IN THE MATTER OF THE TRUST UNDER THE WILL OF ANNE DeGENNARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE TRUST UNDER

THE WILL OF ANNE DeGENNARO.

____________________________________

October 7, 2014

Argued September 24, 2014 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-160-12.

Robin T. Wernik argued the cause for appellant Gina DeGennaro (Wernik & Salvatore, attorneys; Ms. Wernik, on the briefs).

Paul V. Fernicola argued the cause for respondents Carlo DeGennaro and Marianne DeGennaro (Paul V. Fernicola & Associates, LLC, attorneys; Mr. Fernicola, of counsel; Robert E. Moore, on the brief).

PER CURIAM

Gina DeGennaro appeals the Probate Part's July 30, 2013 order precluding her from obtaining certain personal items belonging to her late parents and requiring her to execute releases to the co-trustees of trusts created by her parents' wills. We vacate the order on appeal and remand to the Probate Part for further consideration.

I.

We discern the following facts and procedural history from the record on appeal.

Charles DeGennaro and Anne DeGennaro had six children: Teresa Fiorca, Marianne, Anthony, Louis, Carlo, and Gina DeGennaro.1 Anne died on November 12, 2002. At the time of her death, she owned the family home. Her will created two trusts. The will left all of Anne's assets, other than jewelry and other personal possessions, to the first trust, which was for Charles's benefit during his lifetime. Upon his death, the trust was to terminate and its assets were to be divided into nine equal shares: one share each passing to Anthony, Marianne, and Teresa, and two shares each passing to Gina, Carlo, and Louis. Louis's share was to be held in the second trust, with net income paid to him on a quarterly basis. Marianne and Carlo were named as co-trustees of both trusts.

Charles died on July 11, 2008. The DeGennaro children then met to divide their parents' personal property. They also decided that the home should be sold.

Gina, who was living in the family home at the time, was unwilling to agree on a date by which she would arrange her belongings so that the house could be shown to potential buyers. On August 22, Gina sent a letter to her siblings, through counsel, asserting that her undivided interest in the home prevented them from evicting her.

On February 20, 2009, the six DeGennaro children entered into an agreement that set specific timelines by which Gina was required to tidy up her belongings so that the house could be shown by a realtor. The agreement provided

4. Within thirty (30) days of the date of this Agreement, Gina shall have caused her room and any other rooms that she occupies or in which she stores personal possessions to be in a condition that allows the Property to be shown for sale.

. . . .

7. Within the later of sixty (60) days of the date of execution of this Agreement . . . Gina shall complete the clean out of all of her possessions in the basement of the house.

. . . .

11. In the event that Gina continues to occupy the Property after thirty (30) days of the execution of this Agreement, then she shall contribute in a proportionate manner her share of utilities, real property taxes, insurance and maintenance costs associated with living in the Property, with such charges to be billed directly or deducted from her share of the sales proceeds.

The agreement also provided that, if Gina failed to comply with the timelines established in the agreement, Carlo and Marianne were authorized to remove Gina's possessions from the residence.

On June 15, counsel for the trust advised Gina that she was not in compliance with the agreement. He asserted that her noncompliance adversely affected the trust's ability to sell the house and, in turn, make distributions to the beneficiaries. In addition, the letter notified Gina that Carlo, who was also still residing in the house, had offered to purchase it for $916,500 and to allow Gina to remain for a period sufficient for her to find new housing.

On July 6, the trust's counsel again notified Gina that she was in violation of the agreement. On August 20, counsel suggested to Gina that the distribution of the "contents of the home" would be best resolved through "a family meeting."

On August 7, Anthony, Teresa, and Marianne filed certifications with the Probate Part consenting to the sale of the family home to Carlo. On September 1, Louis and Gina also agreed to the sale. However, the siblings were unable to agree on the terms of the proposed contract for the sale.

On May 18, 2012, Louis filed an order to show cause and the verified complaint in the present action. Louis sought an order terminating the first trust, requiring the sale of the family home, and distributing the proceeds, including the funding of the second trust.2 He argued that co-trustees Carlo and Marianne had frustrated the trust's purpose, mismanaged the trust, and violated their fiduciary duties. Louis also sought an order requiring Carlo and Gina to pay rent for their occupancy of the family home.

Carlo opposed Louis's application. He asserted that Gina's continued noncompliance with the siblings' agreement and her refusal to tidy her personal belongings resulted in the trustees' inability to sell the house and use the proceeds to fund Louis's trust.

The Probate judge heard oral argument on July 6. She approved Carlo's purchase of the family home, with the closing to take place within ninety days of the date of the hearing.3 With respect to Gina, the judge ordered4 the following

IT IS FURTHER ORDERED: Gina DeGennaro will vacate and remove her personal belongings from the [family home] within 90 days of July 6, 2012, the date the Order was entered on the record;

IT IS FURTHER ORDERED: in the event that Gina DeGennaro fails to so vacate, then Carlo DeGennaro, as the intended purchaser of the property, has the right for the immediate entry of an order for possession and evict Gina DeGennaro, who is not and shall not be considered a tenant subject to anti-eviction statutes . . .

. . . .

IT IS FURTHER ORDERED: that the previous list of personal property distribution is incorporated into this Order and all parties are to collect the personal property allocated to them by the list within 120 days from July 6, 2012, the date the Order was placed on the record, or waive all claims to the personal property; and

 
IT IS FURTHER ORDERED: that additional personal property contained in the Holmdel property and not addressed and agreed upon by the DeGennaro siblings in the prior distribution list may be agreed upon to be disbursed amongst the beneficiaries: failure to agree on such disbursement within 90 days from July 6, 2012, the date the Order was placed on the record, is not grounds to delay the move out date set for Gina DeGennaro and it is not to delay the closing date for the purchase of the home by Carlo DeGennaro.

. . . .

 
IT IS FURTHER ORDERED: Gina DeGennaro has fourteen days from July 6, 2012, the date the Order was placed on the record, to request additional items from the house which were not addressed and agreed upon by the DeGennaro siblings in the prior distribution list[.]

The order also required all parties who had entered an appearance in the action to execute "mutual releases."

On August 7, after the judge had ruled from the bench but before the judge had signed the order, Gina sought and received a temporary domestic violence restraining order (TRO) against Carlo, alleging that he was taking videos and photos of her in the family home. Gina misrepresented to the Holmdel Township police that she was a fifty percent owner. Carlo, who had been taking photos of the damage to the home, was escorted out of the residence by the police and not permitted to return. Gina failed to appear on the return date of the TRO, which was subsequently dismissed.

On October 22, following Gina's failure to comply with the August 17 order and her filing of the temporary restraining order against Carlo, the Probate judge issued an order granting sole possession of the residence to Carlo and requiring Gina to vacate it. The parties continued to negotiate with Gina after the entry of the October 22 order in an attempt to settle their disputes. However, they did not reach a settlement.

In May 2013, Carlo and Marianne sought enforcement of the August 2012 order. They alleged that the delay in the settlement of the first trust resulted from Gina's refusal to sign the release and her refusal to approve the final accounting of the estate. Gina opposed the application, claiming that she was unable to return to the family residence and remove her "furniture of choice."

On June 14, the Probate judge heard oral argument. Gina asserted that Carlo would not grant her entry to the family home. Carlo argued that Gina was unresponsive to correspondence regarding the removal of her remaining property and that she failed to retrieve her property when she was given the opportunity to do so.

The judge required Gina to create a list of the personal property she wanted from the family home and supply the list to the trust's attorney. He was to respond, listing the items as to which there was agreement and disagreement. The judge directed that, "[i]f they all agree[,] then I will set the date and time, and if [Gina] doesn't go, the order will say she can never go back again." Gina's attorney asked what would happen if the parties could not agree on the items Gina was entitled to remove. The judge responded that Gina would "have to file a motion."

The judge directed Gina to pick up the agreed-upon items on July 11, between 9 a.m. and 4 p.m., and to deliver her signed litigation releases at that time. The judge again told the attorneys that "if they can't agree on the personal property then we have to be here on [July] 18th."

The judge instructed Gina's counsel to draft an order incorporating her ruling from the bench. On June 24, the judge entered the order prepared by Gina's attorney. On the same day, the trust's attorney submitted his own proposed order. His cover letter to the judge makes no reference to the order already signed that day. The second order, with the word "Amended" handwritten on it, was signed by the judge on July 2.

The order prepared by Gina's attorney did not contain the judge's direction from the bench that "[i]f they all agree[,] . . . if [Gina] doesn't go, the order will say she can never go back again." The order prepared by the trust's attorney required Gina to pick up any items as to which there was agreement on July 11, even if there was disagreement about some of the items. The items as to which there was disagreement were to be resolved in court on July 18.

On June 27, the trust's attorney responded to the letter from Gina's attorney listing the items sought by Gina. The letter represented that the trustees would allow Gina to have approximately half of the items she had requested. It further represented that many of the other items Gina requested had already been distributed to other family members, either at the time of Anne's death or during the initial distribution following Charles's death, or were no longer in the house. The letter offered to discuss the matter further so as to avoid additional court appearances.

On July 1, Gina's attorney sent a letter advising that Gina had discussed the issue with Marianne and was willing to attempt to resolve the issues in person, failing which she would proceed in court on July 18. On July 4, the DeGennaro children, other than Teresa and Louis, met at the family home to discuss the items requested by Gina. Negotiations broke down when Gina left after two hours, prior to any final resolution.

On July 9, the trust's attorney sent Gina's attorney two lists, one containing items which the other siblings agreed to allow Gina to have and the second containing items as to which she would have to waive her rights. The letter asserted that "Gina may pick up the items included [on the first list] on July 11th in exchange for her waiving all rights to all other items, including but not limited to the items included [on the second list]."

On July 10, the trust's attorney sent Gina's attorney an email containing a copy of the July 2 amended order, which he had apparently just received that day. That was her first notice that the second order had been signed. On July 11, Gina's attorney responded that Gina would not be retrieving her items on July 11 because there was no final agreement regarding the distribution of items and she had already cancelled the moving truck for that reason.

Gina did not pick up anything on July 11. On July 15, in anticipation of the July 18 court appearance, Carlo, Marianne, Anthony, and Teresa filed certifications requesting the judge to determine that Gina was only entitled to the items on the first list attached to the July 9 letter.

On July 18, the parties appeared before the Probate judge as previously scheduled. Gina's attorney argued that Gina did not agree to the first of the July 9 lists because of the trustees' insistence that, by doing so, she would waive her right to claim the items that were not on the list. When the judge asked which items Gina still wanted, her attorney responded that Gina only referred to the "dining room table" and that the parties "could not come to an agreement."

The judge held that, in light of Gina's refusal to cooperate with the court and her siblings, she would enforce the terms of the July 2 order. The judge observed: "It's obvious to this Court at this time Ms. Gina DeGennaro will never agree to anything. She will never cooperate with anyone, with the Court."

On July 30, the judge entered an order that Gina was forever barred from returning to the family residence to retrieve any items and directed the co-trustees to sign the litigation releases on her behalf in the event Gina refused to do so. This appeal followed.

II.

On appeal, Gina argues that the Probate judge abused her discretion in enforcing the terms of the July 2 order, which she did not receive until the day before the July 11 pick-up date, and contained provisions that are not reflected in the judge's oral decision on June 24. She points to the provision of the trustees' July 9 letter that Gina's acceptance of the items on the first list would act as a waiver of all other items. Carlo and Marianne contend that the judge's decision was justified on the basis of Gina's long history of failing to comply with interfamily agreements and court orders, including the July 2 order.

In Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (citations omitted), the Supreme Court observed that,

[a]lthough the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue. It may be "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment."

"[A]buse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).

We appreciate the judge's frustration with having to spend valuable judicial time on a family's ongoing dispute over their parents' personal property, which ought to have been resolved by the parties themselves directly or through mediation. We also note that Gina had a history of failing to comply with agreements with her siblings and court orders. However, we are constrained to find that the judge acted precipitously given the record before us.

First, the judge entered conflicting orders. The judge's oral decision was that, if there was agreement Gina should remove the items on July 11. Absent agreement, the parties were to return to court on July 18. Although the order proposed by Gina's attorney should have included the judge's direction that, in the event of agreement, Gina would forfeit her right to the items if she failed to pick them up on July 11, the order submitted by the trust's attorney required Gina to pick up any agreed-upon items even if there was no complete agreement, which is inconsistent with our understanding of the judge's oral decision. Second, for reasons not clear from the record, the second order was not even served on Gina's attorney until July 10, the day before the date established for (1) pick-up in the event of agreement under the first order or (2) pick-up of undisputed items whether or not there were unresolved items under the second order.

Third, the trust has unclean hands with respect to this issue. The July 9 letter from the trust's attorney provided that Gina would waive her claim to the disputed items if she picked up the agreed upon items on July 11. That position was inconsistent with both orders signed by the judge, as well as the judge's clear intent that the disposition of disputed items would be resolved on July 18. In fact, it appears to have been intended as an end run around Gina's right to seek the disputed items on July 18 even if she had picked up the undisputed items.

Finally, the relief sought by Carlo, Marianne, Anthony, and Teresa in their submission in anticipation of the July 18 hearing was that the judge should resolve the dispute by ordering distribution of the items on the trustees' first list to Gina and precluding her from receiving any other items. Instead, the judge precluded Gina from receiving anything, even the items as to which there had been agreement. Had the judge simply granted the request made by Carlo and the others, we would not have found any abuse of discretion under the circumstances.

Consequently, we vacate the July 30 order and remand to the Probate Part for further consideration consistent with this opinion. We note that we find no error in the requirement that Gina sign releases, or that they be signed on her behalf, once the dispute concerning the personal items is finally resolved.

Vacated and remanded.

1 The DeGennaros will be referred to by their first names for the sake of clarity.

2 Louis also raised issues concerning his father's estate that are not relevant to this appeal.

3 Carlo purchased the family residence in January 2013.

4 The actual order was not signed until August 17, 2012.