DEBRA ABEYTA VS. GERALD ABEYTA (C-000093-19, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5270-18
DEBRA ABEYTA,
Plaintiff-Appellant,
v.
GERALD ABEYTA and
RICHARD ABEYTA,
Defendant-Respondents.
_________________________
Submitted April 21, 2021 – Decided May 13, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No.
C-000093-19.
Debra Abeyta, appellant pro se.
Cosner Youngelson, attorneys for respondents
(Rebecca A. Hand, on the brief).
PER CURIAM
Plaintiff Debra Abeyta appeals the July 1, 2019 order dismissing her
complaint, which sought (1) the revocation of a power of attorney executed by
her mother in favor of her two brothers, and (2) access to a vacant house owned
by her mother so that she could reside in it. We affirm substantially for the
reasons set forth by Judge Arthur Bergman, on the record on June 20, 2019. We
add the following comments.
On April 23, 2015, plaintiff's mother Louise1 executed a durable power of
attorney (POA) appointing two of her sons, Richard and Gerald, as her attorneys
in fact authorized to handle her affairs. In August 2015, plaintiff filed an order
to show cause with temporary restraints and a verified complaint, alleging her
brothers were exerting undue influence over their mother. Plaintiff requested a
court order prohibiting her brothers from taking further action under the POA,
for an accounting of her mother's assets, and that a public guardian be appointed
to protect her mother's interests.
At the August 24, 2015 hearing, Judge Frank M. Ciuffani, questioned
Louise directly about the circumstances under which she executed the POA, as
well as her health, safety, and welfare under the care of her sons. Judge Ciuffani
1
Because the parties in this case share the same last name, we refer to them by
their first names. We intend no disrespect by the informality.
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found Louise was safe, happy, and adequately cared for. He denied the
application for temporary restraints. On October 20, 2015, the judge entered an
order dismissing plaintiff's complaint.
On June 5, 2019, plaintiff filed the within order to show cause with
temporary restraints and a verified complaint, again seeking to revoke her
mother's POA, and requesting a key to provide her access to a house in
Sayreville that was owned by her mother. On the same day, plaintiff appeared
before Judge Bergman. Plaintiff argued, among other things, that due to an
unrelated foreclosure proceeding, she faced imminent homelessness unless she
was permitted to reside in her mother's vacant property.2 Noting several
discrepancies in her testimony, the judge found plaintiff entirely uncredible.
Accordingly, plaintiff's request for temporary restraints was denied.
On June 17, 2019, Richard and Gerald filed an answer denying plaintiff's
allegations. On June 20, 2019, a plenary hearing was held. Plaintiff and Gerald
testified before Judge Bergman. Gerald testified that because the sewer line to
the street at the Sayreville property collapsed in or about 2016, sewage backups
2
Judge Bergman also presided over the foreclosure action. Despite her
contentions, the judge informed plaintiff that no final judgment of foreclosure
had been entered, and it would therefore be months before she would actually
have to vacate the property.
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had rendered the home uninhabitable. Plaintiff, on the other hand, testified the
home was in "pristine" condition, but was unable to provide any basis for her
opinion. Again, the judge found plaintiff lacked even a shred of credibility. The
judge found (1) there was no evidence that plaintiff faced imminent
homelessness, (2) that plaintiff failed to establish any right to reside in her
mother's vacant house, and (3) that the POA was valid. On July 1, 2019, Judge
Bergman entered an order dismissing plaintiff's complaint with prejudice. On
August 5, 2019, plaintiff filed a notice of appeal of the July 1, 2019 order. While
this appeal was pending, Louise sold the Sayreville property.
On appeal, plaintiff raises the following issues for our consideration:
POINT I
WE ARE ALL ENTITLED TO EQUAL
PROTECTION UNDER THE LAW BUT THE JUDGE
WAS BIASED INCLUDING ARGUING IN FAVOR
OF ALL [OF] DEFENDANTS['] INCOHERENT
STORY, TESTIMONY WHICH DID NOT [MAKE]
ANY REASONABLE SENSE[.]
POINT II
THE JUDGE ERRED FOR NO GOOD REASON. HE
WAS WRONG ON MANY TOPICS. NO GOOD
REASON FOR THE JUDGE[']S RULING. ERROR IS
OBVIOUS.
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POINT III
N.J. ANN §§46:2B-8.1-19 (WEST 2003 & SUPP.
2006)[.]
We have carefully reviewed the entire record and considered plaintiff's
arguments, and find no error in the proceedings. We defer to Judge Bergman's
finding that plaintiff's testimony was wholly uncredible, being replete with
inconsistencies, half-truths, and affirmative misrepresentations. See State v.
Locurto, 157 N.J. 463, 474 (1999). Judge Bergman properly found that her
claims of imminent homelessness were completely unsupported. Plaintiff failed
to provide any evidence of a legal right to live in her mother's former house.
Nor did she provide any evidence tending to suggest the POA should be revoked.
Further, because the subject property was sold while this appeal was pending,
the issue of plaintiff's right to reside there is moot.
Affirmed.
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