JACINTO WESLY et al. V. CLARA CAMACHO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3960-05T13960-05T1

JACINTO WESLY and

HILDA WESLY,

Plaintiffs-Appellants,

v.

CLARA WESLY CAMACHO,

Defendant-Respondent.

____________________________________

 

Submitted March 14, 2007 - Decided July 5, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New Jersey,

Chancery Division, Hudson County, No. C-29-05.

Mario M. Blanch, attorney for appellants.

Barry D. Friedman, attorney for respondent.

PER CURIAM

Plaintiffs Jacinto Wesley and his wife Hilda appeal from a judgment entered following a bench trial in the Chancery Division. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs brought this suit to set aside a deed they executed in 2002 transferring to defendant Clara Wesly Camacho a condominium in Union City. Defendant Clara is Jacinto's daughter through his marriage to his first wife, who died in 1977. When Jacinto and Hilda married in 1983, Clara was approximately eighteen years old. At the time of trial, Jacinto was eighty-three years old and Hilda was seventy-nine and in poor health.

In 1997 plaintiffs purchased a condominium located at 200 43rd Street in Union City for $73,900. In connection with this purchase, plaintiffs received $17,500 from Hudson County's Home Investment Partnerships Program, First-Time Homebuyers Assistance Program, and a mortgage for the balance from Summit Bank. In 2002 plaintiffs transferred this condominium to Clara for the stated consideration of one dollar. In December 2004 plaintiffs filed suit in the Chancery Division, seeking to rescind this deed.

At trial, Jacinto testified that he did not understand the import of the document he had signed, and mistook it for a will, under which Clara would receive the condominium after his death and the death of Hilda. The deed was prepared by an attorney who had represented Clara and her husband in the past. Although the attorney did not talk to Jacinto outside the presence of Clara, he testified that he was satisfied that Jacinto understood the transaction and that he was doing it voluntarily.

It was Clara who brought her father to his office. The attorney testified that he considered Clara to be his client but that he never sought a waiver from Jacinto as to the conflict which existed in this situation. He also testified that he never advised Jacinto to seek separate counsel because he did not believe it to be necessary. Clara instructed the attorney not to perform a title search, and the attorney used the deed that Jacinto had received when he and his wife purchased the condominium to prepare the deed transferring it to Clara. The attorney testified that he explained to Jacinto that Jacinto would remain responsible for any debts or liens on the property.

Jacinto was born in the Dominican Republic, and his native language is Spanish. The attorney involved in the transfer of the condominium spoke to Jacinto in Spanish. Prior to coming to the United States in 1958, Jacinto had attended medical school in the Dominican Republic. After arriving in the United States, Jacinto took classes for two years in order to qualify to practice medicine here. Those classes, and the tests that he was required to pass to obtain his medical license, were all in English. Jacinto practiced medicine for a number of years in New Jersey. He did not maintain an office in which he saw patients but worked in a number of hospital emergency rooms. In addition, Jacinto had written several articles on medical topics, each of which was in English.

Clara testified that her father had often spoken of bequeathing her the condominium, but that she was concerned that Hilda might try to defeat such a testamentary disposition and thus she suggested that the property be deeded to her. After the deed was signed and recorded, Jacinto continued to live in the condominium, and to pay its related expenses.

The attorney who was involved in this transaction only prepared the deed transferring the property from Jacinto and Hilda to Clara. He had no involvement in the actual execution of the deed.

Jacinto testified that he signed the document while in the attorney's office, thinking he was executing his will. The attorney, however, testified that Jacinto took the deed with him when he left the office, without having executed it. All of the witnesses to the document executed it in the Dominican Republic.

Jacinto wrote a check to the attorney that day for his services. On the memo line of the check is written "quitclaim deed Clara Wesly (my daughter)." Jacinto testified that he was instructed to write that on the memo line and did not understand its significance when he did so.

It is undisputed that the attorney never met with Hilda to determine if the transfer accorded with her wishes. Hilda, due to her poor health, resided in the Dominican Republic. Jacinto left to visit her the day after meeting the lawyer. He testified that she signed the deed and that he then took it to a notary public in the Dominican Republic to have the signatures notarized.

Jacinto said he did not look at the document again until sometime after he returned to the United States. He maintained that it was only at that point, after seeing the word "sell" in the body of the document that he realized what had happened. He maintained this position despite the fact that the document itself is headed "Deed" in large, bold-faced type and despite the fact that he had purchased and sold several properties in the past.

At the conclusion of these proceedings, the chancery judge rejected Jacinto's testimony as not credible under the circumstances. He found that Jancinto had understood exactly what he was doing when he signed this deed and experienced a change of heart only when he learned that the mortgages he had signed when he purchased the property had a "due on sale" clause, making the balances due immediately payable. As to Hilda, the chancery division judge dismissed so much of the complaint as sought relief on her behalf due to her failure to appear at trial.

In the course of his oral opinion the chancery judge noted the elements necessary to establish a valid inter vivos gift.

The requisite elements of a valid inter vivos gift are well known. There must be (1) an unequivocal donative intent on the part of the donor; (2) an actual or symbolical delivery of the subject matter of the gift; and (3) an absolute and irrevocable relinquishment by the donor of ownership and dominion over the subject matter of the gift, at least to the extent practicable or possible, considering the nature of the articles to be given.

[In re Dodge, 50 N.J. 192, 216 (1967).]

The chancery judge considered the record before him and stated,

So I honestly did not believe and do not believe the plaintiff in this matter that he did not know what he was signing. That concept is contradicted by the plaintiff's 48 years in this country, but more importantly, his studying medicine in this country, his writing essays on the subject in English, him (sic) practicing medicine, his prior financial dealings with purchasing properties and giving mortgages, it makes no sense and I reject it.

Additionally, the chancery judge made the following observation with respect to Jacinto's explanation of the notation on the memo line of his check in payment to the attorney.

I just don't believe that. I reject that. In fact, my notes contemporaneous with Dr. Wesly's testimony on that issue is (sic) that that testimony is nonsense. I don't believe the witness regarding how or what he meant or what he thought quitclaim deed was.

Later, in his opinion, he continued in the following manner:

I have no doubt that this plaintiff wanted to give the subject property to his daughter, I have no doubt. I make that finding because I find that the plaintiff wished to accomplish that fact, knew he was accomplishing that fact, is fluent in English, and I find his testimony generally about his not understanding the subject document unbelievable, for the reasons I've indicated.

The chancery judge also noted, however, that neither party had intended that as a result of the transaction Clara would immediately take up residence and control the condominium. Rather, she had testified that it was always her intent that her father continue to reside in the condominium so long as he wished to do so. As a consequence, the chancery judge directed that the deed Jacinto had executed be reformed to provide that he was to have a life estate in the condominium unit, which would terminate in the event he permanently moved out or abandoned it. The chancery judge specifically declined to deal with the question of the respective responsibilities of the parties for the expenses in connection with the unit.

The standard governing our review of a matter such as this is well known. A reviewing court should not disturb the trial judge's factual determinations unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474.

On the other hand, our review of a trial court's legal conclusions is not so constricted; rather, it is plenary. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 368 (1995).

Here, the findings of the chancery judge, and the credibility assessments that led to them, are clearly stated. We may not disregard them and substitute our own judgments. And, we can perceive no legal error in the legal conclusions reached by the chancery judge in light of his factual findings.

We have considered, and rejected, the possibility of remanding this matter to the chancery judge to deal with the unresolved questions relating to the expenses associated with maintaining this condominium unit. If the parties are unable to resolve that issue by themselves, either is free to return to the chancery court to seek guidance on that question.

We note that with regard to the claim asserted by plaintiff Hilda Wesly, we interpret the remarks of the chancery judge dismissing her claim for non-appearance to mean that she failed to establish her claim by the requisite burden of proof. In light of the judge's factual findings, that conclusion follows ineluctably.

Finally, we reject plaintiffs' contention that the manner in which the chancery judge conducted himself unfairly prejudiced them.

We have long since receded from the arbitrary and artificial method of the pure adversary system of litigation which regards the opposing lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed. The judge may, on his own initiative and within his sound discretion, interrogate witnesses for the purpose of eliciting facts material to the trial . . . . [T]he matter is one which necessarily rests in discretion and depends upon the circumstances of the particular case.

[State v. Riley, 28 N.J. 188, 200-01 (1958), cert. denied, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1959) (citations omitted).]

Our review of this record reveals no abuse of discretion, and nothing which would warrant a reversal.

We affirm the judgment under review substantially for the reasons stated by Judge Thomas P. Olivieri in his oral opinion of February 6, 2006.

Affirmed.

 

Jacinto also had two sons through his first marriage. The record contains no indication they ever took a position on this dispute, and they did not participate in this litigation at all.

The record before us does not disclose how plaintiffs qualified for this program in light of the fact that Jacinto had purchased and sold several properties prior to purchasing the one in question in this lawsuit.

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A-3960-05T1

July 5, 2007