IN THE MATTER OF DOROTHY JAMGOCHIAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6807-02T56807-02T5

IN THE MATTER OF

DOROTHY JAMGOCHIAN,

______________________________________

 

Submitted October 24, 2005 - Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County, Docket No. MRS-P-0647-03.

Brian F. Curley, attorney for appellant Ronald Jamgochian.

Somers & Malay, attorneys for respondent Dorothy Jamgochian (Daniel E. Somers, on the brief).

PER CURIAM

Ronald Jamgochian (Ronald) appeals from a judgment entered July 7, 2003 declaring Dorothy Jamgochian (Dorothy) incapacitated and appointing Melanie Mitchell (Melanie) as Dorothy's guardian.

We briefly recount the procedural history and relevant facts. Melanie and Ronald are Dorothy's children. Melanie commenced this action by filing a verified complaint in the Chancery Division, Probate Part, on February 21, 2003. Melanie alleged that Dorothy was suffering from Alzheimer's disease with symptoms of confusion and forgetfulness. Melanie further alleged that Dorothy was unable to manage her affairs and had been in that state for the year preceding the filing of the complaint. Melanie also asserted that Ronald had Dorothy execute certain documents despite her "confusion and forgetfulness." Melanie sought a declaration that Dorothy was incapacitated. She also sought appointment as Dorothy's guardian and demanded judgment giving her "authority to transfer all assets of the alleged incapacitated person in the blind trust, CD or any other financial institution set up by Ronald Jamgochian in a new account to be maintained and supervised by" Melanie.

In a supporting certification filed with the complaint, Melanie asserted that Dorothy was then 82 years of age. She previously owned a home in Oakhurst, New Jersey, which was sold by Ronald in September 2003 for $300,000. Melanie stated that the proceeds of the sale of Dorothy's home and other assets had been placed by Ronald in an offshore blind trust in the amount of $266,000 and later transferred "stateside" to Charles Schwab. Melanie also said that an additional $100,000 of Dorothy's money had been deposited into a certificate of deposition.

The judge issued an ex parte order on February 25, 2003 requiring, among other things, that Ronald show cause why an order should not be entered appointing Melanie as temporary guardian for Dorothy. The order imposed temporary restraints enjoining Ronald from attempting to remove any funds from any accounts maintained by or on behalf of Dorothy, specifically the undisclosed offshore blind trust account, the $100,000 certificate of deposit, funds in other financial institutions and all funds reportedly transferred to the account with Charles Schwab. The judge also ordered Ronald to return any money, personal items, or documents obtained from Dorothy within the previous two years.

Following a hearing, the judge entered an order on March 17, 2003 which continued the restraints imposed by the order of February 25, 2003 and further ordered Ronald's attorney to produce all financial information regarding all of Ronald's accounts and assets belonging to Dorothy.

In addition, by order entered March 21, 2003, the judge appointed Daniel E. Somers temporary guardian for Dorothy's property and the judge directed that the guardianship proceeding be adjourned upon the receipt by Somers of authorization from Ronald or his wife Louise Jamgochian for the transfer of $75,000 to Somers' trust account, along with the transfer of up to $20,000 from Louise's bank account. The money would be held by Somers and applied by him to Dorothy's financial needs. The order further empowered Somers to conduct Dorothy's affairs and track down "the money" subject to the accounting to be provided by Ronald and his attorney.

The judge held a hearing on whether Dorothy was incapacitated. He filed a letter opinion on June 4, 2003, in which he set forth his findings of fact. The judge concluded that there was clear and convincing evidence that Dorothy was incapacitated and required a guardian to manage her affairs.

On July 7, 2003, the judge entered judgment in conformance with his letter opinion. In his order, the judge declared that Dorothy was incapacitated and unable to govern herself and manage her affairs. The judge appointed Melanie as Dorothy's guardian and Somers was authorized to continue to act as Dorothy's counsel. The judge struck paragraph 11 from the proposed form of order. The deleted paragraph stated:

11. Although an informal accounting has previously been submitted by Ronald Jamgochian, and it appearing that issue had been raised as to his retention and expenditure of his mother's assets, Ronald Jamgochian is ordered to turn over all financial information to Melanie Mitchell within ten (10) days of the date hereof, as to all money investment and assets previously owned by Dorothy Jamgochian, which have now been claimed by Ronald Jamgochian and/or any other person or corporation or business entity. Daniel Somers, Esq. shall file any and all necessary claims or take any necessary action with the FBI to restore Dorothy Jamgochian's assets. Failure of Ronald Jamgochian to immediately provide all necessary financial information to Melanie Mitchell and fully cooperate with Daniel Somers, Esq. and Melanie Mitchell as is necessary to obtain release of Dorothy Jamgochian's assets,...will result upon application [in the issuance of a] warrant for his arrest for contempt.

The judge entered another order on July 7, 2003, denying an application to hold Ronald in contempt because he had not transferred the $75,000 to Somers as previously ordered. The judge wrote the following comment on the July 7 order, "The Court has ruled only on the issue of incapacitation."

On August 18, 2003, Ronald filed an appeal from the order declaring Dorothy incapacitated. However, on or about October 21, 2003, Somers filed a motion in the trial court to compel Ronald to turn over all of the funds derived from the sale of Dorothy's home and securities, to declare that all of the aforementioned monies are Dorothy's sole property, and to compel Ronald to provide an accounting of any expenditures made by him from Dorothy's assets. The case was assigned to another judge who on November 7, 2003 denied the motion and wrote on the order:

Reasons: The trial court lacks jurisdiction over the subject matter at this motion because a final judgment of guardianship is now on appeal and movant has no order to serve as the basis for the proposed enforcement order. In any event, during the course of the guardianship [litigation] the relief sought here was denied.

Dorothy filed a motion with us seeking a temporary remand for a statement of reasons concerning the judge's order of July 7, 2003 denying the motion to compel Ronald to account and turn over Dorothy's assets. Alternatively, Dorothy sought a remand with directions that the trial court conduct a hearing on her application to compel Ronald to account and turn over the assets.

We granted the motion by order filed December 30, 2003. The order stated, "We remand for hearing on the issue of whether there should be an accounting and whether the assets should be turned over, and the extent to which the issue was raised below." The order further stated, "There appears no good reason in the record why paragraph eleven of the judgment signed on July 3, 2003 (filed July 7, 2003) was stricken."

On remand, the matter was assigned again to the judge who entered the July 7, 2003 order. The judge held a hearing on February 20, 2004. Thereafter, the judge filed a letter opinion dated March 29, 2004 in which he addressed the issues raised by our order. The judge stated that there was no need to order Ronald to provide an accounting because he had twice been ordered to provide an accounting. In addition, the judge stated that he had filed several orders mandating that Ronald turn over Dorothy's assets. The judge added that there had been no request that he decide the financial issues relating to Ronald's acquisition and retention of Dorothy's monies. He said that the only request made with respect to Ronald's financial obligations was the motion filed by Somers in October 2003 but that application had been denied "presumably" because the judge had not been provided with the orders mandating that Ronald turn over the assets and provide an accounting.

On May 12, 2004, Ronald amended his notice of appeal to include an appeal from the judge's findings on remand. On February 22, 2005, Dorothy filed another motion with us for a temporary remand. In an order filed April 14, 2005, we noted that Ronald's counsel had informed the Clerk that Dorothy had passed away. We therefore dismissed the motion as moot.

In his brief on this appeal, Ronald asserts that, although he filed this appeal to challenge the trial judge's finding of incapacity, he is no longer pursuing that issue. He raises the following issues on this appeal: 1) the court should remand the matter to the trial court for a plenary hearing as to whether Ronald is required to repay the $260,000 he received from Dorothy for the alleged repayment of a "loan;" 2) the "loan repayment" issues should be separately litigated to preserve Ronald's right to due process; 3) the judge's finding that Ronald was ordered to return the "loan repayments" is without legal or factual basis; and 4) Melanie cannot proceed summarily on the "loan repayment" issues.

We are convinced that the issues raised by Ronald on this appeal are now moot. As we have indicated, Ronald is disputing orders entered by the trial court in furtherance of the guardianship proceedings. In light of Dorothy's death, the guardianship is effectively concluded and we see no reason to address whether the court erred in directing Ronald to return the disputed monies and provide an accounting concerning those assets in furtherance of the guardianship.

As the record shows, there is a genuine dispute between Melanie and Ronald concerning Ronald's admitted acquisition and retention of certain assets that Melanie claims were Dorothy's property. Ronald concedes that he received approximately $260,000 from Dorothy but he claims that Dorothy paid him the money to satisfy a "loan." Melanie further asserts that Ronald deposited an additional $100,000 of Dorothy's money into a certificate of deposit. She and Somers, acting on Dorothy's behalf, demanded an accounting concerning these monies and other funds that may have been acquired by Ronald from Dorothy. The judge in the guardianship action never definitively resolved the issue of whether Ronald was entitled to retain any monies he received from his mother. In view of Dorothy's death, and the end of the guardianship, any issues as to whether the disputed monies are part of Dorothy's estate should be resolved in the estate proceedings.

In his reply brief filed on November 11, 2005, Ronald contends that, after Dorothy's death, Somers no longer has standing to participate in this appeal in his capacity as Dorothy's guardian. Ronald further asserts that we directed in our order of June 23, 2005 that Somers brief the issue of his standing to oppose the appeal, and Somers failed to address that issue in his brief. Ronald contends that we should ignore the papers submitted by Somers and the appeal should be treated as unopposed.

We note that we did not require Somers to address standing in his brief. Our order of June 23, 2005 merely stated that the parties could address the standing/mootness issue. In any event, the issue of Somers' standing to participate in this matter after Dorothy's death is, like the other issues raised in this appeal, moot.

 
Appeal dismissed.

(continued)

(continued)

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December 7, 2005