IN THE MATTER OF THE ESTATE OF ANTHONY SARCONA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6076-09T2

IN THE MATTER OF THE ESTATE OF

ANTHONY SARCONA, DECEASED.

__________________________________

May 16, 2011

Argued: April 6, 2011 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-87-10.

Sylvia S. Costantino argued the cause for appellants Anthony Sarcona, Rosemarie Sarcona, Christina Sarcona and Lucille Sarcona (Ansell, Grimm & Aaron, attorneys; Brian E. Ansell, of counsel and on the brief; Ms. Costantino and Kristine M. Bergman, on the brief).

Andrew A. Bestafka argued the cause for respondent Joan Hansen Sarcona (James M. Newman & Associates, LLC, attorneys; Mr. Bestafka, on the brief).

PER CURIAM

In this probate action, we review an order dismissing a complaint filed by decedent's first wife and adult children (collectively, plaintiffs), in which the former wife sought a declaration that their Dominican Republic divorce was void. They also contest appointment of decedent's wife as Administrator of the estate. We affirm.

Anthony Sarcona died intestate on January 13, 2010. Soon after decedent's death, Joan Hansen Sarcona, decedent's wife at the time of his death, filed the appropriate papers for appointment as Administrator of the Estate of Anthony Sarcona. Lucille Sarcona, decedent's first wife, filed a caveat to the proposed appointment.

Lucille and the decedent's adult children also filed a verified complaint and order to show cause seeking temporary restraints on March 19, 2010. They sought a declaration that the 1979 divorce obtained by decedent in the Dominican Republic was void, that the marriage between decedent and Joan Hansen Sarcona was void, that Lucille, as the surviving spouse, is entitled to her statutory portion of decedent's intestate estate, and that Joan Hansen Sarcona is not entitled to any portion of the estate. Plaintiffs also sought an inventory and accounting of decedent's assets, a fiscal agent to investigate and report on the current wife's handling and disposition of the estate, and an order restraining the current wife from undertaking any transactions affecting the assets of the estate. Plaintiffs also alleged that certain joint bank accounts established by decedent and his current wife during decedent's lifetime, certain inter vivos transfers to Joan, and beneficiary designations were the product of undue influence and sought an order restraining Joan from utilizing those accounts and declaring the inter vivos transfers void.

The facts concerning the 1979 divorce are disputed. The judge held, however, that the matter could be resolved in a summary manner, New York law governed the validity of the 1979 divorce, the foreign divorce was valid, Lucille's application to declare the 1979 divorce invalid was barred by laches, and Joan should be appointed Administrator.

The parties do not dispute the fact that decedent married Lucille in November 1961. Three children were born of the marriage. In September 1979, decedent traveled to the Dominican Republic where he obtained a divorce.

The divorce decree refers to a proxy executed by Lucille. Annexed to the divorce decree is a separation agreement dated July 30, 1979, signed by both decedent and Lucille. The agreement states:

WHEREAS, the wife is desirous of [moving] from the marital home to Italy and not wishing to be charged with abandonment, it is hereby agreed as follows:

1. The wife may move from the marital residence to Italy with the consent of the husband.

The agreement also provides for sale of the marital home and distribution of the proceeds, custody of the children, waiver of spousal financial support, and arrangements for paying mortgages on other real property.

There is also no dispute that decedent began dating Joan in 1982; they married on January 7, 1995. At the time of his death, decedent lived in Monmouth County.

Lucille and Joan offered different accounts of the circumstances leading up to the 1979 divorce. Lucille asserted that decedent traveled to the Dominican Republic in September 1979 under the guise of a business trip. She asserts she never signed a document granting anyone authority to appear on her behalf at the Dominican Republic divorce proceeding. She acknowledges that she executed the agreement annexed to the divorce decree but contended that it was never intended to serve as a divorce agreement. She insisted that she signed this agreement before a trip to Italy. Decedent and Lucille drew up the agreement in the event she did not return from Italy. In addition, Lucille stated that she learned of the divorce only after decedent returned from the Dominican Republic, and only received a Spanish version of the document. She also contended that she obtained an English translation of the document in 2007 and learned the full import of the document, when she applied for social security benefits on decedent's account.

In her response, Joan provided additional information about the agreement annexed to the divorce. According to Joan, decedent and Lucille traveled to Italy in 1979. During this trip, Lucille became romantically involved with a man she met on the trip. Soon after their return to the United States, Lucille returned to Italy. The agreement annexed to the 1979 divorce decree was executed before her return to Italy. When she returned to the United States, she drove decedent to the airport and knew the purpose of the trip to the Dominican Republic.

Joan related that decedent told her that he presented two copies of the divorce decree to Lucille. One copy was in Spanish, the other in English. Furthermore, decedent had an attorney explain the document to Lucille and decedent paid the attorneys' fee.

Judge Cleary properly resorted to New York law to determine the validity of the 1979 divorce. In Meeker v. Meeker, 52 N.J. 59, 69 (1968), the Court addressed the choice of law principles to be applied when a spouse challenges the validity of a foreign divorce. The Court held that a judge should determine where the spouse who attacks the decree resided at the time the decree was entered and apply the law of that state. Id. at 71. In 1979, decedent and Lucille resided in New York.

In New York, foreign divorces are recognized under the doctrine of comity. Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980). "Absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to some strong public policy of [New York], a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of [New York]." Id. at 697-98.

Greschler concerned an "action seeking a declaration that a Dominican Republic divorce decree and the separation agreement incorporated therein [were] void . . . ." Id. at 695.

Foreign divorces are recognized in New York if both parties properly appeared in the action. Id. at 697. However, "a "foreign divorce decree obtained on the ex parte petition of a spouse present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process[.]'" Farag v. Farag, 772 N.Y.S.2d 368, 371 (App. Div. 2004) (quoting Steffens v. Steffens, 657 N.Y.S.2d 339, 340 (App. Div. 1997)).

In Farag, the plaintiff never informed his wife that he was traveling to Egypt to procure a divorce, and the plaintiff failed to follow "the proper procedures for obtaining a foreign divorce decree." Ibid. In Farag, the court did not recognize the validity of the Egyptian divorce based on these deficiencies of process and personal jurisdiction. Ibid.

Lucille argues that she never signed the power of attorney proxy appended to the decree; therefore, the foreign court never obtained personal jurisdiction of her. Alternatively, she maintains that decedent obtained her signature on the proxy by deceiving her about the purpose of the document. To the extent that Lucille's challenge to the 1979 divorce is based on fraud, she must plead facts with particularity to support this claim. Greschler, supra, 414 N.E.2d at 697. Here, Lucille simply asserts that the proxy and agreement were obtained by fraud but presents no facts about the circumstances of the agreement. See Jered Contracting Corp. v. N.Y.C. Transit Auth., 239 N.E.2d 197, 201 (N.Y. 1968) (explaining a fraud action is not pleaded in sufficiently particular detail when "it is based upon mere suspicion, unsupported by evidentiary facts . . . .").

Whether the 1979 Dominican Republic divorce was supported by a properly executed proxy is a closer question. A validly executed proxy is essential to allow the foreign court to exercise jurisdiction over the absent party. Greschler, supra, 414 N.E.2d at 697. Lucile argues that she never executed a proxy. We need not decide this issue, however, because this action, commenced thirty-one years after the divorce and fifteen years after decedent's marriage to Joan, is barred by laches.

Laches is an equitable defense "founded on lapse of time and the intervention of circumstances [that work disadvantage or injury and] render it unjust on equitable principles for a court . . ." to allow a plaintiff to proceed with a particular claim. Sorrentino v. Mierzwa, 250 N.E.2d 58, 60 (N.Y. 1969) (internal quotations omitted). In cases like the one before this court, application of laches is appropriate when "the prejudice has been a reliance on the inaction of the first spouse which has given rise to a change of circumstances." Id. at 61. See also Weiner v. Weiner, 216 N.Y.S.2d 788, 789 (App. Div. 1961) (explaining "a spouse who by acts indicates acquiescence in the divorce and so induces the other spouse to act upon the assumed validity of the decree cannot be heard to contest it.").

In Krieger v. Krieger, 254 N.E.2d 750 (N.Y. 1969), a wife secured an out-of-state divorce from her husband in 1952 after living separately for two years. The wife remarried in 1964. Id. at 751. Four months after the wife's remarriage, and twelve years after entry of the foreign divorce, the first husband sought a declaration that the foreign divorce was void. Ibid. The court held the husband's action was barred by laches because he "waited without any recourse to judicial action until the wife, believing the divorce good . . . remarried." Id. at 753.

In In re Estate of Angelo C. Caputo, Deceased, 699 N.Y.S.2d 86, 87 (App. Div. 1999), a couple divorced by way of a Mexican divorce decree and a year later, the husband remarried. The first wife "accepted the benefits of a separation agreement . . . by endorsing hundreds of maintenance payment checks . . . ." Ibid. The husband died testate in 1992. Ibid. In 1995, after both wives filed objections to a court-ordered accounting, the first wife "claimed the Mexican divorce decree was invalid due to the alleged forgery of the notarized power of attorney . . . ." Ibid. The court held, however, the first wife was "estopped by laches from contesting its validity." Ibid.

These cases illustrate two types of reliance relevant to the laches inquiry. In Krieger, the court applied the laches defense because the wife had relied on the validity of the divorce and remarried. 254 N.E.2d at 753. In Caputo, the challenging spouse's reliance was highlighted by receiving benefits from her former spouse, and acquiescing in changed circumstances. 699 N.Y.S.2d at 87.

Here, the first type of reliance is present because decedent relied on the validity of the divorce decree and Lucille never timely challenged it. Even if the divorce was invalid, and even if Lucille is correct in her claim that she could neither read nor understand the papers when decedent presented them to her in September of 1979, Lucille admits that upon returning from the Dominican Republic, decedent "handed me some papers . . . and simply said, 'This is for you - - we are now divorced.'" Lucille acknowledged "when [decedent] told me that we were divorced, I believed him." Lucille also acknowledges that decedent eventually moved out, began a new relationship, and married Joan. Decedent and Joan clearly relied on the validity of the divorce and were married for fifteen years prior to decedent's death in 2010.

Barring this belated challenge to the Dominican Republic divorce by applying the doctrine of laches is appropriate here. Lucille was on notice as early as 1979 that her marriage ended during decedent's trip to the Dominican Republic. For thirty-one years, she did nothing to challenge or confirm the validity of the divorce. Essentially, Lucille's inaction following the divorce and continuing through decedent's second marriage validated the changed circumstances. Plaintiffs cannot equitably be allowed to challenge the divorce after the passage of so many years and the reliance placed on it. Sorrentino, supra, 250 N.E.2d at 61. The challenge to the appointment of Joan Sarcona as Administrator is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).