IN THE MATTER OF THE ESTATE OF BERTHA POLAK(P-000246-12, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0302-16T4
IN THE MATTER OF THE ESTATE
OF BERTHA POLAK, deceased.
___________________________________
Submitted October 31, 2017 – Decided November 28, 2017
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
P-000246-12.
James E. Young, Jr., attorney for appellant
Linda Hall.
Cuccio and Cuccio, PC, attorneys for
respondent Carol Polak Reid (Emil S. Cuccio,
on the brief).
PER CURIAM
Linda Hall, the Executrix of the Estate of Bertha Polak,
appeals from an order entered by the Chancery Division on July 13,
2016, granting an application by Carol Polak Reid for a wage
execution to execute a judgment previously entered against Hall.
We affirm.
We take the following facts from the record. Following a
bench trial, a judgment was entered in favor of the Estate of
Bertha Polak on June 2, 2014. The judgment required Hall to pay
the Estate $44,570.70. Reid, a beneficiary of the Estate, would
receive $24,638.94. The judgment also denied Hall an executor's
commission.
The $44,570.70 due to the Estate was to be used to satisfy a
mortgage on a property owned by the Estate. Because Hall did not
pay the judgment, the Estate paid off the mortgage at the closing
on the sale of the property. According to the judgment, Hall was
to receive $19,931.76 from a trust account. That money was applied
to the judgment of $44,570.70, leaving the $24,638.94 due and
owing. The judgment also denied Hall an executor's commission.
Hall appealed and we affirmed the judgment. In re Estate of Bertha
Polak, No. A-4207-13 (App. Div. Dec. 31, 2015) (slip op. at 1).
Hall did not pay the judgment, and Reid sought a wage
execution to recoup the $24,638.94. On July 13, 2016, the trial
judge entered an order and written findings granting the
garnishment. He reiterated the calculation used to arrive at the
sum due and owing to Reid. The judge repeated Hall was not
entitled to a $10,000 commission as executrix, and that the sum
was already "reflected in the judgment." The judge concluded
"[t]herefore, the judgment entered by the court and affirmed by
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the Appellate Division is $24,638.94. Accordingly . . . plaintiff
may garnish defendant's wages to collect the judgment." This
appeal followed.
Hall argues that the judge failed to make adequate findings
of fact. The contention is without sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E). As noted, the judge did make
findings of fact, and they were more than sufficient to warrant
issuance of the wage execution order. In addition, Hall's
arguments were previously addressed in our decision in the prior
appeal, and therefore she is barred from re-litigating those issues
in opposing the application for a wage execution.
The doctrine of res judicata applies to matters that have
previously been litigated and bars them from being re-litigated.
Nolan v. First Colony Life Ins. Co., 345 N.J. Super. 142, 153
(App. Div. 2001). For res judicata to apply:
there must be a valid, final judgment on the
merits in the prior action; the parties in the
second action must be identical to, or in
privity with those in the first action; and
the claim in the later action must arise out
of the same transaction or occurrence as the
claim in the first action.
[Ibid. (citing Watkins v. Resorts Int'l Hotel
& Casino, Inc., 124 N.J. 398, 412 (1991)).]
We reject Hall's argument the judge failed to make adequate
findings of fact pursuant to Rule 1:7-4(a) regarding the wage
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execution. This is because we previously affirmed the judge's
computation of the judgment entered against Hall, set forth in his
July 13, 2016 opinion, which included the $10,000 credit to Hall,
and denial of Hall's commission. We stated:
Based on the testimony and evidence presented
at trial, the judge found that . . . Polak had
been living with Hall and paying her $1,000 a
month in rent. . . . Polak obtained a loan
of $79,784.28, which was secured by a mortgage
upon her property in Englewood. . . . Polak
kept $10,000, and Hall borrowed the remaining
$69,784.28 from . . . Polak to use to pay for
renovations to Hall's home. In lieu of paying
Hall rent, . . . Polak began to make mortgage
payments of $922.93 per month.
The judge noted that Article III(c) of . . .
Polak's will stated that . . . Polak had taken
out a loan for Hall in the amount of $69,000.
The will stated:
At the time of the sale of the
property Linda Hall shall be
responsible for repayment of this
loan. The total amount shall be
paid back to the [e]state and this
amount shall then be added to the
proceeds of sale and be divided
amongst my children, Carol, Lisa and
Linda and the surviving children of
my daughter Andrea.
The judge found that, based on the terms of
the will, it was clear that Hall must pay the
amount due on the mortgage. The judge also
found that the testimony presented at trial
showed that it was . . . Polak's intent that
Hall pay the loan.
The judge noted, however, that Hall would not
be responsible for the $10,000 that . . . Polak
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kept from the loan proceeds, and she would be
given credit for . . . Polak's payments of
$922.93 per month on the loan, because . . .
Polak would have otherwise paid Hall monthly
rental payments of $1,000. The judge also
observed that his interpretation of the will
was consistent with . . . Polak's probable
intention.
Thereafter, the court entered an order dated
April 7, 2014, which provided that a judgment
would be entered against Hall in the amount
of $44,570.70, which was determined to be the
amount remaining due on the loan. The court's
order notes that $79,727.05 remained in
counsel's trust account, and that amount was
to be divided equally between Reid, Pean and
Hall.
The order states, however, that Hall's share
would not be paid to her but would be a credit
against the monies the court had ordered her
to pay the estate. The order further provided
for the distribution of the $44,570.70 that
Hall had to pay the estate. In addition, the
order states that, since there were no funds
remaining for any distribution pursuant to the
residuary clause of Polak's will, Hall would
not be paid an executrix commission.
[In re Estate of Bertha Polak, slip op. at 5-
7.]
After reciting the judge's detailed findings, we considered
the same arguments Hall has again raised here, and we affirmed the
judge's determination. Id. at 10. Furthermore, as stated
previously, the judge's written findings were more than sufficient
to justify the issuance of the wage execution order.
Affirmed.
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