ANDREA BELLO, PHYLLIS BELLO, et al. v. TERRY LYNN BELLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1461-06T21461-06T2

ANDREA BELLO, PHYLLIS BELLO,

and the ESTATE OF YOLANDA J. BELLO,

Plaintiffs-Respondents,

v.

TERRY LYNN BELLO,

Defendant-Appellant.

_____________________________________

 

Argued November 28, 2007 - Decided

Before Judges Wefing, R. B. Coleman, and Lyons.

On appeal from Superior Court of New Jersey,

Chancery Division, Essex County, No. C-239-04.

Barry S. Block argued the cause for appellant.

Peter R. Bray argued the cause for respondent

(Bray, Chiocca & Miller, attorneys; Mr. Bray,

on the brief).

PER CURIAM

Following a bench trial, the trial court entered a final judgment invalidating a certain deed purporting to transfer to defendant a 99% interest in premises located at 457 Passaic Avenue, Bloomfield, and declaring the Estate of Yolanda J. Bello the holder of the beneficial interest in these premises. Defendant Terry Lynn Bello has appealed from that judgment. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs Andrea Bello and Phyllis Bello are the sisters of defendant Terry Lynn Bello. Their parents were Andrew Bello and Yolanda Bello, both of whom are now deceased. Mr. and Mrs. Bello purchased the house at 457 Passaic Avenue in 1972 and lived in it until their deaths in 1997 and 2003, respectively. By the early 1990's the Bellos were encountering financial difficulties. They were both retired but without a pension. Their only income was Social Security. Andrea lived with her parents and paid room and board; Terry lived in East Hanover and made regular financial contributions to her parents. Phyllis divided her time between Ohio, where she was in school, and New Jersey. She was divorced, with two sons, and not in a position to contribute anything to her parents' support.

Terry began to explore avenues to secure her parents' financial position, while easing the financial burden on her. Terry testified that she was seeking a way to assure her parents financial independence while at the same time permitting her to purchase a home.

Terry consulted with several people, including an attorney specializing in elder care. She testified that she and her parents, after considering a number of different approaches, including a reverse mortgage and the sale of the house, settled on having Terry obtain a loan which would permit her to have significant renovations performed at the house. Terry testified that she understood and advised her parents that her name would have to appear on the deed in order for her to obtain such a loan. As a result, her parents executed a deed transferring to her a 99% interest in the house. Terry said that she agreed the Bellos would live in the house for the balance of their lives, rent-free. At the time this was implemented, in April 1994, the Bellos' monthly mortgage payment was $533.44, and the outstanding balance on their mortgage was $17,224.93.

The closing took place on May 4, 1994. The day before the closing, the Bellos' only assets were the house and a used car. They had no stocks or bonds and no savings. The only jewelry they owned was a pair of diamond earrings Terry had purchased for her mother at an earlier point. Their equity in the house at that point, however, was approximately $100,000. After the closing, their assets consisted of the used car, the diamond earrings and a one-percent interest in the house.

Terry testified that she retained an attorney to represent her in connection with this transaction. She acknowledged, however, that her parents, in correspondence, referred to this lawyer as being their attorney.

In July 1994, two months after the closing, Mr. and Mrs. Bello consulted with an attorney about undoing the transaction. The Bellos did not have the money to pay a retainer fee, however, and they did not pursue seeking legal redress.

Prior to the renovations, the house, which was described as Cape Cod in style, had a living room, kitchen, two bedrooms and a bathroom on the first floor and two bedrooms on the second floor. It also had a one-car garage. Zoning restrictions precluded changing the house to a two-family house, but it was remodeled to a mother-daughter configuration, with the garage being converted to additional living space to be used by the Bellos. The second-floor was remodeled into living space for Terry and her boyfriend. It included a living room, bedroom, small kitchen and a bathroom. Although the Bellos were to live rent-free, they were responsible for utilities; only one meter served the house, however.

Phyllis and Andrea both testified that the first time they heard that their parents had transferred a 99% ownership interest in their house to Terry was after the renovations started. They said that Terry told them at that point that once the renovations were completed, she would deed her interest back to her parents.

At an earlier point, Terry had arranged for her parents to obtain life insurance policies to cover the anticipated costs of their respective funerals, and she paid the premiums on those policies. In 1993, Terry arranged for her parents to transfer ownership of these policies to her. Later, when Terry began to pay the mortgage and taxes, she stopped paying the monthly premiums, and her parents assumed that responsibility.

Disputes erupted during the course of the renovation work and after. Terry testified that at one point her father assaulted her boyfriend, who was doing some of the work on the project. There was testimony that Mr. Bello accused Terry of stealing the house. She also testified that at one point her parents asked for additional electrical work to be done, but she refused, saying it was not part of their agreement.

When the work was completed, Terry and her boyfriend moved into the second floor of the house. The disputes did not abate. Her parents made a number of requests that the property be transferred back to them, but Terry would not do so. Phyllis and Andrea both testified that Terry said that it did not make sense to put the house back into their parents' names because if they had to go into a nursing home, the equity could be taken to reimburse Medicaid.

In October 2001, Terry and her mother filed domestic violence complaints against each other. No orders were entered under the Domestic Violence Act. Rather, an injunctive order was issued prohibiting any communication between Terry and her mother other than the posting of notes, precluding Mrs. Bello from entering her daughter's living area, and permitting Terry to enter her mother's living area only during specified hours one day a week for the purpose of doing laundry. In October 2001 Terry filed a partition action. Mrs. Bello filed a counterclaim seeking to set aside the deed to Terry. That action was administratively dismissed because Mrs. Bello's declining health did not allow her to participate in the litigation.

This action was filed in July 2004 on behalf of Andrea, Phyllis, and the Estate of Yolanda J. Bello; Andrea had qualified as the personal representative of the estate after her mother's death. It sought to set aside the May 1994 conveyance. On appeal, defendant argues that plaintiffs' claim should be barred by laches, that the record fails to support the cancellation of the 1994 deed, that the court failed to recognize that the transaction represented good faith Medicaid planning, and that plaintiffs are unjustly enriched.

We have carefully reviewed the record in this matter, and we are satisfied that all of defendant's contentions should be rejected. We affirm the judgment entered below substantially for the reasons expressed by Judge Harriet F. Klein in her written opinion of August 31, 2006.

Affirmed.

 

(continued)

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A-1461-06T2

February 27, 2008