Wellington v. Estate of Wellington

• Citation: 820 A.2d 669,359 N.J. Super. 484
• Parties: Elizabeth P. WELLINGTON, Plaintiff-Appellant, v. ESTATE of Thomas D. WELLINGTON, Deceased, Margaret W. Constantine, Margaret W. Wellington, and Morgan Guaranty Trust Company of New York (now known as JP Morgan Chase Bank), Executors, Defendants-Respondents.
• Decision Date: 22 April 2003
• Court: Superior Court of New Jersey

820 A.2d 669

359 N.J. Super. 484

Elizabeth P. WELLINGTON, Plaintiff-Appellant, v. ESTATE of Thomas D. WELLINGTON, Deceased, Margaret W. Constantine, Margaret W. Wellington, and Morgan Guaranty Trust Company of New York (now known as JP Morgan Chase Bank), Executors, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 24, 2003.

Decided April 22, 2003.

Robert D. Borteck, Morristown, argued the cause for appellant (Edwards & Angell, attorneys; Mr. Borteck and Richard D. Sanders, on the brief).

Gerard G. Brew, Newark, argued the cause for respondents (McCarter & English, attorneys; Myrna L. Wigod, of counsel and on the brief; Alison Coriaty O'Sullivan, also on the brief).

Before Judges PETRELLA, LINTNER and BILDER.

The opinion of the court was delivered by PETRELLA, P.J.A.D.

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, 189 A.2d 204 (1963), we conclude that the motion judge correctly determined that the intent of the agreement is clear from its terms and that summary judgment to defendants was plainly warranted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995); R. 4:46-2. It is not disputed that under New York law the obligation to pay alimony terminates upon the death of the payor, unless the parties agree otherwise. Plaintiff, however, contends that the scenario in this case is more like Cohen v. Cronin, 39 N.Y.2d 42, 382 N.Y.S.2d 724, 346 N.E.2d 524 (1976), where the parties entered into a separation agreement that provided payments of $400 each month to the wife "until she shall remarry or expire." Id. at 44, 382 N.Y.S.2d at 725, 346 N.E.2d at 526. The Cohen agreement required the husband to convey the marital residence to the wife and obligated her to pay all the carrying costs of the home. In addition, the agreement recited that the parties had taken into consideration that the wife was not employed and that she accepted the provisions made for her in full satisfaction of her support and maintenance. The husband died two months after the execution of the agreement, while the parties were still married and living apart. His widow sought to charge the estate with the obligation to continue to make the monthly payments. Ibid. The Cohen court stated:

We start with the well-accepted proposition that a husband's obligation to support his wife terminates with the husband's death. However, the husband might, by agreement, impose upon his estate a duty to make alimony or support payments after his death. In order to bind the estate, a separation agreement must either specifically provide for the continuation of payments or evince, from the terms of the agreement read as a whole, a clear intention that support payments continue, notwithstanding the husband's death. While explicit agreement by the parties is obviously much to be preferred, where such explicit agreement is lacking, the court must read the document as a whole in its total context and examine each of its provisions in order to ascertain the overriding intention of the parties. Since the burden of proof is by the claimant, the wife must establish, to the satisfaction of the court, that the parties actually intended to extend the obligation to make support payments beyond the husband's lifetime.

[Id. at 45-46, 382 N.Y.S.2d at 726, 346 N.E.2d at 526-527 (citations omitted).]

Cohen concluded that the provision of the agreement that provided that support payments continue to the wife "until she shall remarry or expire" without any qualifying or limiting language, obligated the husband's estate to make the payments for the wife's lifetime. Id. at 46, 382 N.Y.S.2d at 726, 346 N.E.2d at 527. Furthermore, the agreement noted that the wife was not employed and that the payments would be the wife's sole source of income to pay the ongoing costs of the marital home she had obtained under the agreement. The court also noted that the wife waived all of her other rights to share in her husband's estate, and so it was only reasonable that, in consideration for the release of her other marital rights, she acquired the security of having support payments made during her lifetime. Ibid.

Plaintiff claims in the present case that the clear language of the separation agreement provides for termination of the husband's payments only upon her remarriage and "where, as here, there is no `qualifying or limiting language,' Cohen obligates the Decedent's estate to continue support and maintenance payments `for the lifetime of the wife.'" She argues that the judge here failed to properly apply the rule set forth in Cohen.

However, Cohen is readily distinguishable. The agreement in Cohen provided that support would continue during the wife's lifetime or until her remarriage, whereas the agreement here stated only that support would terminate upon plaintiff's remarriage. Plaintiff argues that the fact that the agreement does not refer to the death of the payor as a terminating event supports her claim. However, that argument overlooks the reality that under New York law, the obligation terminates upon the death of the payor, unless otherwise provided. Id. at 45, 382 N.Y.S.2d at 726,346 N.E.2d at 526-527.

Moreover, the separation agreement in Cohen not only created a financial liability for the wife by giving her the house and financial obligations related thereto, but also expressly recognized that she was not employed. The agreement thus contemplated that the husband's payments would be the wife's sole means of support. The agreement here specifically states that both parties were free to engage in any employment. Finally, the agreement in Cohen did not require the husband to maintain a death benefit for the wife as the agreement did here. This is a significant difference.

The general law stated in Cohen was similarly expressed in In re Riconda, 90 N.Y.2d 733, 737-738, 665 N.Y.S.2d 392, 395-396, 688 N.E.2d 248, 251-252 (1997) (citations omitted):

The intent to vary the statutory and precedential preference of an end to maintenance payments upon death of the payor must be expressed clearly. Indeed it has been said that a specific, affirmative expression is required for an estate to become liable to make continued

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