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SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1955-15T1
IN THE MATTER OF THE ESTATE
OF LOUIS M. ACERRA.
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
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
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
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
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.
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
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
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
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
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
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
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
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
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"
and the "whole-blood"; and (2) the trial court erred in its
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,
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
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
221 N.J. 632, 639 (2015) (citing Murray v. Plainfield
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
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
396 N.J. Super. 317, 324 (App. Div. 2007) (citing
State v. Churchdale Leasing, Inc.,
115 N.J. 83, 101 (1989)),
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
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
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
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
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
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
(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
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."
"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.,
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
presumption." Ibid. (citing Monmouth County Div. of Soc. Servs.
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
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
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
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[.]
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
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
were they under a duty to support the decedent after the death of
We further note the legislative history of
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
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
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
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."
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
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.,
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
[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
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
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
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.
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.
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,
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)
(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).
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
"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
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
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
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."
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,
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."