IN THE MATTER OF THE ESTATE OF AUGUSTIN NGWE MANDENG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2143-07T32143-07T3

IN THE MATTER OF THE ESTATE

OF AUGUSTIN NGWE MANDENG

_____________________________

 

Argued October 20, 2008 Decided

Before Judges Reisner, Sapp-Peterson, and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Essex County, Docket No. CP-0192-2006.

Anthony Scordo argued the cause for appellant Tebeyene Mamo.

Jeffrey T. Kampf argued the cause for respondent Elizabeth Mandeng (Feintuch, Porwich and Feintuch, attorneys; Philip Feintuch, of counsel; Mr. Kampf, on the brief).

PER CURIAM

Petitioner Tebeyene Mamo (Mamo) appeals from a summary judgment of the Chancery Division, Probate Part, dismissing her verified complaint. By way of summary judgment, the court also found that respondent Elizabeth Mandeng (Mandeng), administratrix of the estate of Augustin Ngwe Mandeng, was the last surviving spouse of the decedent and could therefore continue to act in that capacity. We affirm.

On February 16, 2005, Augustin Ngwe Mandeng died intestate. On August 9, 2005, the Essex County Surrogate's Court issued letters of administration for his estate to Mandeng, as his surviving spouse. On January 31, 2007, Mamo filed an order to show cause and verified complaint seeking reversal of Mandeng's appointment as administratrix, an accounting, rescission of any death certificates that did not name Mamo as the decedent's sole surviving spouse, and similar equitable relief.

On March 8, 2007, Mandeng filed an answer and counterclaim together with responsive certifications. Trial was scheduled for September 10, 2007, and on August 29, Mandeng filed a motion for summary judgment, which resulted in the rescheduling of the trial to October 26, 2007. Mandeng's motion was resubmitted on September 26.

Thereafter, a case management conference was scheduled for January 2008, at which time, according to Mamo, argument on the summary judgment motion was also scheduled to occur. On October 24, 2007, however, Mamo's counsel received a call from the court informing him that the argument on the summary judgment motion would be conducted on October 26. Because he had not yet filed papers in opposition, counsel objected and requested an adjournment until January. The request was denied, and summary judgment was granted.

On October 26, 2007, the court rendered an oral opinion and issued a written order dismissing Mamo's complaint with prejudice. The court found that Mandeng was the last surviving spouse of the decedent and was thereby entitled to all the legal benefits resulting from that status. On November 13, 2007, Mamo moved for reconsideration. The application was denied on December 14, 2007, and this appeal followed.

The decedent, a native of the Republic of Cameroon, married Mandeng on August 25, 1973, in Ohio. They had two children, both born in New York, one in 1975, and the second in 1977. The decedent was employed by the United Nations (U.N.) and was posted to Burkina Faso in 1989. Mandeng and the children remained in New York, although they visited the decedent in August 1989. While he continued to be posted to other African locations, she and the children continued to reside in New York.

Mamo, also an employee of the U.N., commenced her relationship with the decedent in Ethiopia in 1982. He invited her to New York, where she continued to work for the U.N. Although the decedent remained in the marital home, Mamo maintains that he was separated from Mandeng at the time. In January 1987, Mamo and the decedent had a son. When the decedent was posted to Burkina Faso, he and Mamo, who was then posted to Chad, frequently visited each other.

The decedent allegedly obtained a divorce from Mandeng dated May 15, 1989, in Cameroon. The motion court found the divorce decree to be a fraud, however, noting questionable spellings and obvious errors on the face of the document as well as a letter proffered by Mandeng from an attorney in Cameroon indicating that the purported divorce document was a fake. In a May 16, 2007 letter supplied to the motion court, the chief registrar of the Littoral Court of Appeal of Cameroon stated that there was no record of the purported divorce on file in their registry. On July 26, 2007, the chief registrar authored another letter stating that because there was no record of the divorce decree in their court, "it is to be concluded that the said decision is not authentic."

Mamo claims that she believed that the Cameroonian divorce was legitimate. After the decedent made her aware of the document, he married Mamo in a civil ceremony in Cameroon on November 28, 1989, and later participated in a ceremonial wedding on September 15, 1990, in her home country of Ethiopia.

Mandeng and her oldest son claim that they knew nothing of the decedent's marriage to Mamo or of any divorce decree from Cameroon or elsewhere. In fact, the first Mandeng learned of any divorce proceeding was a New Jersey divorce complaint served upon her in November 2004, a few months before her husband's death.

In November 1998, Mamo purchased a home in West Orange, and the decedent co-signed the loan. They lived there until his death on February 16, 2005. On May 1, 2004, the decedent gave Mamo a durable power of attorney. When he filed for divorce from Mandeng in New Jersey in September 2004, he certified that he and she separated in 1989, and that there had been "no previous proceedings between the [decedent] and [Mandeng] respecting the marriage or its dissolution or respecting maintenance of the [decedent] in any court." This is standard "boiler plate" language.

Mamo was identified as the decedent's surviving spouse on the original death certificate. The decedent's divorce complaint was dismissed without prejudice on March 7, 2005. The death certificate was amended in May 2005, at the request of Mandeng's older son, to reflect that she, and not Mamo, was the decedent's surviving spouse.

Mandeng obtained letters of administration in early August 2005. That same month, the U.N. Pension Entitlements Section informed her that she was entitled to the decedent's surviving spouse benefits.

At some unspecified later date, Mamo attempted to transfer the title of the decedent's car into her son's name and was advised that Mandeng was the administratrix of the estate. Her complaint seeking to vacate the appointment followed.

In support of her claim, Mamo produced an August 18, 1998 letter from the decedent to an attorney referring to her as his wife, a retail installment contract signed for the purchase of an automobile by both Mamo and the decedent, and the title for the decedent's automobile citing his address as the West Orange home he shared with her. Curiously, Mamo also provided copies of cancelled checks written from 1999 to 2004 from a joint bank account in the names of Mandeng and the decedent. The West Orange address appears on the front of the checks, although the account is in both names. On three of the checks, Mandeng's name is blacked out.

I.

We cannot discern from the record why Mamo's request for an adjournment of the summary judgment return date was denied. In any event, at oral argument on her motion for reconsideration, Mamo argued, as she does on appeal, that Mandeng was equitably estopped from challenging the validity of the Cameroonian divorce and second marriage under Heuer v. Heuer, 152 N.J. 226 (1998).

In Heuer, a husband sought to have his marriage declared a nullity because the wife's earlier divorce, obtained in Alabama, was invalid. Id. at 231. The husband had been aware of the Alabama divorce for years and wanted the annulment for the sole purpose of avoiding equitable distribution. Ibid. The Court held that he was equitably estopped from attacking the legitimacy of the prior divorce in order to avoid an economic consequence. Id. at 239. Heuer, however, is factually very different from this proceeding. In this case, Mandeng was as much an innocent victim free from any wrongdoing as Mamo. Heuer is therefore inapposite.

Mamo argued to the motion judge that by analogy, the elective share statute, N.J.S.A. 3B:8-1, authorized the award of the relief she sought in the complaint. New Jersey's elective share statute does not allow a spouse to collect an elective share where the parties were separated at the time of death. Here, however, the decedent died intestate, and the elective share statute does not apply, by analogy or otherwise. The intestacy statute does not require that a decedent and his or her spouse reside together at the time of death in order for the surviving spouse to inherit. See N.J.S.A. 3B:5-3. Because no new facts or law were presented to warrant reconsideration, the court reiterated the original ruling and denied the motion.

We do not typically interfere with a trial court's denial of a request for adjournment unless an injustice will result. Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 343 (App. Div. 2000). On reconsideration, the motion court considered all the evidence and substantive arguments that would have been presented on the initial motion for summary judgment. Because we do not know the reason for the court's denial of the request for adjournment, we cannot say whether the denial was an abuse of discretion. But, as petitioner was afforded the same opportunity to be heard on reconsideration as she would have enjoyed on the summary judgment motion, if it was error to deny the request for adjournment, the error was harmless. R. 2:10-2. No injustice resulted from the motion court's refusal to postpone oral argument.

Furthermore, review of a trial court's denial of a motion for reconsideration is limited and subject to a clear abuse of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Reconsideration is warranted only where new evidence is presented or the court's initial decision is based on an improper understanding of the law. Id. at 384. Neither occurred here.

On a motion for summary judgment, the trial court must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The appellate court is subject to the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Generally, when multiple marriages exist simultaneously, there is a strong presumption in favor of the latest marriage, which accords with the presumption that the earlier marriage was properly ended by death or divorce. Kazin v. Kazin, 81 N.J. 85, 96 (1979). The burden is on the individual challenging the legality of the latest marriage "to prove its invalidity by clear and convincing evidence." Ibid. See also Newburgh v. Arrigo, 88 N.J. 529, 538 (1982) (holding that the presumption of validity can only be overcome by "clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was not terminated by death or divorce before the latest marriage").

In this case, the validity of the earlier marriage is undisputed. Mandeng presented clear and convincing evidence refuting the legitimacy of the Cameroonian divorce. Mamo's marriage to the decedent is invalid because the first marriage was never terminated. Ibid. Mamo, who had no personal knowledge of the divorce but relied on her husband's statements to her and on the purported divorce document, did not refute Mandeng's proofs. Having proved by clear and convincing evidence that the decedent's latest marriage was void, Mandeng established that she was the surviving spouse for succession purposes under the New Jersey intestacy statute, N.J.S.A. 3B:5-1 to 3B:5-14.

II.

Mamo's remaining arguments warrant only brief discussion. First, equity simply does not bar Mandeng from challenging the decedent's subsequent marriage. The court's exercise of its equitable power in the context of invalid prior divorces relates to preventing injustices as between a couple, not as between persons who both claim to be the legitimate spouse.

Although the decedent allegedly obtained a divorce in Cameroon, Mandeng denies any knowledge of it or of the decedent's subsequent marriage to Mamo. Mamo has no proof to the contrary. To invalidate Mandeng's marriage to the decedent would inflict an inequity upon her without justification. She did not engage in any wrongful conduct. There are no facts that warrant barring her from challenging the validity of the second marriage or the Cameroonian divorce decree.

As Mamo contends, posthumous applications for annulment are permissible. In re Estate of Santolino, 384 N.J. Super. 567 (Ch. Div. 2005). Such annulments are statutorily authorized pursuant to a court's exercise of general equity jurisdiction. See N.J.S.A. 2A:34-1(f). As we have already discussed, however, there are no circumstances as between these parties that establish a basis for this extraordinary relief.

Mamo stresses that, in accordance with N.J.S.A. 3B:8-1, a surviving spouse is not entitled to an elective share of the decedent's estate if they were:

living separate and apart in different habitations or had [] ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

The elective share statute exists to remedy any unfairness that occurs when a deceased spouse disinherits a surviving spouse in his or her will. Carr v. Carr, 120 N.J. 336, 349 (1990). The Legislature has recognized that where spouses have "ceased to cohabit as man and wife," a remedy that goes against the decedent's wishes is not warranted. Id. at 344. The courts can then utilize their general equitable powers to prevent a surviving spouse from obtaining an elective share.

The intestacy statute, however, which exists to provide a legislatively established line of succession in the event that an individual dies without a will, includes no such exception. Instead, N.J.S.A. 3B:5-3 provides that the estate passes to a surviving spouse, with the portion of the estate received by the spouse limited only by the shares of surviving parents or descendants. When an individual dies intestate, his or her wishes are unknown. Thus, the equitable notions that make an elective share unavailable to a separated spouse where the decedent left a will expressing the intent to disinherit do not apply to an intestacy situation such as this.

For reasons best known to him, the decedent died without a will. Although he filed a complaint for divorce claiming that he and Mandeng had lived separately since 1989 with "no reasonable prospect of reconciliation," it was dismissed without prejudice following his death. Mandeng remained married to the decedent, making her his sole surviving spouse under the intestacy statute. Equity does not compel us to prohibit Mandeng from collecting her legislatively established share or from acting as administratrix of the estate, and Mamo has provided no legitimate reason to annul the decedent's marriage to Mandeng.

Our review of the record clearly supports the trial court's conclusions. See Brill, supra, 142 N.J. at 540. During the reconsideration hearing, Mamo presented no new evidence and had the opportunity to make the arguments that would have been raised initially, and the court reiterated its conclusion, which was not based on any misunderstanding of the law or of the facts. Cummings, supra, 295 N.J. Super. at 384.

Affirmed.

A question not before us is whether Mamo may be entitled to some equitable relief in the Family Court in light of the Supreme Court's determination in In re Estate of Roccamonte, 174 N.J. 381 (2002), as well as our decision in In re Estate of Quarg, 397 N.J. Super. 559 (App. Div. 2008). Should Mamo file an action in the Family Court, she may be entitled to some equitable relief on the basis of implied contract, as a promise of support may be expressed or implied. Kozlowski v. Kozlowski, 80 N.J. 378, 394 (1979).

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A-2143-07T3

February 24, 2009