On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Number FD-471-02.
Before Judges Petrella, Lintner and Bilder.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Elizabeth P. Wellington sued the executors of the estate of her former husband, claiming that under the terms of the property settlement agreement that she and her former husband entered under New York law, the estate was obligated to continue paying her support until her death. The judge granted summary judgment to defendants, finding that the property settlement agreement encompassed all of plaintiff's claims against the estate when it included an obligation by her former husband to make a lump-sum bequest in his will to her, which he did.
Plaintiff appeals, claiming that the judge erred in not ordering the estate to continue paying her support until her death, and in ruling on the summary judgment motion prior to completion of discovery. We disagree and affirm. The judge's findings were appropriate, and further discovery was not necessary.
Plaintiff married Thomas on November 18, 1966, and had one child who was born in 1967. They were divorced in Mexico on August 25, 1970. On August 18, 1970, they entered into a settlement agreement which, according to the terms of the divorce decree, survived the divorce decree, and was to be governed by the laws of New York. Section 5 of that agreement stated:
The Husband shall pay to the Wife for the support and maintenance of her and the Child, the following: (a) (i) the sum of $27,500 per annum until July 31, 1978, and (ii) the sum of $22,500 per annum until May 31, 1985, and (iii) the sum of $18,500 per annum thereafter, provided that if the parties are divorced and the Wife remarries, the obligations of the Husband to make the annual payments under this subdivision (a) shall cease as of the Wife's remarriage.
Paragraph 6 of the agreement stated:
(a) As a full settlement of the Wife's property rights in the estate of the Husband, and consistent with the principles enunciated in Revenue Ruling 60-160, 1960-1 C.B. 374, the Husband shall forthwith make and keep in full force and effect until his death a Will bequeathing and devising to the Wife, if she survives him and has not remarried, (i) the sum of $100,000 in the event that the Husband shall die before SARAH'S eighteenth (18th) birthday, (ii) the sum of $50,000 if the Husband shall die subsequent to SARAH'S eighteenth (18th) birthday.
Thomas died testate on July 19, 2000, a resident of Princeton. His May 10, 1996 will complied with his obligation to make the $50,000 bequest to plaintiff as required under the property settlement agreement.
In March 2001, Elizabeth Wellington executed a proof of claim against the estate of her former husband, Thomas, claiming that the estate was liable for support payments. After the co-executors of the estate rejected plaintiff's claim, she filed suit in the Chancery Division, Probate Part, asserting her right to support from the estate and its executors, Margaret W. Constantine, Margaret W. Wellington and Morgan Guaranty Trust Company of New York (now known as J.P. Morgan-Chase Co.). The dispute was sua sponte transferred to the Family Part.
Thereafter, defendants moved to dismiss, or in the alternative, for summary judgment. The judge granted summary judgment to defendants on April 12, 2002. Plaintiff filed a timely notice of appeal.
I. Plaintiff first argues that the separation agreement with her former husband bound his estate to continue support payments to her after his death, and thus the judge erred in granting summary judgment to the estate. Defendants acknowledge the agreement, but assert that its terms did not contemplate the continuation of support to Elizabeth after Thomas's death. After consideration of the record in the light most favorable to the plaintiff, as the opponent of the motion, and resolving all doubts against the movant, Ruvolo v. American Cas. Co., 39 N.J. 490, 499 (1963), we conclude that the motion judge correctly determined that the intent of the ...