Opinion
DOCKET NO. A-2064-11T2
02-28-2013
SHARON KRAAR, Plaintiff-Respondent, v. ESTATE OF MARTIN STEPHEN KRAAR, Defendant-Appellant.
Gary Newman argued the cause for appellant (Newman, McDonough, Schofel & Giger, P.C., attorneys; Mr. Newman, JoAnne Juliano Giger and Alison Schmieder, on the brief). Gina M. Sorge argued the cause for respondent (Lum, Drasco & Positan L.L.C., attorneys; Ms. Sorge of counsel and on the brief; Ruth Kim, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Harris and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2416-96.
Gary Newman argued the cause for appellant (Newman, McDonough, Schofel & Giger, P.C., attorneys; Mr. Newman, JoAnne Juliano Giger and Alison Schmieder, on the brief).
Gina M. Sorge argued the cause for respondent (Lum, Drasco & Positan L.L.C., attorneys; Ms. Sorge of counsel and on the brief; Ruth Kim, on the brief). PER CURIAM
In this post-judgment matrimonial litigation, the Estate of Martin Stephen Kraar appeals from a series of orders in favor of Sharon Kraar. Having reviewed the record, we conclude that the trial judge's decisions were consistent with the property settlement agreement (PSA), supported by the evidence, and not an abuse of discretion. Accordingly, we affirm.
We will refer to Martin Stephen Kraar, who died during the pendency of this litigation, as "defendant." We will refer to his estate as "the Estate." We will refer to Sharon Kraar as "plaintiff."
The orders listed in the notice of appeal were dated July 19, 2009 (setting defendant's 2008 alimony obligation at $3027 a month and requiring defendant to provide proof of $150,000 in life insurance); September 14, 2009 (restating the July 19 order in typed rather than partially-hand-written form); September 10, 2010 (a consent order for the appointment of an accountant to calculate alimony and other relief); June 21, 2011 (vacating the appointment of the accountant and freezing the Estate's assets); and December 15, 2011 (awarding plaintiff $311,108 in total alimony for 2009 and 2010, $150,000 in lieu of life insurance proceeds and $25,000 in counsel fees, and denying the Estate's request to reduce the alimony award to reflect its "tax consequences"). A consent order is not appealable; we presume that the September 10, 2010 order was listed in the notice of appeal to put defendant's challenge to the June 21, 2011 order in context.
I
The parties were married in 1964 and had two children, who are now emancipated. Defendant, a rabbi, earned a high salary as an administrator for the Council of Jewish Federations (CJF). Plaintiff was a homemaker. After thirty-four years of marriage, the parties divorced on July 29, 1998.
The parties negotiated an extensive PSA, in which defendant agreed to pay plaintiff $88,000 in yearly alimony. However, the PSA recognized that when defendant reached age sixty-five, he would be permitted to retire. The parties agreed to a formula for calculating his post-retirement alimony obligations. Instead of $88,000 per year, plaintiff was guaranteed a "total [annual] income" equal "to 28.75% of Husband's gross income." The formula was based on "all" of defendant's post-retirement income, including his "retirement benefits" and "retirement income." We quote paragraph 5 of the PSA in its entirety:
5. The parties understand that upon the Husband reaching the age of 65, his income may be reduced. However, it is anticipated that upon his retirement he will receive income as per a Deferred Compensation Agreement with his employer, the Council of Jewish Federations ("CJF"). The parties further understand that the Husband's aggregate retirement benefit pursuant to the current Deferred Compensation Agreement (see attached) will be 63.5% of his average income for the last five years of his employment with CJF, less certain other retirement benefits. Therefore, upon the Husband reaching the age of 65, he shall be entitled to retire, and upon retirement at age of 65, shall pay to the Wife as alimony an amount which, when added to Wife's entitlement to retirement benefits resulting from the Qualified Domestic Relations Orders addressed below in this Agreement in paragraph 15, her social security entitlement and any earned income will bring her total income to 28.75% of Husband's gross income (his income which shall be deemed to be all income, from his retirement benefits, plus any earned income plus income from the Deferred Compensation from CJF including all retirement income factored in plus his social security entitlement). If
the Husband willfully acts to lose or reduce the CJF deferred compensation benefits, for the purpose of obtaining or substituting another like benefit from another employer, the Wife shall have the same claim to the replacement benefit(s) had the CJF benefits remained in place. Moreover, the Wife will have the same claim to receive alimony against the Husband's income as above, in the event the CJF Plan is succeeded or substituted by another such plan with CJF or its successor (i.e., in the event of a merger or takeover). The precise amount to be paid will be calculated annually on October 1, and will be based on amounts for the prior calendar year.
The procedure for fixing the amount shall be as follows: both parties will provide to a mutually acceptable accountant, a copy of their federal income tax return for the prior year, together with any other information they wish, and a copy of this paragraph of the Agreement. The accountant may request additional information in order to calculate the amount due, which each party shall provide upon request. The accountant, after receiving the information, shall notify both parties of the amount to be paid, which shall remain in effect until the next modification.
[Emphasis added.]
Although paragraph 5 assumed that defendant's employment with CJF would continue through his retirement, paragraph 6 contained terms that would apply if he left CJF prior to retirement. Paragraph 6 acknowledged that defendant's CJF employment contract expired on January 1, 2000 and that his "retirement benefits may be reduced if his employment from CJF terminates prior to the Husband attaining the age of 65." Therefore, in paragraph 6, the parties agreed that if he left CJF before age sixty-five, they would "renegotiate the entitlement to an amount of alimony payable to the wife for this interim timeframe."
Under the PSA, defendant's obligation to pay alimony terminated upon his death. The parties agreed that defendant would maintain life insurance for plaintiff's benefit:
9. The Husband shall maintain $1,000,000 of life insurance, naming the Wife, [and the parties' children] as beneficiaries thereon until such time as he retires or separates from CJF. The Wife will be entitled to 75% of the proceeds on the insurance policy in the event the Husband dies [and the children] will be entitled to 25% of the proceeds to be split evenly between the two. Upon_retirement,_and_the_deferred compensation going into effect as per this Agreement, the Husband will continue to maintain $150,000 of (ONE HUNDRED FIFTY THOUSAND) life insurance for the Wife's benefit.
[Emphasis added.]
In August 1998, shortly after the divorce was finalized, defendant's employment with CJF ended. But instead of arranging for the future receipt of monthly retirement income, defendant negotiated a $1,242,540 lump sum retirement benefit from CJF. This triggered litigation between the parties over how much of the lump sum plaintiff would be entitled to. On November 29, 2005, the parties finally agreed to a consent order awarding plaintiff "alimony" in the sum of approximately $186,000, representing fifteen percent of the lump sum retirement benefit. Unfortunately, the parties did not plan ahead by also agreeing, at that point, on a formula for distributing defendant's future lump sum retirement benefits from his then-current employer, the American Committee for the Weismann Institute of Science (ACWIS).
Defendant had accepted a high-level position with ACWIS immediately after leaving CJF in 1998. He was still employed at ACWIS in 2005 and remained there until 2008. On December 8, 2002, defendant and ACWIS executed an Employment Agreement (Agreement) which reflected that, in addition to his existing duties, he would assume the role of Chief Operating Officer. The Agreement provided that defendant would be paid an annual salary of $355,000 plus other benefits including, under paragraph 5, participation "in the ACWIS retirement plans," which required an employer contribution equal to 9% of the employee's salary.
In addition, paragraph 6 provided that "during the term of this Agreement," ACWIS "will make an annual contribution or allocation of $60,000 to the 'rabbi trust' dated August 12, 1999 which ACWIS has previously established for your benefit . . . and which informally funds the Retirement Benefit Agreement between ACWIS and you dated September 21, 1998." In paragraph 6, ACWIS further promised that if defendant remained employed "through January 2, 2008," he would be "paid an additional retirement benefit equal to one year['s] salary payable in a lump sum in January 2008." (Emphasis added).
The record does not contain any of defendant's pre-2008 W-2 forms or any other contemporaneous documentation to prove that the $60,000 annual contribution was deferred compensation, i.e., a tax-deferred deduction from defendant's current annual income, to which he had a vested right upon retirement. The Employment Agreement characterized the $60,000 as an "informal" funding of the rabbi trust rather than as deferred compensation. And section 3.3 of the 1998 Retirement Benefit Agreement, which created the rabbi trust, provided that defendant would not receive the benefit if he took an early retirement or if he were fired for cause. In other words, the retirement lump sum from the trust was an incentive to defendant to remain employed until his normal retirement date. It was not actually "earned" or awarded until defendant retired in 2008.
Defendant retired from ACWIS on January 1, 2008. Following his retirement, in 2008 ACWIS paid him a $428,000 lump sum for completing the entire term of his employment contract, and paid him the lump sum of $625,892 from the rabbi trust. Defendant's 2008 W-2 form issued by ACWIS reported that he was paid $1,054,936.60 as "Wages, tips and other comp." Defendant's 2008 Federal Income Tax Return likewise treated the money as income, reporting "Wages, salary, tips, etc." of $1,054,937.
Predictably, defendant's retirement from ACWIS sparked additional litigation over the calculation of his alimony obligation. The litigation took on additional urgency when, in 2010, defendant became terminally ill with pancreatic cancer.
Plaintiff, whose annual income apart from alimony was about $20,000, filed a motion on April 7, 2009, to enforce the life insurance clause of the PSA and for other relief. She alleged that defendant, who at that point had not provided her with copies of his 2007 or 2008 tax returns, was under-calculating his income and therefore under-paying alimony. She argued that defendant's "income" included interest income derived from investing the deferred compensation lump sum he received from CJF. In response, defendant admitted that he had previously included that income in calculating his alimony obligation, but argued that he was not required to do so.
By order dated July 16, 2009, Judge James G. Troiano resolved the dispute. He construed paragraph 5 of the PSA as basing defendant's alimony obligation on "all income" including "his income from the deferred compensation from C[J]F." He also held that plaintiff was required to include her interest income in calculating her gross income. He ordered defendant to pay about $3000 per month in alimony retroactive to January 1, 2008; ordered both parties to produce their 2007 and 2008 tax returns; and ordered defendant to provide proof of life insurance.
Having defined for both parties the basis on which their respective gross incomes were to be calculated, the judge also ordered them to agree on defendant's 2009 alimony obligation by September 30, 2009. When the parties were unable to do so, the judge, with the parties' consent, appointed an accountant on April 10, 2010, to determine defendant's 2009 and 2010 alimony obligations.
On June 24, 2010, plaintiff filed a motion to terminate his alimony obligations. He contended that he had been diagnosed with cancer; the consulting business he had started after retirement had lost a major client; he had lost large sums of money to a Ponzi scheme; and he had virtually no income. Plaintiff filed a cross-motion to enforce the September 14, 2009 order. She asserted that defendant had allowed his life insurance to lapse; he had failed to disclose his 2008 or 2009 income tax returns; his 2007 tax return showed income of over $500,000; and the court should use that figure to calculate the 2009 alimony amount. She also asserted that defendant had stopped paying alimony, although his CIS listed assets of $1.7 million.
There is no dispute on this record that defendant was diagnosed with pancreatic cancer in February 2010.
The judge heard oral argument on August 20, 2010, during which he emphasized that the court-appointed accountant was bound by his interpretation of the PSA. On September 10, 2010, the parties entered into a consent order, agreeing that defendant would resume paying about $3000 a month in alimony and escrow $150,000 in lieu of life insurance, and that the accountant would calculate defendant's alimony obligation based on the judge's earlier decision.
Defendant died on November 1, 2010, and his estate was substituted as a party. On December 15, 2010, plaintiff filed a motion asking the court to determine defendant's 2009 and 2010 alimony obligations, based on his 2008 tax returns; for payment of the $150,000 escrowed insurance money; and for other related relief. Plaintiff also asked the court to dismiss the court-appointed accountant, asserting that the accountant was unwilling to follow the court's interpretation of the PSA in calculating alimony.
The accountant submitted a certification in response to plaintiff's motion seeking her dismissal. She explained her preliminary view that the lump sum payment from ACWIS might not be considered as "income" to defendant. She also attached a letter she had sent to the parties, essentially observing that they seemed unwilling to accept any recommendations she made.
Judge Troiano heard oral argument on the motions on May 6, 2011. During that argument, the Estate's attorney admitted that the accountant was bound by the judge's prior order setting the formula for calculating alimony, but she had not followed the judge's order, perhaps due to "a zeal on her part, or this ingrained philosophy that you [the judge] were wrong." Expressing his frustration, the judge stated that he had provided a formula to interpret the PSA specifically to avoid future disputes over the calculation of alimony, and that he appointed the accountant to further expedite this calculation, but her refusal to abide by his order was delaying rather than facilitating the resolution of the alimony dispute. He therefore decided to discharge the accountant.
At the May 6 oral argument, the parties agreed that alimony would be calculated on the basis of the past year's tax return, which by that time was available for tax year 2008. The judge categorically rejected the Estate's argument that, because defendant's total income went up dramatically in 2008, the "all income" formula should not be used to calculate alimony for 2009. On June 21, 2011, Judge Troiano issued an order vacating his earlier order appointing the accountant. He directed the parties to once again attempt to agree on defendant's 2009 alimony obligation "in accordance with" the court's earlier interpretation of paragraph 5 of the PSA, and using defendant's 2008 tax return.
According to his federal tax return, defendant's 2008 adjusted gross income was $1,260,490. That amount included the $428,000 longevity payment from ACWIS, and $652,892 from the ACWIS rabbi trust. Plaintiff's 2008 income, calculated pursuant to paragraph 5 of the PSA, was $23,120. Defendant's estate eventually paid plaintiff about $36,000 in alimony for 2009. Plaintiff estimated defendant's net 2009 alimony obligation as $302,928.23.
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On June 17, 2011, the Estate filed a motion to terminate defendant's alimony obligation effective January 1, 2010, contending that by that point defendant's consulting business had ceased operating; he was in poor health; other than Social Security benefits, he had no income within the meaning of the PSA; and he had lost $700,000 in a Ponzi scheme. The Estate also asked the court to relieve defendant of his $150,000 insurance obligation, nunc pro tunc. The Estate's theory was that if defendant's alimony obligation terminated on January 1, 2010 (ten months before his death), his life insurance obligation should terminate on that date as well, and plaintiff should not be entitled to the $150,000 she sought in lieu of the insurance proceeds.
Plaintiff opposed the motion to terminate alimony and life insurance, contending that defendant had ample income to cover his alimony obligations until the date of his death on November 1, 2010. She filed a cross-motion asking the court to calculate defendant's 2009 and 2010 alimony obligations, to direct the Estate to pay plaintiff $150,000, and to award her counsel fees and costs. Her application was supported by, among other things, defendant's 2009 tax return, showing income of $373,073. In response, the Estate argued that the 2008 payment from ACWIS was "deferred compensation" which should not be considered as income in calculating defendant's 2008 alimony obligation.
The motions were argued on August 2, 2011. The Estate's counsel conceded that defendant had sufficient assets to pay alimony in 2010, but argued that he was not required to do so under the PSA because he had little or no income. He also argued that the lump sum that ACWIS paid defendant from the rabbi trust was not income, but was a post-judgment "asset" in which plaintiff had no right to share. Alternatively, he argued that, like a savings account, it was a deferred portion of income that defendant had earned in past years, and plaintiff was not entitled to share in it. The attorney contended that plaintiff would be entitled to share in the interest defendant earned on the lump sum because, he conceded, the PSA included interest as part of "income." In response, plaintiff's counsel argued that the judge had already decided that the PSA's definition of income included all income, including retirement income, and that the lump sum had been reported as wages and salary.
The judge denied the motion to terminate alimony, finding that defendant failed to establish a prima facie case of changed circumstance to justify terminating his alimony obligation prior to his death. See Lepis v. Lepis, 83 N.J. 139, 146-47 (1980). However, the judge found that the $60,000 per year paid into the rabbi trust was deferred compensation, earned in prior years when defendant was paying plaintiff a set sum of alimony. Therefore, he concluded that the lump sum from the rabbi trust was not income for purposes of the PSA. The judge reserved decision on the life insurance and counsel fee issues. He asked the attorneys to attempt to resolve the alimony amounts for 2009 and 2010, and to apply to the court informally, by letter not motion, if they could not resolve all issues.
Thereafter, plaintiff sent the court a letter requesting clarification concerning the issue of the rabbi trust, and subsequently submitted additional documentation about the trust, which she had recently obtained from the Estate.
After hearing further oral argument on October 20, 2011, Judge Troiano reconsidered his earlier ruling concerning the rabbi trust proceeds. During the argument, plaintiff's counsel argued there was no evidence that ACWIS's $60,000 annual contribution to the rabbi trust represented funds withheld from plaintiff's salary. She contended that the $625,000 reported on his 2008 W-2 form was not from a "trust" funded with defendant's earnings, but instead was a retirement benefit paid by his employer.
Without specifically resolving that issue, the judge reasoned that paragraph 5 of the PSA was sufficiently broadly-worded that it encompassed any and all retirement income or retirement benefits. Therefore, he concluded that, regardless of how either side characterized its source, "the amount of money that [defendant] reported as income in 2008, which is represented by his income tax return here, specifically the line 7 income -- is, in fact, all subject to the formula for 2009 alimony for [plaintiff], based on 2008 income."
The judge noted that, while the parties may have anticipated that defendant would earn less money after he retired, he actually continued to earn large sums of money after he retired from CJF and then from ACWIS. Hence, he rejected the argument that giving plaintiff a percentage of the over $1 million defendant earned in 2008 was somehow an inequitable "windfall."
On December 15, 2011, the court entered an order with the following provisions relevant to this appeal. The order: (1) denied defendant's motion to terminate his alimony obligation effective January 1, 2010; (2) determined defendant's 2009 alimony obligation to be $299,909.23; (3) determined defendant's remaining 2010 alimony obligation to be $11,199.00; (4) ordered the Estate to pay plaintiff the total sum of $311,108.23 in satisfaction of defendant's 2009 and 2010 alimony obligation; (5) ordered the Estate to pay plaintiff $150,000, to fulfill defendant's obligation to maintain a life insurance policy in that amount; (6) ordered the Estate to pay plaintiff $25,000 in counsel fees; and (7) denied the Estate's request to modify the alimony award to reflect the tax consequences to the Estate.
II
The parties agree on the basic legal principles applicable to this appeal. These include our deference to the Family Part's expertise in matrimonial issues, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); our de novo review of purely legal issues including the interpretation of settlement agreements, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); and the Family Part's obligation to consider the parties' intent, as well as common sense and equity, in construing and enforcing a PSA. Sachau v. Sachau, 206 N.J. 1, 5-6 (2011).
With those principles in mind, we begin by considering the central issue on this appeal. The Estate contends that the trial court misinterpreted the PSA "as to defendant's income" and therefore miscalculated his 2009 alimony obligation. For the first time on appeal, the Estate also argues that the trial court should have held a plenary hearing before construing the PSA. We cannot agree with either contention.
The PSA provided plaintiff with $88,000 a year in alimony until defendant retired at age 65. Thereafter, she was entitled annually to 28.75% of defendant's gross income, minus whatever income she had received. The clear purpose of paragraph 5 of the PSA was to protect plaintiff's right to receive alimony, based on a percentage of defendant's "gross income" after he retired. The term "gross income" was defined broadly as "all income." The phrase "from his retirement benefits" was bracketed with commas and therefore was not intended to limit the preceding phrase "all income" to income derived from investing his retirement benefits. Instead, "all income" included the retirement benefits themselves.
If that were not clear enough, another section of the definition of gross income also included the phrase "plus all retirement income." In other words, whatever income defendant received during his retirement was to be used as the basis for the formula set forth in paragraph 5 of the PSA. While the parties evidently expected defendant to receive his retirement benefits in the form of an annual income stream, paragraph 5 was worded broadly enough to encompass retirement income received in a lump sum as well.
Moreover, any other construction would allow defendant to manipulate his retirement benefits in order to defeat plaintiff's right to alimony. If a lump sum retirement benefit were excluded from the term "gross income," then defendant could arrange to take all of his retirement income in that form, immediately transfer the lump sum to his second wife, and claim that he had no "retirement income" attributable to his ACWIS employment and therefore owed plaintiff no alimony. That was obviously not what the PSA intended, as the parties recognized when they agreed in 2005 that plaintiff was entitled to a percentage of defendant's lump sum retirement benefit from CJF.
Defendant notes that, when the parties calculated his 2008 alimony obligation based on his 2006 tax return, they excluded his 2006 salary from ACWIS and included only his 2006 earnings from his consulting business. He then argues that when the parties calculated his 2009 alimony obligation, they should have excluded the 2008 retirement benefit distribution. That argument is utterly without merit.
The parties used defendant's 2006 tax return to calculate the 2008 alimony, because defendant had not yet produced his 2007 or 2008 returns. But in fairness to defendant, the parties obviously recognized that the 2006 tax return would not accurately predict his 2008 income, because he retired from ACWIS on January 1, 2008. Hence, they excluded his regular ACWIS salary from the 2008 alimony calculation, because he was not going to receive that salary income in 2008. On the other hand, his income from the consulting business would continue in 2008, and it was included in the alimony calculation.
The fact that the parties reasonably refrained from attributing to defendant employment income that he would never receive, did not require them to later ignore retirement income that he did receive. Hence, in calculating defendant's 2009 alimony obligation, the court properly included the very large lump sum retirement benefit he received in 2008. This inclusion did not produce a "windfall" to plaintiff. Rather, it provided her with a lump sum that she will have to live on for the rest of her life. Nothing in the PSA suggested that defendant would be permitted to keep his entire retirement lump sum for himself and his heirs and leave plaintiff to pass her elder years in penury.
III
We reject all of the Estate's remaining arguments, including alleged error in the dismissal of the court-appointed expert; the inclusion of interest and dividend income in the calculation of alimony for 2008; plaintiff's entitlement to $150,000; the award to her of $25,000 in counsel fee; and the denial of the Estate's request to reduce the alimony award to account for its alleged tax consequences to the Estate.
During argument before the trial court on August 2, 2011, the Estate's counsel conceded that interest income earned from defendant's retirement benefits should be included in calculating defendant's alimony obligation. Moreover, the parties agreed that defendant's 2008 alimony obligation would be calculated based on his 2006 tax returns, because he had not yet filed his 2007 or 2008 returns. Defendant's 2006 tax returns included the interest and dividend income he now claims should have been excluded from the alimony calculation. Because these issues were not properly preserved before the trial court, we will not consider them on this appeal. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). However, we also note that, other than his own self-serving documents, defendant produced no legally competent evidence that he lost money in a Ponzi scheme and that his tax returns did not accurately reflect his investment income.
The other issues presented on appeal were addressed at length in Judge Troiano's oral opinion of May 6, 2011, and in his written opinion dated December 15, 2011. We affirm substantially for the reasons stated by the trial judge. Defendant's appellate contentions do not merit further discussion, beyond the following comments. See R. 2:11-3(e)(1)(E).
The $150,000 award was equivalent to the proceeds of a life insurance policy that defendant wrongfully permitted to lapse without court permission or notice to plaintiff. It is clear to us, as it was to Judge Troiano, that the life insurance policy was not intended solely as security for defendant's unpaid alimony obligations during his lifetime. The policy proceeds were also intended to provide plaintiff with additional financial support after defendant's death. See Jacobitti v. Jacobitti, 135 N.J. 571, 579-80 (1994). Defendant was not entitled to stop paying alimony, or to cancel the insurance policy, prior to his death. Therefore, we find no error in the judge's decision ordering the Estate to pay plaintiff $150,000.
We also find no abuse of discretion in Judge Troiano's award of $25,000 in counsel fees, which represented a fraction of the $65,000 in fees plaintiff sought for this extensive litigation. See Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970) (holding that a fee award in a matrimonial action will not be disturbed unless it was an abuse of discretion). The judge carefully considered the reasonableness of the fee application, plaintiff's ability to pay some of the fees, and defendant's lack of good faith in the litigation. The judge appropriately considered the factors set forth in Rule 5:3-5(c), and the award was eminently reasonable under all the circumstances.
Finally, had defendant paid plaintiff, during his lifetime, the alimony to which she was entitled, he could have reaped the tax benefits of those alimony payments. We find no basis to reduce plaintiff's alimony entitlement to reflect the tax disadvantages, if any, that may befall defendant's Estate as the result of paying plaintiff the alimony after defendant's death.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION