ANN MARIE LUCARELLA v. NICHOLAS A. LUCARELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2202-10T3

ANN MARIE LUCARELLA,

Plaintiff-Appellant,

v.

NICHOLAS A. LUCARELLA,

Defendant.

___________________________________

NICHOLAS LUCHOLAS LUCARELLA

and ROSE LUCARELLA (deceased),

Third-Party Plaintiff/

Respondent,

v.

ANN MARIE LUCARELLA,

Third-Party Defendant/

Appellant.

____________________________________

T

December 23, 2011

elephonically argued December 8, 2011 - Decided

 

Before Judges Sabatino and Ashrafi.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-243-00.

 

Stephanie Lombardi argued the cause for appellant (Law Office of Edward Fradkin, LLC, attorneys; Ms. Lombardi, on the brief).

 

Warren L. Peterson argued the cause for respondent (Law Offices of Peterson and Book, attorneys; Mr. Peterson, on the brief).

PER CURIAM

The discrete issue in this appeal is whether the trial court erred in releasing funds to a third-party plaintiff who claimed ownership of the funds, which years earlier had been confiscated by authorities following the arrest of his son. In particular, appellant, the son's ex-wife, argues that the trial court should have instead imposed a constructive trust on the funds so as to secure her former spouse's future payment of child support. For the reasons that follow, we conclude that the trial court soundly rejected the ex-wife's demand for a constructive trust and affirm the order releasing the funds to the ex-husband's father.

We briefly summarize the facts pertinent to this appeal. In November 2001, the ex-husband, defendant Nicholas A. Lucarella, was divorced from his wife of ten years, plaintiff Ann Marie Lucarella ("the ex-wife"). Although the ex-husband has since contested or sought to modify certain terms of the divorce, including custody of the couple's three children, it is undisputed that he has timely made all support obligations.

 

 

In February 2003, the ex-husband was arrested and charged with attempted murder, conspiracy to commit murder, and aggravated assault after his matrimonial attorney was seriously injured in a hit-and-run incident. The prosecution based its case largely on the anticipated incriminating testimony of two individuals who had told the police that the ex-husband had hired them to kill his matrimonial attorney.

In November 2009, the ex-husband's criminal trial ended in a hung jury after the two key witnesses recanted their prior statements. The State and the federal government have not since pursued any criminal charges against the ex-husband.

The funds in question, $72,525, had previously been in the possession of the ex-husband. When law enforcement authorities arrested the ex-husband, they confiscated the cash from his apartment and deposited it with the clerk of the court. At that time, it was unclear whether federal or state authorities planned to investigate the source of the funds. However, in 2007, the county prosecutor's office advised the trial court by letter that the State had no interest in the money. In the more than eight years since the funds were seized, federal authorities evidently have not undertaken any investigation regarding the money.

Shortly after their son's arrest, the ex-husband's father, Nicholas L. Lucarella, and his mother, Rose Lucarella,1 asserted that the confiscated money was theirs and accordingly filed a motion with the Family Part, as third-party plaintiffs, requesting that the funds be released to them. They also petitioned for visitation rights to their grandchildren.2 Initially, the ex-husband's parents were to use the money for a down payment on a house. Apparently, the money was not used for that purpose, and in his certification, the ex-husband's father relates that he now needs the money to cover his burgeoning medical expenses.

After consolidating the matrimonial and third-party actions, the Family Part initially declined to release the funds. In 2007, the ex-husband's father renewed his motion to release the funds. Again, the trial court declined, this time because the ex-husband and ex-wife's matrimonial case was then on appeal.3 The trial court perceived that it lacked jurisdiction to hear the motion concerning the release of the funds until that appeal was resolved.

In 2010, following the verdict in his son's criminal trial, the ex-husband's father again moved in the Family Part to release the funds. The father noted that he is elderly, that he has health problems and financial difficulties, and that he needs access to the funds.

The ex-wife opposed the motion. She maintained that the funds instead should be placed in a constructive trust for the benefit of her children. She claimed the funds actually belonged to the ex-husband, despite the fact that the ex-husband had asserted no claim to the money. She expressed concern that if her former spouse were ultimately convicted of criminal charges, he would be unable to meet his child support obligations. She argues that the fact that the ex-husband has not responded to her discovery requests, apparently invoking his right against self-incrimination, should operate as an admission and that the court should draw an adverse inference against the ex-husband.

Notably, the ex-husband has asserted no claim to the confiscated funds. He did not oppose the release of the funds to his father.4 As we have noted, the State also advised the trial court in correspondence that it took no position concerning the requested release of the funds.

After considering the motion in December 2010, the Family Part judge noted that more than seven years had passed since the confiscated funds had been deposited with the court. The judge further noted that the ex-husband's father was the only person who claimed ownership to the funds, that it was unclear if the prosecutor's office would ever pursue a re-trial of the ex-husband, and that the ex-husband had been current with all support obligations since the divorce. Given those circumstances, the judge rejected the ex-wife's request for a constructive trust. The judge concluded that the money belonged to the ex-husband's father and accordingly released the funds to him in an order dated December 23, 2010. The ex-wife's application for a stay of the release of the funds pending appeal was denied.

On appeal, the ex-wife argues that the trial court erred in concluding that the funds belonged to the ex-husband's father and that the court should have conducted a plenary hearing on the matter of ownership of the funds. She further argues that the funds should not have been released without further discovery and that the court should have applied an adverse inference against her ex-husband as a result of his exercise of his Fifth Amendment rights. She maintains that a constructive trust should have been imposed for the children's benefit to help assure the future payment of child support. She also contends that the motion judge should have recused himself because he had expressed views about the merits of the related criminal matter.

Having considered the points raised on appeal, we affirm the trial court's release of the funds and the denial of a constructive trust, substantially for the reasons set forth in Judge Paul Escandon's December 23, 2010 opinion. We only add a few comments.

There is no genuine issue presented as to the ownership of the funds. The sworn assertions by the ex-husband's father attesting to his entitlement to the money are not rebutted by a competing affirmative claim of ownership. The ex-wife concedes that she has no individual claim of ownership to the funds. The ex-husband, moreover, has asserted no claim. Even if, for the sake of argument, an adverse inference were made against the ex-husband because of his invocation of his Fifth Amendment rights, it is of little moment here because the ex-husband is not himself seeking affirmative relief from the court. Such an inference against the ex-husband would not negate his father's affirmative and unrivaled claim to the money. See Fidelity Union Bank v. Hyman, 214 N.J. Super. 177, 182 (App. Div. 1986) (noting that if "a litigant seeking affirmative relief claims a Fifth Amendment privilege to avoid discovery with respect to the subject matter of his case" the court may dismiss his pleadings) (emphasis added).

It is immaterial that the ex-wife factually disputes her former father-in-law's sworn statements about the funds because she herself asserts no claim of ownership to the money. She does not argue that the money represents a marital asset or that it otherwise belongs to her in full or in part. Even if the court chose to ignore the ex-husband's own certification, that does not vitiate the independent proof supplied in the certification from the ex-husband's father.

There is no genuine issue of material fact raised as to the ex-husband's father's claim to the money and, thus, no need to protract this matter further and require additional discovery. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (analogously encouraging trial courts to grant summary judgment in civil matters where no genuine issues of material fact are presented). A plenary hearing was not necessary. Cf. Barblock v. Barblock 383 N.J. Super. 114, 123-24 (App. Div.), certif. denied, 181 N.J. 81 (2006) (noting that plenary hearings are not automatically required where the record fails to present genuine factual issues that would affect a critical legal determination).

The trial court did not err in denying the ex-wife's application for a constructive trust. Although we recognize that the imposition of constructive trusts over assets are sometimes justified in matrimonial litigation, see, e.g., Painter v. Painter, 65 N.J. 196, 212-13 (1974); Lynn v. Lynn, 165 N.J. Super. 328, 342 (App. Div.), certif. denied, 81 N.J. 52 (1979), the ex-wife failed to demonstrate the propriety or necessity for such a trust in these circumstances.

It is undisputed that the ex-husband has steadily paid his support obligations, even after his arrest and criminal prosecution. Although we appreciate the ex-wife's original fears that her former spouse might be convicted and incarcerated and thus be unable to meet his support obligations, that did not occur. Over eight years have passed since the money was seized from the ex-husband's residence, and, by every indication, the government appears to have no interest in prosecuting him. Meanwhile, the record shows that the only party to claim ownership of the funds is elderly, apparently beset with health and other problems, and in need of the money.

Given the passage of considerable time since the funds were seized, the consistent pattern of support payments, and the asserted needs of the only person who has claimed to be the owner of the funds, the trial court appropriately rejected the ex-wife's application for a trust. We owe substantial deference to the Family Part's exercise of its well-reasoned judgment on this issue. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988).

The remaining contentions raised on appeal, including the claim that the motion judge should have recused himself, lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(1)(E).

A

ffirmed.

1 Rose Lucarella is now deceased.

2 The issues concerning visitation are not raised in this appeal.

3 See Lucarella v. Lucarella, No. A-0779-05 (App. Div., June 8, 2006).

4 The ex-husband has not filed any papers in the present appeal.