IN THE MATTER OF THE ESTATE OF MARY JANE LYNCH (P-07-788, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-5617-14T2
IN THE MATTER OF THE ESTATE
OF MARY JANE LYNCH, DECEASED.
_________________________________
Argued February 28, 2017 – Decided November 8, 2017
Before Judges Messano and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Gloucester
County, Docket No. P-07-788.
Michael J. Confusione argued the cause for
appellant/cross-respondent Deborah Williams
(Hegge & Confusione, LLC, attorneys; Mr.
Confusione, of counsel and on the briefs).
Ronald P. Sierzega argued the cause for
respondent/cross-appellant Estate of Mary
Jane Lynch (Puff & Cockerill, LLC, attorneys;
Mr. Sierzega, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Deborah Williams (Williams) appeals eight orders1 entered in
the underlying probate case involving the Estate of Mary Jane
1
These include orders dated June 30, 2015; June 2, 2015; January
28, 2014; June 4, 2012; March 16, 2012; April 8, 2011; March 13,
2009; November 18, 2008.
Lynch (Estate). We affirm the orders except the dollar amount of
the surcharges set forth in the June 30, 2015 order. We exercise
our original jurisdiction under Rule 2:10-5 to modify the amount
of the surcharges.
I.
Mary Jane Lynch and her husband had two children, Deborah
Williams (Williams) and John Lynch (Lynch). Mary Jane's husband
pre-deceased her.
In 1992, Mary Jane executed a will and declaration of trust
(will). Under her will, her personal property was to be
distributed equally to Williams and Lynch. The residuary estate
was left to the Mary Jane Lynch Family Trust and the assets there
divided equally between the two children, who were also the co-
trustees. Under the will, Williams was to be co-executor with
Lynch.
In 2005, Mary Jane was diagnosed with colon cancer. She died
June 19, 2007. Shortly after Mary Jane's death, Williams renounced
her position as co-executor, leaving Lynch as the sole executor.2
The estate consisted of a house with furnishings, a car, and bank
accounts. Lynch represented to Williams that its value was about
1.9 million.
2
We do not know if she renounced her position as co-trustee.
2 A-5617-14T2
Only two verified complaints have been filed in this matter.
The first was in 2008, after Williams and Lynch disagreed about
the appraised value of the house. Williams filed an order to show
cause and verified complaint requesting to be renamed as co-
executor, ordering Lynch to cooperate with her, and restraining
him from dissipating or encumbering any assets of the Estate.
Lynch's answer and counterclaim sought to compel Williams to
account for property she allegedly took from the estate, sought
damages for breaching the contract to purchase the house, and for
rent for the period of time she resided there.
The court ordered Lynch to provide a full and complete
accounting. The parties were to exchange discovery and the case
was listed for trial. Lynch alleges he provided an informal
accounting by November 2008. By March 2009, the case was dismissed
because of Williams' failure to provide discovery.
Although there was then no complaint pending in the Probate
Part, both parties filed motions: Lynch to sell the house and
Williams for a formal accounting. In her affidavit in support of
the formal accounting, Williams alleged that Lynch took monies
from a joint account at Commerce Bank that he shared with Mary
Jane, that he took the contents of the house without paying for
them and, during Mary Jane's lifetime, had been paying himself
$5000 per month from their mother's assets.
3 A-5617-14T2
The court approved the sale of the house and those funds were
placed in escrow. Lynch was to provide "documentation in support
of accounting and documentation of any of mother's money/assets
handled by him for a period of [five] years prior to mom's death."
Shortly after, Williams' notice in lieu of subpoena to obtain the
personal financial records of Lynch was quashed, but she was
permitted to subpoena the "brokerage and financial records of her
mother."
In June 2011, Lynch filed the second order to show cause and
verified complaint in this matter. That verified complaint sought
approval of the formal accounting, which was attached; permission
to allow distributions per the accounting; and payment of fees for
the estate attorneys, Puff & Cockerill, LLC. Williams filed an
answer and exceptions.3
The trial court proposed to disallow $29,691.54 of the items
listed in the accounting as either not chargeable to the estate
or lacking in detail. The court then allowed the parties to
"provide additional proofs, clarification and a revised
accounting" in response to the court's proposed findings.
3
The record does not include a copy of the answer or the
exceptions. However, the trial court's June 4, 2015 opinion makes
reference to them.
4 A-5617-14T2
The parties made additional submissions. Following oral
argument, the court entered an order on June 4, 2012, that
"allowed" the "Revised Final Accounting" except for $29,691.54 in
expenses that earlier had been disallowed. The trial court also
disallowed as "improper" an enumerated listing of checks amounting
to $132,500, that Lynch wrote for himself or family members while
he was Mary Jane's power of attorney, and ordered that the amount
of those checks be refunded or credited against Lynch's share of
the estate. In addition, the court found that Williams had
improperly withdrawn $47,000 from Mary Jane's bank account prior
to her death and ordered that Williams refund these monies or that
they be taken from her credit. The trial court ordered the parties
to attend a mediation and arbitration to apportion the contents
of the house. The court ordered that Mary Jane's "bank and
investment account statements" be produced. It approved
$46,237.17 in fees and costs for Puff & Cockerill, as counsel for
the estate to which there was no objection. Lynch was to restate
the accounting to reflect the court's decision with a calculation
for the executors' fee. No appeal was taken from any provision
of that order.
Williams retained new counsel, who filed a motion in January
2013 to reconsider the June 4, 2012 order that she repay $47,000,
to ask for a final accounting of the estate, to request further
5 A-5617-14T2
discovery to respond to the final accounting because it "makes
reference or fails to make reference" to the disposition of shares
of Exxon Mobil stock, and a certain margin account, which were
open issues. Williams asked that Lynch be removed as executor
because of his poor health. The motion did not mention removal
for negligence, malfeasance or misfeasance.
Williams denied that she took $47,000 from the estate's funds.
She contended the accounting was incomplete because it did not
reference certain accounts, discuss a margin account at TD
Ameritrade, the loan on the margin account, or explain why 2000
shares of Exxon Mobil stock were not distributed. She alleged
Lynch's health no longer enabled him to serve as executor.
Lynch opposed the motion and cross-moved for reconsideration
of the June 4, 2012 order. He contended that all requested
documents had been provided "including all tax returns, every TD
America Trade account statement, every joint account statement,
all banking records, and even a specific signed statement as to
how the margin account was handled." He denied that he was not
able to handle his duties as executor. He requested an executor's
commission based on the amount of money in the estate. He denied
that he was Mary Jane's power of attorney and objected to the
$132,500 surcharge. Williams made additional submissions
elaborating on the same themes.
6 A-5617-14T2
The trial court heard the motions and reserved. The parties
were permitted to engage in additional discovery. On January 28,
2014, the motions were largely denied without prejudice by the
trial court, but counsel were to confer about the in camera
inspection of "bank accounts for John Lynch family members."
In May 2014, without an order to show cause or verified
complaint, Williams filed a motion to remove Lynch as executor,
to appoint Williams in his stead, to order Lynch to return monies
taken from the estate, to appoint a forensic accountant, to re-
depose Lynch and for attorney's fees and costs. The motion further
requested another formal accounting. This motion was supported
by Williams' detailed certification that again alleged Lynch had
taken monies from various accounts while Mary Jane was alive and
after her death. The certification alleged that Lynch as executor
had "violated and abused his duties" by not providing financial
information and a host of other allegations largely involving
money taken from Mary Jane's accounts before and after her death.
Lynch filed a cross-motion seeking reconsideration of the
June 2012 order because he alleged he was not the attorney-in-fact
for his mother. He requested an executor's commission, attorney's
fees for the estate's counsel, and an order settling the estate.
Following oral argument, the parties were ordered to attend
mediation. When mediation with a retired jurist did not resolve
7 A-5617-14T2
the motions, they were rescheduled, and the parties made additional
submissions, which by now included the production by Williams of
a detailed "forensic" accounting report by Forensic Resolutions,
Inc.
On June 2, 2015, the court issued a written decision deciding
the motions and on June 30, 2015, executed an order closing the
estate. In the written opinion, the trial court approved payment
to Williams for the forensic accounting report. The court denied
William's request for counsel fees because she was not entitled
to fees under Rule 4:42-9(a)(3) for probate actions or under Rule
4:42-9(a)(2) from a "fund in court" because she had not "aided
directly in creating, preserving or protecting the fund."
The court denied the removal of Lynch as executor finding
that it was "too late" in the process as the court already had
approved the accounting in 2012 and also because both parties
acknowledged removing funds from the estate. However, the court
permitted Williams to file a complaint against Lynch "setting
forth her claims against John Lynch that predate their mother's
death and setting forth the relief she seeks which may include
claims against John Lynch as Trustee of the Trust and an accounting
of the $426,000 borrowed from the margin account between May 2005
and June 2007." The court cited to Donnelly v. Ritzendollar, 14
8 A-5617-14T2
N.J. 96, 108 (1953) for the proposition that laches will not defeat
a claim against a fiduciary under certain circumstances.
The court denied reconsideration of the surcharges assessed
to Lynch and Williams. The court found that Lynch's motion for
reconsideration of the issue was not timely. Even if he did not
hold a power of attorney for his mother, the court explained that
he was a joint owner of the convenience checking account with her
and all of the money in the account was hers requiring him to
repay the estate.
The court approved attorney's fees of $54,800 for Puff &
Cockerill, the estate attorneys, and denied Lynch's request for
reimbursement of out of pocket expenses. The parties were ordered
to provide the specific accounting fees and executor's commission.
The final order closing the estate was entered on June 30,
2015. This awarded the fees to Puff & Cockerill as requested,
$24,314 to Williams for the forensic accountant, $21,136 to Lynch
as the executor's commission, and $42,750 to Williams as an
adjustment, to reflect the net difference between Lynch's
surcharge and Williams' surcharge. These appeals followed.
Williams appeals each of the orders entered in the case since
2008. She contends the court erred by not conducting an
evidentiary hearing about Lynch's handling of the Exxon Mobil
stock, the checks written to himself and family members and other
9 A-5617-14T2
alleged malfeasance. If an evidentiary hearing is granted,
Williams requests a different judge in a different county. She
contends the court erred in considering the accounting submitted
as a formal accounting because it did not document the value of
Mary Jane's estate at the time of her death or the disposition of
each asset. Williams asserts the court should not have allowed
legal fees to Puff & Cockerill or an executor's commission to
Lynch. Williams says that the court erred in surcharging her
$47,000.
Lynch opposes the appeal, contending the court did not err.
However, if an evidentiary hearing is ordered, Lynch requests
limiting it to issues involved in the probate estate. Lynch filed
a cross-appeal from the June 30, 2015 order to the extent it
surcharged him $132,500, requesting the reversal of that portion
of the order.
With the exception of the calculation of the surcharges, we
find no merit in any of these contentions.
II.
A.
Williams contends that the court erred by not holding an
evidentiary hearing on her claim that Lynch committed malfeasance
and should be removed as executor of Mary Jane's estate. We
discern no error by the court in resolving the issues before it
10 A-5617-14T2
in a summary manner based on the submissions of the parties and
argument of counsel.
We do not agree with Williams that because her 2008 complaint
to resume appointment as co-executor was scheduled for trial in
2009, the complaint constituted a request for a plenary hearing
on the alleged malfeasance issues. The issues in her complaint
involved the sale of the house and disposition of its contents,
not the Exxon Mobil stock and check transfers. The 2008 complaint
was also dismissed in 2009 based on discovery violations. The
record does not show it was reinstated.
In June 2011, Lynch filed an order to show cause and verified
complaint to allow the final accounting and settle the estate.
However, Williams' request for a hearing related to items of
personalty that remained in the house before its sale and not
other issues. The court referred the issue of personalty to
mediation.4
Williams contends on appeal that there were factual issues
regarding her request to remove Lynch as executor that required
an evidentiary hearing. However, she filed a motion in January
2013, asking that Lynch be removed as executor for health reasons
4
Mediation was not successful. However, Williams did not contest
the value of the personalty listed in the final accounting, nor
is that issue part of this appeal.
11 A-5617-14T2
and "inability to perform his functions as Executor," and not
because of his conduct. It was not until Williams' motion in May
2014, that she asked to remove Lynch on the ground that he violated
his fiduciary duty.
In probate, "[u]nless otherwise specified, all actions . . .
shall be brought in a summary manner by the filing of a complaint
and issuance of an order to show cause pursuant to R. 4:67." R.
4:83-1. The June 2011 complaint was filed by Lynch, not Williams,
and sought approval of an accounting of the probate estate.5
Williams was a defendant in that litigation.
By June 2012, the court had approved the accounting. There
was no complaint for removal of the executor. Williams never
filed a complaint against Lynch, naming him as a defendant in an
individual capacity or as trustee of the trust, alleging
misfeasance, malfeasance or wrong doing and seeking his removal
on these grounds. The verified complaint for an accounting did
not concern non-probate assets such as the trust that was holding
the Exxon Mobil stock. Williams' counsel acknowledged the
shortcoming in the pleadings in July 2013, stating, "I think we're
5
"An action to settle an account on an estate trust is a
formalistic proceeding, unique to probate. See R. 4:87-1(a). Its
stylized format involves a line-by-line review on the exceptions
to an accounting." Higgins v. Thurber, 205 N.J. 227, 229 (2011).
It is a summary proceeding.
12 A-5617-14T2
going to need an amended complaint to bring the issues for this
missing money [from the MJLF Trust] to light and get them on the
table, because right now I think the pleadings are inadequate for
what we are doing." No other order to show cause or complaint was
filed, only motions.
Williams was not prejudiced by the lack of an evidentiary
hearing regarding the non-probate assets. In its June 2, 2015
order, the court expressly allowed Williams to file a new action
"setting forth her claims against John Lynch that predate their
mother's death and setting forth the relief that she seeks which
may include claims against John Lynch as Trustee of the Trust
. . . ." Therefore, the court did not abuse its discretion by not
conducting an evidentiary hearing on non-probate assets or claims
that Lynch should be removed as executor.
B.
By order dated June 4, 2012, the court approved the final
accounting, stating that "[t]he Revised Final Accounting is
allowed, except for those entries which were denied by the court
on the record on May 31, 2012, which denials are noted on the
13 A-5617-14T2
original revised accounting with the Surrogate." No appeal was
taken.6
Both parties request a review of the surcharges entered as
part of that order. We find no error in the trial court's decision
on the formal accounting and its order directing a surcharge, but
we modify the amount of the surcharges to reflect the record.
The court determined that both Williams and Lynch admitted
to taking money from Mary Jane's accounts that she maintained to
pay her ongoing expenses. However, there was no proof, save for
their own statements, that Mary Jane intended the moneys as gifts.
The court was not required to accept these statements as proof of
donative intent. See, e.g., In re Estate of Perrone, 5 N.J. 514,
521-22 (1950).
Williams acknowledged in certifications and her deposition
that she took money from one of her mother's accounts near the end
of her life. However, it was error to surcharge her $47,000
because that figure came from an unsupported statement made by
Lynch's attorney. We exercise our original jurisdiction under
Rule 2:10-5 to revise the surcharge. See Pressler & Verniero,
Current N.J. Court Rules, comment on R. 2:10-5 (2017) ("The
6
Generally, we "will decline to consider questions or issues not
properly presented to the trial court when an opportunity for
such a presentation is available . . . ." Nieder v. Royal
Indem. Ins. Co., Inc. 62 N.J. 229, 234 (1973).
14 A-5617-14T2
exercise of original jurisdiction is also particularly appropriate
to terminate lengthy, burdensome, and unnecessary further
litigation."). Williams admitted to taking $8400 from Mary Jane's
Ft. Billings account. We revise the surcharge to reflect that
figure.
Lynch contends that he was not power of attorney for his
mother and should not be surcharged. However, the court found that
as a joint owner of a convenience account, where 100% of the monies
were Mary Jane's, he was in a position of a fiduciary. Under
N.J.S.A. 17:16I-4, "[a] joint account belongs, during the lifetime
of all parties, to the parties in proportion to the net
contributions by each to the sums on deposit." There was no
dispute that the funds in the accounts were Mary Jane's and not
Lynch's. Lynch admittedly signed checks payable to cash for
himself and family members. Lynch was properly surcharged for the
inter vivos transfers and required to repay them.
On appeal, Lynch contends that some of the checks were signed
by Mary Jane and the record reflects this. Those checks, amounting
to $22,500,7 are to be excluded from the surcharge. See R. 2:10-
7
Specifically they are: (1) 8/15/05: $5,000 check to Nathan Lynch,
(2) 10/14/2005: $5,000 check to Nathan Lynch, (3) 3/24/2006:
$10,500 check to Mary Jane Lynch, and (4) 12/05/2006: $2,000 check
to John & Maggie Lynch.
15 A-5617-14T2
5. We modify Lynch's surcharge to $110,000 by deducting the amount
of these checks.
Williams is critical of the accounting, contending it was
merely an expense list. However, it was Williams' burden to prove
exceptions. See Perrone, supra, 5 N.J. at 521 ("[T]he burden of
showing that there are more assets in an estate than are
acknowledged by the executors in their inventory or account rests
upon the exceptants, and that their contentions must be sustained
with reasonable certainty."). She did not include her exceptions
to the accounting in this record. She never appealed the court's
approval of the final accounting in June 2012. Williams does not
contest the judge's disallowance of certain expenses listed in the
formal accounting.
Williams contends the court erred in not requiring Lynch to
account for every probate and non-probate asset. However, the
court's June 2015 decision and order permit Williams to explore
"her claims against [] Lynch that predate their mother's death,"
including "claims against [] Lynch as Trustee of the Trust and an
accounting of the $426,000 borrowed from the margin account between
May 2005 and June 2007." We are satisfied the court resolved what
issues were before it and preserved other issues for the parties'
future handling.
16 A-5617-14T2
C.
We review the assessment of attorney's fees under an abuse
of discretion standard. Mears v. Addonizio, 336 N.J. Super. 474,
479-80 (App. Div. 2001). We find no error in the trial court's
allowance of attorney's fees for Puff & Cockerill as counsel for
the Estate of Mary Jane Lynch.
There was clear authority for the executor to retain counsel
for the estate. See N.J.S.A. 3B:14-23(1). The court rules permit
the payment of counsel fees in a probate case. R. 4:42-9(a)(3).
"This Court has interpreted Rule 4:42-9 as generally 'codif[ying]
those specific instances where, in the absence of a separately
enabling statute or contract, fee shifting is permitted.'" In re
Estate of Folcher, 224 N.J. 496, 507 (2016) (alteration in
original) (quoting In re Estate of Vayda, 184 N.J. 115, 120
(2005)).
Williams did not object to the attorney's fees that were
awarded to Puff & Cockerill in June 2012 in the amount of
$46,237.17. That issue is raised for the first time in this
appeal. We, therefore, decline to consider this issue. See
Nieder, supra, 62 N.J. at 234.
On June 30, 2015, the court awarded $54,800 "for work done
on behalf of the Estate," finding that "[t]he certification
supports the award of $54,800." Williams contends the fees awarded
17 A-5617-14T2
to Puff & Cockerill should have been apportioned between the estate
and Lynch personally. However, Lynch was not sued individually
or as trustee. Given that there were no claims against Lynch
individually, the court did not abuse its discretion in awarding
fees for the estate's counsel without the requested apportionment.
D.
Similarly, we find no abuse of discretion in the court's
order awarding an executor's commission to the executor. See In
re Estate of Moore, 50 N.J. 131, 149 (1967) (applying abuse of
discretion standard). Williams contends that Lynch should not be
entitled to any commission. Certainly, the court has the ability
to reduce the commission or eliminate it. See N.J.S.A. 3B:18-4;
N.J.S.A. 3B:18-5. However, without any direct claims against
Lynch here, we cannot say the court abused its discretion in
allowing the executor the statutory commission.
E.
Given our opinion, we have no occasion to remand the case,
making moot Williams' request to remand to a different county and
a different venue. Even if the result were different, we would
unequivocally deny the request. We have thoroughly reviewed this
record, finding absolutely no basis for the claim of bias.
Disagreement with the court's decision is not a basis to request
recusal. See State v. Marshall, 148 N.J. 89, 186 (1997) ("[B]ias
18 A-5617-14T2
is not established by the fact that a litigant is disappointed in
a court's ruling on an issue.").
Affirmed as modified.
19 A-5617-14T2