July 11, 2008
JOSEPH NEWMAN, PLAINTIFF-APPELLANT,
IRENE NEWMAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Mercer County, Docket No. FM-11-89-05-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 24, 2008
Before Judges Cuff and Fuentes.
Plaintiff Joseph Newman appeals from various provisions of an August 28, 2007 order that resolved a post-judgment matrimonial motion filed by defendant Irene Newman. We affirm in part, reverse in part and remand for further proceedings.
Plaintiff's appeal concerns two general subjects: life insurance policies and counsel fees. The motion judge ordered plaintiff to repay a $6000 loan, including interest, against the policy ending in 772L within sixty days and further ordered plaintiff to submit information annually, as long as he is disabled, to allow waiver of premium. The judge also ordered plaintiff to pay defendant's $350 counsel fee within forty-five days of the date of the order.
As to the life insurance policies, plaintiff contends that the judge erred in requiring him to repay the $6000 loan taken by him against one of the policies. He argues that defendant knew the loan existed, that he never agreed to repay the loan prior to or at the time he transferred ownership of the policies to defendant, and that defendant had agreed to repay the loan. He also argues that he never agreed to continue to be financially responsible for payment of the premiums on either policy; therefore, he should have no obligation to qualify annually for the waiver of premium. He also insists that he should have no obligation to maintain any life insurance for the benefit of defendant or their adult children because he has no obligation to provide any financial support to them.
Plaintiff also objects to the order to pay counsel fees. He argues that he has not been delinquent in fulfilling any obligation contained in the property settlement agreement.
In his oral decision, the judge found that the property settlement agreement made no reference to the loan on policy 772L. The judge stated that the repayment obligation would have been addressed, if the loan was known to defendant. The judge proceeded to order plaintiff to repay the outstanding loan and any interest on the loan.
We agree that the property settlement agreement makes no provision for repayment of the loan on policy 772L. We cannot disagree with the proposition that the property settlement agreement would have addressed the repayment obligation, if the loan was known to defendant and her attorney at the time the agreement was drafted. It does not necessarily follow, however, that plaintiff would have agreed to repay the obligation once defendant assumed ownership of the policy.
The judge provided no basis for assigning this obligation to plaintiff. The assignment of this obligation to plaintiff goes beyond enforcement of the terms of the property settlement agreement. This order creates a new obligation that must be supported by an analysis of the facts and circumstances, financial and otherwise, to determine which party should bear this obligation. We, therefore, reverse and remand this provision for further proceeding.
Whoever bears the burden of the loan repayment, we have no difficulty affirming the provision that plaintiff provide information in support of his disability status as long as he remains disabled. Plaintiff acknowledged that he has utilized the waiver of premium benefit due to disability over the years. The nature of his objection on appeal seems to lie in the mandatory nature of seeking the contractual benefit. Waiver of premium in the event of disability is a feature selected by plaintiff due to its obvious benefits to him and his beneficiaries. We discern no reason why a change of ownership of the policy should deprive the new owner of the valuable benefit initially selected by plaintiff.*fn1
Due to our disposition of the loan repayment obligation, we vacate the counsel fee award. Defendant's application for fees may be resubmitted and reconsidered following the further proceedings required by this opinion.
Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.