IN THE MATTER ESTATE OF SALVATORE P. TUZZEO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6177-03T56177-03T5

IN THE MATTER OF THE ESTATE OF

SALVATORE P. TUZZEO,

Deceased.

 

Submitted September 27, 2005 - Decided March 2, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-464-02.

Walsh & Walsh, attorneys for appellant Marie Carol Cohen (John K. Walsh, Jr., of counsel and on the brief).

Biagiotti, Marino & Montecallo, attorneys for respondent Salvatore T. Tuzzeo (Robert Montecallo, on the brief).

PER CURIAM

Plaintiff Marie Carol Tuzzeo Cohen ("Cohen") appeals from the August 6, 2003 order of the Chancery Division, Probate Part granting partial summary judgment in favor of defendant Salvatore T. Tuzzeo ("Tuzzeo") and from the May 28, 2004 Order granting judgment following trial of plaintiff's exceptions to defendant's estate accounting. We affirm.

The following facts are relevant to the issues raised on appeal. Cohen and Tuzzeo are the only children of the decedent Salvatore P. Tuzzeo ("the decedent"). In December 1995, the decedent signed a power of attorney in favor of Tuzzeo. That power of attorney was revoked in November 1996. When the decedent died in October 2000, he left a will appointing Tuzzeo as his executor and leaving his entire estate to Tuzzeo. Cohen immediately lodged a caveat against the will which prevented it from being admitted to probate.

Because of the caveat, no one was appointed to act on behalf of the estate until April 3, 2001, when by order of the Probate Part, Cohen and Tuzzeo were appointed to serve as joint limited administrators of the estate. In October 2001, Cohen and Tuzzeo entered into a settlement pursuant to which they agreed that Tuzzeo would serve as the executor of the estate. They further agreed that Cohen and Tuzzeo would share the decedent's personal property equally and that they would share the remainder of decedent's estate with Cohen being entitled to thirty percent and Tuzzeo being entitled to seventy percent. For several months thereafter, the two disputed the value of the personal property and the method for distributing many items in the decedent's collection of memorabilia and antiques. Eventually, in May 2002, the Probate Part judge issued an order fixing a date by which Cohen was required to take possession of the items that she had designated as hers from among the personal possessions.

On November 1, 2002, Tuzzeo filed his complaint for Settlement of the First and Final Accounting of the Estate. Significant to the issues in dispute, he utilized October 12, 2001 as the date on which his obligation to account commenced, as this was the date on which he was appointed as the executor. On January 8, 2003, Cohen filed sixteen exceptions to the accounting. By order dated August 6, 2003, the Probate Part judge granted summary judgment as to the first five exceptions and granted partial summary judgment as to the thirteenth exception. The remaining exceptions were tried over three days in March 2004, along with the third exception, notwithstanding the earlier order granting summary judgment as to that exception. For reasons expressed in an oral decision on April 21, 2004, the Probate Part judge dismissed the remainder of the exceptions after ordering Tuzzeo to make certain adjustments to the accounting.

On appeal, Cohen contends that the judge erred both in granting summary judgment and in her decision after trial. Our review of the record on appeal demonstrates that the Probate Part judge's factual findings are supported by substantial, credible evidence, see Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Similarly, although we owe no deference to the trial judge's interpretations of law, see Manalapan Realty, L.P. v. Township Committee, 140 N.J. 366, 378 (1995), we discern no error of law in her analysis of the exceptions.

We therefore affirm substantially for the reasons expressed by the judge during her oral opinion of April 21, 2004. Because of the nature of the arguments that Cohen raises on appeal, however, we offer the following observations.

Cohen's first argument on appeal is that the judge erred in granting summary judgment as to certain of the exceptions. Although her brief on appeal does not include any specific arguments that identify any claimed error, we address the summary judgment decision briefly. In particular, the First and Second Exceptions both charged that Tuzzeo had improperly failed to account for estate assets because the accounting began on the date when he was appointed to act as the estate's executor rather than on the date when the decedent died. The Probate Part judge granted summary judgment in Tuzzeo's favor on these two exceptions apparently on the ground that prior to Tuzzeo's appointment as executor he was without power to act and therefore could not be charged with the duty to account. Indeed, the filing of the caveat prohibited the Surrogate from authorizing anyone to act on behalf of the estate. See R. 4:82; In re Estate of Watson, 35 N.J. 402 (1961); In re Estate of Aich, 164 N.J. Super. 179, 182 (Ch. Div. 1978). We discern no basis on which to conclude that the judge erred as a matter of law.

Cohen's Fourth Exception asserted that Tuzzeo had failed to account for certain certificates of deposit and bank accounts held at Midlantic Bank or PNC Bank, its successor. Cohen acknowledges that she bears the burden of showing that there are more assets in an estate than those shown on the executor's accounting. See In re Perrone, 5 N.J. 514, 521 (1950). The only evidence relating to these accounts consisted of a series of bank statements, each of which was dated in 1995. In light of the fact that there was no evidence tending to demonstrate that these assets existed at the time of the decedent's death fully five years later, the Probate Part judge appropriately granted summary judgment in Tuzzeo's favor on this exception.

Cohen's Fifth Exception, which merely reiterated the prior four exceptions in summary fashion, was appropriately included in the summary judgment order. On appeal, Cohen raises no argument specifically directed to the order respecting the Fifth Exception and our review of the record reveals no ground on which to overturn the judge's order.

All of the remaining exceptions were addressed by the judge following the trial. Cohen's Third Exception charged that Tuzzeo had failed to account for a Certificate of Deposit that had named the two of them jointly but that had been cashed in prior to the decedent's death. The Probate Part judge decided this issue in Cohen's favor and we see no ground on which to disturb this aspect of the verdict.

The Sixth Exception charged Tuzzeo with commingling estate assets with his own. At trial, Tuzzeo admitted that he had transferred certain monies belonging to the decedent into his own account, but demonstrated to the judge's satisfaction that he had utilized the money in question solely for expenses appropriately owed by the estate and that he had carefully reflected his use of those funds as a part of the accounting. The Probate Part judge directed Tuzzeo to reimburse the estate for bank fees incurred because of these transactions. Cohen's argument on appeal that the executor should not have commingled the funds and should be charged with the proper disposition of the funds of the estate was addressed by the judge and we discern no ground to afford Cohen additional relief.

In several exceptions, Cohen challenged the accounting as it related to decedent's personal property. She asserted that the decedent had been a collector of art and antiques and she challenged the executor's $10,000 valuation of the property. In Exceptions Nine and Ten she identified specific items of property that she believed should have been included in the estate accounting. In Exception Fifteen, she reiterated her assertions about the valuation and distribution of the personal property.

The judge considered the evidence and concluded that certain of the items of personal property had been disposed of by the decedent prior to his death and were therefore properly excluded from the accounting. She then considered the evidence that, prior to the time when Tuzzeo was appointed to act as the executor, both he and Cohen took items from the decedent's residence, each believing that he or she was permitted to do so in furtherance of their agreement to divide the personal property equally. The judge concluded that these items were no longer part of the estate when Tuzzeo became the executor and thus were not properly a part of the assets as to which he was required to account. As to the value utilized for the decedent's personal property, Tuzzeo testified that he and Cohen had agreed to use the $10,000 value. Cohen did not testify and did not deny that she had agreed to the $10,000 value. Rather, she offered newspaper articles describing items that the decedent had owned at one time or another and a $38,000 insurance policy as evidence that the items were of greater value than the agreed-upon amount. In addition, Cohen's daughter testified about her childhood memories of items in the decedent's house and elsewhere.

The judge found that Tuzzeo's testimony about the agreed upon value was credible and that the contrary evidence was insufficient to require that any other value be used in the accounting. We defer, as we must, to the trial judge's determination of credibility, see Rova Farms, supra, 65 N.J. at 484, which is adequately supported by the record.

In Exception Eleven, Cohen charged that the executor failed to insure certain premises that were damaged in a fire. She argued that he should be charged for the diminution in the value of the premises as a result. Tuzzeo testified that the fire occurred prior to the date when he was appointed as the executor. Moreover, he explained in his testimony that the building was dilapidated and vacant and that the decedent had never insured it. This testimony was not contradicted by Cohen. We find ample support in the record for the Probate Part judge's decision to dismiss this exception.

In Exception Twelve, Cohen challenged the valuation of the decedent's real property. She asserted that Tuzzeo used an inappropriately low value because he wanted to purchase the property for less than its fair market value and to deprive her of her fair share of the true value. Tuzzeo relied on an independent appraiser for the value he utilized. At trial, Cohen relied on a different appraiser who valued the property at a higher amount. Although the judge found Tuzzeo's expert's evaluation methodology was more appropriate, she concluded that securing the highest possible price for the property was in the best interests of both parties. She therefore directed that the property be listed for sale to a disinterested third party, as a result of which Cohen's rights to receive her share of the property's fair market value were fully protected.

Exceptions Thirteen, charging Tuzzeo with failing to account for rental income, and Fourteen, charging him with failing to account for $5,143.90 of life insurance proceeds, were also dismissed by the judge following the trial. The judge, after reviewing the accounting, found all of the entries relating to the rental income and the life insurance were in order and she therefore rejected both of these exceptions. On appeal, Cohen has not identified any error in that analysis. On the contrary, Tuzzeo's testimony concerning the rental income and the insurance proceeds was unrebutted and the accounting itself demonstrates that these items were appropriately accounted for.

Exception Sixteen objected generally to payment of commissions to the executor. After considering the evidence and the testimony, the judge found that Tuzzeo had initially agreed, during the will contest, to serve without a fee but that the parties' subsequent settlement agreement did not include a waiver of executor's commissions. Because there is substantial credible evidence in the record for this factual finding, we affirm.

Finally, Cohen argues on appeal that the Probate Part judge should have removed Tuzzeo from his position as the executor of the estate for waste and mismanagement. See N.J.S.A. 3B:14-21c. We reject this contention for two reasons. First, as Cohen failed to seek this relief in the Probate Part, it is not appropriately before us on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, in light of the Probate Part judge's findings of fact and conclusions of law, there is no support in the record for this relief.

 
Affirmed.

Neither party has provided us with the transcript of the judge's decision explaining the reasons for the August 6, 2003 order, and we have therefore derived our understanding of the reasons from the briefs and the record on appeal. Although we note that Cohen has failed in this regard to comply with R. 2:6-1(a)(1)(D), which would permit us to decline to address her arguments concerning this order entirely, see Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002), we have elected to address the appellate points relating to this order notwithstanding this defect.

The Third Exception, which was initially included in the order granting partial summary judgment, was nevertheless the subject of testimony and evidence produced during the trial. We therefore address the sufficiency of the findings of fact and conclusions of law respecting this exception in light of the trial record.

Cohen also charged that Tuzzeo took one or more motor vehicles belonging to the decedent and used them as his own. She does not challenge the judge's decisions respecting the vehicles, as a result of which we need not address them.

(continued)

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A-6177-03T5

March 2, 2006