SAMUEL CHERNIN VS. BETTER CHERNIN (FM-02-26072-90, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1424-18T1
SAMUEL CHERNIN,

Plaintiff-Appellant,

v.

BETTE CHERNIN,

Defendant-Respondent.
_______________________________

Submitted October 8, 2019 - Decided August 14, 2020

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-26072-90.

Franzblau Dratch, PC, attorneys for appellant (S.M.
Franzblau, of counsel and on the briefs; Daniel A.
Lebersfeld, on the briefs).

Callagy Law, attorneys for respondent (Brian P.
McCann, on the brief).

PER CURIAM
 Plaintiff Samuel Chernin appeals from a November 2, 2018 order

denying his most recent motion to be relieved of his agreement to pay

permanent alimony to his former wife of thirty-four years, defendant Bette

Chernin, and to maintain a life insurance policy to secure that obligation.

Because we agree with the Family Division judge that plaintiff did not

establish changed circumstances entitling him to relief, we affirm.

We are, of course, familiar with the matter as this is the third appeal we

have considered in the last four years relating to plaintiff's permanent alimony

obligation to defendant. We refer the reader to our prior opinions, the holdings

of which we summarize here, for the factual background.

In 2016, we considered whether plaintiff was "entitled to an order

terminating his alimony obligation under L. 2014, c. 42, § 1, "the 2014

amendments to the alimony statute, N.J.S.A. 2A:34-23, based on defendant's

cohabitation, which plaintiff had already "established over the course of a five-

day plenary hearing in 1996." Chernin v. Chernin, No. A-2470-14 (App. Div.

Mar. 2, 2016) (Chernin I) (slip op. at 1). Because we had already determined

in Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App. Div. 2015),

that the Legislature mandated "the 2014 amendments not be construed to

modify the duration of alimony ordered or agreed upon, or to modify

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specifically bargained for contractual provisions incorporated into an

enforceable written agreement between the parties, a judgment of divorce, or a

final order concluding post-judgment litigation, all of which applied here," we

found the trial court erred in relying on the amendments to modify the

permanent alimony previously ordered in this case. Chernin I (slip op. at 6).

We specifically noted in the 2016 appeal that the only basis plaintiff had

asserted for terminating his alimony was "defendant's cohabitation,"

considered under the 2014 amendments to the alimony statute. Id. at 8.

Plaintiff's counsel conceded "that plaintiff's age [78] would, at [that] point,

provide no basis for changed circumstances under Lepis v. Lepis, 83 N.J. 139

(1980), as plaintiff continue[d] to work and [could] well afford his alimony

obligation." Id. at 9. Although finding the 2014 amendments to the alimony

statute did not apply, we made clear that plaintiff remained "free to move to

modify his alimony obligation upon a showing of changed circumstances."

Ibid.

In 2018, we considered plaintiff's appeal from orders denying his

motions to terminate his alimony and relieve him of his agreement to maintain

a life insurance policy to secure the obligation based on changed

circumstances. Chernin v. Chernin, No. A-2303-16 (App. Div. June 5, 2018)

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(Chernin II) (slip op. at 1). Summarizing the application in the trial court, we

noted

[p]laintiff acknowledged his own circumstances had
not changed. Although then seventy-eight years old,
he was still working and had no plan to retire.
Instead, he claimed defendant's circumstances had
changed. Despite conceding defendant remained in
the same relationship Judge Torack considered on
plaintiff's 1996 motion, he argued "[i]n the ensuing
nineteen years, their relationship has . . . become the
equal of that of a married couple.

[Id. at 4].

As to his insurance obligation, "plaintiff admitted he had let the policy lapse

and contended "securing it would be cost prohibitive for [him] at [his] age."

Ibid.

Defendant had argued in the trial court that, "her continued cohabitation

with the same man she had been cohabiting with in 1996 did not represent any

changed circumstances," and noted plaintiff's concession in the 2016 appeal

"'that with the exception of the new statutory amendments, nothing else [had]

changed in the intervening twenty years.'" Id. at 5. (quoting Chernin I (slip

op. at 4)).

Summarizing the trial court's findings, we wrote:

the judge rejected plaintiff's claim that defendant's
relationship "grew from one in which they technically

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 maintained separate residences," at the time of the
hearing before Judge Torack, "to one in which they
behave in all respects like a married couple." The
judge pointed out Judge Torack found in 1996 that
despite their separate residences, defendant and her
partner spent six or seven days together almost every
week, dined together almost every night, traveled
together, comingled their finances, treated one
another's homes as their own and maintained an
intimate and exclusive relationship indistinguishable
from that of a family as described in Gayet.[1] The
judge found "nothing had changed" and plaintiff could
not relitigate the same cohabitation claim he
succeeded on twenty years ago.

[Id. at 5-6]

The trial judge also enforced defendant's insurance obligation, finding

plaintiff had "offered no reasonable basis for having allowed the policy to

lapse and had not shown why he should be relieved of an obligation

voluntarily undertaken at the time of the parties' divorce." Id. at 6. As to

plaintiff's claim that the cost of reinstating the policy would be prohibitively

expensive, we noted the judge's finding that "plaintiff provided only

generalized estimates from an insurance broker about what a policy might cost

for someone plaintiff's age but nothing specific as to plaintiff." Ibid. We also

noted the judge's finding that "she could not assess plaintiff's claim that such a

1
Gayet v. Gayet, 92 N.J. 149 (1983).
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policy would be prohibitively expensive without knowing something about

plaintiff's finances, which he had not disclosed." Ibid. The judge did,

however, observe that "Judge Torack found plaintiff's gross income at the time

of the divorce [in 1992] was $364,000 and in 1994 it was $989,000." Ibid.

We affirmed, substantially for the reasons expressed by the trial judge,

and reiterated what we said in 2016, that "plaintiff 'remains free to move to

modify his alimony obligation upon a showing of changed circumstances'

under Lepis, 83 N.J. at 146 (emphasis added)." Id. at 7. We held plaintiff was

"not entitled to a review of his permanent alimony obligation based simply on

the passage of time," as the law was "well settled that '[a] prima facie showing

of changed circumstances must be made before a court will order discovery of

an ex-spouse's financial status.'" Ibid. (quoting Lepis, 83 N.J. at 157).

Shortly after we issued our 2018 opinion, plaintiff again moved to

terminate his alimony on the basis of changed circumstances. Plaintiff

repeated his claims that in the years since Judge Torack's decision reducing

defendant's alimony based on her cohabitation with her partner, the couple's

lives and finances had become even more intertwined. Plaintiff asserted he

had proof they now "invested together" in that they had taken a mortgage on a

home owned by the parties' daughter to secure a $100,000 loan. When

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defendant countered that she had loaned the parties' daughter the $100,000 in

2012 to allow her to pay off credit card debt so she could qualify for a

mortgage to buy a new home, and that she only added her partner's name to

encourage her daughter to pay her back, plaintiff asserted that proved she no

longer needed alimony. As to his insurance obligation, plaintiff claimed he

could not secure it at any cost in light of his age and health. In support, he

provided three unsworn letters declining him coverage.

The judge hearing the motion asked plaintiff's counsel at argument what

had changed since 2016. Plaintiff's counsel acknowledged plaintiff's

circumstances had not changed as he was still working and still able to pay his

alimony, although then eighty-one years old. Plaintiff's counsel also

acknowledged that defendant was still living with the same man she'd been

living with for the last twenty years.

Although conceding defendant's relationship had not changed, plaintiff's

counsel argued "the financial circumstances have changed" and plaintiff had

never previously filed a motion with any court "to say that the financial

circumstances have changed." Counsel also argued "it was premature to

address the life insurance issue until the alimony issue is addressed, because

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the life insurance amount may be modified if there's to be a change of

alimony."

Defendant countered that plaintiff's motion was only a rehash of his last

application, well short of a prima facie case of changed circumstances, and that

plaintiff continued to ignore court orders to have life insurance in place and

court rules by failing to file a case information statement on a post judgment

motion to modify his alimony.

The trial judge agreed. He found the motion simply duplicative of the

one plaintiff filed in 2016. The judge noted that plaintiff had slightly changed

the theory in arguing that defendant's financial relationship with her partner

had changed, but found plaintiff continued to rely on the same facts on which

he had previously relied when arguing about their living situation.

As for the $800,000 in life insurance that plaintiff voluntarily agreed in

the settlement incorporated into the judgment of divorce to maintain "for so

long as his alimony obligation shall continue," the judge found plaintiff had

never established it is too expensive to maintain as he had steadfastly refused

to provide any information about his own finances. The judge noted that

"plaintiff states he has a medical condition, but that's one paragraph in the

beginning of his certification, which is about sixteen paragraphs long." The

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judge found "[a]ll [plaintiff] has submitted on the life insurance issue are three

form letters from companies stating, [']sorry, we can't give you this life

insurance.['] He hasn't stated that it's prohibitively expensive to maintain."

The judge accordingly denied plaintiff's motion to modify his alimony

and enforced the 2016 order that he reinstate his life insurance policy.

Specifically, the judge ordered plaintiff to provide proof of coverage no later

than December 3, 2018. In the interim, the judge ordered plaintiff to

immediately post an $800,000 bond for defendant's benefit that could be

released upon proof of insurance coverage to plaintiff. The judge denied

plaintiff's request for a stay, and we are advised by the parties that the bond

remains in place pending appeal.

On appeal, plaintiff argues two points:

I. There are changed circumstances with respect to
plaintiff’s obligation to procure life insurance on the
grounds that plaintiff has shown that he cannot
procure life insurance irrespective of cost.

II. Plaintiff presented sufficient evidence to
demonstrate a prima facie case of changed
circumstances that at least required defendant to
provide discovery regarding her finances.

We deem plaintiff's second argument as without sufficient merit to

warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). We repeat

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that plaintiff cannot prevail on a changed circumstance motion based on

defendant's cohabitation with the same man plaintiff proved she was

cohabiting with twenty-three years ago. Judge Torack reduced plaintiff's

alimony obligation following a five-day hearing in 1996, based on his finding

that defendant and her partner "shared six or seven days together most of the

time" and "enjoyed a permanent, social, personal, intimate and a business

relationship" akin to that of a family. See Chernin II (slip op. at 6-7). Plaintiff

cannot re-litigate the same issue with the hope of further reducing or

eliminating his alimony. Defendant's cohabitation is simply not a change in

circumstances here, it is the status quo ante.

We also affirm the denial of plaintiff's motion to modify his obligation

to maintain life insurance. In his last motion, plaintiff argued the cost of

reinstating the policy he'd let lapse was cost prohibitive. When we affirmed

the denial of that motion based on the court's inability to test that thesis

because plaintiff refused to disclose his finances, he changed tacks. He next

claimed that he could not comply with the order because "no insurance

company will underwrite a life insurance policy for plaintiff given his

advanced age and various health ailments."

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 But as the trial court concluded, while that may be true, plaintiff did not

come close to establishing the proposition on the motion on the basis of one

paragraph in a certification self-describing his medical condition and three

unsworn letters from insurers denying his application for insurance. Plaintiff

argues the court erred in making him bond the obligation, claiming Jacobitti2

"limit[s] the imposition of self-funded trust in lieu of life insurance to

situations where the dependent ex-spouse is completely dependent on alimony

and is at risk of becoming a public charge."

We disagree. Plaintiff misapprehends what the trial court found here.

The judge found plaintiff's proofs on the motion did not establish he was

uninsurable, and plaintiff's failure to disclose his finances made it impossible

to determine whether the cost of obtaining insurance was otherwise

prohibitive. Thus, the judge found no reason not to enforce the prior orders

that plaintiff procure an $800,000 life insurance policy naming defendant as

beneficiary as he was directed to do in 2014 and 2016. Because plaintiff had

failed to comply with those orders and asserted it was impossible for him to do

so, although failing to establish that by admissible evidence, the court ordered

2
Jacobitti v. Jacobitti, 135 N.J. 571 (1994).
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that he bond the amount until he provided proof of the policy, when the bond

would be released.

We find no error in the court's approach. Plaintiff voluntarily agreed in

the settlement incorporated into the judgment of divorce to "maintain life

insurance insuring his life naming [defendant] as beneficiary . . . to the extent

of $800,000 for so long as his alimony obligation shall continue." Defendant

never released plaintiff from that obligation, and he never went to court to be

relieved of it. He simply violated the judgment of divorce and let the policy

lapse. He never advised when he did so or why. He simply wants the court to

relieve him of his contractual undertaking now that the violation had been

discovered without: 1) explaining why and when he violated the order and

how long that situation has persisted; 2) what he's done to try to comply, e.g.,

by having a broker attempt to place the policy; and 3) disclosing his finances

to permit a court to determine whether plaintiff has the means to satisfy his

contractual undertaking in another manner, i.e. by bonding it or establishing a

trust to secure the payment. A Jacobitti trust may well be exactly in order.

See Jacobitti, 135 N.J. at 580 (explaining that in the case of an uninsurable

supporting spouse a court may "order such a spouse to create a trust to protect

the dependent spouse in the event of" the supporting spouse's death, thereby

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achieving "the same protection for a dependent spouse as an order requiring an

insurable supporting spouse to maintain life insurance for the benefit of the

former spouse").

Plaintiff maintains that the purpose of life insurance for a supporting

spouse "is to secure future alimony in the event of a supporting spouse's

untimely, rather than inevitable, death." That may be so, but there is nothing

in the record that we noticed where the parties explained their intent in

including the clause in their settlement agreement to be incorporated in the

judgment of divorce, which, of course, is more important than how others

might use the device. We reiterate that plaintiff may move to modify his

alimony obligation, or the requirement that he maintain life insurance to the

extent of $800,000 naming defendant as beneficiary so long as that obligation

continues, if he can show changed circumstances under Lepis, 83 N.J. at 146.

In sum, we find no error in the trial court's order denying plaintiff's

motion to terminate or modify his alimony and compelling him to bond the

$800,000 he agreed to provide defendant in life insurance until he provides

proof of such policy.

Affirmed.

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