A-0SASHA TRUSSELL v. NEIL WICKS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SASHA TRUSSELL,

Plaintiff-Appellant,

v.

NEIL WICKS,

Defendant-Respondent.

____________________________

ArguedApril 16, 2013 Decided April29, 2013

 

Before Judges Reisner and Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-171-10.

 

Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief).

 

Ren e D. Anthony argued the cause for respondent.

PER CURIAM

Plaintiff Sasha Trussell appeals from a June 21, 2012 order entering judgment for $43,698.55 in favor of her brother,

defendant Neil Wicks.1 We affirm, substantially for the reasons stated by Judge Frank M. Ciuffani, in his written opinion dated June 6, 2012.

I

This is a dispute between siblings over assets of their late mother, Ruth Wichnin. The judgment resulted from a bench trial adjudicating a claim by Neil that Sasha exercised undue influence over their mother. On April 13, 2010, when Ruth was in frail health and suffering from a failing memory, she signed a power of attorney (POA) in favor of Sasha. At the time, Ruth was temporarily living in a rehabilitation facility. Although the POA was prepared by an attorney, Sasha chose the attorney, who later also represented Sasha in this litigation.2

Not long after she signed the POA, Ruth returned to her apartment, where she was entirely dependent on Sasha for her care. A few days after she went home, Ruth signed a letter dated April 25, 2010, purporting to authorize the giving of $52,000 in gifts to Sasha, her husband and their two children. The letter was drafted by Sasha's husband, allegedly at Ruth's

request. However, neither an attorney nor any other disinterested party was present when Ruth signed the document.

Ruth's nephew, Richard Taub, the only disinterested witness who testified about Ruth's physical and mental health, recalled that Ruth was suffering from a dramatic deterioration in her mental faculties from January 2010 onward. He testified that her condition got "progressively worse." According to Taub, Ruth was very concerned about providing for Neil, who had never worked and whose only income was from SSI benefits.

Ruth suffered a massive stroke shortly before Memorial Day 2010. She died on June 1, 2010. A few days before Ruth died, Sasha withdrew almost all of the money from Ruth's several bank accounts and certificates of deposit, and moved the funds into one newly-opened account at a different bank.3 Sasha then wrote out four $13,000 checks to herself and her family members from the newly-opened account. Sasha later failed to disclose her actions to Michael Keefe, Esq., whom the court appointed to administer Ruth's estate.

Keefe went to the first bank searching for Ruth's accounts and discovered that, except for $2000 left in the checking

account, they had all been emptied and closed. Following his investigation, he reported to the court and the parties that Sasha had, among other things, liquidated accounts that were designated Payable On Death (POD) to Neil or POD to Neil and Sasha. The administrator noted that Neil might seek to recoup approximately $43,000, representing his designated share of the POD accounts. Keefe did not seek the return of those funds to the Estate.

In his opinion, Judge Ciuffani found that Sasha exerted undue influence over Ruth at a time when she was physically and mentally debilitated and completely dependent on Sasha. He found that Ruth was in a confidential relationship with Sasha, who held her POA. He noted that Ruth gave away about seventy-five percent of her liquid assets without benefit of advice from a disinterested attorney and at a time when she was mentally and physically weakened. The judge found that Sasha failed to meet her burden of disproving undue influence by clear and convincing evidence.

II

In reviewing Judge Ciuffani's decision, we do not write on a clean slate. We are bound by his factual findings so long as they are supported by sufficient credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484

(1974). We review his legal conclusions de novo, but viewed through the lens of his factual determinations. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Judged by those standards, we find no basis to disturb the trial judge's decision. The record overwhelmingly supports his finding that Sasha had a confidential relationship with Ruth, and that Sasha failed to prove that the "gifts" were not the product of undue influence. It is apparent from their testimony that Sasha and her husband felt Neil had gotten an undeserved share of Ruth's beneficence. By inducing Ruth to sign the gift letter, they obtained what they believed was due them for the time they spent caring for Ruth. The gift letter appears to have been a product of their will rather than Ruth's.

On this appeal, Sasha argues that she acted pursuant to the POA, which she contends Neil acknowledged as valid. Those contentions are inaccurate. First, Sasha did not purport to act under the POA. Rather, she had her mother sign a letter authorizing the gifts. Therefore, the central issue in the case was whether Sasha exercised undue influence in having her mother sign the letter. Second, Neil did not acknowledge that the POA was valid.

During the trial, Neil's attorney attempted to challenge the validity of the POA, but the judge did not permit her to

pursue that line of inquiry because Neil's pleadings did not include a challenge to the POA. Contrary to Sasha's appellate arguments, the trial judge made no finding concerning the validity of the POA. However, Taub's testimony strongly supports a conclusion that, even if Ruth had the capacity to sign a POA allowing Sasha to care for her, she did not have the capacity to authorize Sasha to make gifts of her assets.

We agree that there was sufficient evidence here of undue influence to require Sasha to prove that the gift letter was the product of Ruth's free will:

If the donor is dependent on and makes an "improvident gift" to the donee that strips the donor of all or virtually all his assets, a presumption arises that the donor did not understand the consequences of his act. In this context, the donee must show that the donor "had the benefit of competent and disinterested counsel." A similar rule applies when a physically or mentally weakened donor, without receiving any advice, makes a gift to a donee on whom the donor depends. If that gift leaves the donor without adequate means of support, the presumption of undue influence is conclusive.

 

[Pascale v. Pascale, 113 N.J. 20, 31 (1988) (citations omitted).]

The record we have suggests that Ruth's assets were modest. Not only did the $52,000 in gifts deprive Ruth of the majority of her liquid assets, they also stripped bank accounts that Ruth had specifically earmarked for Neil's benefit. This result was

contrary to Ruth's repeatedly expressed wishes that Neil be provided for after her death. These circumstances, together with Ruth's failing health and dependence on Sasha, were more than enough to create a presumption of undue influence that Sasha had the burden to rebut.

When the presumption of undue influence arises from an inter vivos gift, the donee has the burden of showing by clear and convincing evidence not only that "no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood."

 

[Ibid.]

As we noted above, there was ample evidence to support the trial judge's finding that Sasha failed to carry her burden.

We decline to consider Sasha's arguments concerning the amount of the judgment in Neil's favor, because they were not raised in the trial court. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). Her remaining appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In the interest of clarity, and intending no disrespect, we will refer to the immediate family members by their first names.

2 A different attorney represented Sasha on this appeal.

3 She also transferred to this new account about $29,000 from Neil's joint account with Ruth, which was funded with his SSI benefits. In a separate order, not at issue here, the court required Sasha to repay the $29,000 to Neil.

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