                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-3189-13T4

EVANISA S. FOX,
                                         APPROVED FOR PUBLICATION
      Plaintiff-Appellant,
                                            February 24, 2015
v.                                          APPELLATE DIVISION

LINCOLN FINANCIAL GROUP,

      Defendant,

and

MARY ELLEN SCARPONE,

      Defendant-Respondent.

_______________________________________

          Submitted January 28, 2015 - Decided February 24, 2015

          Before Judges Alvarez, Waugh, and Carroll.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, General Equity
          Part, Morris County, Docket No. C-156-13.

          Michael   Patrick      Carroll,    attorney     for
          appellant.

          Fox Rothschild LLP, attorneys for respondent
          (Benjamin R. Kurtis, on the brief).

      The opinion of the court was delivered by

CARROLL, J.A.D.

      This appeal involves competing claims to a life insurance

policy (the policy) issued by defendant Lincoln Financial Group
(Lincoln) to decedent, Michael G. Fox.                            Following Michael's1

death,       his     wife,       plaintiff    Evanisa       Fox,2      and      his     sister,

defendant Mary Ellen Scarpone, both sought to collect the policy

proceeds.           On    February     6,    2014,    the     trial        court      dismissed

Evanisa's          complaint,       effectively      awarding          the      proceeds      to

Scarpone, who was the designated beneficiary under the policy.

On appeal, Evanisa urges us to adopt a "bright-line" rule that

marriage      creates        a    "presumptive       right"       to   a     spouse's        life

insurance      benefits,          thereby    revoking       any    contrary        premarital

beneficiary designation made by the deceased spouse.                               We reject

Evanisa's      broad       public     policy      argument,        and     hold       that   her

marriage to Michael, without more, is insufficient to defeat

Scarpone's beneficiary status.

       The    facts       are     straightforward.           Michael         purchased       the

policy in 1992.            Initially, he designated his then-wife, Gail,

as primary beneficiary, and his brother, Kenneth, as contingent

beneficiary.             Michael and Gail subsequently divorced, and in

1996   Michael        executed       an   insurance     company          form    designating




1
  Because decedent and plaintiff share a common surname, we refer
to them by their first names in this opinion for purposes of
clarity. In doing so, we intend no disrespect.
2
  Evanisa is alternatively spelled Evanisia on certain documents
included in the record.



                                              2                                        A-3189-13T4
Scarpone as sole beneficiary.3       This change comported with the

terms of the policy, which expressly provides:

          Beneficiary – At any time prior to the death
          of the Insured, the Owner may name or change
          a revocable beneficiary. . . . A change of
          the Owner or beneficiary must be made in
          writing. To be binding on the Company, the
          change must be signed by the Owner and any
          irrevocable beneficiary and must be filed at
          the Home Office.

     Michael married Evanisa, a Brazilian national, on July 28,

2012.   On September 26, 2012, Michael executed a Form I-130

petition to sponsor Evanisa's citizenship application.         Along

with the petition, Michael executed a Form I-864 Affidavit of

Support4 in which he agreed to support his wife at 125 percent of

the poverty level.   This support obligation expressly terminated

upon Michael's death, and the I-864 form specifically informed

him "Therefore, if you die, your [e]state will not be required




3
  Chubb Life Insurance Company originally issued the policy and
the change of beneficiary form.     At some point prior to the
commencement of this action Lincoln assumed the policy.
4
  The Immigration and Nationality Act forbids admission to the
United States of any alien who is likely at any time to become a
public charge. 8 U.S.C.S. § 1182(a)(4)(A); see also 8 U.S.C.S.
§§ 1601(2)(A), (5). This provision is implemented by requiring
a person who sponsors an alien for admission to execute an
affidavit of support.   8 C.F.R. §§ 213a.2(a), (b); see also 8
U.S.C.S. § 1182(a)(4)(C)(ii).    The affidavit, the contents of
which are specified in 8 U.S.C.S. § 1183a, is in the form of a
contract between the sponsor and the United States, 8 C.F.R. §
213a.2(d), called Form I-864.



                                 3                          A-3189-13T4
to    take   responsibility     for     [Evanisa's]         support    after       your

death."

       On November 9, 2012, before the citizenship petition was

approved, Michael died in a work-related automobile accident.

It    is   undisputed   that,   prior   to    his     death,      Michael   did    not

submit a new change of beneficiary form to Lincoln, nor did he

make any effort to designate Evanisa as beneficiary under the

policy.

       Evanisa filed this suit against Scarpone, the designated

beneficiary,     and    Lincoln,   as       issuer    of    the    policy.5         The

complaint asserted among other things that Michael's marriage to

plaintiff effected a change in beneficiary as a matter of law,

and    sought   to   declare    Evanisa      the     sole   beneficiary       of   the

policy.

       In lieu of filing an answer, Scarpone moved to dismiss the

complaint for failure to state a claim.                     Evanisa opposed the

motion, and cross-moved for summary judgment.                  In a September 4,

2013 certification, Evanisa averred:

                  Upon   our   marriage, we   commenc[ed]
             living together as husband and wife.      My
             husband represented to me that he would, as
             conditions permitted, ensure that my name
             went on various accounts, that I was named
             the   beneficiary   of  his life   insurance

5
  Lincoln deposited the proceeds of the policy into court and was
then dismissed from the suit.



                                        4                                   A-3189-13T4
             policies and other, similar programs.     My
             understanding, though, is that to become a
             holder of most joint accounts, certainly any
             bank accounts, one must have a Social
             Security number.      And, although I had
             applied, with my husband's assistance, for a
             Social Security number, I had not yet
             received one as of the date of his death.

                   . . . .

                  [It] will be extremely difficult for me
             to survive without his financial support.
             The death benefit is modest in any event.
             It comes to slightly more than two years of
             the salary my husband was earning at the
             time   of  his   death.     Other  than  the
             insurance, the [e]state is very modest.

In   a    reply    certification,6      Evanisa         added   that   she     receives

workers' compensation benefits attributable to Michael's work-

related     accidental       death.      She     also     expressed    concern     that

Michael's     estate     might    become       liable    for    a   student    loan   of

approximately       $38,000      that   Michael     guaranteed       for     Scarpone's

daughter.

         The trial court heard oral argument on both motions on

February 6, 2014.         Analogizing to Vasconi v. Guardian Life Ins.

Co. of Am., 124 N.J. 338 (1991), Evanisa argued that the court

should     apply    a   "bright[-]line,         Vasconi-type        test."      Counsel

posited that, where an insured designates someone else as a


6
  The certification included in Evanisa's appendix is unsigned
and undated.      However, Scarpone does not question its
authenticity.



                                           5                                   A-3189-13T4
policy beneficiary, and the insured thereafter marries, "there

should be a presumption that [the insured] intended to revoke

that [earlier policy] designation."                Counsel conceded, however,

that   he   was    "[un]able      to    find   a   single    New   Jersey     case"

supporting this proposition.

       In an oral opinion, the court examined well-settled case

law, which requires some objective showing that the deceased

intended     to    change   the    policy's        beneficiary.         The     judge

determined that the complaint failed to allege facts suggesting

that such a showing could be made.                     He also found no duty

obligating Michael to support Evanisa following his death.                       The

judge then issued implementing orders denying Evanisa's motion

for    summary     judgment,      and    dismissing      her   complaint        with

prejudice.

       On   appeal,   Evanisa     presents     a    singular   point      for    our

consideration:

             POINT ONE: PLAINTIFF, AS THE SPOUSE OF THE
             DECEDENT, IS ENTITLED TO THE PROCEEDS OF THE
             INSURANCE POLICY

Stated differently, Evanisa argues that the appeal presents "a

very   simple     question:     should     .   .   .   the   law   of    insurance

contracts[]       reflect   the    changed     circumstances       attendant      to

marriage in the same way it reflects changed circumstances with

respect to divorce?"        Again analogizing to Vasconi, she contends




                                          6                               A-3189-13T4
that,   "just   as    divorce   presumptively      disqualifies   a     former

spouse from receiving anything, marriage ought to result in a

presumption that she receives everything."           Applied to the facts

of this case, she asserts that Scarpone should have the burden

of establishing that Michael's failure to change the beneficiary

designation was intentional.

    The facts in this matter are "essentially undisputed and

the judge's decision was based upon the legal conclusions he

drew from those facts.          We owe no deference to the judge's

interpretation of the law."          Whitfield v. Bonanno Real Estate

Grp., 419 N.J. Super. 547, 552 (App. Div. 2011) (citing Atl.

Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231

(App. Div.), certif. denied, 189 N.J. 104 (2006)).

    Generally,       an   insured   can   change   the   beneficiary     on   an

insurance policy only by notifying the insurer in accordance

with the policy, or by substantially complying with the policy's

provisions.

           The traditional rule regarding change of
           beneficiary   designations   under   a    life
           insurance policy is that . . . the interest
           of the designated beneficiary . . . is a
           vested property right, payable if he [or
           she] survives the insured, which can be
           divested only by a change of beneficiary in
           the mode and manner prescribed by the
           [policy].        Thus,     ordinarily,     [a]
           demonstrated     intention      to      change
           beneficiaries   is   insufficient    if    not




                                      7                                A-3189-13T4
               executed in the manner prescribed                 in    the
               policy for effecting such a change.

               [DeCeglia v. Estate of Colletti, 265 N.J.
               Super.    128,   133    (App.   Div. 1993)
               (alterations in original) (citations and
               internal quotation marks omitted).]

This general rule may be modified where there is "substantial

compliance" with the method prescribed in the policy to change

the beneficiary.         See Haynes v. Metro. Life Ins. Co., 166 N.J.

Super.    308,    313    (App.   Div.     1979).        "Substantial        compliance"

requires an insured to make "every reasonable effort to effect a

change of beneficiary."            Ibid.        Thus, it is well-established

that     only    under     limited      circumstances       will      a     designated

beneficiary       be    denied   the    right      to    receive      the    insurance

proceeds.        Czoch v. Freeman, 317 N.J. Super. 273, 285 (App.

Div.), certif. denied, 161 N.J. 149 (1999).

       Our Supreme Court recognized a limited exception to the

general rule in Vasconi, where decedent's ex-wife and decedent's

estate    made    competing      claims    to   his      life   insurance         policy.

Previously, decedent and his wife had divorced, and had executed

a   property     settlement      agreement      that     provided     for     a    mutual

waiver    of    all    claims,   including      claims     against     each       other's

estate.     Nonetheless, at the time of decedent's death, his ex-

wife remained the named beneficiary of his policy.                            On these

facts, the Court held that:




                                           8                                      A-3189-13T4
              [W]hen spouses divorce and enter into a
              property-settlement agreement that purports
              to settle "all questions pertaining to their
              respective interests in distribution of the
              marital assets," the proceeds of a life-
              insurance policy subject to the lifetime
              control of one spouse should ordinarily be
              considered as encompassed within the terms
              of the settlement agreement.         Such a
              settlement agreement and waiver of interest
              in the property of the deceased spouse
              should be regarded as presumptively revoking
              the nonprobate transfer of the insurance
              proceeds.

              [Vasconi, supra, 124 N.J. at 346.]

       On    appeal,       as   she    did    before    the   trial     court,       Evanisa

relies heavily on Vasconi.                  She argues that this case represents

the "reciprocal" of Vasconi.                  Thus, like the event of divorce in

Vasconi, marriage should trigger a presumption that each spouse

thereby intends to make the other the primary beneficiary under

any life insurance policy, absent evidence of contrary intent.

       In analogizing to Vasconi, Evanisa misstates and broadens

its holding.         The Court in Vasconi did not glean from the mere

fact    of    the      insured's           divorce     an   intent    to    change         the

beneficiary designation on his insurance policy.                            Rather, the

court held that "[a] beneficiary designation must yield to the

provisions      of     a    separation         agreement      expressing        an    intent

contrary to the policy provision."                   Id. at 347.

       We    had     occasion         to     revisit    the    manner      in    which        a

beneficiary change can be accomplished in DeCeglia.                             There the



                                               9                                     A-3189-13T4
decedent,      Colletti,   had   previously       designated    his    mother   and

sister    as   beneficiaries     on   various      life    insurance    policies.

DeCeglia, supra, 265 N.J. Super. at 131.                   Subsequent to those

beneficiary       designations,       Colletti      began      cohabiting       with

plaintiff DeCeglia, who became pregnant soon thereafter.                     Ibid.

Colletti became concerned about providing for DeCeglia and his

child    should     something      happen    to    him.       Consequently,       he

communicated with a law firm about the preparation of a will

under which DeCeglia would be the beneficiary.                    He also spoke

with    his    insurance   agent    about     designating      DeCeglia    as   the

beneficiary       and   purchasing     additional         coverage.       However,

Colletti died unexpectedly before a will could be drafted or he

was able to meet with his insurance agent to effectuate a change

in his beneficiary designation.             Id. at 131-32.

       On these facts, the trial court concluded that Colletti

intended to make DeCeglia the beneficiary on the policies.                       Id.

at 132.       In addition, it concluded that, under Vasconi, it was

appropriate to effectuate decedent's intent even though it had

not been formalized by the execution of a change of beneficiary

form or other writing.       Ibid.

       In reversing that portion of the trial court's judgment, we

concluded that Colletti's verbal expressions of intent to change




                                       10                                 A-3189-13T4
the beneficiary designations under his life insurance policies

were ineffective.   Id. at 133.      We reasoned:

               The trial court read Vasconi broadly to
          change   prior   New   Jersey  law   requiring
          "substantial      compliance"     with     the
          beneficiary designation of an insurance
          policy   and   instead    to  establish   "the
          proposition that the real polestar should be
          the intent of the insured owner." Moreover,
          the trial court indicated that the intent to
          change a beneficiary designation can be
          established solely from a decedent's verbal
          expressions of intent without formalization
          in any kind of writing.

               We believe that the trial court's
          reading   of    Vasconi   was   overly   broad.
          Vasconi involved the interpretation of a
          formally executed agreement between the
          policyholder and beneficiary which purported
          to settle "all questions pertaining to their
          respective interests in distribution of the
          marital assets," which presumably included
          the insurance policy. The present case does
          not involve any comparable written agreement
          between the policyholder and beneficiaries,
          or any form of written communication from
          the policyholder to the insurer expressly
          requesting a change in his beneficiary
          designations.      Instead, decedent simply
          expressed    an    intent    to   change    his
          beneficiary designations, which he was told
          would require the execution of insurance
          company forms to effectuate.     Such a verbal
          expression of intent does not constitute
          substantial compliance with the provisions
          of insurance policies requiring execution of
          change of beneficiary forms.

          [Id. at 135.]

    In   the   second   part   of   our   opinion,   we   determined   that

Colletti had an obligation to pay child support under the New



                                    11                            A-3189-13T4
Jersey Parentage Act, N.J.S.A. 9:17-38 to -59.                              Thus, we allowed

DeCeglia to pursue a claim for child support from the proceeds

of the policies.           Id. at 133, 137-41.

       In    the       present   case,     relying       on       her    interpretation         of

Vasconi, Evanisa urges us to expand existing law to create a

"bright-line" rule that an insured who marries thereby intends

to designate his or her spouse as beneficiary on his or her life

insurance          policy,       thus     usurping           any        prior     beneficiary

designation.            We decline to do so, and would instead leave so

drastic a change to the Legislature.                          In this regard, we note

that the Legislature has acted in N.J.S.A. 3B:3-14 to provide

that   divorce         automatically      revokes       a     disposition         of    property

made    by    a     divorced     individual        to       his       former    spouse     in    a

governing instrument which, by definition, includes an insurance

policy.      N.J.S.A. 3B:1-1.             It could similarly pass legislation

granting      presumptive         beneficiary        rights            to   a    spouse     upon

marriage should it determine to do so.

       The Legislature has also enacted N.J.S.A. 3B:5-15, which

provides          an     intestate        share         to        a     surviving         spouse

unintentionally omitted from a premarital will, based on the

rebuttable presumption that the decedent would have provided for

him    or    her.        Notably,       however,    the       omitted          spouse    statute

applies only to wills, and does not extend to nonprobate assets




                                             12                                         A-3189-13T4
such as a life insurance policy.                 We presume that in enacting

the statute, the Legislature was aware of this distinction.                            In

any   event,     it   is   within     the   province     of   the    Legislature      to

expand     the    statute     to    provide      an    omitted      spouse    with     an

intestate share of life insurance proceeds, or to enact some

other appropriate statutory remedy.

       Having rejected plaintiff's public policy argument, we next

conclude     that,    under     the      facts   presented,      Evanisa      did     not

establish that Michael clearly demonstrated the intent to comply

with the insurer's procedures for changing the beneficiary.                            We

agree with the trial judge that the manifestation of any such

intent here is far less compelling than the unsuccessful efforts

made by the decedent in DeCeglia to effectuate such a change.

The record is totally devoid of evidence that Michael attempted

to do so.        Instead, the facts point in an opposite direction.

They suggest that Michael, knowing that he was obliged to inform

the insurer to effect a change in beneficiary, and having done

so    in   the   past,     failed   to    take   any    steps    toward      that    end.

Further, there is no evidence that Michael sought to make or

change a will to provide for Evanisa, or designated her as a




                                            13                                 A-3189-13T4
joint owner on his bank accounts.7             All we have is Evanisa's

statement that Michael orally represented to her that he would,

"as   conditions     permitted,"       make   such    provisions    for     her.

"[M]ere verbal expression of an intent to change a beneficiary

designation is ineffective."           DeCeglia, supra, 265 N.J. Super.

at 136.

      Finally, Evanisa cites Michael's commitment to support her

in sponsoring her citizenship application as justification for

receiving   the     policy   proceeds.        However,     the    trial     court

correctly   found    that    Michael    was   under   no   duty    to     support

Evanisa or provide a life insurance policy for her, as such

support obligation terminated upon his death pursuant to the

express terms of the Form I-864 support affidavit.

      Affirmed.




7
  Evanisa's appendix includes bank statements issued during the
brief period of the marriage, which are solely in Michael's
name.



                                       14                               A-3189-13T4
