IN THE MATTER OF THE ESTATE OF CATHERINE STORIONE

NOT FOR PUBLICATION WITHOUT THE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 ESTATE

OF CATHERINE STORIONE SLUTSKY,

DECEASED.

THE ESTATE OF ISAAC SLUTKSY,

BY ITS EXECUTRIX SHEILA SLUTSKY,

Plaintiff-Appellant,

v.

CARMELLA PAPPERT and

JAMES MACH,

Defendants-Respondents.

_________________________________________________

November 20, 2014

Submitted September 23, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. 05-108.

Obermayer, Rebmann, Maxwell & Hippel, L.L.P., attorneys for appellant (Kimberly D. Sutton, on the brief).

Respondents Carmella Pappert and James Mach have not filed a brief.

PER CURIAM

This matter is before us for a second time. We provide some context by reference to our prior opinion.

Isaac and Catherine Slutsky were married in 1967. In re Estate of Slutsky v. Pappert, No. A-3716-06 (App. Div. Oct. 20, 2008) (slip op. at 2), certif. denied, 199 N.J. 130 (2009). Carmella Pappert was Catherine's daughter from a previous marriage.1 Ibid. In 1982, the couple purchased a rental duplex in Philadelphia ("the Philadelphia property"). Id. at 3. In 1985, James Mach befriended Catherine and ultimately moved into the Slutsky home, which caused the marriage to deteriorate. Id. at 2-3. Catherine controlled the couple's finances over the years, frequently wrote checks payable to Mach and opened a money market account at Wachovia Bank ("the Wachovia account"), naming Pappert's two sons as beneficiaries. Id. at 4, 6-7.

In August 2003, Isaac left the marital home, relocated to Philadelphia, and, in 2004, commenced divorce proceedings in Pennsylvania. Id. at 7. In that litigation, Catherine was ordered to account for various marital property and was enjoined from dissipating assets. Id. at 8-9. In a will handwritten by Pappert and dated October 16, 2004, Catherine appointed Pappert as her executrix, provided for the disposition of certain property and disinherited Isaac. Id. at 9.

While the divorce proceedings were still pending, Catherine became gravely ill and died on December 1, 2004. Id. at 10. In May 2005, individually and as proposed administrator of Catherine's estate, Isaac commenced suit, naming Mach and Pappert as defendants, asserting Catherine had died intestate and seeking, among other things, to be appointed administrator of her estate and to impress a constructive trust on all marital property.2 Id. at 11. Pappert answered the complaint, and, in response to Isaac's assertion of Catherine's intestacy, asserted she lacked any knowledge regarding that claim. We need not detail the evidence adduced at the trial except to note that the judge (sometimes, "the trial judge") specifically found that Catherine and Mach acted to keep assets, particularly the Wachovia account, from being equitably distributed. Id. at 13-14.

In the interim, on February 1, 2007, days before the trial judge issued his decision, Pappert filed an order to show cause seeking temporary restraints on the administration of Catherine's estate. In her certification, Pappert stated that after letters of administration had been granted to Isaac, she (Pappert) "discovered a will . . . dated October 16, 2004, [that] appoint[ed] [Pappert] as the executor." The judge ultimately entered an order on March 9, 2007, that admitted the will to probate, appointed Pappert executrix of her mother's estate and removed Isaac as administrator. On March 14, 2007, the judge entered an order denying Isaac's motion to dismiss Pappert's probate complaint.3

We ultimately reversed the judgment that followed the trial and remanded the matter with specific instructions. Id. at 19-22. First, we set forth those assets that were part of the marital estate upon which a constructive trust should be impressed. Id. at 21-22. We also ordered the court to value other assets, specifically the Philadelphia property and a motor vehicle, include them in the marital estate and effectuate their equitable distribution along with the other marital assets subject to the constructive trust. Id. at 22. We also reversed the "de minimis" award of $7500 in counsel fees to Isaac from Mach, ordering that on remand, "plaintiff's counsel shall submit an affidavit of services . . . and the court shall determine a reasonable award of fees and costs . . . in light of Mach's conduct." Id. at 23.

Finally, we made certain "observations with respect to" Catherine's estate that needed to be addressed on remand, specifically,

1. A new administrator must be appointed for Catherine's estate in light of Isaac's death.

2. The marital assets in the constructive trust must be distributed before a determination of the assets in Catherine's estate can be made.

3. We make no determination regarding the admission of Catherine's will to probate because that matter is not before us. . . .

[Id. at 24.]

I.

Following our remand, on April 27, 2010, Isaac's counsel filed a certification requesting fees and costs from Mach and Catherine's estate. The trial judge apparently retired without rendering a decision after hearing oral arguments. However, on August 10, 2011, after reviewing the papers submitted and the transcript of arguments before the first trial judge, a different judge entered an order ("the August 2011 order") granting fees of $25,425.50 and costs of $2984.70 to Isaac as against Mach. The order denied fees and costs against Catherine's estate without prejudice, pending "the conclusion of all proceedings."

A trial on remand took place before a third judge (sometimes, "the remand judge").4 In a comprehensive written opinion, the judge valued the marital estate at $250,850.03 and divided it equally between Isaac and Catherine. He then considered Issac's challenge to the will, which was threefold: 1) Catherine was not competent when she made the will; 2) the will was the product of Pappert's undue influence; and 3) Pappert should be estopped from probating the will because of her "belated revelation and presentation of the document." The judge ultimately concluded there was no basis to "vacate[]" the "order for probate of Catherine's will . . . ."

Turning to Isaac's request for counsel fees, the judge found no reason to set aside or modify the award of fees against Mach as contained in the August 2011 order. He also concluded that Isaac's request for additional fees lacked merit because any legal work performed was for Isaac's benefit, not for the benefit of Catherine's estate, and Isaac took positions in the litigation that prolonged the trial and upon which he did not prevail. On November 25, 2012, the remand judge entered an order ("the November 2012 order"), certain provisions from which Isaac now seeks review.

One particular provision of the November 2012 order granted a request by Pappert and Catherine's estate for an award of fees and costs "relate[d] to the work attributed to determining the fair market value of the Philadelphia property," including "[the] cost of counsel for litigating that issue before the court at trial." On April 25, 2013, the remand judge entered an order (the "April 2013 order") requiring Isaac's estate to pay $9,658 in fees "to the Estate of Catherine Slutsky/Carmella Pappert."

This appeal followed.

II.

A.

We begin by settling the scope of this appeal, clarifying those orders and which specific provisions of those orders are properly before us on the record submitted. In his notice of appeal, Isaac sought review of the March 2007 orders, and three orders that followed our remand: the August 2011 order awarding him fees and costs against Mach, the November 2012 order entered after the remand trial, and the April 2013 order that awarded Pappert and Catherine's estate fees as against Isaac's estate. As to the November 2012 order, the notice of appeal specifically listed only paragraphs seventeen and eighteen of the order, paragraphs that essentially affirmed the award of counsel fees and costs in the August 2011 order and denied Isaac's request for further fees and costs.

However, the Case Information Statement ("the CIS") filed weeks later included additional paragraphs in the November 2012 order that were "being appealed." Some may be characterized as logical consequences of the March 2007 orders that admitted Catherine's will to probate. However, the CIS also lists paragraphs one, two and seven of the November 2012 order, which, according to the CIS, "allocate[d] to Catherine Slutsky's Estate a portion of [the Philadelphia property]."

The issue receives passing treatment in Isaac's brief, but we refuse to consider it at all. First, it is axiomatic that only those judgments or orders designated in the notice of appeal are subject to the appeal process and our review. 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); see also Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2015) (collecting cases holding same). Second, and more importantly, we already concluded that the Philadelphia property was part of the marital estate subject to equitable distribution. Estate of Slutsky, supra, at 22.

We gather from the trial judge's written opinion that Isaac sought to litigate the issue on remand yet again, and that is what ultimately motivated entry of the April 2013 order assessing fees and costs. Even though the remand judge addressed the issue of the Philadelphia property at length, we refuse to consider any challenge to our prior holding.

We also refuse to consider any challenge to paragraph seventeen of the November 2012 order that limited counsel fees against Mach to those contained in the August 2011 order, as well as any challenge to the August 2011 order itself awarding those fees. As already noted, on remand, the parties orally argued the issue of the fee award based upon Mach's conduct. The transcript of that argument was available to the judge who actually entered the August 2011 order.

We have been provided with Isaac's counsel's submission on remand to the trial judge, and that includes a detailed accounting in support of counsel's request for a fee award that exceeded $136,000. However, we have not been provided with any opposition that was filed, nor have we been provided with the transcript of the arguments before the trial judge, who subsequently retired. All we have is the subsequent judge's order, which specifically references both the papers submitted and the arguments previously made, and provides that the order was entered "for reasons set forth." We have no record of what those reasons were, yet Isaac does not contend that the judge failed to fulfill his obligations under Rule 1:74(a) (requiring the judge to "find the facts and state [his] conclusions of law").

Pursuant to Rule 2:5-4(a), "[t]he record on appeal shall consist of all papers on file in the court . . . below, . . . [and] the stenographic transcript or statement of the proceedings therein . . . ." The failure to include necessary elements of the record inhibits our review and permits us to deny any consideration of the issue asserted on appeal. Cipala v. Lincoln Technical Inst., 179 N.J. 45, 52 (2004). This is particularly true when our review is of a decision vested in the sound discretion of the judge and to which we substantially defer. See e.g., Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) ("[A] reviewing court will disturb a trial court's award of counsel fees only on the rarest of occasions, and then only because of a clear abuse of discretion.") (citations omitted). We decline to review and thereby affirm the August 2011 order and paragraph seventeen of the November 2012 order regarding the fees awarded to Isaac from Mach as a result of the first trial.

B.

We turn, then, to the crux of the appeal which has been properly preserved and presented. That is the effect of the March 2007 orders, re-affirmed in portions of the November 2012 order, that admitted Catherine's handwritten will to probate, resulted in the appointment of Pappert as executrix and distributed Catherine's estate according to the terms of that will.

Isaac argues that the trial judge should have granted his 2007 motion to dismiss the probate complaint. He asserts a variety of reasons in support: estoppel based on Pappert's actions during the first trial, the time-bar provided by Rule 4:85-1, equitable estoppel based on Pappert's false "averments" in the probate complaint, and the entire controversy doctrine ("the ECD"). The remand judge, with the benefit of Pappert's testimony, considered but rejected Issac's request to vacate the March 2007 orders, concluding that Pappert was not estopped from probating the will and had not "repudiated" its existence through her testimony at the first trial. 5

We could decline consideration of these issues, too, since Isaac failed to furnish the transcripts of the remand trial and the remand judge's written decision cited extensively to Pappert's testimony. However, we believe the issue crystalized and was ripe for consideration when the March 2007 orders were entered, well in advance of the remand trial. That issue presents a purely legal question. We owe no particular deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts" because we review issues of law de novo. Manalapan Realty L.P. v. Twp. of Manalapan, 140 N.J. 366, 378 (1995). Therefore, we address Isaac's challenge to the March 2007 orders.

We have been provided with a transcript of the hearing held on March 8, 2007, in which the trial judge considered Isaac's motion for reconsideration of the earlier order admitting the will to probate, as well as Isaac's motion to dismiss the probate complaint. Isaac's counsel specifically argued that Pappert's complaint was "deliberately false" because the handwritten will was not "newly-discovered," and she cited Pappert's answer to Isaac's complaint, in which she stated that she had no knowledge whether her mother died intestate. Lastly, counsel argued that the ECD barred Pappert from asserting her claims. Rejecting these arguments, the trial judge admitted the will to probate because it met the requirements of N.J.S.A. 3B:3-2 A. 6 He never specifically addressed the legal arguments made by Isaac's counsel.

We need not consider those arguments sounding in estoppel, or whether the complaint was barred by Rule 4:85-1. We conclude that the trial judge should have dismissed Pappert's probate complaint under the ECD.

Throughout its various iterations, the ECD always reflected "our long-held preference that related claims and matters arising among related parties be adjudicated together rather than in separate, successive, fragmented, or piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 443 (2011). "The ultimate authority to control the joinder of parties and claims remains with the court; the parties may not choose to withhold related aspects of a claim from consideration . . . nor may they decline to reveal the existence of other parties in an effort to achieve an advantage." Id. at 446 (emphasis added).

We have applied the ECD to probate matters when the result was both equitable and consistent with the policy goals underlying the doctrine itself. In In re Estate of Gabrellian, 372 N.J. Super. 432, 444 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005), we held that the co-executor's second probate action was barred by the ECD because he knew of the facts upon which the second action was based at the time of the first action and failed to include them in the relief requested.

Here, Pappert prepared the will herself in 2004. She knew of its existence in 2005, when served with Isaac's complaint, yet she failed to bring its existence to light when she filed her answer. During the first trial, Pappert testified and acknowledged the existence of the will, but she never sought the relief requested in her 2007 complaint to probate the will even though Isaac's complaint sought the opposite relief to be appointed administrator and distribute the assets in accordance with the intestacy statute. All this was known to the trial judge before entry of the March 2007 orders.

Viewing the totality of circumstances, it is clear that Pappert "omitted components of the dispute or controversy [that] must be regarded as constituting an element of one mandatory unit of litigation." Ditrolio v. Antiles, 142 N.J. 253, 268 (1995). Pappert "ha[d] a significant interest in the disposition of a particular claim" Isaac's application to be appointed administrator and dispose of assets in a certain fashion and Pappert's interests were obviously "materially affected by the disposition of that claim." Ibid.

We do not view the Court's recent decision in Higgins v. Thurber, 205 N.J. 227 (2011), as requiring a different result simply because this was a probate matter. In Higgins v. Thurber, 413 N.J. Super. 1, 5 (App. Div.), certif. granted, 203 N.J. 438 (2010), we held that the ECD did not bar a claim of legal malpractice not asserted in a probate action to settle an account of an estate trust. The Court affirmed based on our opinion. Higgins, supra, 205 N.J. at 229. Citing our prior opinion in Perry v. Tuzzio, 288 N.J. Super. 223, 229 (App. Div. 1996), the Court concluded that given the "stylized format" of the accounting action, "[i]n the context of this and like proceedings in probate, the entire controversy doctrine is out of place." Higgins, supra, 205 N.J. at 229. The Court also said, "[W]e are persuaded to affirm the panel's judgment . . . for the substantial reason that the claims actually pled and prepared for the probate action by [the] plaintiffs did not encompass a legal malpractice claim against [7] the belatedly intervening [attorney defendant]." Id. at 230.

This case, however, is entirely distinguishable from Higgins, and there is no reason why the ECD should not have applied in the first instance to bar Pappert's complaint for probate of the handwritten will. Her conduct resulted in an unnecessary second trial. This case presents a stark example of why equitable application of the ECD serves the goals of fairness and judicial economy. Unfortunately, because the trial judge failed to consider application of the doctrine, this litigation spread through the trial and appellate courts. Our initial decision could not eliminate the unnecessary litigation because the matter was not yet before us; that was solely attributable to Pappert's conduct. We recognize that this opinion will only fuel the fire. Nonetheless, we are compelled by the inequity of the result to reverse and remand the matter again to the trial court. We reverse the March 2007 orders and dismiss Pappert's complaint with prejudice.

As a result, we must also reverse certain portions of the November 2012 order that admitted the will to probate and effectuated distribution of assets in accordance with its terms. Therefore, paragraphs nine, ten, and eleven of the November 2012 order are vacated. The matter is remanded to the trial court to conduct a hearing to 1) appoint an administrator of Catherine's estate, and 2) distribute the estate as valued in the November 2012 order in the manner required by the laws governing intestacy.7

Lastly, we address the issue of fees and costs. As already noted, we refuse to consider any claim by Isaac regarding the August 2011 order, or paragraph seventeen of the November 2012, as it relates to the award of fees against Mach. Paragraph eighteen of the November 2012 order denied Isaac's request for additional fees against Mach, Pappert and Catherine's estate, based upon the remand judge's conclusion that the will was properly probated, and Isaac's challenges regarding it and inclusion of the Philadelphia property in the marital estate were unwarranted. Paragraph nineteen of the November 2012 order awarded an undetermined amount of costs and fees to Pappert and Catherine's estate based upon Isaac's insistent re-litigation over the Philadelphia property. That provision ultimately resulted in entry of the April 2013 order awarding costs and fees to Pappert/the estate.

In light of our holding, we must reverse paragraphs eighteen and nineteen of the November 2012 order, as well as the April 2013 order. We remand the matter to the trial judge to reconsider whether Isaac should be awarded additional fees. Our decision is not intended to reflect negatively upon the remand judge's assessment of Isaac's responsibility for prolonging the litigation, and we certainly do not foreclose appropriate consideration of that issue on remand, or how that might impact the calculus if any award is made to Isaac.

In his brief, Isaac asks us to hold that any fees and costs awarded above those awarded against Mach should be imposed against Catherine's estate. We refuse to consider the issue, which is more appropriately presented to the trial court on remand if and when an additional award is made.

Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.

1 To avoid confusion, it will sometimes be necessary to refer to family members by their first names. We intend no disrespect by this informality.

2 As we noted in our prior opinion, after initiating this lawsuit, Isaac himself passed away and his estate was substituted as plaintiff. Id. at 2 n.1. To avoid confusion, we continue to refer to the estate simply as "Isaac."

3 We refer to these two orders collectively as "the March 2007 orders."

4 We have not been provided with any transcripts from these proceedings and limit our discussion to what is contained in the written opinion filed by the remand judge.

5 The remand judge did not address the ECD in his written opinion.

6 That statute provides in relevant part

[A] will shall be

(1) in writing;

(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

At the hearing on the motions, the judge had Mach sworn as a witness regarding Catherine's signing of the handwritten will in Mach's presence.

7 We note that the remand judge considered the intestate disposition of Catherine's estate in his opinion, but noted it was only "dicta" given the ultimate holding. We express no opinion about that portion of the written decision except to say it was thoughtful and comprehensive.