IN THE MATTER OF THE ESTATE OF ANNA FABICS(247609, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )


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  •                      NOT FOR PUBLICATION WITHOUT THE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-5576-14T2
    IN THE MATTER OF THE
    ESTATE OF ANNA FABICS.
    _______________________
    Submitted May 10, 2017 – Decided           July 19, 2017
    Before Judges Simonelli and Gooden Brown.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Middlesex County,
    Docket No. 247609.
    Ellen Heine, appellant pro se.
    Shamy & Shamy, LLC, attorneys for respondent
    Laszlo Fabics (Joseph J. Catanese, of counsel
    and on the brief).
    PER CURIAM
    In this probate matter, Ellen Heine, as executrix of the
    Estate of Joseph Fabics, appeals from several Chancery Division
    orders and a final judgment involving the Estate of Anna Fabics
    (the Estate).    For the following reasons, we affirm all orders and
    the final judgment.
    I.
    The following facts are pertinent to our review. Anna Fabics,
    the mother of Joseph1 and Laszlo Fabics, died testate on January
    7, 2015.   Anna's last will and testament devised her residuary
    estate in equal shares to her sons.    The will appointed Laszlo as
    executor and directed him
    to sell any property of which I die seized or
    possessed, or to which at the time of my death,
    I may be or thereafter become entitled,
    without prior approval of any person or court,
    at public or private sale, at such times, upon
    such terms, in such manner and for such prices
    as he deems to the best interest of my estate,
    or to dispose of whatever is not saleable, to
    execute and deliver deeds or other instruments
    for the transfer and conveyance thereof, and
    to transfer and pay over the proceeds in
    accordance with the instructions herein
    contained.
    [(Emphasis added.)]
    It appears that Anna's home was the Estate's major asset,
    which Joseph wanted to purchase, but Joseph claimed there was
    jewelry and other valuable personal property in the home that
    Laszlo had stolen or improperly disposed.     In March 2015, Joseph
    filed a complaint and order to show cause in the Chancery Division,
    seeking an order enjoining Laszlo from removing, selling, or
    disposing of any Estate property; requiring Laszlo to return all
    1
    We use first names to identify the family members for ease of
    reference. We mean no disrespect in so doing.
    2                           A-5576-14T2
    items taken from the home and identify items of sentimental value;
    requiring Laszlo to provide an accounting; and removing Laszlo as
    executor and appointing Joseph as executor.
    In an April 24, 2015 order, the court ordered Laszlo to cease
    removal, disposition and/or sale of all estate property until
    completion of a plenary hearing.           Thereafter, on May 19, 2015,
    Joseph filed a second complaint and order to show cause in the
    Chancery Division to set aside probate of the will, alleging the
    will was a "stolen" will because the probated copy had the name
    "Joseph"    written   on   it,   and   because   the   death   certificate
    misidentified Anna as Anna R. Fabics.        Joseph also sought Laszlo's
    removal as executor based on his "bad faith performance of the
    [w]ill."
    In a May 29, 2015 order, Judge Douglas K. Wolfson scheduled
    a hearing for June 15, 2015, to determine whether to remove Laszlo
    as executor.   The order also permitted Joseph to enter Anna's home
    to conduct an inventory of Anna's personal property.
    Joseph conducted a two-day inventory.         Laszlo gave Joseph an
    opportunity to purchase the personal property he wanted, the value
    of which would be deducted from Joseph's share of the Estate's
    proceeds.   Laszlo told Joseph to make a valid offer and warned him
    that if he did not do so, the property would be sold, donated, or
    3                           A-5576-14T2
    disposed.    Joseph listed the items he wanted, but never made a
    valid offer.
    On the Friday before the start of trial, Joseph filed a motion
    on short notice to compel discovery.     At the beginning of trial
    on Monday, June 15, 2015, Joseph advised Judge Wolfson that the
    discovery he needed was a list of all bills of the Estate that
    remained unpaid.   Judge Wolfson denied the motion, finding it was
    untimely filed and the discovery sought was irrelevant to the
    issues to be tried.
    After a two-day bench trial, on June 19, 2015, Judge Wolfson
    entered final judgment dismissing Joseph's two complaints with
    prejudice.   The judge dismissed Joseph's request for an accounting
    without prejudice, as premature, finding Laszlo was not required
    to provide an accounting at that time.   The judge also discharged
    a lis pendens Joseph had filed against Anna's home.
    In a written opinion, the judge determined that Joseph failed
    to substantiate his allegations of Laszlo's waste of Estate assets,
    misconduct, or abuse of discretion.    The judge was satisfied that
    Laszlo had carried out his duties as executor properly, in good
    faith, and within the bounds of his discretion.    The judge noted
    that while Joseph claimed Laszlo wasted estate assets, Joseph did
    not identify specific assets or their purported economic value.
    4                          A-5576-14T2
    Judge Wolfson found that Joseph's primary motivation in this
    litigation was to purchase Anna's home, and Joseph consistently
    insisted that Laszlo's refusal to sell it to him violated his
    fiduciary duty as executor.       The judge determined that Laszlo had
    offered to sell the home to Joseph, but Joseph's contingencies
    were   unacceptable.     Laszlo   eventually    accepted      a   third-party
    contract for a cash sale without contingencies.            The judge found
    Laszlo had the authority to enter into the contract, his conduct
    was entirely consistent with his responsibilities as executor, and
    his decision to sell the home to a third-party and not Joseph was
    made in good faith.
    Judge Wolfson determined there was no authority requiring
    Laszlo   to   update   Joseph    regarding    the    estate's     assets    and
    liabilities within any specific timeframe, and Joseph failed to
    demonstrate special causes to warrant an accounting prior to the
    one-year period set forth in N.J.S.A. 3B:17-2.           The judge denied
    Joseph's request for an accounting without prejudice to his right
    to challenge the final accounting.           The judge also found that
    Laszlo was not required to consult with Joseph and did not abuse
    his authority or violate his fiduciary duty to make unilateral
    decisions.     Lastly,   Judge    Wolfson    found   Joseph     presented    no
    evidence that the probated will was a forgery, was stolen, or how
    the misspelling of Anna's name on the death certificate was
    5                                A-5576-14T2
    relevant to Laszlo's position as executor.           Joseph filed a motion
    for reconsideration of the June 19, 2015 final judgment and for
    other relief.
    In an attempt to circumvent the final judgment, on June 25,
    2015, Joseph filed a petition for discovery in the Law Division
    requesting, in part, access to financial information regarding the
    Estate's assets and liabilities.         The next day, he filed a second
    lis pendens against Anna's home.         He also served a subpoena duces
    tecum on Laszlo.
    In a July 24, 2015 order, Judge Wolfson denied Joseph's motion
    for reconsideration and barred him from filing any other actions
    in the Chancery Division without prior leave of court.                  In a
    separate July 24, 2015 order, the judge dismissed the petition for
    discovery with prejudice; discharged a second lis pendens; quashed
    a subpoena duces tecum; ordered Joseph to pay $3500 for Laszlo's
    counsel fees; and barred Joseph from filing any other action in
    the Law Division.
    On August 10, 2015, Joseph filed a notice of appeal from the
    May 29, 2015 and July 24, 2015 orders and the June 19, 2015 final
    judgment.    That same day, he filed a third lis pendens against
    Anna's home, which Laszlo moved to discharge.           In a December 18,
    2015   order,   Judge   Wolfson   discharged   the    third   lis   pendens;
    enjoined Joseph from filing any additional lis pendens without
    6                               A-5576-14T2
    leave of court; and ordered him to pay $1750 for Laszlo's counsel
    fees for the motion.
    Joseph died on December 16, 2015, and Heine was appointed
    executrix of his estate. Heine moved to substitute Joseph's estate
    as the proper party in this matter, and amended the notice of
    appeal to include the December 18, 2015 order.           Since then, Anna's
    home was sold by agreement of the parties.           Accordingly, any claim
    Joseph or his estate had to the home is moot.
    II.
    Heine first argues that Judge Wolfson abused his discretion
    by determining that Joseph must accept a cash distribution from
    the Estate rather than an in kind distribution.              However, she does
    not point to any specific personal property that Joseph should
    have received in kind.     Nevertheless, her argument lacks merit.
    "Remedies   available   to   courts       of   equity    'are   broad   and
    adaptable.'"   In re Estate of Hope, 
    390 N.J. Super. 533
    , 541 (App.
    Div.) (quoting In re Mossavi, 
    334 N.J. Super. 112
    , 121 (Ch. Div.
    2000)), certif. denied, 
    191 N.J. 316
     (2007).                 "While equitable
    discretion is not governed by fixed principles and definite rules,
    '[i]mplicit    [in   the   exercise       of   equitable      discretion]     is
    conscientious judgment directed by law and reason and looking to
    a just result.'"     
    Ibid.
     (quoting State v. Madan, 
    366 N.J. Super. 98
    , 109-10 (App. Div. 2004)).
    7                                A-5576-14T2
    "A    trial   court's   rulings   on   discretionary   decisions   are
    entitled to deference and will not be reversed on appeal absent a
    showing of an abuse of discretion involving a clear error in
    judgment."    
    Ibid.
     (citations omitted).       "[A]n abuse of discretion
    only arises on demonstration of 'manifest error or injustice[,]'"
    Hisenaj v. Kuehner, 
    194 N.J. 6
    , 20 (2008) (quoting State v. Torres,
    
    183 N.J. 554
    , 572 (2005)), and occurs when the trial judge's
    "decision is 'made without a rational explanation, inexplicably
    departed from established policies, or rested on an impermissible
    basis.'"    Milne v. Goldenberg, 
    428 N.J. Super. 184
    , 197 (App. Div.
    2012) (quoting Flagg v. Essex Cty. Prosecutor, 
    171 N.J. 561
    , 571
    (2002)).    We discern no abuse of discretion here.
    In disputes over the distribution of the assets of an estate,
    "[w]e first look to the language of the will to determine if the
    testator expressed an intent as to how the property should be
    distributed."      In re Estate of Hope, supra, 390 N.J. Super. at 539
    (citation omitted).      Here, Anna's will directed Laszlo "to sell
    any property" and "pay over the proceeds" to the beneficiaries.
    Anna clearly expressed her intent that all of her property should
    be sold and the proceeds distributed in cash, not in kind. Because
    Anna's will did not authorize in kind distributions, Judge Wolfson
    correctly determined that Joseph must accept a cash distribution
    from the Estate.
    8                          A-5576-14T2
    In any event, in kind distributions are only permitted where:
    The person entitled to the payment has not
    demanded payment in cash;
    The property distributed in kind is valued at
    fair market value as of the date of its
    distribution; and
    No residuary devisee has requested that the
    asset in question remain a part of the residue
    of the estate.
    [N.J.S.A. 3B:23-1(b).]
    Laszlo demanded payment in cash, and Joseph never made a valid
    fair market offer.    Accordingly, an in kind distribution could not
    be made here.
    III.
    Heine next argues that Judge Wolfson erred in denying Joseph's
    motion on short notice to compel discovery.         We disagree.
    We generally defer to the trial court's decision regarding
    discovery   matters   absent   an   abuse   of   discretion   or   mistaken
    understanding of the applicable law.        Pomerantz Paper Corp. v. New
    Comty. Corp., 
    207 N.J. 344
    , 371 (2011); see also Pressler &
    Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2
    (2017). There was no abuse of discretion in the denial of Joseph's
    motion.
    Rule 1:6-3(a) provides as follows:
    Other than an ex parte motion and except as
    otherwise provided by Rule 4:46-1 (summary
    9                              A-5576-14T2
    judgment) and Rule 5:5-4(c) (post judgment
    motions), a notice of motion shall be filed
    and served not later than [sixteen] days
    before the specified return date unless
    otherwise provided by court order, which may
    be applied for ex parte.
    Under Rule 1:6-3(a), Joseph's motion was untimely.              Although a
    party may seek relief from the sixteen-day time requirement, Joseph
    did not do so here.       He merely filed the tardy motion on the eve
    of trial without seeking prior approval and without an explanation
    for his delay.     See Shulas v. Estabrook, 
    385 N.J. Super. 91
    , 94
    n. 1 (App. Div. 2006).
    Nonetheless, Judge Wolfson correctly found that Joseph's
    request for a list of all bills that remained to be paid was
    irrelevant to Laszlo's removal as executor.          The judge was not
    required to compel discovery of irrelevant evidence.
    IV.
    In her final argument, Heine rehashes the discovery and in
    kind distribution issues, and argues that Judge Wolfson erred in
    awarding counsel fees.
    Judge Wolfson entered a final judgment dismissing Joseph's
    two   complaints   with   prejudice   and   discharging   the   first   lis
    pendens.   Thereafter, Joseph ignored the judge's rulings and filed
    a second and third lis pendens and a petition for discovery that
    was based on dismissed claims.           Joseph's actions required the
    10                              A-5576-14T2
    Estate to respond and incur counsel fees.       Based on Joseph's
    improper conduct, Judge Wolfson did not abuse his discretion in
    awarding the Estate counsel fees.       Packard-Bamberger & Co. v.
    Collier, 
    167 N.J. 427
    , 443-44 (2001).
    Affirmed.
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