IN THE MATTER ESTATE OF LOUISE GIAMO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0846-06T50846-06T5

IN THE MATTER OF THE ESTATE

OF

LOUISE GIAMO, Deceased

 
____________________________

Submitted May 14, 2007 - Decided May 29, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, P-253-05.

Charles I. Epstein, attorney for appellant Gail Leibowitz.

DiMaria & DiMaria, attorneys for respondent Michael Giamo (Joseph S. DiMaria, on the brief).

PER CURIAM

Defendant, Gail Giamo Leibowitz, appeals from a trial court order dated August 28, 2006, resolving litigation over the Estate of Louise Giamo. We affirm in part and reverse in part.

I

This appeal arises from a series of probate disputes between two siblings, Michael Giamo and Gail Giamo Leibowitz. By order dated July 11, 2001, the siblings resolved litigation over the guardianship of their mother Louise Giamo. Under the terms of the settlement, Michael was appointed Louise's guardian to serve without posting a bond and without receiving fees or commissions. Louise's will named Michael and Gail as co-executors of her estate.

After Louise's death, Michael filed a verified complaint in which he contended that he had spent over $118,000 to maintain Louise during the guardianship and that some of that money had come from his funds. He attached to the complaint a very detailed record of income and expenditures made during the guardianship. The complaint also alleged that Gail was refusing to cooperate with Michael in executing the dictates of Louise's will and in sharing estate expenses, including real estate taxes, thus exposing estate assets to possible foreclosure. The complaint asked that the decedent's assets be distributed in accordance with the will and that the estate debts be paid from the assets prior to distribution. The complaint did not seek fees or commissions of any kind.

In response, Gail filed a motion to compel an accounting and to remove Michael as co-executor. Gail contended that it was Michael who was uncooperative in settling the estate. She also contended that Michael had mishandled Louise's assets during the guardianship, improperly mortgaged real estate, and failed to file a properly-documented accounting.

The court ordered financial discovery. The court also ordered, on March 9, 2006, that a ring previously owned by Louise be appraised by both parties. Michael was given the option to purchase the ring, and if he did not purchase it, Gail would have the option to purchase the ring. If the parties could not agree on a value, that would become an issue in the scheduled trial. They were unable to agree.

The court held a bench trial on August 7, 2006, at which Michael and Gail testified. We have read the trial transcript. Michael testified in great detail concerning his accounting. During cross-examination, Michael testified and Gail's counsel conceded that Michael had provided to Gail's accountant extensive documentation of disbursements from the account. Gail's counsel conceded that her accountant agreed Michael had provided "receipts supporting [$]9761.87 for cash reimbursement." Michael also produced a bill for the cost of the funeral and the repast which he testified that he paid.

Gail testified at the trial concerning the value of Louise's ring. She testified that she would pay $9000 for the ring. The judge observed that he took her testimony "to establish fair market value." When Michael's counsel asked her to clarify, "The 9,000, do you mean you would give your brother 9,000 for the ring?" Gail replied, "Yes, I do mean that." She was then asked, "You don't mean half?" and she replied, "No, I do not mean half of that."

During summation Gail's counsel clarified that the total amount in dispute concerning funds owed to Michael or owed by him amounted to "2852.43," plus $125 per month that he undercharged a tenant. Counsel also asserted a claim for shares of Tucker Drilling stock, as to which he agreed his client would be satisfied if the judge surcharged Michael for the value of the stock and allowed him to keep the stock.

The trial judge rendered a detailed oral opinion on the record on August 8, 2006. He found Michael to be a credible witness who "performed his obligations honestly, caringly, with a sincere effort to meet his fiduciary duties." He also concluded that Michael "did offer substantial corroboration and detail" to support his informal accounting and that a formal accounting was not warranted. He concluded that "[a]ll books, records, checks, ledgers, and the like were presented to the defendant's accountant and presumably reviewed by him." He found no discrepancy in the amount of money owed on the line of credit Michael took out to pay for Louise's care. After reviewing the documentation concerning the accounting, and accepting Michael's testimony concerning his claim for reimbursement of his own loans to the estate, the judge noted "after all is said and done, about these various and sundry loans, the amount in dispute totals the overwhelming amount of $2,852.44." He concluded Michael was entitled to this amount. He also accepted Michael's testimony and documentation concerning having paid the funeral bill.

The court then addressed the issue of the ring, which both parties wanted. After evaluating the competing appraisals submitted by the parties, the judge valued the ring at $8,750, "which is the accumulation of the high and low appraisals divided by 2." He directed that Michael could buy the ring by paying the estate $4,375. In the alternative, "[Gail] is to pay to [Michael] $8,000 at [Michael's] option." He also denied without prejudice "[Gail's] request that [Michael] should be denied his commissions."

Gail filed a motion for reconsideration of the decision to grant Michael commissions and the decision concerning the ring. Thereafter she filed this appeal, and the trial court denied her reconsideration motion for lack of jurisdiction. However, in rendering his decision on the motion, the judge clarified his earlier oral opinion by indicating his conclusion that Gail's offer to buy the ring for $9,000 "was [a] purposeful scheme to artificially inflate the value of the ring with the thought that plaintiff would purchase it as he testified at the time of trial as it was the only m[o]mento left of his mother."

II

On this appeal, Gail raises the following issues concerning the ring, the award of commissions, and Michael's accounting:

POINT I: THE TRIAL COURT INCORRECTLY GRANTED OPTIONS TO PURCHASE THE DECEDENT'S RING AT PRICES INCONSISTENT WITH THE COURT'S OWN DETERMINATION OF THE VALUE OF THE RING.

POINT II: THE COURT SHOULD NOT HAVE AWARDED COMMISSIONS TO MICHAEL GIAMO AND IT IS UNCLEAR FROM THE RECORD WHETHER THE COMMISSIONS WERE GUARDIANSHIP OR EXECUTOR'S COMMISSIONS.

POINT III: THE TRIAL COURT SHOULD HAVE SUSTAINED THE EXCEPTIONS OF GAIL LEIBOWITZ AND ENTERED JUDGMENT AGAINST MICHAEL GIAMO ON THE EXCEPTIONS.

Having reviewed the record, we first address the award of commissions to Michael. His verified complaint did not seek commissions, and the guardianship settlement explicitly provided that he would not take fees or commissions. However, we do not construe the trial court's judgment as awarding commissions. Neither party actually addressed the issue at trial and the court's oral opinion merely indicated that Gail's objection to commissions was denied without prejudice. No amount of commissions was requested in the complaint, and no amount was included in the judgment.

We find no merit in Gail's objection to the court's decision regarding the accounting. The trial judge's findings of fact and conclusions of law on this issue are supported by sufficient record evidence including his credibility findings. R. 2:11-3(e)(1)(A); State v. Locurto, 157 N.J. 463, 470-74 (1999). We affirm for the reasons stated in the judge's cogent oral opinion of August 8, 2006. Gail's arguments on this issue are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

We find the issue of the ring to be more difficult. Although Gail testified she would pay Michael $9000 for the ring, as the judge recognized at the time, this was in the context of trying to establish its value. Even if her offer was made in bad faith to try to artificially inflate the ring's value, once the judge decided the value at $8750 we can perceive no rational basis for requiring Gail to pay more than that. We, therefore, vacate that portion of the decision and remand for entry of an order permitting Michael to pay the estate $8750 for the ring within twenty days of entry of the order, failing which Gail will have twenty days to pay the estate that amount for the ring. If neither party buys the ring, it should be sold to a third party. We note that at the hearing it appeared that one or more of the other beneficiaries had not received their specific monetary bequests and there may still be outstanding estate debts. If at the time the order on remand is entered, there are no claimants to the estate's assets other than Michael and Gail, the order may provide that in lieu of paying the estate $8750, the party buying the ring may pay $4375 to the other party.

Affirmed in part, reversed in part.

 

To avoid confusion we will refer to all parties by their first names.

Gail's counsel later conceded at the trial that Michael mortgaged the property to obtain money to care for Louise.

The judge decided the Tucker Drilling stock issue and several other issues in defendant's favor; these need not be addressed further as they are not the subject of this appeal.

We note our disapproval of the practice of submitting an order, as counsel did in this case, which incorporates by reference terms set forth in a transcript. The terms of an order should be set forth in paragraphs in the order itself. R. 4:42-1(a)(4).

(continued)

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A-0846-06T5

May 29, 2007