MARIANNE CANINO v. JAMES R. CANINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2711-05T32711-05T3

MARIANNE CANINO,

Plaintiff-Respondent,

v.

JAMES R. CANINO,

Defendant-Appellant,

IN THE MATTER OF THE ESTATE OF

JAMES R. CANINO, DECEASED.

________________________________

 

Argued: May 30, 2007 - Decided June 15, 2007

Before Judges Coburn, Axelrad & R.B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, FM-02-2859-04.

Warren J. Kaps argued the cause for appellant (Kaps & Barto, attorneys; Mr. Kaps & Raymond Barto, on the brief).

Andrea J. Sullivan argued the cause for respondent (Greenbaum, Rowe, Smith & Davis, attorneys; Mr. Sullivan, of counsel and on the brief; Michelle M. Sekowski, on the brief).

Charles J.X. Kahwaty, attorney, guardian ad litem for minors C.C. and J.J.C., relying on the brief filed by respondent.

PER CURIAM

The Estate of James R. Canino appeals from a trial court order of July l2, 2005, granting partial summary judgment to Marianne Canino determining the Estate has no interest in the property located at l58 Country Club Drive in Oradell, New Jersey. We affirm substantially for the reasons articulated by Judge Koblitz following oral argument.

Marianne and James Canino were married in l989. In l990, they purchased the Oradell property with money from James' father. Title to the property was taken in the names of "James R. Canino and Marianne Canino," without reference to their relationship as husband and wife. Nor did the instrument designate the parties' interests as joint tenants or tenants in common. In 2004, Marianne filed for divorce but James died in a motorcycle accident prior to its resolution. His Will left his entire estate to the minor children of the marriage through a testamentary trust. Marianne continued to reside in the property with the parties' children.

James' Estate filed suit against Marianne, contending the parties held title to the Oradell property as tenants in common rather than as tenants by the entirety. Accordingly, the Estate claimed it was entitled to a one-half interest in the property, which should vest in the testamentary trust created for the children under James' Will. The trial court granted Marianne's partial summary judgment motion, holding she was entitled to one hundred percent ownership in the property by operation of law upon James' death since it was held as a tenancy by the entirety. The remaining issues in the case were settled by the parties subject to the Estate's right to appeal issues relating to ownership of the family home. This appeal ensued.

On appeal, the Estate argues the court erred in holding that the property was held as a tenancy by the entirety, not a tenancy in common, because the conveyance did not include the designation "husband and wife," which it asserts is required under N.J.S.A. 46:3-17.2 to create a tenancy by the entirety. N.J.S.A. 46:3-17.2 provides in pertinent part:

A tenancy by entirety shall be created when:

a. A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife . . .

. . . .

Language which states "...... and ......, his wife" or ".......... and .........., her husband" shall be deemed to create a tenancy by the entirety.

The Estate further contends the court ignored James' father's certification about the intent of the couple as to the ownership of their marital home, which raised genuine issues of material fact precluding summary judgment.

We are satisfied Judge Koblitz properly rejected the Estate's argument, concluding that N.J.S.A. 46:3-17.2 does not mandate the use of the words "husband and wife" to create a tenancy by the entirety, but merely specifies that one is created if those words are used. The Estate acknowledges that this statute must be read in conjunction with N.J.S.A. 46:3-17.3, which codifies the common law presumption that a husband and wife hold as tenants by the entirety whenever they hold property together, unless the document of title expresses otherwise. N.J.S.A. 46:3-17.3 states:

No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or a joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it was intended to create a tenancy in common or joint tenancy.

As nothing in the deed manifested an intent to create a tenancy in common or a joint tenancy in the Oradell property as required by N.J.S.A. 46:3-17.3, the trial court properly concluded the parties held the property as tenants by the entirety. Thus, upon James' death, his interest in the property passed to his wife Marianne by operation of law, leaving no interest to pass to his children by testacy. The trial court appropriately deemed James' father's certification extrinsic and irrelevant to the determination of the issue.

The Estate also contends, for the first time on appeal, that equity mandates the imposition of a constructive trust upon James' interest in the marital home "to benefit the minor children born of the marriage and to prevent failure of justice." This issue was not presented to the trial court. The Estate's complaint only requested that James' one-half interest vest in the testamentary trust, which is a separate cause of action from a constructive trust. See Carr v. Carr, 120 N.J. 336, 351 (1990) (Unlike a testamentary trust, which is created by a testator in his Will, a constructive trust is equitable in nature, and is "invoked to prevent unjust enrichment or fraud."). We thus decline to consider this issue on appeal, as it neither concerns trial court jurisdiction nor matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

 

According to appellant's brief, the issue pertaining to life insurance proceeds similarly reserved for appeal and contained in the notice of appeal also has been settled by the parties.

(continued)

(continued)

5

A-2711-05T3

June 15, 2007