On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-6339-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
This appeal is from a final order of the Family Part. Defendant Peter Griffin is deceased. Deirdre Newman, as executrix of Peter Griffin's estate and holder of his power of attorney prior to his death, appeals, and plaintiff Tasara Masaya cross-appeals. Griffin was the father of three children -- a son and daughter born to Newman and a daughter born to Masaya. The orders at issue on this appeal allocate the proceeds of a policy of insurance on Griffin's life among his three children and direct distribution of one-hundred percent of his 401K account to Masaya, on behalf of her daughter, in payment of Griffin's child support arrears. For reasons stated below, we affirm the order awarding the 401K, vacate the orders governing distribution of Griffin's life insurance and remand for further proceedings.
Newman and Griffin married in 1985 and divorced in December 2000. They had a son who is now nineteen years of age and is a student in college. They had a daughter who is now seventeen and is a student in high school.
Newman and Griffin addressed life insurance in paragraph 2.4 of their property settlement agreement (the Newman/Griffin PSA or PSA). It states that Griffin is the owner of a "$150,000" policy and "also entitled to life insurance as a benefit of his employment," in an "amount that is the equivalent of four times his current salary or income." The PSA requires Griffin to "immediately name the children as the sole, exclusive irrevocable and equal beneficiaries" on both policies. Upon emancipation of the first child, Griffin's insurance obligation was to be reduced by one-half. Upon emancipation of both children, the obligation was to "abate altogether." Neither of Newman's children is emancipated; pursuant to paragraph 2.2 of the Newman/Griffin PSA, Griffin's obligation to support each child continues while the child is attending high school or college.
Masaya and Griffin had a child in December 2004, which was four years after Griffin's divorce from Newman. Griffin earned $115,000 in 2004. In 2005, Masaya filed a complaint for custody and child support. On June 21, 2005, the court entered a consent order that incorporated their agreement (Masaya/Griffin CSA or CSA). That CSA includes the following relevant provisions: a child support obligation of $255 per week (approximately $1097 per month), effective December 7, 2004; arrears fixed at $6,630 as of May 31, 2005; a life insurance obligation of $200,000 to secure child support; and an obligation to pay fifty-percent of work-related child care costs incurred by Masaya.
Shortly after entry of the CSA, Griffin, who previously had been diagnosed and treated for cancer, learned that his disease had returned. He was not able to work after the fall of 2005.
On October 5, 2006, Masaya obtained an order to show cause that temporarily restrained Griffin from withdrawing funds from his bank accounts and required him to change the beneficiary designation on any life insurance policy to name Masaya's daughter as the beneficiary. A return date was set for October 19, 2006.
On October 19, 2006, Griffin was in the hospital. Before the return date, he gave Newman a power of attorney, and she filed papers in opposition to Masaya's order to show cause. Newman appeared in court on October 19, 2006. She was not joined as a party to the litigation and appeared pro se on behalf of Griffin. Masaya was represented. Both Masaya and Newman were placed under oath and addressed the court.
Masaya provided the following information. Griffin owed Masaya child support in the amount of $24,990; he had paid a total of $3125 since the consent order was entered. Based on her review of his check register in July 2006, Masaya thought that Griffin had $230,000 in one account. Masaya works part time as an independent contractor in the field of systems management. Although she testified that she earns $500 per day and works approximately fifteen days per month, she asserted that she could earn only $30,000 per year.
Newman produced bank records showing that the balance in the account Masaya referenced did not exceed $5000 at any point after April of 2005. According to her, Griffin was receiving $3628 in disability benefits and had unpaid hospital bills in the amount of $57,000. Newman could not explain a document that indicated Griffin's disability benefit was $5000 per month, but she knew that he received only $3628 per month.*fn1 Newman testified that Griffin had not been able to secure additional life insurance and had one policy of insurance on his life in the approximate amount of $100,000. Newman advised the judge, however, that she was not certain about the policy amount or about the designated beneficiaries and suggested that no order be entered until she had the information. Newman also reported that Griffin's only assets were his life insurance policy, the checking account and a retirement savings account; she agreed to provide a statement for that account within three days of the proceeding. Newman further informed the court ...