Paulino v. Ramirez
| Decision Date | 09 January 1998 |
| Citation | 709 A.2d 1387,311 N.J.Super. 420 |
| Parties | Maria PAULINO v. Gustavo RAMIREZ, Sr. |
| Court | New Jersey Superior Court |
Robert H. Goodwin, Garces & Grabler, for plaintiff.
Gustavo Ramirez, Sr., defendant pro se.
This non-dissolution matter arises on motion by the Plaintiff, Maria Paulino (hereinafter "Plaintiff") for an order compelling defendant. Gustavo Ramirez, Sr. (hereinafter "Defendant") to name the parties' son. Gustavo Ramirez, Jr., born May 5, 1992, as the sole, irrevocable beneficiary of an existing $100,000.00 life insurance policy which Defendant owns and on which he is the named insured. The case raises an issues which has received limited analysis in case law: whether the court can order the non-custodial parent to maintain life insurance for the benefit of the child in a non-dissolution case, and whether the court can order such relief when there is no existing support order.
The court bases its factual understanding of this case on the Notice of Motion, brief, and supporting certification filed by Plaintiff on November 18, 1997; Defendant has filed no opposing papers. Plaintiff certified that the parties had a relationship from 1986 to July 1993, and that this relationship produced their son, Gustavo Ramirez, Jr., born May 5, 1992 (Pf.Cert.Pp.1-2). The parties, according to the Plaintiff, began living together at least as early as 1988 and purchased a home some time before the birth of the child. The Defendant later abandoned Plaintiff and their child in July 1993 and moved in with his mother.
Plaintiff certified that the Defendant has never been subject to a support order (implying that Plaintiff never applied for support.) Because there have been no prior actions between these parties, there also has been no adjudication of paternity, which this court takes as conceded given Defendant's lack of opposition. Plaintiff further certified that Defendant purchased a $100,000.00 life insurance policy in 1988 during the period of the parties' cohabitation, but that Defendant's mother, Mrs. Pura Santos, is presently named as beneficiary.
The Plaintiff has certified without documentation that Defendant has been diagnosed with Acquired Immune Deficiency Syndrome (AIDS), and fears that he may expire within the month. The Plaintiff therefore asks this court to order Defendant to name Gustavo Ramirez, Jr., as sole irrevocable beneficiary of the $100,000.00 life insurance policy and to name Plaintiff, Maria Paulino, as trustee. Plaintiff also asks that the order operate to name the child as the beneficiary until the policy is amended. Plaintiff bases her position on the statutes that allow the court to order and to provide security for child support awards in dissolution cases ( N.J.S.A. 2A:34-23 and 2A:34-25) and on the child custody statute ( N.J.S.A. 9:2-4).
This court orders Defendant to name the child sole irrevocable beneficiary of this life insurance policy with Plaintiff as trustee, for the reasons set forth below, based on the intent of the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 9:17-59 and on the legal duty of parents to provide financial support for their children.
Parents have a clearly enforceable legal duty to provide financial support for their minor children. Kiken v. Kiken, 149 N.J. 441, 447, 694 A.2d 557 (1997). The evolving duty of support has been enhanced by the enactment of statutes. (Grotsky v. Grotsky, 58 N.J. 354, 356, 277 A.2d 535 (1971). The court in Koidl v. Schreiber, 214 N.J.Super. 513, 515, 520 A.2d 759 (App.Div.1986) explained that this duty is statutory and does not exist at common law. The Legislature and the courts have made clear that they make no distinction between children of a marriage and children born out of wedlock in establishing and protecting the rights of children to parental support. Kiken, 149 N.J. at 447, 449, 694 A.2d 557; State v. Clark, 58 N.J . 72, 84-85, 275 A.2d 137 (1971); Essex Cty. Div. of Welfare v. Walker, 223 N.J.Super. 464, 467, 538 A.2d 1308 (App.Div.1988) (). Anything less would reek of inequity and clearly never pass constitutional muster.
Even though support to children born in wedlock is controlled by the divorce statutes, N.J.S.A. 2A:34-1 (), particularly N.J.S.A. 2A:34-23, -24, and -25; and support to children born out of wedlock is governed by the Parentage Act, particularly N.J.S.A. 9:17-53, the courts have drawn examples freely from the statutes in dissolution and in non-dissolution cases to establish a remedy for the support of a child. Kiken, 149 N.J. at 447, 694 A.2d 557. The purpose of the New Jersey Parentage Age, adopted effective May 21, 1983, was "to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other...." Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Senate, No. 888-L.1983, c. 17; N.J.S.A. 9:17-40; Wingate v. Estate of Ryan, 149 N.J. 227, 233, 693 A.2d 457 (1997); Vasquez v. Bolduc, 212 N.J.Super. 455, 457, 515 A.2d 500 (App.Div.1986). 1 The provisions of the divorce and parentage statutes relevant to this case are those that allow the court to establish security, in the form of bonds, liens, trusts, insurance policies, and the like, for court-ordered child support obligations. In practice courts have fashioned a variety of support arrangements irrespective of the language of the statutes. For instance, N.J.S.A. 2A:34-23, which governs child support pendente lite and post judgment in dissolution cases provides
Pending any matrimonial action ..., or after judgment of divorce or maintenance, ... the court may make such order ... as to the care, custody, education and maintenance of the children, ... as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices to assure payment of reasonably foreseeable medical and educational expense.
[N.J.S.A. 2A:34-23.]
Even prior to the entry of the 1988 amendment to the statute, emphasized above, courts interpreted "reasonable security" to include ordering the non-custodial parent to acquire or to maintain life insurance for the benefit of the child. Grotsky, 58 N.J. at 361, 277 A.2d 535 (); Meerwarth v. Meerwarth, 128 N.J.Super. 285, 319 A.2d 779 (Chan Div.1974), aff'd, 137 N.J.Super. 66, 347 A.2d 804 (App.Div.1975), aff'd, 71 N.J. 541, 544, 366 A.2d 979 (1976) (dictum) (that a court may order an obligor post judgment to cooperate in obtaining life insurance to secure his alimony obligation); Davis v. Davis, 184 N.J.Super. 430, 439-440, 446 A.2d 540 (App.Div.1982) (). N.J.S.A. 2A:34-24, which provides for spousal and child support in a separate maintenance action (legal separation), authorized the court to make a child support order, to impose a priority lien for arrears, or to compel the obligor to "post a bond or other guarantee for [arrears] and for present and future support and maintenance...." N.J.S.A. 2A:34-24. Even though this statute is part of the divorce act, it was amended effective October 5, 1985 and effective April 24, 1987 to replace "spouse" with "obligor/obligee" consonant with federal law that caused the lien provision to apply irrespective of the marital status of the parties (Senate Committee on Children's Services Statement, Senate, No. 2335-L.1987). N.J.S.A. 2A:34-25, which provides that permanent alimony terminates upon the remarriage of the obligee or upon the death of the obligor, also provides:
Nothing in this act shall be construed to prohibit a court from ordering either spouse to maintain life insurance for the protection of the former spouse or the children of the marriage in the event of the payer spouse's death.
[ N.J.S.A. 2A:34-25, as amended effective September 1, 1988, (emphasis added).] 2
The New Jersey Supreme Court in Jacobitti v. Jacobitti, 135 N.J. 571, 577, 641 A.2d 535 (1994) noted the distinction between N.J.S.A. 2A:34-23, which provided for trusts as security, and N.J.S.A. 2A:34-25, which provided for life insurance but was silent as to trusts, and observed that the Legislature could have made the language of the two statutes congruent, as they were amended at the same time. Jacobitti, 135 N.J. at 579, 641 A.2d 535. Because the Court deemed the obligor, whose alimony payments sustained a disabled spouse, too aged to qualify for life insurance and opined that life insurance consonant with the letter of the statute would be prohibitively expensive, the Court fashioned an equitable resolution. Finding the obligor uninsurable under N.J.S.A. under 2A:24-35, the Court ordered the obligor to establish a trust to secure the obligor's alimony payments to his former wife in the event of his death. Jacobitti, 135 N.J. at 582, 641 A.2d 535.
Finally N.J.S.A. 9:17-52 provides that the judgment or order regarding paternity
[c] may contain any other provision ... concerning the duty of support, ... the furnishing of bond or other security for the payment of the judgment....
d. Support judgments or orders ordinarily shall be for periodic payments....
.... [T]he purchase of an annuity may be ordered in lieu of periodic payments of support.
[ N.J.S.A. 9:17-53.]
The statute thereafter sets forth factors congruent with those set forth in N.J.S.A. 2A:34-23a(1)-(9) for the court to consider in establishing a...
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