IN RE THE ESTATE OF CURTIS GOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6540-04T16540-04T1

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IN RE THE ESTATE OF CURTIS GOOD

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Submitted May 10, 2006 - Decided June 7, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Chancery Division, Probate Part,

Middlesex County, Docket No. 206717.

Lucas E. Phillips, Jr., attorney for

petitioner Nicole M. Larmonie.

Jerrold N. Kaminsky, attorney for respondent

Kelly M. Patterson, Administratrix of the

Estate of Curtis Good and Administratrix Ad

Prosequendum.

PER CURIAM

Petitioner, Nicole M. Larmonie, appeals an order dated June 30, 2005, denying her application for Letters of Co-Administration of the Estate of Curtis Edward Good and Letters of Co-Administration ad Prosequendum. Letters in both capacities were previously issued to Kelly M. Patterson, who opposed Larmonie's application.

Curtis Good was shot and killed by a member of the Perth Amboy Police Department during the early morning hours of August 20, 2004. A wrongful death action apparently has been or shortly will be filed as a result of his shooting. Good died intestate. He was unmarried at the time of his death, but had acknowledged two children by respondent Patterson. Larmonie was eight months pregnant at the time of Good's death, apparently with his child.

In September 2004, Patterson was granted Letters of Administration and Letters of Administration ad Prosequendum to prosecute a wrongful death claim against the Perth Amboy Police Department and others. On April 18, 2005, the Surrogate signed an order to show cause requiring Patterson to show cause why Larmonie should not be appointed co-administratrix and co-administratrix ad prosequendum. Larmonie appeals from an order dated June 30, 2005, denying her application.

Prior to Larmonie's petition, the court issued an order on February 15, 2005, denying an application by the decedent's brother, an application joined in by Larmonie, to set aside the Letters of Administration ad Prosequendum previously issued to Patterson. That application was brought on the ground that Patterson was not the best qualified to administer the wrongful death action. In denying that earlier application, the judge said:

THE COURT: [T]his is really all about who is going to handle the wrongful death action that is obviously going to come out of this case. At the time that the application was made in any event, the issue of the decedent will take to the exclusion of everybody else, and Mr. Kaminsky's client as the mother of those children and counsel's client also is alleged to be the mother of the other child. Those kids will take to the exclusion of everybody else. Siblings or anybody else. Both in the estate and in the wrongful death action.

[Patterson] made application at a time shortly after the death of Mr. Good. No one came forth and made any objections at that time. At that time I can't say based upon the fact that the other parent was in St. Martin that there was any anything wrong with the way the application was made. I don't have anything before me now that would indicate that she is not [qualified] to to be the administrator of the estate or to be the add pros for this case. And I'm not going to remove her on the basis of what's before me today. That is simply not sufficient to do so.

What I do suggest is that there can't be two separate lawsuits going on at odds with each other, that you get together and work for the best interests of yourselves and your clients. Motion is denied. Going to be a rough case. Working together should be the thing you work for.

After hearing argument on Larmonie's application, the same judge concluded:

THE COURT: Listen, this is all about who's going to get involved in representation and the wrongful death action that is going on which presumably will then fund whatever there is going to be in the estate and that's all that this fight is going on about. It is unfortunate. I asked you to cooperate. I guess you can't do it. So I'll have to go down and do it based upon the information that I have.

. . . .

The application is denied at this time. There is no proof that, in fact, that she is the mother of this child. But in any event, even if they were, at this point I would not appoint her as co-administrator. There is no need to because we have an administrator here and we have an ad pros. The add pros will do whatever they have to do with respect to the institution of the law suit and carry it out. Whatever then is done the ad pros turns it over to the administrator. If indeed your client is the mother I'm sorry. If Mr. Good is the father of your client's child then upon proof she makes a claim to the estate, and if you can prove it then they'll be forced to pay it. I deny the application.

Larmonie's contention in the Probate Part and before us is that as the mother of Good's third child, who presumably would be entitled to an equal share in any recovery, she should be involved in the prosecution of the wrongful death action. We understand that concern. In denying the relief sought by Larmonie, the Probate Part judge said, "[t]he application is denied at this time." We infer that it was his intention to deny the application without prejudice.

At this time, we do not perceive any basis for interfering with the judge's decision. Nonetheless, if circumstances demonstrate that Patterson is not acting in the best interest of the Estate or decedent's dependent children, Larmonie may seek further relief in the Probate Part.

Finally, we are well aware of the judge's repeated advice to all concerned to "cooperate." We have no information and no opinion as to the merits of the contemplated wrongful death claim or any other asset of the Estate. We do know that all of the decedent's surviving children will benefit if their shared financial interest is protected. We can only join with the Probate judge in urging all concerned to remain mindful of that shared interest.

 
Affirmed.

At the time of her application, Larmonie had little evidence of Good's paternity. Contrary to the Court Rules, she has submitted for the first time on appeal a copy of a document that purports to be a report of a DNA paternity test establishing that Good was the father of her child.

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A-6540-04T1

June 7, 2006