FRO vacated if plaintiff does not need protected

M.D.G.,

Plaintiff-Respondent,

v.

J.G.,

Defendant-Appellant.

_________________________________________

September 22, 2016

Argued September 14, 2016 – Decided

Before Judges Alvarez, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2167-15.

Jay H. Greenblatt argued the cause for appellant (Greenblatt & Laube, P.C., attorneys; Mr. Greenblatt, of counsel; Bonnie L. Laube, on the brief).

Melissa Y. Hoffman argued the cause for respondent (Weinberger Law Group, LLC, attorneys; Ms. Hoffman, on the brief).

NOT FOR PUBLICATION WITHOUT THE  APPROVAL OF THE APPELLATE DIVISION     This opinion shall not "constitute precedent or be binding upon any court."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 only binding 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-0   

PER CURIAM

Defendant J.G. appeals from a final restraining order (FRO), issued against him by the Family Part under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17-35. Defendant argues the court erred by finding he committed the predicate offense of harassment, as defined in N.J.S.A. 2C:33-4 (a) and (c). Defendant further argues the court erred in finding the FRO was necessary to protect plaintiff M.D.G. from future acts of domestic violence. We agree as to the latter argument as the hearing judge did not articulate a sufficient basis for the issuance of the restraining order as required by the Act.  Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

The record discloses the following facts. The parties were married on March 15, 2008. One son was born of the marriage in January 2014. The parties separated shortly thereafter.¹ On February 7, 2014, a dispute arose between defendant and plaintiff's sister regarding the care of the child. After plaintiff called the police, a Cherry Hill police officer responded to the scene. Plaintiff reported that defendant was interfering with her family's attempts to assist with caring for the child. No charges were filed and the police officer informed plaintiff that the dispute was a civil matter. Shortly thereafter, plaintiff sought issuance of a temporary restraining order (TRO). 

A TRO was issued on March 18, 2015, with an amended TRO issued on April 8, 2015. The TROs alleged that defendant "did endanger plaintiff's life[,] health or well[-]being" by engaging in criminal offenses including harassment, assault, terroristic threats, and stalking. Plaintiff alleged that while the parties were at a surgical center for treatment of the child on March 12, 2015, defendant "became irate[,]" yelled at plaintiff and her friend, pushed plaintiff and grabbed the child out of plaintiff's arms. Plaintiff further alleges that defendant "ha[d] been sending harassing emails" ever since the incident occurred. Civil restraints were also issued against defendant, though they were not imposed at trial and therefore not included in the record.

The hearing commenced on April 8, 2015, and concluded on May 13, 2015. The judge heard testimony from plaintiff, plaintiff's friend, and defendant, and reviewed a video recording of the March 12, 2015 incident at the surgical center. The judge also reviewed documentary evidence, including the February 7, 2014 police report; photographs; medical reports for the child; the TROs; and, most importantly, a series of emails sent by defendant to plaintiff between January and March 2015, many of which were sent in rapid succession. A portion of the emails address issues concerning the care or health of the child, who required heightened medical attention due to issues arising from an incomplete circumcision. However, many of the emails also addressed the parties' marital status and raised issues concerning forgiveness and reconciliation.² Some of defendant's January 2015 emails were written from the perspective of the child asking why plaintiff kept the child away from defendant. 

On May 13, 2015, the judge issued an oral decision granting an FRO. The judge characterized plaintiff's friend's testimony as "scripted" and lacking "significance or relevance." He also found that the video recording of the March 12, 2015 incident discredited plaintiff's version. The judge concluded that plaintiff's testimony was "untrue" and lacked credibility, and he rejected plaintiff's accusations of assault, terroristic threats, and stalking as unsupported by the record. The judge did find, however, that plaintiff’s testimony regarding the emails was corroborated by the documentary evidence relative to allegations of harassment. The judge accepted plaintiff's testimony in that regard, and following a discussion of the text of the emails, concluded that the communications constituted harassment pursuant to State v. Hoffman, 149 N.J. 564, 580-81 (1997) and cognate decisional law. The judge concluded there was both sufficient proof of defendant’s purpose to harass and "the need for [an FRO]" pursuant to Silver, supra, 387 N.J. Super. at 125-28. An FRO was entered on May 13, 2015. This appeal followed.

Defendant raises the following issues on appeal:

POINT I

THE EMAILS RELIED ON BY THE TRIAL JUDGE DID NOT SUPPORT A FINDING OF HARASSMENT.

POINT II

CAUTION MUST BE EXERCISED IN CONSIDERING THE ENTRY OF [AN FRO].

POINT III

THE USE OF THE ACT AS A SWORD RATHER THAN A SHIELD.

POINT IV

A FAIR ANALYSIS IN CONDUCTING THE REQUIRED "SECOND INQUIRY" . . . WOULD NOT SUPPORT THE ENTRY OF [AN FRO].

POINT V

THE VIOLATION OF PRIOR RESTRAINTS.

POINT VI

REPETITIVE "BADGERING" EMAILS DO NOT, WITHOUT MORE, CONSTITUTE THE CRIME OF HARASSMENT.

J.G. first argues that the trial judge failed to make appropriate findings as to "purpose." This finding is requisite to establish harassment. "A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination."  Hoffman, supra, 149 N.J. at 577. Nonetheless, we note that purposeful conduct "is the highest form of mens rea contained in our penal code, and the most difficult to establish."  State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires proof, in a case such as this, that it was the actor's "conscious object to cause [the intended] result," N.J.S.A. 2C:2-2(b)(1) – i.e., to cause annoyance or alarm. A plaintiff's assertion that the conduct is harassing is not sufficient.  J.D. v. M.D.F., 207 N.J. 458, 484 (2011) (citing Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001)). Further, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose."  Id. at 487 (citing State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)).

In J.D., the Court noted:

. . . harassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application.

[J.D., supra, 207 N.J. at 475.]

In reviewing a decision of a family court, we "defer to the factual findings of the trial court."  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters," N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104. Also, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.2d 898 (2005).

Arguably, the judge's finding of the predicate offense of harassment including "purpose" finds some support within the record. As our courts have observed, direct proof of intent and purpose may often be inferred from what is said and done in the surrounding circumstances.

After defendant received no reply to his emails from plaintiff, he continued to make numerous attempts at contact. The judge found that the number of contacts during the course of a given day, and the tone and tenor of the emails, which included subject matter in violation of the civil restraints, was sufficient to constitute the predicate offense. The judge noted that certain emails "went far beyond" the boundaries of the restraints. The judge further noted that while a violation of the civil restraints alone does not form the basis for an FRO, J.G. "recognized" that [M.D.G.] would find the communications harassing and annoying.³

The judge further found that defendant’s email communication reflected both his "obsessive and controlling behavior," and how he "lashes out and badgers and bullies [plaintiff] when she will not agree with what he wants to happen." As such, the judge held that the emails violated subparts (a) and (c) of the harassment statute.

Applying our standard of review, after our review of the trial record and controlling law, we are persuaded that there was narrowly sufficient credible evidence to support the finding of a predicate act of domestic violence. However, the scope of our review does not end here.

As noted in Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999), the Act "is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence." The Act was intended "to address matters of consequence, not ordinary domestic contretemps."  Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).

It is for this reason that in adjudicating a domestic violence complaint, the Family Part must perform a two-fold task. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred."  Silver, supra, 387 N.J. Super. at 125. Second, a court must determine "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to 29a(6), to protect a victim from immediate danger or to prevent further abuse."  Id. at 127. Here, no specific findings were made based upon the statutory factors.

Defendant argues that, under these standards, there was insufficient evidence presented at trial to support the entry of an FRO against him. In Silver, this court articulated the two-step procedure for determining whether domestic violence sufficient to warrant issuance of an FRO had been demonstrated.

First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. . . . In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'"  Cesare [v. Cesare], 154 N.J. [394,] 402 [(1998)] (quoting Peranio [v. Peranio], 280 N.J. Super. [47,] 54 [(App. Div. 1995))]. Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.  See N.J.S.A. 2C:25-29(a)(1) and (2).

. . . .

The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim. As we noted in Kamen [v. Egan], the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order. 322 N.J. Super. [222,] 227 [(App. Div. 1999)]. 

[Silver, supra, 387 N.J. Super. at 125-27 (footnote and citations omitted).]

The "guiding standard" for entering an FRO is "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127; see also N.J.S.A. 2C:25-29(b).

Here, the judge acknowledged that his determination of the need for the issuance of an FRO was largely influenced by J.G.'s trial conduct which the judge described as "disturbing, inappropriate and irrational." The conduct, according to the judge, evinced an inability of J.G. to "control his emotions at a point in time when he should have been on his best behavior." The judge also relied upon as indicative of defendant’s emotional state, the two email communications in January 2015, where defendant assumed the role of the child as if the child were addressing the plaintiff. These emails predated the TRO.

While we defer to the trial judge's finding of credibility premised upon demeanor, we conclude that the judge placed undue emphasis upon defendant’s demeanor during the hearing as a factor for the issuance of an FRO. The utilization of this as a factor both ignores and is at odds with a court proceeding that, by any objective measure, is laden with emotion. Defendant’s stake in the outcome of the proceeding included the potential issuance of an FRO and the risk of loss of parenting time with his child. He was also defending himself against allegations of criminal conduct. When viewed through the prism of this crucible, we are satisfied that the judge’s focus upon defendant’s emotional behavior as a factor was misplaced. 

Moreover, the judge overlooked the absence of evidence of prior violence between the parties, and that the issuance of the TRO resulted in a termination by defendant of the "harassing" conduct, including any emails similar to the January emails. The judge also overlooked that plaintiff gave false testimony in support of her allegations of stalking and assault in the calculus of whether she required protection from "immediate danger or to prevent further abuse."  N.J.S.A. 2C:25-29(b).

We exercise broad review in considering "the trial judge's evaluation of the facts and the implications to be drawn therefrom." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). We are required to reverse where "the court ignores applicable standards[.]"  Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). As we are unpersuaded that the judge's finding of the need for the issuance for an FRO was grounded in the application of the appropriate statutory standards, we reverse and vacate the FRO.

Reversed. 1  The exact date of their separation is unclear from the record. Plaintiff testified they separated in February 2014.

2  Defendant admitted during his testimony that the civil restraints limited the parties' communications to parenting issues and that some of his emails were in violation of the restraints. 

3  We consider this to be a basis for the finding of "purpose" to harass by defendant rather than the state of mind of plaintiff. As the Court held in J.D., a "victim's subjective reaction alone will not suffice, there must be evidence of purpose." J.D., supra, 207 N.J. at 487.

palimony rejected against estate in this case SOSKINA, Plaintiff-Respondent, v. THE ESTATE OF ALEXANDER TURYAN,

palimony rejected against estate in this case

INNA SOSKINA,

Plaintiff-Respondent,

v.

THE ESTATE OF ALEXANDER TURYAN,

ANNA TURYAN,

Defendants,

and

EDWARD TURYAN,

Defendant-Appellant.

__________________________________

October 3, 2016

Unpublished

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

Before Judges Reisner, Koblitz and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-0915-11.

Roger L. Fidler, attorney for appellant. 

Antranig Aslanian, Jr., attorney for respondent.

PER CURIAM

Edward Turyan appeals from Family Part orders dated January 5, 2015 and March 4, 2015. We affirm substantially for the reasons stated by Judge Bonnie J. Mizdol in her comprehensive written opinions dated January 5, 2015, and March 4, 2015. We add these comments. 

This appeal arises from litigation filed by Inna Soskina against the estate of her long-time paramour Alexander Turyan, seeking palimony and other monetary relief. After a twenty-four day bench trial, Judge Mizdol denied the palimony claim but granted other relief, including about $94,000, representing the return of Soskina's $20,000 loan to Alexander¹ to buy a Florida condominium, plus twenty percent of the net profit from the sale of the condo; and $300,000 that Alexander directed one of his debtors to repay directly to Soskina but which defendants converted to their own use. The judge also ordered Edward and co-defendant Anna Turyan to pay Soskina about $50,000 in counsel fees.²

On this appeal we will not disturb the trial judge's factual findings so long as they are supported by substantial credible evidence.  Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to the judge's evaluation of witness credibility.  Ibid. We review the trial judge's evidentiary rulings for abuse of discretion.  Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We will disturb a trial judge's award of counsel fees only in the rarest of circumstances and only for a "clear abuse of discretion."  Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008).

After reviewing the voluminous trial transcripts and documentary evidence, we find no basis to disturb Judge Mizdol's detailed credibility determinations or her factual findings. Based on the facts as she found them to be, her legal conclusions on the issues of liability and damages are unassailable. We find no abuse of discretion in her evidentiary rulings or in the award of counsel fees. 

On this appeal, Edward raises four issues:

I. THE STATUTE OF LIMITATIONS AND/OR LACHES BARS RECOVERY ON ALLEGED CONTRACT TO LOAN MONIES TO DECEDENT TO BUY FLORIDA CONDOMINIUM.

II. NO FACTUAL BASIS EXISTS FOR HOLDING THAT FUNDS INVESTED BY VLADIMIR PANTELEYEEV COMPRISED FUNDS OWED [TO] DECEDENT.

III. COURT ABUSED DISCRETION ALLOWING TESTIMONY BY NOTARY REGARDING DECEDENT'S CAPACITY TO EXECUTE AGREEMENT WHILE BARRING TESTIMONY FROM PHYSICIAN(S) ON SAME ISSUE.

IV. THE AWARD OF ATTORNEY'S FEES WAS NOT PROPERLY COMPUTED.

Having reviewed the record in light of the applicable law, we conclude that those arguments are not supported by the record and, except as briefly addressed below, they are without sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E). 

Based on a written, signed document, the judge found that Soskina contributed $20,000 to the down payment on the Florida condo, in return for which Alexander agreed to repay her the $20,000, plus twenty percent of the net profit, when the condo was sold. At the trial, Edward contended that Soskina settled her claim to the return of her $20,000 and a percentage of the sale proceeds. In her comprehensive opinion, Judge Mizdol rejected that contention for reasons which we find persuasive and supported by substantial credible evidence. Notably, the judge found no written documentation that a $29,000 check from Alexander to Soskina, which she never cashed, was intended as a settlement of her claims concerning the condo. The judge also found it inconceivable that Alexander, an astute business person who routinely documented important transactions, would fail to document the settlement of such a significant financial claim. We find no basis to disturb the judge's conclusion. 

Although the condo was not sold until 2012, defendant now contends that any breach of the agreement occurred in 1995 and that Soskina's claim is barred by the statute of limitations. That argument was not raised in the trial court, and even if considered, is patently without merit. R. 2:11-3(e)(1)(E); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). 

The next issue concerns Alexander's deathbed direction that a business associate named Vladimir Pantaleev should satisfy a $300,000 debt he owned to Alexander, by paying that sum to Soskina. The direction was repeated orally in front of multiple witnesses and was memorialized in writing. However, instead of paying $300,000 to Soskina, Pantaleev paid the sum of $359,000 to Edward and Anna. Based on her evaluation of witness credibility, Judge Mizdol found that this sum included the $300,000 that Pantaleev owed to Alexander, and that Edward and Anna unlawfully converted the money to their own use. Judge Mizdol found incredible defendants' claim that the money represented a new business investment, for which there was no documentation. 

On this appeal, Edward argues that the trial evidence did not support the finding that Pantaleev paid Edward and Anna the $300,000 he was supposed to have paid to plaintiff. He claims the $300,000 was merely an investment in other businesses, and he denies that Pantaleev owed Alexander the sum of $300,000. Edward's arguments are based on testimony which the judge did not find credible. His contentions on this point were thoroughly addressed in Judge Mizdol's opinion and are without sufficient merit to warrant further discussion here.  R. 2:11-3(e)(1)(E). 

Edward next argues that he was unfairly precluded from calling medical witnesses who were not on his witness list. He does not cite to the record concerning any proffer of medical testimony, and as a result has not properly presented the claim on this appeal. He further contends that the judge should not have let the hospital's notary testify about her observations of Alexander's mental capacity at the time he signed the directive concerning Pantaleev's debt. There was no objection to that testimony, some of which was elicited by Edward's trial attorney. We find no abuse of the judge's discretion in letting the notary testify.³

Affirmed. 

1  For clarity, and intending no disrespect, we refer to all members of the Turyan family by their first names.

2  The complaint named Alexander's brother Edward, in his personal capacity and as personal representative for Alexander's estate in Florida, and Alexander's daughter Anna, as executrix of Alexander's estate and in her personal capacity. Edward is the sole appellant. Soskina did not cross-appeal from the denial of her palimony claim. 

3  In one short paragraph, Edward contends that because the damages award was incorrect, the counsel fee award must be revisited as, he argues, it was based on a percentage of the damages. Both of those assertions are incorrect. Damages were correctly awarded, and Judge Mizdol properly based the fee award on a detailed analysis of the factors set forth in Rule 5:3-5(c). 

A.M.C. VS. P.B. A-4730-14T3

A.M.C. VS. P.B.
          A-4730-14T3

The Family Part found defendant physically assaulted his wife twice over a three-week period. Applying the two-prong analysis in Silver v. Silver, 387 N.J. Super. 112, 125–27 (2006), the judge found an FRO was not necessary to protect plaintiff from future acts or threats of violence. We hold the Family Part failed to adequately consider the inherently violent nature of the predicate acts. Under these circumstances, the need to issue an FRO was "self-evident." Silver, supra, 387 N.J. Super. at 127.
Defendant, a Newark Police Officer, was not served with the TRO. Notwithstanding defendant’s failure to object, N.J.S.A. 2C:25-28l, N.J.S.A. 2C:25-28n, and the Domestic Violence Procedures Manual makes the Judiciary responsible to serve defendant with the TRO. We hold the trial court had an obligation to determine what caused this systemic failure. We further hold the trial court erred as a matter of public policy when it considered the Judiciary's failure to carry out this legal responsibility as a factor in favor of denying plaintiff's application for an FRO. 

In DV case, judge must inquire if defendant wanted to hire a lawyer

In DV case, judge must inquire if defendant wanted to hire a lawyer

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

G.G.,

Plaintiff-Respondent,

v.

A.D.,

Defendant-Appellant.

_______________________________

August 30, 2016

Submitted August 22, 2016 – Decided 

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1895-15.

Law Offices of Ian J. Hirsch & Associates, L.L.C., attorneys for appellant (Mr. Hirsch, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a June 5, 2015 Family Part order denying her motion for reconsideration of the entry of a final restraining order. We reverse.

Plaintiff and defendant are mother and daughter. On May 3, 2015, plaintiff was granted a temporary restraining order against defendant after asserting that defendant pushed her during a verbal altercation at the plaintiff's home. A hearing was held on May 11, 2015 where the trial judge read a statement explaining the procedure that would be followed. The trial judge explained that both plaintiff and defendant had the right to have an attorney present. The judge explained in detail the direct and collateral consequences of the entry of a final restraining order. At the conclusion of the statement, the trial judge only asked plaintiff if she was ready to proceed, and heard her testimony about the May 3, 2015 incident.

When offered the opportunity to cross-examine plaintiff, defendant engaged in an emotional discussion with plaintiff and then offered the court a rambling and emotionally charged account of her family's efforts to remove her child from her care and the counseling she was receiving. During that discussion, defendant denied hitting plaintiff and indicated that she was represented by counsel who was not present.

At the conclusion of the hearing, the trial judge found plaintiff's testimony credible, and found that defendant had committed a simple assault upon plaintiff by pushing her. The judge entered a final restraining order against defendant. On May 19, 2015 defendant moved for reconsideration indicating that her attorney had not been present at the May 11, 2015 hearing because she was unable to get in touch with him. On June 5, 2015, defendant appeared with counsel and requested a new hearing. The trial judge denied the application. This appeal followed.

On appeal, defendant argues that the court abused its discretion by proceeding to trial without adequately determining that defendant wanted to proceed without counsel. Defendant also argues that the trial court abused its discretion in finding that defendant committed an act of domestic violence, regarding both the May 3, 2015 incident and other previous incidents reported by plaintiff. Because we agree with defendant's first argument, we need not reach her latter argument. 

A review of the transcript of the May 11, 2015 hearing demonstrates that the trial judge advised both parties of their right to be represented by counsel and the right to seek an adjournment in order to do so. However, the trial judge immediately allowed plaintiff to present her case without determining whether defendant wanted to proceed without a lawyer. When defendant was permitted to speak she informed the court that she had a lawyer and said, "[a]nd if you speak to [him], he is my attorney, he's – and I've been doing everything in my power to – do what I'm supposed to do." Even at that time, the trial judge did not question whether she wanted a continuance in order for the lawyer to be present.

It is within the court's discretion to grant an adjournment or continuance if either party requests an adjournment for the purpose of obtaining or consulting with an attorney, securing witnesses, or other good cause, unless the delay would create an extreme hardship on the other party, or there had been an inordinate delay in seeking counsel.  See, e.g., H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (explaining situations in which trial courts should grant adjournments for due process purposes). The court appropriately advised the parties of their rights in that regard. Neither party requested an adjournment. However, when it became evident at the hearing that defendant may have needed additional time to prepare and had not expressly waived counsel nor been asked if she was ready, due process required that the judge at least inquire if defendant wanted her lawyer to be present.

Due process allows litigants a meaningful opportunity to defend against a complaint in domestic violence matters, which would include the opportunity to seek legal representation, if requested.  Franklin v. Slosky, 385 N.J. Super. 534, 540-41 (App. Div. 2006). Such determinations are often fact-sensitive.  D.N. v. K.M., 429 N.J. Super. 592, 606-607 (App. Div. 2013). "[E]nsuring that defendants are not deprived of their due process rights requires our trial courts to recognize both what those rights are and how they can be protected consistent with the protective goals of the [Domestic Violence] Act." J.D. v. M.D.F., 207 N.J. 458, 479 (2011). Because we are not satisfied that the procedure used by the court did not adequately afford defendant the opportunity to seek legal representation we reverse and remand for a new hearing consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

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Child support could be a claim against the probate estate. IN THE MATTER OF THE ESTATE OF KEITH R. O'MALLEY, DECEASED

IN THE MATTER OF THE ESTATE OF

KEITH R. O'MALLEY, DECEASED.

June 1, 2016

Argued May 9, 2016 - Decided

Before Judges Messano, Simonelli, and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-0006-15.

Kenneth J. Lackey argued the cause for appellant Renee Brozowski, Guardian for E.L. (Neff Aguilar LLC, attorneys; Mr. Lackey, on the briefs). 

Joseph A. Bottitta argued the cause for respondents Jeffrey Bond, Executor, Barbara O'Malley, Jessica Shuman, and Dennis O'Malley (Genova Burns LLC, attorneys; Mr. Bottitta, of counsel; Jenna M. Beatrice, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PER CURIAM

In this probate matter, Renee Brozowski, as guardian for her minor son, E.L.,¹ appeals from a March 3, 2015 judgment dismissing her claims against the estate of decedent Keith R. O'Malley. For the reasons that follow, we affirm in part and reverse and remand in part. 

I.

Brozowski and O'Malley were never married but had one child, E.L., who was born in August 2000. E.L. lived with Brozowski in the Albany, New York area. O'Malley was a New Jersey resident who lived in Spring Lake when he died unexpectedly in June 2014 at age thirty-six. By all accounts, O'Malley was financially prosperous, and prior to his death he had expressed an interest in sharing his acumen in trading stocks with E.L. 

On February 8, 2008, Brozowski and O'Malley entered into a Child Support Agreement (CSA) "based upon [their] financial circumstances . . . as well as an application of the laws of the State of New York including, but not limited to, the Child Support Standard[s] Act." The CSA provided that O'Malley would pay Brozowski $3000 per month child support for E.L., and that "[t]he basic child support obligation created hereunder . . . shall be paid until such time as [E.L.] reaches his twenty-first birthday or becomes earlier emancipated." Additionally, O'Malley agreed to pay 100% of E.L.'s childcare and unreimbursed medical expenses. He also agreed to deposit $7500 per year into a college account for E.L., "commencing in the year 2008 and each year thereafter through and including the year in which the child obtains a four[-]year degree or attains his twenty-third birthday, whichever shall occur first." 

By consent, the CSA was incorporated into a Child Support Order entered by the Albany County Family Court on March 19, 2008. The order provided that it "shall be enforceable pursuant to Section 5241 or Section 5242 of the [New York] Civil Practice Law and Rules, or in any other manner provided by law." 

O'Malley executed a Last Will and Testament (the will) on March 8, 2013. The FIRST Article of the will directed that "all my debts . . . that are just and not barred by time or for any other reason be paid by my Executors in accordance with the terms of the indebtedness from my residuary estate." The SECOND Article specifically disinherited E.L.: 

(A) I hereby specifically omit my son, [E.L.], and his issue, as beneficiaries under my Will and of my estate and specifically provide that they shall not be included in any class group such as, but not limited to, "children," "issue," or "descendants." For all purposes under or outside of this Will, including for purposes of determining my intestate heirs, my son, [E.L.], and his issue shall be deemed to have predeceased me. 

In the THIRD Article of the Will, O'Malley gave all his personal property, excluding aircraft, to S.O., his young daughter from another relationship. Alternatively, the property was to be sold and the proceeds added to his residuary estate. O'Malley also established a $50,000 trust for the lifetime care of his dog Bella. 

In the FOURTH Article, O'Malley bequeathed $5,000,000 to S.O. plus, under the FIFTH Article, fifty percent of his residuary estate. The remaining fifty percent of the residuary was to be held in the "Keith R. O'Malley Family Trust" and disposed of pursuant to the NINTH Article of his will. In turn, the NINTH Article designated O'Malley's parents, his sister, and his sister's issue, as "allowable beneficiaries" entitled to share in the Family Trust. 

Following his death, O'Malley's will was admitted to probate by the Monmouth County Surrogate on July 8, 2014. On January 6, 2015, Brozowski filed an order to show cause (OTSC) and verified complaint in the Chancery Division, Probate Part, seeking, among other things, to invalidate the will and enforce the CSA. The complaint asserted the following six causes of action: (1) Protective Arrangement pursuant to N.J.S.A. 3B:12-1; (2) Mistake; (3) Lack of Capacity; (4) Undue Influence; (5) Probable Intent; and (6) Breach of Contract. The Executor and O'Malley's parents and sister (collectively, defendants) opposed the application. 

The Probate Part heard oral argument on the return date of the OTSC and issued an oral opinion denying the relief sought by Brozowski. The court found that N.J.S.A. 3B:12-1, by its express terms, did not apply. The court also found that Brozowski did not allege facts sufficient to establish viable claims of lack of capacity or undue influence. Additionally, because the court determined that "the [w]ill is clear and expressly disinherits [E.L.]," Brozowski's claims founded on mistake and the probable intent doctrine also failed. Ultimately, the court concluded: 

No matter how unfortunate these circumstances are, I find I cannot invalidate the [w]ill . . . . I find that there is nothing in the paper[s] that would allow me to do that, that would allow me to enter into a protective arrangement or enforce the child support agreement because that is a New York agreement. Perhaps there may be something in New York. But New York law states that they cannot be enforced after death. 

The court entered judgment on March 3, 2015, dismissing Brozowski's complaint with prejudice. This appeal followed. 

On appeal, Brozowski reasserts her probable intent and mistake claims.² She contends that factual issues exist that preclude the dismissal of these claims. She also urges that we adopt a "common law, bright-line rule, as a corollary to the probable intent doctrine," which would create a rebuttable presumption that "a decedent's probable intent is for support payments to be a valid claim against his estate." 

II.

We first consider our standard of review. We will not disturb the factual findings and legal conclusions of a trial judge unless we are convinced that those findings and conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Tractenberg v. Twp. of West Orange, 416 N.J. Super. 354, 365 (App. Div. 2010) (quoting Rova Farms Resort, Inc. v. Inv're Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'"  Ibid. (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). 

Rule 4:83-1 designates that "all actions in the Superior Court, Chancery Division, Probate Part, shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to [Rule] 4:67." Consequently, probate matters are specifically subject to Rules governing expedited summary actions when in the trial court.  See Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 378 (App. Div. 2003). 

Actions brought in a "summary manner" are distinguishable from summary judgment actions because in a summary action, the court makes findings of fact and accords no favorable inferences to the action's opponent.  O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998). If the court is "satisfied with the sufficiency of the application, [it] shall order defendant to show cause why final judgment should not be rendered for the relief sought."  Courier News, supra, 358 N.J. Super. at 378 (alteration in original) (quoting R. 4:67-2(a)). Furthermore, summary actions are specifically designed to be expeditious and avoid plenary hearings. Under Rule 4:67-5, 

[t]he court shall try the action on the return day, or on such short day as it fixes . . . [i]f . . . the affidavits show palpably that there is no genuine issue as to any material fact[.] If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment. At the hearing or on motion at any stage of the action, the court for good cause shown may order the action to proceed as in a plenary action . . . . 

Consequently, judges sitting in probate on summary proceedings have broad discretion in determining the genuine nature of the factual dispute and whether the issue may merit a plenary hearing.  See Tractenberg, supra, 416 N.J. Super. at 365 (holding that a judge properly utilized a summary proceeding to determine whether facts supported the claim that the attorney-client privilege or attorney work product protected the release of certain documents under the Open Public Records Act). 

Here, we find that the Probate Part reasonably exercised its discretion in determining that a plenary hearing was not warranted and dismissing Brozowski's probable intent and mistake claims. We reach a different result, however, with respect to the breach of contract claim. We address each of these issues in turn. 

A.

Brozowski contends that application of the probable intent doctrine is appropriate here because, had O'Malley known he would die prematurely, he would have made adequate provision for E.L.'s support, care, education and welfare. She asserts that discovery of the will scrivener's file and the scrivener's deposition are necessary to determine whether O'Malley was aware that his support obligations would cease upon his death, as defendants contend is the result under New York law. Defendants respond that, because O'Malley's will contains no ambiguity and is a clear expression of his intent to disinherit E.L., Brozowski cannot state a claim of probable intent. Also, because the will is clear and unambiguous, extrinsic evidence is not needed to determine O'Malley's actual intent. We agree with defendants. 

The doctrine of probable intent is embodied in N.J.S.A. 3B:3-33.1(a): "The intention of a testator as expressed in his will controls the legal effect of his dispositions, and the rules of construction expressed in [ N.J.S.A.] 3B:3-34 through [ N.J.S.A.] 3B:3-48 shall apply unless the probable intention of the testator, as indicated by the will and relevant circumstances, is contrary." 

The doctrine is no more than "a rule of construction or interpretation and, therefore, presupposes an existing testamentary disposition" to interpret.  In re Estate of Flood, 417 N.J. Super. 378, 382 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). The doctrine is "applied sparingly and only where necessary to give effect to the intent of the will or trust without varying the terms of the document."  In re Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005). By way of example, a decedent's intent to minimize the tax consequences of testamentary dispositions might be used to read "technical provisions essential to achieve tax savings" into an existing gift, In re Estate of Branigan, 129 N.J. 324, 335 (1992), "but only to the extent that those revisions [do] not alter the dispository provisions of the will."  Gabrellian, supra, 372 N.J. Super. at 442. "The doctrine of probable intent is not applicable where the documents are clear on their face and there is no failure of any bequest or provision." Id. at 443. 

These principles are fatal to Brozowski's probable intent claim that the will should be construed to include E.L. as a beneficiary. She is unable to point to a single sentence, phrase or word in the will that could be interpreted to give any part of O'Malley's estate to E.L. The will could hardly be clearer: "I hereby specifically omit my son, [E.L.], and his issue, as beneficiaries under my [w]ill." Because the will is clear that none of O'Malley's estate should go to E.L., and because this directive can be carried out as written, the doctrine of probable intent has no role in this case. Therefore, the Probate Part properly dismissed the probable intent claim. 

B.

In a similar vein, Brozowski argues that the court erred in dismissing her claim of mistake in the inducement without the opportunity for discovery. Specifically, she contends that she should be afforded the opportunity to ascertain whether O'Malley mistakenly believed that the child support obligations would survive his premature death prior to the fulfillment of those obligations. Defendants again respond that the will reveals a clear intent to disinherit E.L. upon O'Malley's death, and any suggestion that O'Malley held an inaccurate belief as to any essential fact is pure speculation. 

Mistake in the inducement may exist when a testator is influenced to execute a will based on an inaccurate belief as to as essential fact, such as the death of a beneficiary who is in fact alive.  See In re Araneo, 211 N.J. Super. 456, 461 (Law Div. 1985), aff'd, 213 N.J. Super. 116(App. Div.), certif. denied, 107 N.J. 62 (1986) (applying N.J.S.A. 3B:5-16(c), which mandates that if a decedent fails to provide for a child solely because of a mistaken belief that the child is dead, the child may be entitled to a share of the estate). 

Here, Brozowski provided no evidence for her bare allegation that O'Malley held a mistaken belief as to whether his support obligations would survive his death, and that this mistaken belief served as his motivation for disinheriting E.L. We agree with defendants that the will is clear and that this claimed motivation based on a mistake is pure speculation on Brozowski's part. In any event, an improper motivation does not invalidate a will. "A court cannot pass upon either the wisdom or fairness of a will's provisions so long as it was validly executed and it is not illegal or offensive to public policy." Ibid. (citing In re Blake's Will, 21 N.J. 50, 57 (1956); In re Petkos, 54 N.J. Super. 118, 128 (App. Div.), certif. denied, 30 N.J. 150 (1959) ("Any repugnance the court may feel at the unnaturalness of the testament cannot be permitted to influence it to frustrate the testator's legal right to dispose of his property as he willed.")).

Accordingly, we cannot say on the basis of this record, that the Probate Part erroneously exercised its discretion. Thus, there is no basis to reverse the dismissal of Brozowski's mistake claim. 

C.

Brozowski's breach of contract claim requires a somewhat different analysis. Here, our focus is primarily on the CSA rather than the will, and whether E.L., through Brozowski, is a creditor rather than a beneficiary of O'Malley's estate. In count six of her complaint, Brozowski alleged, at least in part, that the CSA was a valid contract and that the executor breached that contract "by taking the position that the [CSA] terminated upon O'Malley's death." Although the court cited no controlling authority, it appears to have impliedly rejected this claim on the basis that "New York law does not provide for support upon the death of the father." In reaching that conclusion, however, the court does not appear to have fully considered applicable case law which, in appropriate circumstances, may lead to the conclusion that O'Malley's child support obligation survives his death and constitutes a debt of the estate.³

Defendants assert that there is no common law or statutory obligation in New York on the part of a parent to support a child after the parent's death, absent an agreement otherwise (citing CLS Family Ct Act §413; In re Estate of Phinney, 673 N.Y.S.2d 621 (App. Div. 1998); Keehn v. Keehn, 524 N.Y.S.2d 238 (App. Div. 1988); Flatto v. Flatto, 398 N.Y.S.2d 687 (App. Div. 1977); Chiaramonte v. Chiaramonte, 435 N.Y.S.2d 523 (Sup. Ct. 1981); Ehrler v. Ehrler, 328 N.Y.S.2d 728 (Sup. Ct. 1972)).  See also Black v. Walker, 295 N.J. Super. 244, 258 (App Div. 1996). Defendants thus argue that, because the CSA fails to expressly provide that the child support payments continue in the event of O'Malley's death, governing New York law requires us to conclude that the support obligation ceased upon his death. 

Brozowski contends that New York's highest court, faced with analogous circumstances in Cohen v. Cronin, 346 N.E.2d 524 (N.Y. 1976), reached a different result. In Cohen, the parties entered into a separation agreement that obligated the husband to pay the wife "$400 each month for the wife's separate maintenance and support until she shall remarry or expire."  Id. at 525-26. The husband died less than two months after the separation agreement was signed, and the wife sought to charge his estate with the obligation to make the agreed-upon monthly payments. Id. at 526. The Court of Appeals framed the issue as "whether the provision in a separation agreement obligating the husband to make support payments to his wife survives his death and is binding on his estate."  Id. at 525. In deciding the issue, the court reasoned: 

We start with the well–accepted proposition that a husband's obligation to support his wife terminates with the husband's death. However, the husband might, by agreement, impose upon his estate a duty to make alimony or support payments after his death. In order to bind the estate, a separation agreement must either specifically provide for the continuation of payments or evince, from the terms of the agreement read as a whole, a clear intention that support payments continue, notwithstanding the husband's death. While explicit agreement by the parties is obviously much to be preferred, where such explicit agreement is lacking, the court must read the document as a whole in its total context and examine each of its provisions in order to ascertain the overriding intention of the parties. Since the burden of proof is borne by the claimant, the wife must establish, to the satisfaction of the court, that the parties actually intended to extend the obligation to make support payments beyond the husband's lifetime. 

From our analysis of the agreement, we conclude that the provision in the agreement for the support payments to the wife to continue "until she shall remarry or expire", without any qualifying or limiting language, obligates the husband's estate to make payments for the lifetime of the wife. Nowhere in the agreement is it suggested that payments are to be made during the joint lives of the parties or that the agreement would terminate upon death of either party. On the contrary, the agreement expressly states that termination of the payments of support would only occur where the wife has either remarried or died. 

[Id. at 526-27 (citations omitted).] 

The Court of Appeals further noted that "the agreement involved in this case does not make provision for any other payments to the wife, aside from the support payments. No effort was made to make other provision for the wife's support after the husband's death." Id. at 528. The Court concluded: 

Although this separation agreement does not specifically provide for the continuation of payments after the husband's death, we believe that the tenor of the separation agreement reflects an intent to obligate the estate, in the event of the husband's death, to make the support payments called for in the agreement. Not having been shown any evidence extrinsic to the agreement that would support a contrary interpretation, we hold that Special Term properly granted the [wife] summary judgment. Since the [wife] is a creditor of the estate, she was also entitled . . . to have a reserve fund established to ensure that adequate funds would be set aside to satisfy the estate's obligation to her. 

[Ibid. (citations omitted).] 

The New York Court of Appeals again considered the issue in In re Riconda, 688 N.E.2d 248, 253 (N.Y. 1997). There, the parties' separation agreement simply provided for the husband to make maintenance payments to the wife until her death or remarriage, but was otherwise silent as to the consequence of his predeceasing her. The Court noted that, by statute and under relevant case law, "[g]enerally, the obligation to make maintenance payments terminates upon the death of either party," but "[p]arties may, however, modify or extend the duration of maintenance by contract."  Id. at 251. The Court concluded that summary judgment under the facts presented was inappropriate, and remanded the case to the Surrogate's Court to determine "the legal intent and effect behind this singularly controverted portion of the agreement."  Id. at 253. 

We glean from these cases the need to examine the disputed agreement carefully and to ascertain from its tenor whether the parties intended the support obligation to survive the payor's death. We see no reason to distinguish between or treat differently a decedent's spousal and child support obligations. No such searching inquiry of the CSA, as opposed to the will, was undertaken here. Consequently, although the CSA obligated O'Malley to pay basic child support until E.L.'s twenty-first birthday, and contribute to E.L.'s college expenses until he obtains a college degree or attains his twenty-third birthday, the court failed to examine the intent and legal effect of the time frames agreed to by the parties for the payment of these obligations.

Accordingly, we remand the breach of contract claim to the Probate Part. Rather than seeking to have E.L. declared a beneficiary under the will, Brozowski shall be afforded the opportunity to amend her complaint to assert a claim that O'Malley's support obligations under the CSA constitute a valid debt of his estate.⁴ If successful, the court may then fashion an appropriate remedy to ensure the future payment of the support obligations. In remanding, we express no opinion as to the ultimate merits of such claim. We leave it to the Probate Part on remand to determine whether discovery or a plenary hearing are needed to resolve the disputed issue. 

We affirm the Probate Part's judgment in part and reverse it in part, and we remand to the Probate Part for further proceedings in conformity with our decision. We do not retain jurisdiction.

1  We use initials to preserve the confidentiality of minors named as interested parties in this probate litigation.

2  The claims relating to a protective arrangement, lack of capacity, and undue influence are not before us as Brozowski did not raise them in her appeal.  Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). 

3  On appeal, none of the parties dispute that O'Malley's support obligations under the CSA are governed by New York law. 

4  Notably, S.O.'s guardian has filed a letter to the court supporting such a result. 

2A:34-1 Causes for judgments of nullity annulment

2A:34-1  Causes for judgments of nullity.
  Causes for judgments of nullity.

(1)Judgments of nullity of marriage may be rendered in all cases, when:

a.Either of the parties has another wife, husband, partner in a civil union couple or domestic partner living at the time of a second or other marriage.

b.The parties are within the degrees prohibited by law.  If any such marriage shall not have been annulled during the lifetime of the parties the validity thereof shall not be inquired into after the death of either party.

c.The parties, or either of them, were at the time of marriage physically and incurably impotent, provided the party making the application shall have been ignorant of such impotency or incapability at the time of the marriage, and has not subsequently ratified the marriage.

d.The parties, or either of them, lacked capacity to marry due to want of understanding because of mental condition, or the influence of intoxicants, drugs, or similar agents; or where there was a lack of mutual assent to the marital relationship; duress; or fraud as to the essentials of marriage; and has not subsequently ratified the marriage.

e.The demand for such a judgment is by the wife or husband who was under the age of 18 years at the time of the marriage, unless such marriage be confirmed by her or him after arriving at such age.

f.Allowable under the general equity jurisdiction of the Superior Court.

(2)Judgments of nullity of a civil union may be rendered in all cases, when:

a.Either of the parties has another wife, husband, partner in a civil union couple or domestic partner living at the time of establishing the new civil union.

b.The parties are within the degrees prohibited by the law from entering into a marriage or establishing a civil union or domestic partnership.  If any such civil union shall not have been annulled during the lifetime of the parties the validity thereof shall not be inquired into after the death of either party.

c.The parties, or either of them, lacked capacity to enter into a civil union due to want of understanding because of mental condition, or the influence of intoxicants, drugs, or similar agents; or where there was a lack of mutual assent to the civil union; duress; or fraud as to the essentials of a civil union; and has not subsequently ratified the civil union.

d.The demand for such a judgment is by the party who was under the age of 18 years at the time of the civil union, unless such civil union be confirmed by him after arriving at such age.

e.Allowable under the general equity jurisdiction of the Superior Court.