IN THE MATTER OF SAMUEL DANTONI AND MARILYN DANTONI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

SAMUEL DANTONI AND

MARILYN DANTONI.

_______________________________

January 29, 2015

Before Judges Lihotz, St. John and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County, Docket No. 2010-1960.

Pasquale Guglietta argued the cause for appellant Mark Dantoni (Price & Price, LLC, attorneys; Carl Ahrens Price, on the briefs).

J. Llewellyn Mathews, respondent, argued the cause pro se.

PER CURIAM

In this acrimonious litigation, we review challenges to Chancery Court orders denying payments from a trust created to provide for the needs of Samuel and the late Marilyn Dantoni (the Dantonis). Paragraph 19 of an April 10, 2012 order established the procedure for filing enforcement motions regarding the terms of the trust. Appellant Mark Dantoni, one of the Dantoni's four children, challenges a July 3, 2013 order, which denied reimbursement of certain medical expenses he incurred on behalf of his mother and sanctioned him for disregarding the procedure set forth in paragraph 19 by ordering he pay attorney's fees incurred by the court-appointed trustee J. Llewellyn Mathews.

Following our review, we conclude the appeal of paragraph 19 is untimely. However, we reverse the award of attorney's fees as they were imposed by applying a portion of paragraph 19 that we find unenforceable. We remand the trustee's fee request to the trial court for consideration without the application of paragraph 19.

The background surrounding this legal battle, essentially between two of four siblings at odds over the fortunes and fates of their infirmed parents, was detailed in our unpublished opinion that addressed appellant's appeal of prior orders. See In re Dantoni, No. A-1550-12 (App. Div. August 15, 2014) (slip op. at 5-14). We need not repeat those facts, but note, appellant principally cared for and acted through power of attorney on behalf of Marilyn, and his sister Joan Harris principally cared for and acted through power of attorney on behalf of Samuel. The couple lived together in the marital home in Medford until Samuel's health declined in 2010. Harris moved Samuel to an assisted living facility in Maryland where he was declared disabled; Marilyn lived in the former marital house until 2012, when she was hospitalized until her death in 2013.1 The geographic separation of the Dantonis serves as a metaphor for the siblings' divide created by their distrust for one another.

Ultimately, in an attempt to end the escalating litigation, a mediated settlement agreement, approved by the court on January 31, 2011, created an irrevocable inter vivos trust to hold and administer the Dantonis' remaining assets and income for their "primary care and maintenance." An independent trustee was appointed to gather the Dantonis' assets and income, satisfy obligations, annually report transactions, and assure the children acted to allow the couple to visit each other. The trust granted the trustee "sole discretion" to "distribute to or for the benefit of the [Dantonis] as much of the principal and accrued income, as well as income paid into the trust . . . for their general use, including but not limited to, their comfort, health, maintenance, and support." All litigation was dismissed.

Unfortunately, the attempted resolution unleashed volleys of motions to comply with provisions of the settlement agreement. On April 10, 2012, an order was filed addressing the various requests for relief. Paragraph 19 of the order required future motions for enforcement of litigant's rights must first be presented to the trustee, who would review the application and advise whether she supported the request. If the trustee supported the motion, the movant was entitled to receive counsel fees and costs associated with the motion from the trust fund, subject to judicial review. If the trustee did not support the motion, the movant was not entitled to an award of fees.2

The heightened malevolence and lack of cooperation between appellant and Harris led to the initial trustee's resignation. Mathews was appointed as a successor trustee.

Mathews filed a complaint seeking advice and direction because the trust's funds were insufficient to meet "ongoing cash needs." Since Samuel lived in Maryland and Marilyn was hospitalized, Mathews proposed the sale of their Medford home "to generate cash to help meet the needs of the [t]rust." The trustee also sought to compel appellant, on behalf of Marilyn, to execute and deliver an unadulterated seller's residency certification, and any other documents necessary to transfer the home to the trust and effectuate its sale. Four days after filing the complaint, Mathews learned Marilyn had passed away. He withdrew his request regarding appellant's provision of documents to sell the realty, but sought to replace the drafted deed for the Medford home and obtain the necessary certificate allowing transfer from Harris, as Samuel's legal guardian. The court addressed the requests regarding the sale of the realty in a May 13, 2013 order.

Appellant responded with a motion for enforcement relief. He withdrew his previously filed objection to the sale of the Medford realty, subject to an award of his requested expenses, but objected to the proposed listing price for the realty as too low, sought a formal appraisal, requested Mathews' ability to reduce the listing price be limited, and requested he be given a key and "unrestricted access" to the realty. Appellant challenged the trustee's other requests compelling him to act and justified his delay in providing certain documentation. Appellant also sought relief in the form of reimbursement, with interest, for various expenses he alleged he incurred on behalf of Marilyn, including costs expended to maintain and repair the Medford home in anticipation of her return, for a home companion and Marilyn's funeral expenses. Finally, appellant requested an order requiring Harris to amend the designated beneficiary of Samuel's federal employee group life insurance (FEGLI) policy to name the trust, rather than Harris, as the beneficiary.

The judge considered appellant's motion separately from the sale of the realty. In a July 3, 2013 order, she addressed the requests which were granted in part, denied in part, and denied without prejudice in part. In her statement of reasons, the judge described appellant's motion as "a comprehensive new motion outside of the scope of the [o]rder to [s]how [c]ause, dealing with claims to the proceeds of an eventual sale of the house." She discussed the basis for adopting the procedure in paragraph 19. The judge noted appellant "disregarded this court's April 10, 2012 order and filed a motion which was not provided in advance to the [t]rustee in writing, nor was notice provided to all interested parties prior to filing." Despite his noncompliance, the judge reviewed the merits of each of appellant's requests.

Appellant filed his notice of appeal on August 16, 2013. His accompanying civil case information statement (CIS) does not challenge the dispositive determinations of his requests for relief contained in the July 3, 2013 order under review. Rather, the heart of appellant's argument limits our review to

$2,090 in fees to the trustee . . . to be paid by [a]ppellant . . . as a sanction for violating the [c]ourt's [o]rder of April 10, 2012. [Appellant] appeals [from] both the entry of the sanction as well as the procedure put in place by the April 10, 2012, [o]rder compelling all motions to be approved by the trustee.

Further, appellant's brief lists three legal issues for review: two attack the "procedure" in paragraph 19 as infringing on appellant's due process rights and an unconstitutional delegation of judicial authority, and the last argues the fee award was an unwarranted exercise of judicial discretion.

We have no difficulty dismissing, as untimely, appellant's challenges, which collaterally attack paragraph 19. R. 2:4-1(a). Appellant participated in the proceeding resulting in the April 10, 2012 order and was well aware of its terms and application, including paragraph 19. See In re Dantoni, supra, slip op. at 7. The challenge raised in this matter to the enforceability of paragraph 19 was filed more than a year after its initial entry. Further, we are not persuaded by appellant's argument suggesting he timely appealed from the implementation of the order. Appellant cannot disregard the entry of a final order and wait until its enforcement to challenge its entry.

"An appeal from a final judgment must be filed with the Appellate Division within forty-five days of its entry, R. 2:41, and served upon all other parties, R. 2:5-1(a)." Lombardi v. Masso, 207 N.J. 517, 540 (2011) (emphasis added).

In the event that the time limits in Rule 2:4-1 are not satisfied, for example, where the notice is late, a motion to extend the time for appeal may be filed, pursuant to Rule 2:4-4, for a period not exceeding thirty days. That motion must be served and filed within the time as extended.

[Id. at 540-541.]

Rule 2:4-1 circumscribes the scope of this court's authority. In re Christie's Appointment of Perez as Public Member 7 of Rutgers Univ. Bd. of Governors, 436 N.J. Super. 575, 584 (App. Div. 2014). "'Where the appeal is untimely, the Appellate Division has no jurisdiction to decide the merits of the appeal.'" Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97 n.4 (App. Div. 2014) (quoting In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990)).

Nevertheless, "[t]he courts have from time to time considered appeals, although not timely filed, in which issues of genuine public importance have been raised." In re Christie, supra, 436 N.J. Super. at 585 (citing Jacobs v. N.J. State Highway Auth., 54 N.J. 393, 396 (1969)). See, e.g., In re Rodriguez, 423 N.J. Super. 440, 447 (App. Div. 2011); Rumana v. Cnty. of Passaic, 397 N.J. Super. 157, 171-72 (App. Div. 2007). See also Pressler & Verniero, Current N.J. Court Rules, comment 3.2.2 on R. 2:2-3 (2015) ("[B]ecause the allocation to the Appellate Division is not jurisdictional in the strict subject-matter sense, [it] may, in the public interest, opt to address the merits of a dispute improvidently brought before it."). We do not find this matter is such a case, thus, appellant's request for review is rejected as untimely.

An additional procedural problem is posed by the insufficiency of appellant's notice of appeal, which lists only the July 3, 2013 order from which his appeal is taken. The notice of appeal refers to appellant's CIS, which in turn includes the challenge to paragraph 19. However, Rule 2:5-1(f)(3)(A) requires the notice of appeal in civil actions to "designate the judgment, decision, action or rule, or part thereof appealed from. . . ." Therefore, only the designated July 3, 2013 order remains subject to appellate review. See, e.g., 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in her notice of appeal); Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

Although our analysis of issues presented in this appeal need not go further, we comment briefly on concerns implicated by appellant's challenges. He attacks what he characterizes as paragraph 19's unconstitutional, "impermissible obstacle" infringing his access to the courts. Unquestionably, "'the complete denial of the filing of a claim without judicial review of its merits would violate the constitutional right to access of the courts.'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 390 (App. Div. 2000)). See U.S. Const. amend. XIV, 1.

In this matter, as the judge noted, paragraph 19 was designed to allow the trustee the opportunity to consider a party's request prior to initiation of process, as he held sole discretion over fiscal issues and would determine whether to pay purported expenses. Contrary to appellant's suggestion the provision was designed to control the court's calendar, we determine the implementation of this procedure was to preserve the Dantonis' dwindling assets for their health, maintenance and support by avoiding unnecessary depletion caused by unwarranted litigation. Paragraph 19 did not enjoin or deny access to the courts. Instead, it facilitated the enforcement of the consent order, assuring the trustee's involvement and review prior to incurring the expense and time of formal motion practice. After all, if the trustee supported the payment or enforcement request, likely nothing more was necessary. Further, paragraph 19 contained no preclusion of court relief. In fact, appellant filed numerous motions from the date of that order. The trustee, as a necessary party-in-interest to any litigation, was required to receive notice of a party's motion.

These provisions are unlike the restrictions imposed by the order reviewed in Parish or Rosenblum. In those matters no motion was permitted to be filed unless certain prerequisites were satisfied. "Judges retain the inherent authority to impose reasonable conditions on motion practice to allow for appropriate case management and the efficient and effective administration of the case." Zehl v. City of Elizabeth Bd. of Educ., 426 N.J. Super. 129, 141 (App. Div. 2012). Judges are permitted to utilize management tools to aid the efficiency of resolving disputes to address those cases "that are time-consuming, contentious beyond reason, and a significant drain on both judicial time and resources." Id. at 142.

This case reflects one such matter. Litigation commenced in 2009. Despite the unmistakable terms of the settlement agreement and the trust, motions, each met by opposition and cross-motions seeking enforcement, were regularly filed. Overall, the paragraph's requirement for prior notice to the trustee neither impeded court access nor imposed unduly burdensome requirements. We conclude that provision did not infringe upon appellant's due process rights, but was designed to aid the trustee in performing his discretionary functions pursuant to the trust's terms.

We cannot, however, reach a similar conclusion regarding the order's consequence for violating the imposed procedure, which eliminated a party's possible right to receive attorney's fees associated with filing and prosecuting requests if the trustee did not support the proposed motion. We conclude this provision is unenforceable and must be stricken, because it represents an impermissible delegation of court authority.

The court alone has discretion to "make an allowance for counsel fees to be paid by any party to the action to a party accorded relief" for enforcement of litigant's rights. R. 1:10-3. "The scope of relief . . . is limited to remediation of the violation of a court order." Abbott v. Burke, 206 N.J. 332, 371 (2011). A party in interest may challenge the actions of a fiduciary, see N.J.S.A. 3B:14-21 (providing grounds for the removal of fiduciary), and an award of attorney's fees is permitted to a party who aids the trust. See N.J.S.A. 3B:14-23(l) (stating a trustee may "employ and compensate attorneys for services rendered to the . . . trust . . . in the performance of the fiduciary's duties").

In this matter, the part of paragraph 19 denying an award of fees if the trustee does not support an enforcement motion is impermissible. Cf. Parish, supra, 412 N.J. Super. at 53 (stating "[e]nforcement of orders rests with the courts"). Accordingly, that provision must be vacated as an inappropriate delegation of the court's discretionary power to award attorney's fees to the trustee.

The final issue raised on appeal is whether the award of attorney's fees to the trustee to respond to appellant's motion represents an abuse of discretion. In light of the judge's reliance on that portion of paragraph 19 we have held unenforceable, we vacate paragraph 3 of the July 3, 2013 order and remand the matter to the judge for consideration of the fee award in light of Rule 1:10-3, N.J.S.A. 3B:14-23(l) and Rule 4:42-9(a)(2) (authorizing fiduciaries to make counsel fee payments from accounts entrusted to them "for administration"), without consideration of paragraph 19.

Any other issues raised by the parties not otherwise addressed in our opinion were found to lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). In summary, we affirm the July 3, 2013 order except paragraph 3, which was expressly based on a provision within paragraph 19, which we declare unenforceable. We remand this matter for review of the trustee's request for attorney's fees and costs incurred in responding to appellant's motion filed on April 16, 2013.

Affirmed in part and reversed and remanded in part.

1 The Dantoni's other two children are Patricia Brinster and Carole Platas. Brinster filed a certification in support of appellant's motion, but neither Brinster nor Platas have participated in this appeal. We have been advised that Samuel Dantoni passed away on October 24, 2014.

2 The order stated its purpose was to "clarif[y] the process for any future motions to enforce litigant's rights in this case," providing

Before a party files a motion, they must first present it to the [t]rustee in writing on notice to all interested parties. After the [t]rustee has reviewed the motion, said motion can be filed with the [c]ourt. The [t]rustee will advise the parties whether or not he/she is in support of the motion to enforce litigant's rights. If the [t]rustee does not support the motion to enforce litigant's rights, then there will be no allowance for attorney's fees and costs from the [t]rust, for that filing party. If the [t]rustee supports the motion to enforce litigant's rights, then the filing party can request attorney's fees and costs associated with the motion, payment of which is subject to review by the [c]ourt.