BY NOT CONSIDERING JUDICIAL NOTICE OF APPLICABLE FEDERAL LAW.

POINT II

A PROPER APPLICATION OF THE APPLICABLE FEDERAL REGULATIONS EXCLUDES DEFENDANT FROM CONTINUING AS THE SURVIVOR ANNUITANT.

POINT III

THE TRIAL COURT HAS MISAPPLIED THE CONCEPT OF "GIFT" TO ...


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