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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1955-15T1


           Argued October 18, 2017 – Decided December 7, 2017

           Before Judges Nugent and Geiger.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Probate Part, Monmouth
           County, Docket No. P-000180-15.

           Brian E. Ansell argued       the cause for
           appellant/cross-respondent     Mark  Acerra
           (Ansell Grimm & Aaron, PC, attorneys; Brian
           E. Ansell, of counsel and on the brief;
           Kristine M. Bergman, on the brief).

           Stephen J. Caccavale, argued the cause for
           respondents Eileen Sippel, Suzanne Simons,
           Sharon Mego, Gayle Oka and Mary Jane Cavanagh
           (Rudolph & Kayal, PA, attorneys; Stephen J.
           Caccavale, of counsel and on the brief).

           Scott W. Kenneally argued the cause for
           respondent/cross-appellant Phillis Wallace
           (Starkey   Kelly   Kenneally  Cunningham  &
           Turnbach, attorneys; Scott W. Kenneally, of
           counsel and on the brief).

           Lawrence B. Litwin argued the cause for
           respondent/cross-appellant Richard K. Litwin.

           John W. Callinan argued the cause                    for
           respondent Estate of Louis M. Acerra.
           Mark F. Casazza argued the cause for
           respondents Raquel Acerra, Louis M. Acerra,
           Joseph M. Acerra, Robert M. Acerra, Jr., Joan
           Acerra-Marangello, and Dominick Acerra, Sr.,
           (Rudnick Addonizio Pappa & Casazza, attorneys,
           join in the briefs of respondents Eileen
           Sippel, Suzanne Simons, Sharon Mego, Gayle Oka
           and Mary Jane Cavanagh, and respondent Estate
           of Louis M. Acerra).

           Melissa Bayly, Deputy Attorney General, argued
           the cause for respondent Department of Health,
           Office of Vital Statistics and Registry
           (Christopher S. Porrino, Attorney General,
           attorney; Melissa H. Raksa, Assistant Attorney
           General, of counsel; Melissa Bayly, of counsel
           and on the brief).


     This case arises from the administration of the intestate

estate of decedent Louis M. Acerra.          When decedent died, he was

unmarried, had no children or siblings, and was predeceased by his

mother and maternal grandparents.         His biological father has never

been identified.     Decedent died from burns he suffered in a fire

caused by a defective or negligently repaired product. The ensuing

lawsuit   settled   for   a   large   sum   and   the   estate   received    a

significant share.    Numerous relatives and an individual claiming

to be decedent's psychological father assert their right to inherit

under the laws of intestacy to the exclusion of others.

     Appellants Phyllis Wallace and Mark Acerra, the biological

children of decedent's maternal grandmother and grandfather, and

                                      2                              A-1955-15T1
thus, decedent's aunt and uncle by the "whole-blood," claim they

should inherit the entirety of decedent's estate, to the exclusion

of   decedent's   aunts      and    uncles   by   the   "half-blood"    and   his

purported psychological father.

      Cross-appellant Richard K. Litwin contends he is decedent's

presumed biological father for purposes of intestate inheritance

because   he    equitably      adopted       decedent    and   acted    as    his

psychological father.

      Respondents Eileen Sippel, Suzanne Simons, Sharon Mego, Gayle

Oka, and Mary Jane Cavanagh are the biological daughters of

decedent's maternal grandmother, but not his maternal grandfather,

and thus, decedent's aunts by the "half-blood."                They claim they

should inherit equally to decedent's aunts and uncles by the

"whole-blood"     and   to    the    exclusion     of   decedent's     purported

psychological father.

      Respondents Raquel Acerra, Louis M. Acerra, Joseph M. Acerra,

Robert M. Acerra, Jr., Joan Acerra-Marangello, Dominick Acerra,

Sr., Michelle Louise Acerra, and Louis James Acerra, who are more

remote additional relatives by the "half-blood," also claim they

should inherit from the estate by representation to the exclusion

of decedent's purported psychological father.

      Litwin appeals from the September 11, 2015 order declaring

he is not entitled to distribution of any portion of the intestate

                                        3                                A-1955-15T1
estate.   Appellants and Litwin appeal from various aspects of the

December 11, 2015 judgment: (1) declaring Litwin is not a "parent"

of the decedent within the meaning of the laws of intestacy and

is not entitled to any distribution from the estate; (2) denying

Litwin's application for an award of attorney's fees; and (3)

declaring all of decedent's aunts and uncles, whether related

through one grandparent or both maternal grandparents of the

decedent, inherit the same share of the estate, with those of more

remote degree taking by representation.      After a review of the

record and applicable principles of law, we affirm.


     We discern the following undisputed facts from the record.

Decedent died intestate on January 17, 2012, at the age of thirty.

He had never married and had no children or siblings.        He was

predeceased by his mother, who died in 2009, and his maternal

grandparents.    Decedent's biological father remains unknown.

     At the time of his death, decedent was survived by his aunt

Phyllis Wallace and his uncle Mark Acerra, who were born to the

same parents as his mother, and are thus his aunt and uncle by the

whole-blood.    In addition, he was survived by Sharon Mego, Suzanne

Simons, Gayle Oka, Mary Jane Cavanagh, and Eileen Sippel, who are

the biological daughters of his maternal grandmother but not his

maternal grandfather, and are thus aunts by the half-blood.

                                  4                          A-1955-15T1
     Richard Litwin claims to have equitably adopted decedent and

to   be   decedent's   psychological    father.      Litwin   was     in     a

relationship with decedent's mother at the time of decedent's

birth in 1981.     Litwin lived with decedent's mother until she

passed and with decedent his entire life.         Litwin raised decedent

as if he were his own son by providing him with food and shelter,

and assisting with his college tuition.           Decedent's mother had

legal custody until a March 21, 1995 order awarded Litwin custody

when decedent was fourteen years old.        However, Litwin was not

decedent's stepfather as he never married decedent's mother.               Nor

did he ever legally adopt decedent.        In 1990, genetic paternity

testing conclusively determined that Litwin was not decedent's

biological father.

     In 2009, decedent suffered grievous injuries in a house fire

caused by a defective dishwasher.      He sustained third degree burns

to most of his body but lived more than two years after the fire

until finally succumbing to his injuries in January 2012.               From

the time of the fire until decedent's passing, Litwin cared for

decedent, paid for his living expenses, and arranged his doctor's


     Following the fire, Litwin filed a lawsuit, individually and

on decedent's behalf, against the manufacturer of the dishwasher

and other defendants alleging negligence.         In addition to claims

                                  5                                 A-1955-15T1
for the injuries sustained by decedent, Litwin asserted claims for

his own injuries, including an emotional distress claim pursuant

to Portee v. Jaffee, 
84 N.J. 88 (1980), based on his observations

of decedent at the fire scene.1    Following motion practice and the

successful interlocutory appeal, the parties reached a global

settlement, with the estate receiving $4,706,250 less costs and

attorney's fees, and Litwin receiving $3,956,250 less costs and

attorney's fees for his personal injury, and Portee claims.             The

costs   and   contingent   attorney's   fees   were   deducted   from   the

respective recoveries received by the parties.          Thus, the estate

paid the costs and contingent attorney's fees relating to its

portion of the settlement.2     Similarly, Litwin paid the costs and

  A Portee claim is "a cause of action for damages to a bystander
as a result of witnessing an injury-producing event to one with
whom the bystander has an intimate or familial relationship."
Litwin v. Whirlpool Corp., 
436 N.J. Super. 80, 86 (App. Div. 2014)
(citing Portee, supra, 
84 N.J. at 101).     In that interlocutory
appeal, we reversed a summary judgment order dismissing Litwin's
Portee claim because he had not made sufficient observations of
the decedent at the fire scene. We held "that under the [summary
judgment] standard, plaintiff observed the kind of result that is
associated with the aftermath of traumatic injury and that it was
not necessary for him to have been inside his home observing
[decedent's] body burning in order to satisfy the observation
prong supporting a Portee claim."      Id. at 88.    The issue of
decedent's legal relationship to Litwin was not before the court.
  The record shows that costs totaling $432,070.91 and attorney's
fees of $1,184,873.94 were deducted from the estate's portion of
the settlement.

                                   6                              A-1955-15T1
contingent    attorney's    fees      relating       to   his    portion     of   the


     On May 15, 2015, Litwin commenced this matter seeking to be

declared decedent's legal father under the New Jersey Parentage

N.J.S.A. 9:17-38 to -58, so he could inherit from decedent's

estate.    In response, Mark Acerra filed an answer and counterclaim

seeking    distribution    of      decedent's       estate      pursuant     to   the

intestacy statute, 
N.J.S.A. 3B:5-4(e), as well as opposition to

Litwin's     application      to     be       declared     decedent's        father.

Thereafter,     Phyllis    Wallace        filed     an    answer      also   seeking

distribution of the estate pursuant to 
N.J.S.A. 3B:5-4(e).

     On September 28, 2015, the trial court entered an order

dismissing Litwin's complaint with prejudice, finding that Litwin

was not the father of the decedent under 
N.J.S.A. 3B:5-4, and was

thus not entitled to inherit from decedent's estate.

     On September 18, 2015, Eileen Sippel, Suzanne Simons, Gayle

Oka, Mary Jane Cavanagh, and Sharon Mego, filed answers and

counterclaims     asserting        they       are   entitled     to    inherit      by

representation under 
N.J.S.A. 3B:5-4(e) and 3B:5-7.3

  Although not listed as parties in those answers, Raquel Acerra,
Louis Acerra, Joseph Acerra, Robert Acerra, Jr., Joan Acerra-
Marangello, Dominick Acerra, Sr., Michelle Louis Acerra, and Louis
James Acerra later joined the litigation as additional alleged

                                          7                                  A-1955-15T1
      Litwin filed a motion for reconsideration of the September

28, 2015 order.        On November 13, 2015, the trial court rendered

an   oral    decision    containing      detailed     findings    of    fact   and

conclusions    of    law,     which   were    subsequently   embodied     in   the

December 11, 2015 judgment.           The trial court:    (1) denied Litwin's

motion for reconsideration; (2) determined Litwin had failed to

prove his status as decedent's legal father pursuant to 

3B:5-10 and 
N.J.S.A. 9:17-38; (3) dismissed Litwin's complaint

with prejudice; (4) denied Litwin's application for an award of

attorney's    fees     from   the     estate;   (5)   ordered    the   substitute

administrator to conduct a genealogical search for potential heirs

of the estate; and (6) declared that relatives of the "half-blood"

and "whole-blood" take equally under the intestacy statutes.                   The

court entered a stay of these rulings on December 11, 2015.

      Litwin filed a motion for reconsideration of the December 11,

2015 judgment and for leave to file an amended complaint adding

an additional count to declare him the equitable father of the

decedent and to impose a constructive trust.             On January 15, 2016,

the trial court rendered an oral opinion and order denying his


      This    appeal    followed.        Appellants     raise    the    following

arguments:     (1) the trial court erred in concluding the estate

should be divided equally amongst relatives of the "half-blood"

                                          8                               A-1955-15T1
and the "whole-blood"; and (2) the trial court erred in its

interpretation of 
N.J.S.A. 3B:5-7 by determining descendants of

one of decedent's grandparents, but not both, are "half-blood"

relatives for purposes of intestate distribution.

     In his cross-appeal, Litwin raises the following arguments:

(1) he is entitled to inherit decedent's intestate estate because

he is presumed to be the biological father of the decedent pursuant

to the Parentage Act; (2) he is entitled to inherit the estate

N.J.S.A. 3B:5-14.1; (3) he has a constitutional right to be

treated as decedent's father for purposes of intestacy under the

equal   protection      and   due   process    clauses   of   the   Fourteenth

Amendment   of    the    United     States    Constitution;     (4)       as    the

psychological father of the decedent, he is entitled to inherit

through intestacy; (5) he should inherit the estate because he

equitably   or   constructively      adopted    the   decedent;     (6)    he    is

decedent's father based on the doctrines of collateral estoppel

and stare decisis; (7) the trial court failed to apply applicable

equitable principles; and (8) the trial court erred by denying his

application for attorneys' fees.


     Our review is plenary because "a trial court's interpretation

of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Manalapan Realty,

                                       9                                  A-1955-15T1
L.P. v. Twp. Comm., 
140 N.J. 366, 378 (1995).      "On appeal, a trial

judge's statutory interpretation is reviewed de novo." In re Estate

of Fisher, 
443 N.J. Super. 180, 190 (App. Div. 2015) (quoting

Commerce Bancorp, Inc. v. InterArch, Inc., 
417 N.J. Super. 329,

334 (App. Div. 2010)), certif. denied, 
224 N.J. 528 (2016).


     Regulating   succession     or    intestate   inheritance    is     a

legislative province.   Estate of Sapery, 
28 N.J. 599, 605 (1959);

Estate of Holibaugh, 
18 N.J. 229, 235 (1955).        "The Legislature

has plenary power over the devolution of title and the distribution

of [an] intestate's property."    Cassano v. Durham, 
180 N.J. Super.
 620, 622 (Law Div. 1981) (citing Holibaugh, supra, 
18 N.J. at
 235).   This appeal requires that we interpret several legislative


     "It is well settled that the goal of statutory interpretation

is to ascertain and effectuate the Legislature's intent."          State

v. Olivero, 
221 N.J. 632, 639 (2015) (citing Murray v. Plainfield

Rescue Squad, 
210 N.J. 581, 592 (2012)).           "Our analysis of a

statute begins with its plain language, giving the words their

ordinary meaning and significance." Fisher, supra, 
443 N.J. Super.

at 190 (citing Olivero, supra, 
221 N.J. at 639).             See also

Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ., 
221 N.J. 349, 361

(2015).   "Statutory language is to be interpreted 'in a common

                                  10                             A-1955-15T1
sense manner to accomplish the legislative purpose.'"            Olivero,

221 N.J. at 639 (quoting N.E.R.I. Corp. v. N.J. Highway

147 N.J. 223, 236 (1996)).         "When that language 'clearly

reveals the meaning of the statute, the court's sole function is

to enforce the statute in accordance with those terms.'"             Ibid.

(quoting McCann v. Clerk of Jersey City, 
167 N.J. 311, 320 (2001)).

"We need not look beyond the statutory terms to determine the

Legislature's intent when the statutory terms are clear."           Estate

of Rogiers, 
396 N.J. Super. 317, 324 (App. Div. 2007) (citing

State v. Churchdale Leasing, Inc., 
115 N.J. 83, 101 (1989)),

certif. denied, 
213 N.J. 46 (2013).             "Only if a statute is

ambiguous   do   we   resort   to   extrinsic   aids   to   ascertain   the

Legislature's intent."     Ibid. (citing Wingate v. Estate of Ryan,

149 N.J. 227, 236 (1997)).


     We first address Litwin's claim that he should be declared

the sole heir of decedent's estate because he is the presumed

father of the decedent under the Parentage Act.

     The intestate estate of a decedent not survived by a spouse

or domestic partner, or by any children, passes to the surviving

parents in equal shares.        
N.J.S.A. 3B:5-4.       The Probate Code

defines a "parent" as "any person entitled to take or who would

be entitled to take if the child, natural or adopted, died without

                                    11                             A-1955-15T1
a will, by intestate succession from the child whose relationship

is in question and excludes any person who is a stepparent,

resource family parent, or grandparent."            
N.J.S.A. 3B:1-2.           "Where

the relationship of parent and child must be determined for

purposes of intestate succession, the parent/child relationship

may be determined according to the Parentage Act." Rogiers, supra,

396 N.J. Super. at 323 (citing 
N.J.S.A. 3B:5-10).

      The Parentage Act defines the "parent and child relationship"

as "the legal relationship existing between a child and the child's

natural or adoptive parents, incident to which the law confers or

imposes rights, privileges, duties, and obligations.                   It includes

the   mother   and    child   relationship    and    the   father       and     child

N.J.S.A. 9:17-39.

      The "parent and child relationship" between a child and the

natural father may be established by various methods, including

prior   paternity     adjudication,    execution      of   a    Certificate          of

Parentage   prior     to   birth,   default   judgment,        court    order,       or

scientific testing.        
N.J.S.A. 9:17-41(b).       Proof of adoption may

also establish the "parent and child relationship."                      


      While conceding that he is not decedent's natural or legally

adoptive father, Litwin nonetheless contends he is decedent's

presumed father pursuant to the presumptions of paternity found

                                      12                                      A-1955-15T1
N.J.S.A. 9:17-43(a), which provides a man is presumed to be the

biological father of a child if:

            (4) While the child is under the age of
            majority, he receives the child into his home
            and openly holds out the child as his natural
            child; [or]

            (5) While the child is under the age of
            majority, he provides support for the child
            and openly holds out the child as his natural

            [N.J.S.A. 9:17-43(a).]

The foregoing presumptions may be rebutted by clear and convincing

N.J.S.A. 9:17-43(b).         Notably, however, a presumption

of paternity "is rebutted by a court order terminating the presumed

father's paternal rights or by establishing that another man is

the child's biological or adoptive father."              
N.J.S.A. 9:17-43(b).

"As   indicated    by   the   legislative      history    of     that   provision,

'[t]hese presumptions are intended to facilitate the flow of

benefits from the father to the child.'"            J.S. v. L.S., 
389 N.J.

Super. 200, 204 (App. Div. 2006) (alteration in original) (quoting

Statement of the Assembly Judiciary, Law, Public Safety and Defense

Committee on S. 888 (L. 1983, c. 17), reprinted in comments to

N.J.S.A. 9:17-38), certif. denied, 
192 N.J. 295 (2007).                     "Those

statutorily recognized rights, privileges, duties and obligations

cease upon the determination of non-paternity, through genetic

testing   or    other   clear    and   convincing        proof    rebutting     the

                                       13                                  A-1955-15T1
presumption."      Ibid. (citing Monmouth County Div. of Soc. Servs.

v. P.A.Q., 
317 N.J. Super. 187, 198 (App. Div. 1998), certif.

160 N.J. 90 (1999)).

     Litwin does not contest the results of the genetic testing

which conclusively determined he is not the decedent's natural

father.      The   determination      of    non-paternity   through    genetic

testing    constitutes    clear     and    convincing   proof   rebutting   the

presumption of paternity.           Ibid.    See also 
N.J.S.A. 9:17-41(b).

Accordingly, Litwin's reliance on the Parentage Act is misplaced.

     Here, we have no need to examine extrinsic aids to determine

the Legislature's meaning of the term "parent."                 The meaning of

the statutory language is clear.            A parent includes a father and

child relationship, either natural or adoptive. Neither is present

here.     Therefore, Litwin does not qualify as a parent under the

Probate Code for purposes of the intestacy laws.

     "It is not the function of this Court to 'rewrite a plainly-

written    enactment     of   the   Legislature    []or   presume    that   the

Legislature intended something other than that expressed by way

of the plain language.'" DiProspero v. Penn, 
183 N.J. 477, 492

(2005) (alteration in original) (quoting O'Connell v. State, 
171 N.J. 484, 488 (2002)).        Indeed, "we cannot 'write in an additional

qualification which the Legislature pointedly omitted in drafting

its own enactment.'" Ibid. (quoting Craster v. Bd. of Comm'rs of

                                       14                              A-1955-15T1
9 N.J. 225, 230 (1952)).          It is not the role of the courts

to   act   as   a   "super-legislature."     Camden   City    Bd.   of   Ed.    v.

369 N.J. Super. 592, 605 (App. Div. 2004) (citing Newark

Superior Officers Ass'n v. City of Newark, 
98 N.J. 212, 222


      Once genetic testing conclusively established Litwin was not

decedent's      natural   father,   any   presumption    of    paternity       was

incontrovertibly rebutted.      A parent and child relationship cannot

be conferred upon Litwin by receiving decedent into his home

openly, providing support for him, and holding him out as his

natural child if genetic testing has excluded him from being the

decedent's natural father.

      Litwin further contends he is entitled to inherit decedent's

estate under 
N.J.S.A. 3B:5-14.1, which provides a parent of a

decedent shall lose all right to intestate succession if:

            (1) The parent refused to acknowledge the
            decedent or abandoned the decedent when the
            decedent was a minor by willfully forsaking
            the decedent, failing to care for and keep the
            control and custody of the decedent so that
            the decedent was exposed to physical or moral
            risk without proper and sufficient protection,
            or failing to care for and keep the control
            and custody of the decedent so that the
            decedent was in the care, custody and control
            of the State at the time of death[.]

            [(emphasis added).]

                                     15                                  A-1955-15T1
       The plain meaning of the statute does not support Litwin's

claim to inheritance.        
N.J.S.A. 3B:5-14.1 applies to parents, not

more remote relatives, such as aunts and uncles.                Litwin urges

this   court   to   extend    the   equitable   principles     applied   to   a

physically abusive and neglectful parent in New Jersey Division

of Youth and Family Services v. M.W., to aunts and uncles under

N.J.S.A. 3B:5-14.1.      
398 N.J. Super. 266, 290 (App. Div.), certif.

196 N.J. 347 (2008).         We do not agree.

       In M.W., a mother subjected her three children to a level of

physical abuse and neglect that "would shock the cynical and wound

the most hardened of heart."           Id. at 271.      In that case, the

physical abuse and neglect was so severe that it caused the death

of the decedent.      The appellate panel held the trial court had the

authority to retroactively terminate the mother's parental rights

to   the   deceased   child   and   impose   the   equitable    remedy   of   a

constructive trust to avoid the unjust enrichment that would result

from the mother inheriting by intestacy a settlement paid by the

State to the estate of the deceased child.

       The unique facts in M.W. are distinguishable from the facts

in this matter.       M.W. involved a physically abusive parent whose

conduct led to the death of her child.          Here, decedent's aunts and

uncles committed no such abusive acts or other wrongdoing.                Nor

                                      16                             A-1955-15T1
were they under a duty to support the decedent after the death of

his mother.

     We further note the legislative history of 
N.J.S.A. 3B:5-14.1

shows it was enacted in direct response to the decision in M.W.

to preclude abusive or neglectful parents from inheriting the

estate of their child.        Fisher, supra, 
443 N.J. Super. at 194.

This matter does not involve abusive or neglectful parents.            Thus,

Litwin's reliance on 
N.J.S.A. 3B:5-14.1 is misplaced.

     Litwin also contends as the decedent's psychological father,

he should inherit the same intestate distributive share as if he

were the decedent's biological or adoptive father.           We disagree.

Acting as a child's psychological parent does not confer a parent

and child relationship for purposes of intestate succession.

     "At   the   heart   of   the   psychological   parent   cases     is    a

recognition that children have a strong interest in maintaining

the ties that connect them to adults who love and provide for

them."   V.C. v. M.J.B., 
163 N.J. 200, 221, cert. denied, 
531 U.S. 926, 
121 S. Ct. 302, 
148 L. Ed. 2d 243 (2000).       In V.C., the Court

discussed the concept of psychological parentage and the test for

determining whether it applies.       The Court noted the standards it

developed "will govern all cases in which a third party asserts

psychological parent status as a basis for a custody or visitation

action regarding the child of a legal parent, with whom the third

                                    17                               A-1955-15T1
party has lived in a familial setting."      Id. at 227.   The language

in the opinion that "[o]nce a third party has been determined to

be a psychological parent, . . . he or she stands in parity with

the legal parent," is clearly limited to issues of custody and

visitation.   Ibid. (citing Zack v. Fiebert, 
235 N.J. Super. 424,

432 (App. Div. 1989)).

     Our courts have not applied the concept of psychological

parentage beyond custody, visitation, and child support matters.

See, e.g., Watkins v. Nelson, 
163 N.J. 235, 254 (2000) (noting,

in the context of a custody dispute, that "when a third party,

such as a stepparent, establishes psychological parentage with the

child, the third party stands in the shoes of a natural parent")

(citing Zack, supra,, 
235 N.J. Super. at 432-33); V.C., supra, 
163 N.J. at 205, 230 (awarding plaintiff visitation rights to her

former   partner's   biological   children   in   recognition   of   her

psychological parent status); K.A.F. v. D.L.M., 
437 N.J. Super.
 123, 127 (App. Div. 2014) (addressing the psychological parent

concept in the realm of a custody dispute).       We find no authority

for the proposition that a psychological parent is considered a

parent under our intestacy statutes.

     Litwin asks this court to consider Monmouth County Division

of Social Services v. R.K., 
334 N.J. Super. 177 (Ch. Div. 2000).

In R.K., a non-biological father signed a waiver of paternity and

                                  18                            A-1955-15T1
paid child support for eight years.          Id. at 181.      Although he was

not the child's biological father, the court found he was the

child's psychological father and denied his application to modify

the child support order entered against him.                Ibid.    Thus, the

R.K. court recognized the psychological parent concept where a

minor child would otherwise be without support.              Ibid.

       The present case involves the intestate succession of a

deceased adult's estate rather than the custody, visitation, or

support of a minor child. In contrast to R.K., Litwin never signed

an acknowledgement of paternity or had a child support order

entered against him.           Rather, he voluntarily participated in

genetic paternity testing that excluded him as the biological

father of the decedent.

       We   also   conclude    that   applying    the   psychological    parent

concept     to     intestate   succession    is    inconsistent      with    the

underlying purpose of the Parentage Act.                See In re T.J.S., 
419 N.J. Super. 46, 53-54 (App. Div. 2011) (noting the primary purpose

of the Parentage Act is to "ensure that children born out of

wedlock are treated the same as those born to married parents and

to provide a procedure to establish parentage in disputed cases").

       Further, it is not the role of this court to stretch the

psychological parent to the clearly statutory area of intestacy

law.    "The intestacy laws are thought to fulfill the presumed

                                       19                               A-1955-15T1
intent   of   decedent   and,   alternatively,   to   embody   society's

judgment as to how the decedent's property should devolve."        M.W.,

398 N.J. Super. at 290.      However, when the decedent leaves

no will, distribution of his estate "must be in accord with the

order specified in the intestacy statute even when the decedent

expresses a contrary intent."       Id. at 290-91 (citing Estate of

207 N.J. Super. 321, 326 (Law Div. 1985) (finding that

succession cannot be defeated even by a decedent's apparent intent

to the contrary); Maxwell v. Maxwell, 
122 N.J. Eq. 247, 255 (Ch.

1937) (finding that next of kin take by intestacy by force of law,

regardless of what the decedent may have intended).        "[O]ur case

law interprets the language of 
N.J.S.A. 3B:5-4 to rule out any

judicially created exception to intestacy distribution based on

the wishes of the [decedent]." Id. at 291 (applying that principle

to a seven-year-old decedent, "even though the child cannot opt

out of the default distribution of the intestacy statute").

     "The laws of intestacy are not mandated by the State, but

rather come into effect only when a decedent fails to devise his

estate by will.    They are a method of distribution by default."

Rozet, supra, 
207 N.J. Super. at 326.        "For those dissatisfied

with distribution by intestacy, the simple answer is to execute a

will."   M.W., supra, 
398 N.J. Super. at 291.          That option was

fully available to decedent who was twenty-eight years old when

                                   20                            A-1955-15T1
the fire occurred and thirty years old when he died.               Had he

desired Litwin to be his heir, he could have executed a will

bequeathing some or all of his estate to him.

      Litwin also argues he is entitled to inherit the estate

because he equitably or constructively adopted the decedent.          "New

Jersey recognizes the doctrine of equitable adoption as a theory

of inheritance under intestacy." In re W.R. ex rel. S.W., 
412 N.J.

Super. 275, 279 n.2 (Law Div. 2009) (citing Burdick v. Grimshaw,

113 N.J.   Eq.   591,   596   (Ch.   1933)).   "Equitable   adoption   is

established when it is shown that the decedent agreed to adopt the

child, the natural parent acted in reliance, and the child was

treated as a child of the decedent, but there was no legal

adoption." In re Adoption of A Child by N.E.Y., 
267 N.J. Super.
 88, 98 (1993) (quoting Kupec v. Cooper, 
593 So. 2d 1176, 1177

(Fla. Dist. Ct. App. 1987)). In recognition of equitable adoption,

courts have stated:

             [E]quitable adoption is a judicial construct
             used to uphold claims by a child not formally
             adopted to benefit from his or her "adoptive
             parents" in the same manner as the parent's
             natural or legally adopted children. The
             doctrine provides a remedy for a child in a
             promised but unfulfilled adoption by granting
             specific performance of an express or implied
             contract to adopt, and by estopping any
             challenge to the validity of the claimed
             adoption. It is used to ensure fundamental
             fairness to a child who would otherwise suffer
             an injustice.

                                       21                         A-1955-15T1
           [Trust Under Agreement of Vander Poel, 396
           N.J. Super. 218, 232 (App. Div. 2007), certif.
193 N.J. 587 (2008).]

    "Typically, the principle of equitable adoption is applied

to benefit the foster child rather than the adoptive parent, and

mainly in the context of allowing the child to inherit from a

deceased parent's estate."        Matter of Adoption of Baby T., 
311 N.J. Super. 408, 415 (App. Div. 1998), rev'd and reinstated, 
160 N.J. 332 (1999).         "Whether the equitable adoption concept is

applicable must be decided in the context of a specific claim

because   each   claim    is   distinct   and    is   supported   by    policy

considerations peculiar to it." Id. at 416.

    In Hendershot v. Hendershot, the court held the testator had

entered into a binding oral agreement supported by consideration

to adopt his stepson and to make a will bequeathing and devising

a share of his estate to his stepson.           
135 N.J. Eq. 232 (Ch. Div.

1944).    The court ordered specific performance of the agreement

which had been partially performed.

    To find an equitable adoption has occurred, courts generally

require proof of an agreement to adopt.          For example, in Burdick,

in which a stepson sought enforcement of an alleged oral adoption

agreement to allow him to inherit from his stepfather's estate,

the court explained the necessity for exacting proof to enforce

                                    22                                 A-1955-15T1
an alleged oral agreement to adopt a child.     Supra, 
113 N.J. Eq.

                 While a court of equity -- when to do
            otherwise would result in palpable injustice
            -- should unhesitatingly decree an adoption
            and its incidental and resultant rights of
            inheritance, where there has been no formal
            statutory adoption effected, it should,
            however, always require that the adoption
            agreement be first established by proof of the
            type and character required in such cases,
            with respect to the production and sufficiency
            of which it should be rigid and exacting.

                 Sight, however, must not be lost of the
            fact that parol agreements of that character
            are not looked upon with favor by the courts.
            Such is but the natural result of the fact
            that they are easily fabricated and most
            difficult to disprove, since they most usually
            are not brought into controversy until after
            the grim reaper has intervened and forever
            hushed the voice of the alleged promisor . .
            . . It is because of these facts that the
            courts have come to regard this class of oral
            agreements   with   grave    suspicion,   have
            subjected them to close scrutiny and have
            allowed them to stand only when established
            by evidence that is clear, cogent and
            convincing, leaving no doubt with respect to
            their actual making and existence.

            [Id. at 597-98 (citations omitted).]

       Because the stepson in Burdick did not present "direct cogent

evidence" that the decedent specifically agreed to adopt him, the

court found the evidence to be "manifestly deficient" and falling

far short from establishing the stepfather had made a specific

                                 23                          A-1955-15T1
agreement to adopt the stepson.         Id. at 599, 602.   Accordingly,

the court ruled an equitable adoption did not exist.

     Additionally, courts have found an equitable adoption to

exist where there is clear and convincing evidence that an adoption

must have occurred. Ashman v. Madigan, 
40 N.J. Super. 147 (Ch.

Div. 1956).     In those instances, direct evidence of such an

agreement is "unnecessary, if, as here, the statements and conduct

of the adopting parent are such to furnish clear and satisfactory

proof that an adoption must have existed." Id. at 150.

     In the present case, Litwin has not established clear and

convincing evidence that an agreement to adopt the decedent ever

existed.   At best, Litwin claims he intended to marry decedent's

mother Louanne Acerra and adopt decedent.          In his certification

dated July 20, 2015, Litwin stated:       "Over the years, on numerous

occasions, I discussed adopting Louis with both Louanne and Louis."

He further stated:    "Louanne and I often discussed that I wanted

to adopt Louis.      I also discussed with Louis that I wanted to

adopt him."   Litwin believed that if he married Louanne, he "would

be deemed to have adopted Louis" without filing any formal adoption

papers.    Unfortunately, Louanne Acerra died before they were


     The   record   demonstrates   Litwin    did   not   enter   into    an

enforceable agreement to adopt the decedent.        Nor did he take any

                                   24                             A-1955-15T1
steps   to    initiate   an   adoption    proceeding.    The    trial     court

correctly concluded an equitable adoption did not exist.

     Litwin's remaining arguments lack sufficient merit to warrant

discussion in a written opinion.          R. 2:11-3(e)(1)(E).

     Litwin has failed to establish a parent and child relationship

under the purely statutory intestacy laws because he is neither a

natural nor adoptive parent.       Therefore, the trial court correctly

concluded he is not entitled to inherit from decedent's estate.


     We      next   address   Litwin's    application   for    an   award      of

attorney's fees from the estate pursuant to Rule 4:42-9(a)(3) and

out of a fund in court pursuant to Rule 4:42-9(a)(2). Under either

subsection, the award of counsel fees is discretionary.                 See R.

4:42-9(a)(2) (stating a court "in its discretion may make an

allowance out of such a fund"); R. 4:42-9(a)(3) (stating "the

court may make an allowance").            The trial court denied counsel

fees under both subsections of the rule.

     "[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.'"          Litton Indus., Inc. v.

IMO Indus., Inc., 
200 N.J. 372, 386 (2009) (quoting Packard-

Bamberger & Co. v. Collier, 
167 N.J. 427, 443-44 (2001)).                    The

same standard of review applies to the denial of counsel fees.

                                     25                                 A-1955-15T1
     Rule 4:42-9(a)(3) permits a court, in its discretion, to make

an allowance for attorneys' fees in certain probate actions,

providing in pertinent part:

           In a probate action, if probate is refused,
           the court may make an allowance to be paid out
           of the estate of the decedent. If probate is
           granted, and it shall appear that the
           contestant had reasonable cause for contesting
           the validity of the will or codicil, the court
           may make an allowance to the proponent and the
           contestant, to be paid out of the estate.

           [R. 4:42-9(a)(3).]

     Reasonable cause under the rule requires the moving party to

"provide the court with a factual background reasonably justifying

the inquiry as to the testamentary sufficiency of the instrument

by the legal process." In re Will & Codicil of Macool, 
416 N.J.

Super. 298, 313 (App. Div. 2010) (citation omitted).

     Here, Litwin was not contesting the validity of a will or

codicil.     He   was   litigating    his    claim   to   entitlement    to

distribution as an intestate heir.     His claim lacked merit and was

denied.    Defending against Litwin's claim caused the estate to

incur substantial attorney's fees.          Had he succeeded, the legal

services performed by his attorney would have benefitted only him,

not the estate.   Under these circumstances, Litwin did not qualify

for an award of attorney's fees.      See In re Trust Agreement Dated

Dec. 20, 1961, 
399 N.J. Super. 237, 260-62 (App. Div. 2006)

                                 26                               A-1955-15T1
(holding a claimant who succeeded only in being added to a class

of beneficiaries who may receive a distribution benefitted only

himself and is not entitled to an award of attorney's fees), aff'd,

194 N.J. 276 (2008);        Estate of Silverman, 
94 N.J. Super. 189,

194-95 (App. Div. 1967) (disallowing fees for that portion of case

prosecuted by plaintiff to advance his own interests); Estate of

399 N.J. Super. 426 (Law Div. 2007) (holding services

benefitting only the litigant and not the estate do not qualify

for an attorney's fee award).        Under the facts in this matter, the

denial of Litwin's application for an award of attorney's fees was

not an abuse of discretion.

      During oral argument, Litwin also argued he should be awarded

attorney's fees under the fund in court doctrine.              This issue was

not briefed by Litwin.      Our rules require an appellant to identify

and fully brief any issue raised on appeal.            R. 2:6-2(a).     Parties

to   an   appeal   are   required   to    make   a   proper   legal   argument,

supporting their legal argument with appropriate record references

and providing the law.        State v. Hild, 
148 N.J. Super. 294, 296

(App. Div. 1977); see also Sackman v. N.J. Mfrs. Ins. Co., 
445 N.J. Super. 278, 297-98 (App. Div. 2016).            It is not the appellate

court's duty to search the record to substantiate                     a party's

700 Highway 33 LLC v. Pollio, 
421 N.J. Super. 231, 238

(App. Div. 2011).

                                     27                                 A-1955-15T1
     For these reasons, a party's failure to properly brief an

issue will be deemed a waiver.   See, e.g., Gormley v. Wood-El, 
218 N.J. 72, 95 n.8 (2014); N.J. Dep't of Envtl. Prot. v. Alloway

438 N.J. Super. 501, 505 n.2 (App. Div.), certif. denied,

222 N.J. 17 (2015).   An appellant may escape that waiver only in

the interests of justice.   Otto v. Prudential Prop. & Cas. Ins.

278 N.J. Super. 176, 181 (App. Div. 1994).

     Because Litwin did not address this claim in his brief, we

consider the claim waived and abandoned.       See Drinker Biddle &

Reath LLP v. N.J. Dep't. of Law & Pub. Safety, 
421 N.J. Super.
 489, 496 n.5 (App. Div. 2011).        For the following reasons, the

interests of justice do not require us to consider this issue as

we find Litwin's fund in court claim to have no merit.

     The respective litigation costs and contingent attorney's

fees generated by the underlying negligence action were deducted

from each plaintiff's settlement recovery. As a result, the estate

paid for the costs and fees relating to its portion of the

settlement.   Accordingly, the fund in court doctrine does not

apply to the negligence recovery.

     The legal services rendered by Litwin's attorney in the

probate action redounded only to his own benefit, not to the

benefit of the heirs of the estate.      The fund in court exception

to the American rule that parties bear their own attorney's fees

                                 28                          A-1955-15T1
"does not apply when a party litigates a private dispute for its

own personal gain."    Henderson v. Camden Cty Mun. Util. Auth., 
176 N.J. 554, 564 (2003) (citing Sunset Beach Amusement Corp. v. Belk,

33 N.J. 162, 169-70 (1960); Janovsky v. Am. Motorists Ins. Co.,

11 N.J. 1, 7-8 (1952)).

     The record amply supports the denial of Litwin's application

for counsel fees.     We discern no abuse of discretion by the trial



     Finally, we address appellants' claims that the trial court

erred by ruling relatives of the "half-blood" inherit equally to

relatives of the "whole-blood" pursuant to 
N.J.S.A. 3B:5-4(e) and

N.J.S.A. 3B:5-7.    We disagree.

N.J.S.A. 3B:5-4 governs the intestate share of heirs other

than a surviving spouse or domestic partner.      In relevant part,

it provides decedent's estate passes to his aunts and uncles,


           If there is no surviving descendant, parent,
           descendant of a parent, or grandparent, but
           the decedent is survived by one or more
           descendants of grandparents, the descendants
           take equally if they are all of the same degree
           of kinship to the decedent, but if of unequal
           degree those of more remote degree take by

           [N.J.S.A. 3B:5-4(e).]

                                   29                        A-1955-15T1
      Wallace and Acerra contend aunts and uncles of the "half-

blood" do not inherit because, while subsections (c) and (d) of

N.J.S.A. 3B:5-4 use the language "either of them" when describing

distribution      to    descendants      of    the    decedent's       grandparents,

subsection (e) does not.           They further contend the "half-blood"

concept in our intestacy law is limited to siblings and their

issue, and, thus, respondents do not qualify as half-bloods within

the meaning of the statute.

      Appellants liken their situation to the facts in Bray v.

Taylor, where the court noted that, by traditional common law

rule, cousins by "half-blood" were not permitted to inherit under

the fifth section of the intestacy statute, which extended only

to    brothers    and    sisters    of    the       "half-blood,"       rather    than

collaterals of a more remote degree.                 
36 N.J.L. 415, 418 (E. & A.

1872).    But see In re Estate of Peake, 
115 N.J. Eq. 233 (Prerog.

Ct.) (holding that relatives of half-blood and whole-blood take

equally by representation), aff'd, 
116 N.J. Eq. 565 (1934).                        The

statute under review in Bray is no longer in effect.                     In light of

the   enactment    of    
N.J.S.A.     3B:5-7,        we    do    not   consider   Bray

controlling authority.

      The intent of the Legislature is clear.                   By enacting 

3B:5-7, the Legislature clearly and unambiguously pronounced that

relatives   of    the    "half-blood"         and    the   "whole-blood"     inherit

                                         30                                   A-1955-15T1
equally under our law of intestacy.        The language of the statute

could not be clearer:      "Relatives of the half[-]blood inherit the

same share they would inherit if they were of the whole[-]blood."

N.J.S.A. 3B:5-7.

     Aside from the clear and unambiguous language of the statute,

several more recent decisions support the conclusion that half-

blood and whole-blood relatives take equally, and that the half-

blood inheritance status is not limited to the sibling level of

kinship.   In Murphy v. Westfield Trust Co., the Court specifically

recognized   half-blood    and   whole-blood     relatives    are   on   equal

130 N.J. Eq. 600, 601 (E. & A. 1942).        In so ruling, the

Murphy court did not distinguish between relatives of the half-

blood at the sibling level, and relatives of the half-blood at

more remote levels.

     Further, in Wood v. Wood, the court rejected the argument

that relationship to a decedent through a "double bloodline"

entitles a relative to a greater portion of the intestate estate.

160 N.J. Super. 597, 602 (App. Div. 1978).          The decedent in Wood

died intestate, leaving a maternal grandmother and paternal aunt

as his surviving heirs.          Id. at 599.      Thereafter, decedent's

paternal aunt claimed she was entitled to a greater share of the

decedent's estate.       Ibid.   The court held the estate should be

equally    distributed    between   the   aunt    and   the    grandmother,

                                    31                               A-1955-15T1
concluding "a dual relationship does not entitle the holder to a

multiple inheritance."   Id. at 603 (citation omitted).

     We hold decedent's aunts and uncles of the half-blood and the

whole-blood inherit equally under our intestacy laws.     

3B:5-7 mandates that result.    The statute draws no distinction

between relatives at the level of aunts and uncles, and those

related by more remote degrees of kinship.   For these reasons, we

affirm the trial court's ruling that relatives of the "half-blood"

and "whole-blood" inherit equally.


     In summary, we affirm the trial court's ruling that Litwin,

who is neither decedent's biological father nor his adoptive

father, is not an intestate heir of the estate.   We further affirm

the trial court's decision to deny Litwin's application for counsel

fees. We also affirm the trial court's ruling that in an intestate

estate, relatives of the "half-blood" take equally with relatives

of the "whole-blood."


                               32                           A-1955-15T1