IN THE MATTER ESTATE OF DORIS HARRIS BRODY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2908-04T52908-04T5

IN THE MATTER OF THE

ESTATE OF DORIS

HARRIS BRODY, DECEASED.

________________________________________________________________

 

Submitted October 3, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth

County, Docket No. MON-P-150-04.

Appellant, Alan Harris, submitted a

pro se brief.

Mary E. Scrupski, attorney for

respondent, Eli Brody.

PER CURIAM

Alan Harris (referred to herein as Harris), executor and heir of his mother's, Doris Harris Brody's, estate, appeals from an order enforcing the settlement of a will dispute between Harris; his mother's husband, Eli Brody (Brody); and his brother, Robert Harris. Harris claims the settlement and enforcement orders entered by Judge Lehrer should be vacated because of misconduct and fraud by the judge, Brody, and Brody's counsel. Harris further claims the judge erred when he removed him as executor and substituted an attorney as administrator c.t.a. of his mother's estate. We affirm.

Doris Brody died on September 20, 2003. She was survived by Brody, her husband of twenty-five years, and her three children from a prior marriage, Alan, Robert, and Laurence Harris. At the time of his wife's death, Brody was 86 years old, and had two children from a prior marriage. The deceased's will, dated January 14, 1992, designated Harris as executor and left to him the majority of the estate's assets. The will bequeathed decedent's car, a 1999 Buick Century, to her son Robert Harris and explicitly left nothing to Brody or her other son Laurence Harris. When Harris submitted the will for probate, Brody filed a caveat, and upon Harris's motion, Judge Lehrer issued an order to show cause why the caveat should not be removed and the will admitted to probate.

After the parties had an opportunity to engage in some discovery, they appeared before Judge Lehrer for a case management conference. A settlement was reached, which removed the caveat and permitted the will to be probated. The parties agreed that Brody would have a life estate in the marital home and pay the taxes and maintenance for the residence. Brody would also obtain title for, and pay the costs associated with, the use of decedent's car until his death or voluntary relinquishment, at which time the car under the will would go to Robert Harris. In addition, Brody would receive the distributions from decedent's Wien and Malkin real estate investment retroactive to the date of decedent's death and a $10,000 cash payment from Harris. The settlement also provided that Harris would receive title to the marital home as remainderman and access as a landowner to inspect; all of decedent's stocks and dividends; and decedent's personal property, including her jewelry, clothing, handbags, shoes, and a set of dishes. Harris and Brody also agreed to pay their own fees and costs and to sign a general release of all claims against one another.

Harris's attorney submitted a draft judgment to Judge Lehrer, in accordance with R. 4:42-1(c), and about three days later, Harris and Robert Harris both objected. Harris argued the judgment was one-sided and contained terms that were ambiguous and not agreed to at the conference. He requested clarification of the terms and responsibilities and an itemized list of decedent's dividend checks and jewelry. Robert Harris objected to the draft judgment also. Even though Robert was present at the settlement negotiations, and specifically gave Harris his proxy to agree to the procedures that had been utilized, Robert argued that Harris "as pro se attorney for the estate" did not represent his interests, and it was unfair that he received no compensation for Brody's use of his mother's car. About six days thereafter, Judge Lehrer signed the judgment without hearing argument on the objections.

Approximately eight days later, pursuant to the agreement, Harris obtained from Brody decedent's jewelry and personal property. The caveat was withdrawn and the will admitted to probate. Letters testamentary were issued to Harris.

Nevertheless, about a month and half later, Harris moved to vacate the settlement. Judge Lehrer heard oral argument on the motion and Brody's cross-motion for enforcement. Judge Lehrer denied Harris's motion to vacate and after finding the motion without merit, awarded attorney's fees to Brody. The judge granted Brody's enforcement motion and ordered Harris to make the $10,000 payment, endorse the title of decedent's car, and sign the general release in favor of Brody. The judge ordered Brody to sign the general release and deliver all dividend checks to Harris. If Harris failed to comply, the order specified that he would be removed as executor of the estate.

Harris failed to comply with the order and Brody, once again, moved for enforcement. The judge found Harris had been dishonest, had failed to comply, and would not comply with any of the orders. Therefore, the court removed Harris as executor and appointed an attorney, unrelated to either party, as administrator. The judge further ordered that $830 of Brody's attorney's fees should be paid from Harris's share of the estate. In a separate order, the court compelled the Division of Motor Vehicles to issue title to decedent's vehicle in Brody's name.

Harris appealed and sought from this court an emergent stay of the judge's order. In the emergent motion, Harris requested a stay of his removal as executor, the fee award, and the directive to the DMV. After granting a brief temporary stay, we ultimately denied the application.

On appeal, Harris raises a plethora of arguments attempting to overturn the settlement and his removal as executor. For example, Harris claims the "caveat was wrongfully placed," and the judge should have simply removed the caveat rather than coercing a settlement through "judicial misconduct," including ex parte communications, misleading statements and promises, "bait and switch tactics," harassment and insults, and the condoning of "fraud," "forgery," "bad faith," "extortion," concealment by Brody of the true value of the estate, and "embezzlement." Harris's brief on appeal does not challenge either the directive to the DMV or the award of attorney's fees. Consequently, we do not address these issues. See R. 2:6-2; Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998).

We commence our analysis of Harris's arguments on appeal with the often stated principle that "'settlement of litigation ranks high in [the] public policy'" of this State. Nolan ex rel. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). Because settlements are so important, they are to be upheld "barring fraud or other compelling circumstances." Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974). To vacate a settlement, we require clear and convincing justification. Nolan, supra, 120 N.J. at 472. Such justification is lacking in this case, despite the fervor and vituperation with which Harris presents his arguments.

The dispute generated by the caveat was real. Brody contested the will's validity, claiming that decedent informed him that she did not have a will, and challenging the legality of the clause providing "no gift, devise or bequest to him and direct[ing] that no part of my Estate shall be given to him." A surviving spouse has a right to an elective share of one-third of the decedent's estate. N.J.S.A. 3B:8-1. The surviving spouse may elect the share by filing a complaint in Superior Court within six months of the executor's appointment. N.J.S.A. 3B:8-12. However, a surviving spouse may waive their right of election in a signed, written contract. N.J.S.A. 3B:8-10.

Here, Brody and decedent were married for quite some time, residing together at the time of her death. They were not estranged, and although Harris claims that his mother and Brody had agreed not to provide for each other in their wills, there was no antenuptial agreement, contract, or other writing in the record signed by Brody indicating he had waived his right to an elective share. In fact, Brody certified that he believed his wife did not have a will and that upon her death he would inherit one-half of her assets. Consequently, the caveat, which was filed before Harris was appointed executor, raised a timely and real dispute over the will and constituted a legitimate subject for settlement.

In conducting settlement negotiations, judges must "remain fair and impartial, in order to ensure that the 'settlement [is] wrought by the parties, not [the court]." Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994) (alterations in original) (citing 75 Am. Jur. 2d Trial 287 at 505 (1991)). Our review of the record in this matter reveals that Judge Lehrer did not lose his impartiality and that the settlement was freely and knowingly entered into by the parties.

It is true that Judge Lehrer met ex parte with the parties when attempting to negotiate this settlement. Ex parte communication during settlement negotiations has caused difficulty in the past. See Peskin, supra, 271 N.J. Super. at 279 n.1 (criticizing as "inappropriate" a pre-trial, ex parte meeting where the judge discussed with the plaintiff the financial issues in the divorce matter and solicited "what [plaintiff] 'envisioned' would be a fair settlement"); In re Yaccarino, 101 N.J. 342, 385 (1985) (where the judge engaged in "extended ex parte communications" including several telephone conversations with one of the parties).

Although there have been problems in the past, ex parte communication is not prohibited in all instances. See N.J. Code of Judicial Conduct, Canon 3A(6) (precluding ex parte communications except "as authorized by law"); R. 1:2-1 (permitting settlement conferences to be held in the judge's chambers); R. 1:2-2 (permitting settlement discussions to be held off the record).

In this case, Judge Lehrer was careful to maintain his impartiality throughout the negotiations. The parties were all present in the judge's courtroom when the settlement discussions occurred. All of the parties were aware they were engaging in settlement discussions. Although each party met with the judge independently, they all remained in the courtroom and therefore had access to one another. The judge placed the settlement on the record, appropriately questioned all of the parties about the process, and specifically asked questions regarding his involvement. The record is replete with evidence that all parties accepted the process as fair and consented to the terms as just.

When the judge asked whether Harris understood the agreement that was placed on the record, he replied "[a]bsolutely." Most revealingly, after Judge Lehrer asked Harris whether the agreement was one he intended and wanted to reach with Brody, he stated "[i]t's beautiful to me, thank you, your Honor." Finally, when asked whether the agreement was a fair and reasonable compromise, Harris simply answered "[y]es."

Although Harris argues Judge Lehrer coerced the settlement, the record belies such a claim. While questioning Brody, Judge Lehrer announced that the record should reflect that he "twisted all of your arms, have I not?" Harris interrupted to exclaim: "[y]ou didn't twist mine, Your Honor . . . . I went willingly." Upon being specifically addressed by the judge, Harris agreed that the judge had twisted his arm to settle the case, but that the judge had "spelled [] out clearly without any confusion" the emotional, legal and financial reasons why settlement was in Harris's best interest. When directly asked whether the judge's "active involvement in this case has in any way forced, threatened, or coerced" Harris into doing something that he felt was unfair, Harris replied "[q]uite the opposite your honor, it has not."

The record reflects Judge Lehrer's careful, though active, efforts to serve the parties' settlement interests. We do note, as an aside, that the judge conducted the negotiations with humor, which is sometimes important to place litigants at ease, but unfortunately can be misinterpreted, which is what may have happened here to some degree. In any event, the parties were given ample opportunity to object to the settlement terms and to raise questions, on the record, about their concerns. Instead of asking a question or raising a concern, Harris stated: "I'd just like to thank the Court for it's time." This statement and others Harris made on the record directly conflict with his contention on appeal that he "had no idea what the value of the estate was," and therefore, would not have settled were it not for the inappropriate pressure applied by the judge.

Because we cannot find any judicial coercion or any other form of judicial misconduct on the record, we reject all of Harris's arguments on this ground. We will not allow Harris's change of heart to justify vacation of a settlement to which he willingly and knowingly consented.

The record reflects that the parties entered into the settlement immediately after Judge Lehrer assisted in the negotiations. The judgment that Brody's attorney was asked to draft merely memorialized the settlement. Contrary to Harris's contention, the settlement was not contingent upon a written consent agreement, but was instead finalized on the record.

The judge did indicate that if there were an objection to the proposed judgment, he would "pull [the objector] in here, we'll work out the objection and deal with it." However, there is no need for further proceedings when a party submits an objection that is unfounded on its face.

Contrary to the written objections, the record indicates that the terms of the judgment comport with the terms of the agreement as entered on the record. Accordingly, Judge Lehrer was acting appropriately within his discretion when he signed the settlement order without hearing oral argument or conducting any further proceeding. See Pressler, Current N.J. Court Rules, comment 3, R. 4:42-1(c) (2005).

Harris also raises substantive reasons why the settlement should be vacated under R. 4:50-1. For example, Harris argues he learned only after submitting decedent's will to probate, that Brody had forged dividend checks and sold some of decedent's stock.

Harris has included in the appendix documents tending to demonstrate that Brody indorsed checks in decedent's name. However, the record indicates that this conduct was addressed before the settlement. In fact, Harris first raised the issue of forged checks in his affidavit in support of his order to show cause. Because the parties reached a settlement knowing of this conduct, there is no reason to void the agreement.

Harris also claims Brody committed fraud and "grand larceny" when he sold stock in decedent's name and wants a complete accounting, seeking the "turn over [of] all mail, all financial and all joint Tax returns and other tax documents for the last five years." Even if Harris did not know about the sale of decedent's stock before the settlement, there is no evidence that Brody intentionally withheld this information. Furthermore, the record does not support Harris's argument that he detrimentally relied on an incorrect valuation of decedent's stock because he never had an exact amount upon which to base his reliance. Therefore, Harris's contention fails to establish equitable fraud, see Jewish Center of Sussex County v. Whale, 86 N.J. 619, 625 (1981), and provides no other basis to vacate the settlement judgment.

We also find no error in the judge's removal of Harris as executor. A court may remove an executor when the court has properly entered an order and the executor "neglects or refuses to perform or obey the order or judgment within the time fixed by the court." N.J.S.A. 3B:14-21(b). When there is conduct by a fiduciary toward a beneficiary which causes mutual animosity between them and is likely to interfere with the performance of duties, a court may invoke its equity powers to remove the trustee. Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360-61 (App. Div. 1985). It is within the discretion of the trial court to remove the executor of a will and that decision "will not be disturbed by an appellate tribunal in the absence of manifest abuse." Id. at 360.

Here, the record is clear that Harris repeatedly refused to obey the court's orders. Although Harris took advantage of the settlement terms that benefited him personally, by probating the will and collecting decedent's personal possessions, he failed to comply with his obligations under the settlement and violated the judge's subsequent enforcement orders. In fact, Harris was specifically warned that failure to obey would result in his removal.

Although Robert Harris was alternate executor under the will, the record demonstrates that the relationship between Brody and Robert Harris is the same as between Harris and Brody. Just as there is hostility between Harris and Brody, the same exists between Robert Harris and Brody. Therefore, the judge was well within his discretion in removing Harris as executor and replacing him with an impartial attorney. See In re Koretzky, 8 N.J. 506, 533 (1951).

In conclusion, we find no basis, under R. 4:50-1 or otherwise, to vacate the settlement or to reverse the judge's order removing and replacing the estate's executor. We point out, however, that the exchange between Brody and Harris of general mutual releases, as required in the settlement judgment, should not include claims the estate may have against monies, stock, or any other assets Brody has taken that properly belong to the estate. There is evidence in the record that Brody has, for example, cashed dividend checks and sold stocks that appear rightfully to belong to the estate. We assume that the administrator shall take whatever steps are reasonably necessary to marshall the assets for proper distribution and accounting in accordance with the will and the settlement judgment.

Finally, we acknowledge the great difficulty we had in understanding Harris's main and reply briefs, which vigorously attacked the integrity of the judge, Brody, and Brody's attorney. Our analysis of the record discloses that any other arguments of Harris that we have not addressed specifically have nevertheless been carefully considered and found to be without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

 
Affirmed.

Harris claims that on March 4, 2005, the police impounded decedent's vehicle because the registration had expired.

The record also indicates Harris had some knowledge of the value of the estate. Harris stated he "knew that any demands upon the Will were satisfied by Eli Brody's life estate in the house according to the elective share clause."

(continued)

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A-2908-04T5

October 25, 2005