(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 22, 1997 -- Decided June 12, 1997
POLLOCK, J., writing for a unanimous Court.
The issue in this appeal is whether the estate of Donald Kiken is liable for the costs of the college
education of his son as provided in the judgment of divorce between Donald and Ellen Kiken.
Donald and Ellen Kiken, who were married in l976, separated at some point after the birth of their
son, David, in l977. They negotiated a property-settlement agreement, which was subsequently incorporated
in a judgment of divorce entered on December 22, l982. One of the paragraphs of the judgment provided
that Donald and Ellen “will pay for college for the infant child commensurate at the time with their income
and assets.” Although other paragraphs had addressed the effect of either Ellen's or Donald's death, that
paragraph dealing with the obligation to pay for David's college expenses did not.
Donald died on August 11, l986, at the age of 44. David was then nine years old. The estimated
value of Donald's estate, which consisted largely of real estate, was between ten and sixteen million dollars.
As of October 1990, approximately two million dollars remained in the estate, the executor having made
partial distributions to Donald's mother, sister and second wife, pursuant to his will.
In December 1994, the University of Pennsylvania granted David early admission. On March 17,
1995, Ellen filed a notice of motion to enforce litigant's rights, seeking to substitute the executor of
Donald's estate as the plaintiff in this matrimonial proceeding and an order compelling Donald's estate to
pay David's college expenses. That request was based on that paragraph of the judgment of divorce, which
indicated that the parties would pay for David's college expenses commensurate at the time with their
income and assets. Ellen, who is a substitute teacher, asserted that, because of the disparity between her
income and the value of Donald's estate, the estate should pay the full costs of David's college education.
The executor opposed the motion, arguing that the obligation to pay for David's college expenses terminated
on Donald's death.
In May 1995, the Chancery Division denied the motion, finding that the agreement incorporated in
the judgment of divorce did not bind Donald's estate. The Appellate Division subsequently affirmed,
reasoning that the absence of any language explicitly binding the respective estates for college expenses
permitted the reasonable assumption that the parties had intended that obligation to terminate upon the
death of either parent.
The Supreme Court granted Ellen's petition for certification.
HELD: Under N.J.S.A. 2A:34-23, Donald Kiken's estate is bound by his obligation to contribute to the cost
of his son's college education.
1. The parental duty of support, originally only a moral obligation, has become an obligation enforceable at
law and one that may bind a parent's estate. (pp. 6-8)
2. In recent years, both the Legislature and the Judiciary have recognized that, in appropriate cases, the duty
of parental support may include liability for the costs of the higher education of children. (pp. 8-9)
3. The Court has construed N.J.S.A. 2A:34-23 liberally to allow a court to enter a support order for minor
children to survive their father's death where the circumstances equitably call for such action, and the
statutory scheme suggests that the Legislature contemplates that a parent's support obligation is binding on
his or her estate. (pp. 9-13)
4. Courts in other jurisdictions also have imposed on a deceased parent's estate the continuing obligation to
support a child. (pp. 13-14)
5. N.J.S.A. 2A:34-23 authorizes courts to enter reasonable and equitable support orders, including orders for
the education of children. (p. 14)
6. The absence of a provision that the deceased parent's obligation terminates on death creates the
inference that the obligated parent intended to bind his or her estate. (pp. 14-16)
7. Under the circumstances of this case, the substitution of the executor is permissible. (pp. 16-18)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Family
Part to substitute the executor of the estate as the plaintiff in the matrimonial action and to conduct further
proceedings to determine the extent to which the estate should contribute to the cost of David's college
expenses.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN , GARIBALDI and COLEMAN
join in JUSTICE POLLOCK's opinion. JUSTICE STEIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
97 September Term 1996
DONALD KIKEN,
Plaintiff-Respondent,
v.
ELLEN KIKEN,
Defendant-Appellant.
Argued January 22, 1997 -- Decided June 12, 1997
On certification to the Superior Court,
Appellate Division.
Louis Pashman argued the cause for appellant
(Pashman Stein, attorneys; Mr. Pashman,
Michael S. Stein and Dennis T. Smith, on the
briefs).
Marc J. Bressler argued the cause for
respondent.
The opinion of the Court is delivered by
POLLOCK, J.
The primary issue is whether the estate of Donald Kiken is
liable for the costs of the college education of his son, David,
as provided in the judgment of divorce between Donald and Ellen
Kiken. Ellen is Donald's former wife and David's mother. The
Chancery Division, Family Part, denied Ellen's motion to enforce
a provision in the judgment pertaining to the payment of David's
college expenses. In an unreported opinion, the Appellate
Division affirmed. It held that Donald's obligation to
contribute to college expenses terminated on his death and that
his executor should not be substituted as a party in the divorce
action. We granted certification,
146 N.J. 500 (1996), and now
reverse.
Donald and Ellen were married on May 9, 1976. On July 28, 1977, David was born. Thereafter, Donald and Ellen separated. They negotiated a property-settlement agreement, which was incorporated in a "Dual Judgment of Divorce" entered on December 22, 1982. Pursuant to the judgment, the court granted Ellen custody of David and accorded Donald liberal visitation rights. The court further ordered Donald to pay Ellen a lump sum of $75,000 in satisfaction of her claim for equitable distribution. Donald agreed to pay Ellen alimony totaling $87,285, payable in thirty-six monthly installments of $2,424.58 each. According to Paragraph D of the judgment, the installments were to "be paid by the first of each month commencing December 1, 1982 and ending upon the occurrence of the earliest event: November 1, 1985 (after all thirty-six payments have been made) or [Donald's] death." Paragraph E provided that "[i]n no event and under no circumstances shall [Ellen's] remarriage or death terminate [Donald's] obligation to pay aforesaid alimony payments contained herein." Donald made all the required alimony and support payments.
Paragraph F required Donald to pay $200 per week in child support until David's emancipation. Furthermore, Paragraph G
obligated Donald to maintain a $200,000 life insurance policy,
naming Ellen as a beneficiary of $100,000 until Donald paid the
equitable distribution and naming David as the beneficiary of the
remaining $100,000. After completion of the equitable
distribution, David was to become the sole beneficiary of the
entire $200,000 until he was emancipated. Paragraph G also
indicated that "[i]f for any reason the life insurance policy is
not in full force and effect or the named beneficiaries are not
consistent with this agreement, [Donald's] estate shall be liable
to [Ellen] or [David] in the specific amounts set forth herein."
Finally, Paragraph K provided that Donald and Ellen "will pay for
college for the infant child commensurate at the time with their
income and assets."
In August 1985, Donald married his second wife, Harriet. On
October 24, 1985, he executed a will, which bequeathed twenty-five percent of his estate to Harriet and a nominal sum to each
of his three stepsons. He also bequeathed "the proceeds of a
policy of life insurance . . . to my beloved son, [David]." The
bequeathed policy apparently was the same one that the divorce
judgment obligated Donald to maintain. Finally, he left the
residue of the estate in equal shares to his mother, Harriet
Kasselman, and his sister, Betty Hurwitz.
Donald, a real estate developer, died on August 11, 1986, at
the age of 44. See Del Tufo v. Township of Old Bridge,
147 N.J. 90, 95-97 (1996) (describing circumstances surrounding Donald's
death). David was then nine years old. The estimated value of
Donald's estate, which consisted largely of real estate, was
between ten and sixteen million dollars.
Between March 1988 and October 1990, the executor made
partial distributions: Harriet Kasselman, $862,500; Betty
Hurwitz, $862,500; and Harriet Rinder Kiken, $575,000. According
to the Deputy Surrogate of Middlesex County, approximately two
million dollars remained in the estate as of October 1990.
Apparently because of a decline in real estate values, no further
distributions have been made from the estate, which remains
unsettled. According to Ellen and David, the balance of the life
insurance proceeds are invested in a mutual fund with a market
value of $145,000.
In December 1994, the University of Pennsylvania granted
David early admission. Subsequently, he matriculated at that
university, where he continues his undergraduate studies. On
March 17, 1995, Ellen filed a notice of motion to enforce
litigant's rights, seeking to substitute Gerald Del Tufo, the
executor of Donald's estate, as the plaintiff in this proceeding.
The notice also sought an order compelling the estate to pay
David's college expenses. That request was based on Paragraph K
of the divorce decree, which indicated that the parties would pay
"commensurate at the time with their income and assets." Ellen
is a substitute teacher. She asserts that because of the
disparity between her income and the value of Donald's estate,
the estate should pay the full costs of David's college
education. The executor opposed the motion, arguing that the
obligation to pay for David's college expenses terminated on
Donald's death.
In May 1995, the Chancery Division denied the motion,
finding that the agreement incorporated in the judgment of
divorce did not bind Donald's estate. In so concluding, the
court stated:
[A]s a human being, I really don't understand
the paternal grandmother's position here at
all.
I mean when we're . . . dealing with the
amount of money that she has inherited here.
And what we're talking about in terms of
sending this young man through the University
of Pennsylvania. And . . . what is so wrong
with this child; it's her flesh and blood;
maybe her only flesh and blood left. I don't
know. It's amazing to me that . . . grudges
can be born that far. . . .
I don't see how I can basically change this
judgment of divorce to say that the estate of
Donald Kiken and heirs are liable for the
college expenses of the child. . . .
I wish I could, . . . [b]ecause there's
so much money here -- we're talking about $8,
$9, $10, $11 million.
The Appellate Division affirmed. It reasoned that the
absence of any language explicitly binding the respective estates
for college expenses "permits the `reasonable assumption' that
the parties had intended the obligation to terminate upon death
and this not be enforceable against either party's estate." The
court stated that if the parties had intended to bind their
estates for college-education expenses, they would have done so
expressly.
The parental obligation to support children until they are emancipated is fundamental to a sound society. See Pascale v. Pascale, 140 N.J. 583, 591 (1995) (noting that parents have duty to provide for their unemancipated children). At issue is whether that obligation extends to the estate of an obligated parent.
In this century, the path of the law has been one of expanding notions of parental obligations to children. The parental duty of support, originally only a moral obligation springing from natural law, has become an obligation enforceable at law. Grotsky v. Grotsky, 58 N.J. 354, 356 (1971). At early common law, the duty of support terminated on the death of the parent. See Jacobitti v. Jacobitti, 135 N.J. 571, 575 (1996) (noting common-law rule in context of alimony, but declining to apply rule). More recent cases recognize that the duty may bind a parent's estate. See, e.g., Black v. Walker, 295 N.J. Super. 244, 263 (App. Div. 1996) (holding father's estate liable for illegitimate daughter's college expenses); Della Terza v. Estate of Della Terza, 276 N.J. Super. 46, 49 (App. Div. 1994) (holding father's estate liable for portion of insurance proceeds due daughter under court-ordered life-insurance policy); DeCeglia v. Estate of Colletti, 265 N.J. Super. 128, 133 (App. Div. 1993) (holding that father's obligation to support illegitimate child was enforceable against his estate); Koidl v. Schreiber, 214 N.J. Super. 513, 516-17 (App. Div. 1986) (holding that support order
entered against father who admitted paternity would be
interpreted as requiring support payments to continue after
father's death).
The continuation beyond death of a parent's support duty can
arise in a variety of contexts. In an intact family, the law
assumes that parents will provide for the children as well as
they can. Sometimes, the parents have never married. See, e.g.,
Black, supra, 295 N.J. Super. 244 (involving illegitimate child);
DeCeglia, supra,
265 N.J. Super. 128 (same). Often, the parents
have married, divorced, and remarried. See, e.g., Della Terza,
supra,
276 N.J. Super. 46 (involving matter where daughter sued
new-wife executrix of father's estate). Generally, courts assume
that the parents, as the natural guardians of a child, will
provide in the separation agreement or support order for the
child's needs. See Lepis v. Lepis,
83 N.J. 139, 145-46 (1980).
Consequently, parents often provide in such agreements and orders
for those needs. No matter what the arrangement may be between
the parents, the child's needs continue. Consequently, courts
have a continuing obligation to review support orders to assure
that they are fair and equitable. See id. at 148-49.
An early Appellate Division opinion sustained the obligation
of a deceased husband's estate to continue to pay alimony and
support under a property-settlement agreement entered by the
husband and wife. Flicker v. Chenitz,
55 N.J. Super. 273 (App.
Div.), certif. granted,
30 N.J. 152, appeal dismissed by consent,
30 N.J. 566 (1959). During their divorce proceeding, the husband
and wife entered a property-settlement agreement, which required
the husband to make weekly payments to the wife in lieu of
alimony and support. The agreement was included in the divorce
decree. Id. at 277. On the husband's death, the wife sued to
enforce the support obligation against his estate. Id. at 278.
In sustaining the wife's claim, the Appellate Division relied
more on its interpretation of the agreement than on the
enforceability of the decree. Id. at 282. The court began by
noting that by not providing that the required payments would
cease on his death, the husband presumptively bound his estate.
Id. at 280. Additionally, the court's reading of the agreement
sustained the conclusion that the deceased husband had intended
that the payments would survive his death. Id. at 281-82. The
court reasoned that although support obligations are subject to
judicial review, an agreement between the parties evidences the
amount that they deem appropriate to satisfy those obligations.
Id. at 286-87. Concerned that the support decree may have
terminated on the husband's death, the court held that the
agreement's provisions did not merge into the decree. Id. at
292. Although we agree with the result reached in Flicker, we
believe a more satisfactory analysis in the present case turns on
the underlying statutory authority and the judicial review of
support orders.
The extent to which divorced parents should contribute to
the higher education of their children is a matter of debate. In
recent years, both the Legislature and the Judiciary have
recognized that in appropriate cases the duty of parental support
may include liability for the costs of the higher education of
children. Newburgh v. Arrigo,
88 N.J. 529, 543-44 (1982); Rector
v. Rector,
62 N.J. 577, 580 (1973); Khalaf v. Khalaf,
58 N.J. 63,
71-72 (1971); Guglielmo v. Guglielmo,
253 N.J. Super. 531, 548-49
(App. Div. 1992); Quinn v. Johnson,
247 N.J. Super. 572, 578
(App. Div. 1991); Johnson v. Bradbury,
233 N.J. Super. 129, 135-37 (App. Div. 1989); Moehring v. Maute,
268 N.J. Super. 477, 480-81 (Ch. Div. 1993); Ross v. Ross,
167 N.J. Super. 441, 442 (Ch.
Div. 1979); Nebel v. Nebel,
99 N.J. Super. 256, 262-64 (Ch.
Div.), aff'd o.b.,
103 N.J. Super. 216 (App. Div. 1968); Gary N.
Skoloff & Laurence J. Cutler, New Jersey Family Law Practice 947
(8th ed. 1996). Fifteen years ago, we declared that in
appropriate circumstances, "parenthood carries with it the duty
to assure a necessary education for children. . . . In general,
financially capable parents should contribute to the higher
education of children who are qualified students." Newburgh,
supra, 88 N.J. at 543-44. In addition, we suggested criteria to
guide courts in determining whether a separated parent was
obligated to contribute to a child's college education. See id.
at 545.
Six years later, the Legislature essentially approved those
criteria when amending the support statute, N.J.S.A. 2A:34-23(a).
Compare ibid. (listing factors to consider in determining
support) with Newburgh, supra, 88 N.J. at 545 (listing factors to
consider in determining payment of education expenses); see also
Black, supra, 295 N.J. Super. at 256 (noting that Legislature
recognized strong interest in education by amending support
statute). As amended, the statute provides in relevant part:
[T]he court may make such order as to the
alimony or maintenance of the parties, and
also as to the care, custody, education and
maintenance of the children, or any of them,
as the circumstances of the parties and the
nature of the case shall render fit,
reasonable and just . . . or the performance
of the said orders may be enforced by other
ways according to the practice of the court.
Orders so made may be revised and altered by
the court from time to time as circumstances
may require.
a. In determining the amount to be paid by a
parent for support of the child and the
period during which the duty of support is
owed, the court in those cases not governed
by court rule shall consider, but not be
limited to, the following factors:
(1) Needs of the child;
(2) Standard of living and economic
circumstances of each parent;
(3) All sources of income and assets of each
parent;
(4) Earning ability of each parent,
including educational background, training,
employment skills, work experience, custodial
responsibility for children including the
cost of providing child care and the length
of time and cost of each parent to obtain
training or experience for appropriate
employment;
(5) Need and capacity of the child for
education, including higher education;
(6) Age and health of the child and each
parent;
(7) Income, assets and earning ability of
the child;
(8) Responsibility of the parents for the
court-ordered support of others;
(9) Reasonable debts and liabilities of each
child and parent; and
(10) Any other factors the court may deem
relevant.
The effect of the amendment is to provide an explicit statutory
basis for a support order directing a parent to contribute to the
education of a child. Thus, both this Court and the Legislature
have confirmed a child's need for higher education as an
appropriate consideration in determining the parental obligation
of support. Ibid.; Newburgh, supra, 88 N.J. at 543-44; Khalaf,
supra, 58 N.J. at 71-72. Moreover, when construing N.J.S.A.
2A:34-23, we have done so "liberally to the end that, where the
circumstances equitably call for such action, the court may enter
a support order for minor children to survive their father's
death." Grotsky, supra, 58 N.J. at 361; see also Jacobitti,
supra, 135 N.J. at 575 (noting that "[c]ourts are to apply the
`comprehensive' terms of N.J.S.A. 2A:34-23 liberally and
equitably").
Although N.J.S.A. 2A:34-23 does not specifically say so, the
statutory scheme suggests that the Legislature contemplates that
a parent's support obligation is binding on his or her estate.
In N.J.S.A. 2A:34-25, for example, the Legislature expressly
stated that the duty to pay alimony terminates on the death of
the payor spouse. N.J.S.A. 2A:34-23, however, contains no such
limitation. Furthermore, the Parentage Act, N.J.S.A. 9:17-38 to
-59, which pertains to the obligation to support children born
out of wedlock, states that the death of the putative father
"shall not cause abatement of any action to establish paternity,
and an action to determine the existence or nonexistence of the
parent and child relationship may be instituted or continued
against [his] estate or [his] legal representative." N.J.S.A.
9:17-45(c); see, e.g., Black, supra, 295 N.J. Super. at 262-63
(allowing action to proceed against estate); DeCeglia, supra, 265
N.J. Super. at 137, 140 (same); Koidl, supra, 214 N.J. Super. at
515-16 (indicating that estate could be liable). It seems
unlikely that the Legislature would be any less concerned about
continuing an obligation to support children born in the course
of a marriage.
Consistent with that interpretation, the Court has declared
that the Chancery Division may enter "a support order for minor
children to survive their father's death and may direct the
father to maintain his insurance, naming the minor children as
beneficiaries," to ensure they are provided for adequately.
Grotsky, supra, 58 N.J. at 361. The Court also has construed an
earlier version of N.J.S.A. 2A:34-23 to authorize an order
directing a divorced husband to cooperate in obtaining life
insurance to protect his former wife and children. Meerwarth v.
Meerwarth,
71 N.J. 541, 544 (1976). Similarly, the Court has
required a father who was a beneficiary of a testamentary trust
to secure his children's education by assigning his interest in
the trust. Rector, supra, 62 N.J. at 580. Finally, the Court
has drawn on N.J.S.A. 2A:34-23 to require an aged divorced
husband to create a trust fund to assure the payment of alimony
after his death. Jacobitti, supra, 135 N.J. at 579-82.
More recently, the Appellate Division affirmed an order
directing a natural father's estate to continue after the
father's death to pay support for his daughter, including the
cost of her college education. Black, supra, 295 N.J. Super. at
261-63. Support agreements entered by the mother and father, who
had never married, did not obligate the father to contribute to
the daughter's college education. Id. at 249. In finding the
estate liable, the court relied on its equitable authority under
the Parentage Act. Id. at 261-62; see also Grotsky, supra, 58
N.J. at 361 (using equitable powers inherent in N.J.S.A. 2A:34-23
to order father to provide for children who survive his death).
Courts in other jurisdictions also have imposed on a
deceased parent's estate the continuing obligation to support a
child. See Susan L. Thomas, "Death of Obligor Parent As
Affecting Decree For Support of Child,"
14 A.L.R.5th 557 (1993).
In imposing that obligation, several courts have relied on
statutes analogous to N.J.S.A. 2A:34-23. See, e.g., In re Estate
of Champagne,
505 N.E.2d 1352, 1355 (Ill. App. Ct. 1987) (finding
that state counterpart to Uniform Marriage and Divorce Act
provided court with authority to impose college costs on parent's
estate); Guggenheimer v. Guggenheimer,
112 A.2d 61, 63-64 (N.H.
1955) (finding that state-support statute allows court to impose
continuing obligation on estate); Columbo v. Walker Bank & Trust
Co.,
489 P.2d 998, 999 (Utah 1971) (finding that state-support
statute provided court with authority to bind father's estate for
support obligation); Morris v. Henry,
70 S.E.2d 417 (Va. 1952)
(finding that state-support statute, in conjunction with other
statutes, gave court authority to address matters of support when
one party dies); Scott v. Wagoner,
400 S.E.2d 556, 560 (W. Va.
1990) (holding that state-maintenance statute provided courts
with authority to bind estate of deceased parent when equity
militates in favor of continuing support obligation).
In sum, N.J.S.A. 2A:34-23(a) authorizes courts to enter
reasonable and equitable support orders, including orders for the
education of children. Nothing in the statute prevents courts
from entering such orders after the death of a parent. We
conclude that the Family Part has the authority to enter an order
directing Donald Kiken's estate to contribute to the cost of his
son's college education.
Our assessment of the estate's obligation to make such a contribution begins with the support provisions in the divorce judgment, which incorporates the property-settlement agreement between Donald and Ellen. The college-expense portion of the agreement provides that Donald and Ellen Kiken "will pay for college for the infant child commensurate at the time with their income and assets." Notably, this provision is silent concerning the effect of either parent's death on their duty to provide
David with a college education. Thus, the agreement did not
provide that either parent's obligation would terminate on the
death of the parent. The absence of a provision that the
deceased parent's obligation terminates on death creates the
inference that the obligated parent intended to bind his or her
estate. Flicker, supra,
55 N.J. Super. 279-81; see also Newman
v. Burwell,
15 P.2d 511, 512-13 (Cal. 1932) (indicating that
child-support provision of property-settlement agreement in
divorce decree survived as obligation on deceased parent's estate
absent express intention to contrary); Newhall v. Newhall,
39 Cal. Rptr. 144, 147-49 (Dist. Ct. App. 1964) (holding, where
agreement was silent regarding effect of parent's death on child
support payments, estate was liable because father had not
expressed intent that obligation would terminate on his death).
In this case, the agreement does not provide that Donald's
obligation to contribute to David's college education would
terminate on Donald's death. The alimony and life insurance
provisions, however, address the contingency of death. For
example, paragraph G provides that "if for any reason the life
insurance policy is not in full force and effect or the named
beneficiaries are not consistent with this agreement, [Donald's]
estate shall be liable to [Ellen] or [David] in the specific
amounts set forth herein." Paragraph D provides that alimony
payments terminated on the "occurrence of the earliest event:
November 1, 1985 or [Donald's] death." Moreover, paragraph E
provides that "[i]n no event and under no circumstances shall
[Ellen's] . . . death terminate [Donald's] obligation to pay . .
. alimony." In brief, the parties contemplated that on Donald's
death his estate would be relieved of his obligation to pay
alimony, but not of its liability to Ellen or David if Donald
failed to maintain the life insurance policy. The agreement does
not state whether the estate would remain liable for Donald's
obligation to contribute to David's education. Nothing indicates
that Donald's obligation would not bind his estate.
We hold that under N.J.S.A. 2A:34-23 Donald's estate is
bound by his obligation to contribute to the cost of David's
college education. The record, however, does not provide an
adequate basis to determine the extent of that obligation.
Consequently, we remand the matter to the Family Part for a
determination of the extent to which the estate should contribute
to the cost of David's college education.
In denying Ellen's motion to substitute the executor in the divorce action, the lower courts proceeded on the assumption that Donald's estate was not obligated to contribute to David's college education. Hence, those courts did not consider whether Donald's executor may be substituted as the plaintiff in the divorce proceeding, if the estate is obligated to pay David's college expenses. Because we conclude that the estate is so obligated, we now address the issue of the substitution of the executor.
Orders for child support are generally subject to judicial
review. See Maquiling v. Estate of Maquiling,
211 N.J. Super. 69
(Law Div. 1986) (finding that court had continuing jurisdiction
to enforce provisions of divorce decree against estate when
husband died without complying with provision requiring him to
name ex-wife as beneficiary of life insurance policy); D'Angelo
v. D'Angelo,
208 N.J. Super. 729 (Ch. Div. 1986) (allowing
substitution of co-executors of estate in order to enforce final
judgment of divorce where deceased had not satisfied obligations
in property-settlement agreement). Moreover, courts possess
broad equitable powers to accomplish substantial justice.
Weitzman v. Weitzman,
228 N.J. Super. 346, 358-59 (App. Div.
1988) (ordering remand to trial court seventeen years after
divorce in order to determine college-expense obligation),
certif. denied,
114 N.J. 505 (1989). Under the circumstances of
this case, we find that the substitution of the executor is
permissible. See R. 4:34-1(b) (stating that "[i]f a party dies
and the claim is not thereby extinguished, the court shall on
motion order substitution of the proper parties"). Cf. Palko v.
Palko,
73 N.J. 395, 398 (1977) (finding that executor of deceased
ex-husband should be substituted in matrimonial action); Berlin
v. Berlin,
200 N.J. Super. 275, 279 (Ch. Div. 1984) (finding that
executrix of deceased wife's estate could be substituted as
plaintiff in action to enforce provision of agreement in divorce
decree).
To conclude, on remand the Family Part should substitute the executor of Donald's estate as the plaintiff in the matrimonial action. In addition, the court should conduct further proceedings to determine the extent to which Donald's estate should contribute to the cost of David's college expenses.
The decision of the Appellate Division is reversed and the matter is remanded to the Family Part.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN , GARIBALDI and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE STEIN did not participate.
NO. A-97 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DONALD KIKEN,
Plaintiff-Respondent,
v.
ELLEN KIKEN,
Defendant-Appellant.
DECIDED June 12, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY