On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-250-03E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Yannotti.
Plaintiff and the decedent Kevin Holmes were divorced in 2003. They had one child, Brielle. The property settlement agreement incorporated in their judgment of divorce required the decedent to maintain life insurance of $150,000 for Brielle until she was emancipated and $50,000 for plaintiff during the period alimony was payable.
After the divorce, the decedent had another child, Avianna, with his then-girlfriend, Alona Traylor Holmes.
On November 1, 2006, the decedent was hospitalized with heart failure, had open heart surgery and suffered a stroke. While in intensive care, he married Alona in December 2006.
Because the decedent was hospitalized in grave condition and had just remarried, plaintiff became concerned about the status of the life insurance coverage he was required to maintain under their property settlement agreement. Therefore, she obtained an order to show cause that appointed her attorney-in-fact to execute whatever paperwork was necessary to insure that she and Brielle were the beneficiaries of his life insurance. The order also restrained any insurer from releasing proceeds from the insurance on decedent's life to anyone other than plaintiff individually and as trustee for Brielle. The order was served on the decedent in the hospital, his residence and the residence of his mother.
On January 30, 2007 counsel for United Parcel Service (UPS), which was the decedent's employer, forwarded plaintiff's counsel a summary of the decedent's benefits coverage, which showed Brielle as the sole named beneficiary of a life insurance policy issued by the Prudential Insurance Company in the amount of $119,180.
On February 9, 2007, the decedent made an online change of the beneficiaries of this life insurance policy. He changed it to 33% Brielle (his first child), 34% defendant Alona (his second and then-current wife) and 33% defendant Avianna (his second child).
The decedent did not respond to the order to show cause, and the trial court entered an order on February 16, 2007, enforcing the terms of the property settlement agreement and continuing the restraints. Plaintiff tried to serve the decedent, who was still in the hospital, with the order, but service was refused.
The decedent died on March 30, 2007.
Plaintiff then filed what she characterized as a "motion to enforce litigant's rights." The motion sought to substitute the "Estate of Kevin J. Holmes and Alona Traylor-Holmes as Administratrix/Executrix of the Estate of Kevin J. Holmes" as defendant for the decedent. The motion also sought to join as defendants "Alona Traylor-Holmes, Individually; Avianna A. Holmes, an infant by and through Alona Traylor-Holmes, her Guardian" as well as UPS and Prudential. In addition to seeking joinder of Alona and Avianna as defendants, the motion sought substantive relief against them, including "[s]etting aside the defendant's February 9, 2007 change of beneficiary designation of Alona Traylor-Holmes, Avianna A. Holmes, and Brielle Holmes as beneficiaries of his life insurance benefit in the percentages of thirty-four (34%) percent, thirty-three (33%) and thirty-three (33%), respectively, as violative of the Judgment of Divorce."
Two days before the return date, counsel for Alona and Avianna sent a letter to the trial court indicating that he had been retained to represent them and that they had no objection to their joinder in the action. The letter also advised the court that Alona was neither the executrix ...