IN THE MATTER OF THE ESTATE OF MARY JANE LYNCH, DECEASED

NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
     Although it is posted on the internet, this opinion is binding only on the
       parties in the case and its use in other cases is limited. R. 1:36-3.




                                             SUPERIOR COURT OF NEW JERSEY
                                             APPELLATE DIVISION
                                             DOCKET NO. A-5617-14T2


IN THE MATTER OF THE ESTATE
OF MARY JANE LYNCH, DECEASED.
_________________________________

             Argued February 28, 2017 – Decided November 8, 2017

             Before Judges Messano and Suter.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Probate Part, Gloucester
             County, Docket No. P-07-788.

             Michael J. Confusione argued the cause for
             appellant/cross-respondent Deborah Williams
             (Hegge & Confusione, LLC, attorneys; Mr.
             Confusione, of counsel and on the briefs).

             Ronald P. Sierzega argued the cause for
             respondent/cross-appellant Estate of Mary
             Jane Lynch (Puff & Cockerill, LLC, attorneys;
             Mr. Sierzega, on the brief).

       The opinion of the court was delivered by

SUTER, J.A.D.

       Deborah Williams (Williams) appeals eight orders1 entered in

the underlying probate case involving the Estate of Mary Jane


1
  These include orders dated June 30, 2015; June 2, 2015; January
28, 2014; June 4, 2012; March 16, 2012; April 8, 2011; March 13,
2009; November 18, 2008.
Lynch (Estate).      We affirm the orders except the dollar amount of

the surcharges set forth in the June 30, 2015 order.           We exercise

our original jurisdiction under Rule 2:10-5 to modify the amount

of the surcharges.

                                   I.

       Mary Jane Lynch and her husband had two children, Deborah

Williams (Williams) and John Lynch (Lynch).          Mary Jane's husband

pre-deceased her.

       In 1992, Mary Jane executed a will and declaration of trust

(will).      Under   her   will,   her   personal   property   was    to    be

distributed equally to Williams and Lynch.          The residuary estate

was left to the Mary Jane Lynch Family Trust and the assets there

divided equally between the two children, who were also the co-

trustees.    Under the will, Williams was to be co-executor with

Lynch.

       In 2005, Mary Jane was diagnosed with colon cancer.        She died

June 19, 2007. Shortly after Mary Jane's death, Williams renounced

her position as co-executor, leaving Lynch as the sole executor.2

The estate consisted of a house with furnishings, a car, and bank

accounts.    Lynch represented to Williams that its value was about

1.9 million.



2
    We do not know if she renounced her position as co-trustee.

                                     2                               A-5617-14T2
     Only two verified complaints have been filed in this matter.

The first was in 2008, after Williams and Lynch disagreed about

the appraised value of the house.   Williams filed an order to show

cause and verified complaint requesting to be renamed as co-

executor, ordering Lynch to cooperate with her, and restraining

him from dissipating or encumbering any assets of the Estate.

Lynch's answer and counterclaim sought to compel Williams to

account for property she allegedly took from the estate, sought

damages for breaching the contract to purchase the house, and for

rent for the period of time she resided there.

      The court ordered Lynch to provide a full and complete

accounting.   The parties were to exchange discovery and the case

was listed for trial.     Lynch alleges he provided an informal

accounting by November 2008. By March 2009, the case was dismissed

because of Williams' failure to provide discovery.

     Although there was then no complaint pending in the Probate

Part, both parties filed motions: Lynch to sell the house and

Williams for a formal accounting.   In her affidavit in support of

the formal accounting, Williams alleged that Lynch took monies

from a joint account at Commerce Bank that he shared with Mary

Jane, that he took the contents of the house without paying for

them and, during Mary Jane's lifetime, had been paying himself

$5000 per month from their mother's assets.

                                3                           A-5617-14T2
     The court approved the sale of the house and those funds were

placed in escrow.   Lynch was to provide "documentation in support

of accounting and documentation of any of mother's money/assets

handled by him for a period of [five] years prior to mom's death."

Shortly after, Williams' notice in lieu of subpoena to obtain the

personal financial records of Lynch was quashed, but she was

permitted to subpoena the "brokerage and financial records of her

mother."

     In June 2011, Lynch filed the second order to show cause and

verified complaint in this matter.      That verified complaint sought

approval of the formal accounting, which was attached; permission

to allow distributions per the accounting; and payment of fees for

the estate attorneys, Puff & Cockerill, LLC. Williams filed an

answer and exceptions.3

     The trial court proposed to disallow $29,691.54 of the items

listed in the accounting as either not chargeable to the estate

or lacking in detail.      The court then allowed the parties to

"provide   additional     proofs,   clarification    and   a   revised

accounting" in response to the court's proposed findings.




3
  The record does not include a copy of the answer or the
exceptions. However, the trial court's June 4, 2015 opinion makes
reference to them.

                                    4                          A-5617-14T2
     The    parties    made   additional    submissions.       Following      oral

argument,    the   court   entered   an    order   on   June   4,    2012,    that

"allowed" the "Revised Final Accounting" except for $29,691.54                   in

expenses that earlier had been disallowed.              The trial court also

disallowed as "improper" an enumerated listing of checks amounting

to $132,500, that Lynch wrote for himself or family members while

he was Mary Jane's power of attorney, and ordered that the amount

of those checks be refunded or credited against Lynch's share of

the estate.        In addition, the court found that Williams had

improperly withdrawn $47,000 from Mary Jane's bank account prior

to her death and ordered that Williams refund these monies or that

they be taken from her credit. The trial court ordered the parties

to attend a mediation and arbitration to apportion the contents

of the house.         The court ordered that Mary Jane's "bank and

investment    account      statements"     be   produced.           It   approved

$46,237.17 in fees and costs for Puff & Cockerill, as counsel for

the estate to which there was no objection. Lynch was to restate

the accounting to reflect the court's decision with a calculation

for the executors' fee.        No appeal was taken from any provision

of that order.

     Williams retained new counsel, who filed a motion in January

2013 to reconsider the June 4, 2012 order that she repay $47,000,

to ask for a final accounting of the estate, to request further

                                      5                                   A-5617-14T2
discovery to respond to the final accounting because it "makes

reference or fails to make reference" to the disposition of shares

of Exxon Mobil stock, and a certain margin account, which were

open issues.      Williams asked that Lynch be removed as executor

because of his poor health.            The motion did not mention removal

for negligence, malfeasance or misfeasance.

      Williams denied that she took $47,000 from the estate's funds.

She contended the accounting was incomplete because it did not

reference    certain    accounts,      discuss      a   margin    account    at    TD

Ameritrade, the loan on the margin account, or explain why 2000

shares of Exxon Mobil stock were not distributed.                    She alleged

Lynch's health no longer enabled him to serve as executor.

      Lynch opposed the motion and cross-moved for reconsideration

of   the   June   4,   2012   order.    He   contended     that    all   requested

documents had been provided "including all tax returns, every TD

America Trade account statement, every joint account statement,

all banking records, and even a specific signed statement as to

how the margin account was handled."             He denied that he was not

able to handle his duties as executor.           He requested an executor's

commission based on the amount of money in the estate. He denied

that he was Mary Jane's power of attorney and objected to the

$132,500    surcharge.         Williams      made       additional   submissions

elaborating on the same themes.

                                        6                                   A-5617-14T2
      The trial court heard the motions and reserved.             The parties

were permitted to engage in additional discovery.           On January 28,

2014, the motions were largely denied without prejudice by the

trial court, but counsel were to confer about the in camera

inspection of "bank accounts for John Lynch family members."

     In May 2014, without an order to show cause or verified

complaint, Williams filed a motion to remove Lynch as executor,

to appoint Williams in his stead, to order Lynch to return monies

taken from the estate, to appoint a forensic accountant, to re-

depose Lynch and for attorney's fees and costs. The motion further

requested another formal accounting.            This motion was supported

by Williams' detailed certification that again alleged Lynch had

taken monies from various accounts while Mary Jane was alive and

after her death.     The certification alleged that Lynch as executor

had "violated and abused his duties" by not providing financial

information and a host of other allegations largely involving

money taken from Mary Jane's accounts before and after her death.

     Lynch filed a cross-motion seeking reconsideration of the

June 2012 order because he alleged he was not the attorney-in-fact

for his mother.     He requested an executor's commission, attorney's

fees for the estate's counsel, and an order settling the estate.

Following    oral   argument,   the   parties    were   ordered    to    attend

mediation.    When mediation with a retired jurist did not resolve

                                      7                                 A-5617-14T2
the motions, they were rescheduled, and the parties made additional

submissions, which by now included the production by Williams of

a detailed "forensic" accounting report by Forensic Resolutions,

Inc.

       On June 2, 2015, the court issued a written decision deciding

the motions and on June 30, 2015, executed an order closing the

estate. In the written opinion, the trial court approved payment

to Williams for the forensic accounting report.    The court denied

William's request for counsel fees because she was not entitled

to fees under Rule 4:42-9(a)(3) for probate actions or under Rule

4:42-9(a)(2) from a "fund in court" because she had not "aided

directly in creating, preserving or protecting the fund."

       The court denied the removal of Lynch as executor finding

that it was "too late" in the process as the court already had

approved the accounting in 2012 and also because both parties

acknowledged removing funds from the estate.     However, the court

permitted Williams to file a complaint against Lynch "setting

forth her claims against John Lynch that predate their mother's

death and setting forth the relief she seeks which may include

claims against John Lynch as Trustee of the Trust and an accounting

of the $426,000 borrowed from the margin account between May 2005

and June 2007."    The court cited to Donnelly v. Ritzendollar, 14



                                  8                          A-5617-14T
2 N.J. 96, 108 (1953) for the proposition that laches will not defeat

a claim against a fiduciary under certain circumstances.

     The court denied reconsideration of the surcharges assessed

to Lynch and Williams.        The court found that Lynch's motion for

reconsideration of the issue was not timely.             Even if he did not

hold a power of attorney for his mother, the court explained that

he was a joint owner of the convenience checking account with her

and all of the money in the account was hers requiring him to

repay the estate.

     The court approved attorney's fees of $54,800 for Puff &

Cockerill, the estate attorneys, and denied Lynch's request for

reimbursement of out of pocket expenses.           The parties were ordered

to provide the specific accounting fees and executor's commission.

     The final order closing the estate was entered on June 30,

2015.   This awarded the fees to Puff & Cockerill as requested,

$24,314 to Williams for the forensic accountant, $21,136 to Lynch

as the executor's commission, and $42,750 to Williams as an

adjustment,    to   reflect    the   net    difference     between   Lynch's

surcharge and Williams' surcharge.         These appeals followed.

     Williams appeals each of the orders entered in the case since

2008.    She   contends   the    court     erred    by   not   conducting    an

evidentiary hearing about Lynch's handling of the Exxon Mobil

stock, the checks written to himself and family members and other

                                     9                                A-5617-14T2
alleged    malfeasance.   If   an    evidentiary   hearing   is   granted,

Williams requests a different judge in a different county.              She

contends the court erred in considering the accounting submitted

as a formal accounting because it did not document the value of

Mary Jane's estate at the time of her death or the disposition of

each asset.     Williams asserts the court should not have allowed

legal fees to Puff & Cockerill or an executor's commission to

Lynch.     Williams says that the court erred in surcharging her

$47,000.

      Lynch opposes the appeal, contending the court did not err.

However, if an evidentiary hearing is ordered, Lynch requests

limiting it to issues involved in the probate estate.        Lynch filed

a cross-appeal from the June 30, 2015 order to the extent it

surcharged him $132,500, requesting the reversal of that portion

of the order.

     With the exception of the calculation of the surcharges, we

find no merit in any of these contentions.

                                II.

                                    A.

     Williams contends that the court erred by not holding an

evidentiary hearing on her claim that Lynch committed malfeasance

and should be removed as executor of Mary Jane's estate.                  We

discern no error by the court in resolving the issues before it

                                    10                             A-5617-14T2
in a summary manner based on the submissions of the parties and

argument of counsel.

     We do not agree with Williams that because her 2008 complaint

to resume appointment as co-executor was scheduled for trial in

2009, the complaint constituted a request for a plenary hearing

on the alleged malfeasance issues.   The issues in her complaint

involved the sale of the house and disposition of its contents,

not the Exxon Mobil stock and check transfers.   The 2008 complaint

was also dismissed in 2009 based on discovery violations.        The

record does not show it was reinstated.

     In June 2011, Lynch filed an order to show cause and verified

complaint to allow the final accounting and settle the estate.

However, Williams' request for a hearing related to items of

personalty that remained in the house before its sale and not

other issues.   The court referred the issue of personalty to

mediation.4

     Williams contends on appeal that there were factual issues

regarding her request to remove Lynch as executor that required

an evidentiary hearing.   However, she filed a motion in January

2013, asking that Lynch be removed as executor for health reasons


4
 Mediation was not successful. However, Williams did not contest
the value of the personalty listed in the final accounting, nor
is that issue part of this appeal.


                               11                           A-5617-14T2
and "inability to perform his functions as Executor," and not

because of his conduct.        It was not until Williams' motion in May

2014, that she asked to remove Lynch on the ground that he violated

his fiduciary duty.

      In probate, "[u]nless otherwise specified, all actions . . .

shall be brought in a summary manner by the filing of a complaint

and issuance of an order to show cause pursuant to R. 4:67."               R.

4:83-1.   The June 2011 complaint was filed by Lynch, not Williams,

and sought approval of an accounting of the probate estate.5

Williams was a defendant in that litigation.

      By June 2012, the court had approved the accounting. There

was no complaint for removal of the executor.               Williams never

filed a complaint against Lynch, naming him as a defendant in an

individual    capacity   or     as   trustee   of   the   trust,   alleging

misfeasance, malfeasance or wrong doing and seeking his removal

on these grounds.      The verified complaint for an accounting did

not concern non-probate assets such as the trust that was holding

the   Exxon   Mobil   stock.      Williams'    counsel    acknowledged   the

shortcoming in the pleadings in July 2013, stating, "I think we're



5
  "An action to settle an account on an estate trust is a
formalistic proceeding, unique to probate. See R. 4:87-1(a). Its
stylized format involves a line-by-line review on the exceptions
to an accounting." Higgins v. Thurber, 
205 N.J. 227, 229 (2011).
It is a summary proceeding.

                                     12                             A-5617-14T2
going to need an amended complaint to bring the issues for this

missing money [from the MJLF Trust] to light and get them on the

table, because right now I think the pleadings are inadequate for

what we are doing."     No other order to show cause or complaint was

filed, only motions.

      Williams was not prejudiced by the lack of an evidentiary

hearing regarding the non-probate assets. In its June 2, 2015

order, the court expressly allowed Williams to file a new action

"setting forth her claims against John Lynch that predate their

mother's death and setting forth the relief that she seeks which

may include claims against John Lynch as Trustee of the Trust

. . . ."   Therefore, the court did not abuse its discretion by not

conducting an evidentiary hearing on non-probate assets or claims

that Lynch should be removed as executor.

                                  B.

     By order dated June 4, 2012, the court approved the final

accounting,   stating    that   "[t]he   Revised   Final   Accounting    is

allowed, except for those entries which were denied by the court

on the record on May 31, 2012, which denials are noted on the




                                   13                             A-5617-14T2
original revised accounting with the Surrogate."      No appeal was

taken.6

     Both parties request a review of the surcharges entered as

part of that order.   We find no error in the trial court's decision

on the formal accounting and its order directing a surcharge, but

we modify the amount of the surcharges to reflect the record.

      The court determined that both Williams and Lynch admitted

to taking money from Mary Jane's accounts that she maintained to

pay her ongoing expenses.    However, there was no proof, save for

their own statements, that Mary Jane intended the moneys as gifts.

The court was not required to accept these statements as proof of

donative intent.    See, e.g., In re Estate of Perrone, 
5 N.J. 514,

521-22 (1950).

      Williams acknowledged in certifications and her deposition

that she took money from one of her mother's accounts near the end

of her life.     However, it was error to surcharge her $47,000

because that figure came from an unsupported statement made by

Lynch's attorney.     We exercise our original jurisdiction under

Rule 2:10-5 to revise the surcharge.      See Pressler & Verniero,

Current N.J. Court Rules, comment on R. 2:10-5 (2017) ("The


6
  Generally, we "will decline to consider questions or issues not
properly presented to the trial court when an opportunity for
such a presentation is available . . . ." Nieder v. Royal
Indem. Ins. Co., Inc. 
62 N.J. 229, 234 (1973).

                                 14                          A-5617-14T2
exercise of original jurisdiction is also particularly appropriate

to   terminate   lengthy,    burdensome,        and   unnecessary   further

litigation.").   Williams admitted to taking $8400 from Mary Jane's

Ft. Billings account.       We revise the surcharge to reflect that

figure.

      Lynch contends that he was not power of attorney for his

mother and should not be surcharged. However, the court found that

as a joint owner of a convenience account, where 100% of the monies

were Mary Jane's, he was in a position of a fiduciary.                    Under


N.J.S.A. 17:16I-4, "[a] joint account belongs, during the lifetime

of   all   parties,   to   the   parties   in    proportion   to    the    net

contributions by each to the sums on deposit."                There was no

dispute that the funds in the accounts were Mary Jane's and not

Lynch's.     Lynch admittedly signed checks payable to cash for

himself and family members.      Lynch was properly surcharged for the

inter vivos transfers and required to repay them.

      On appeal, Lynch contends that some of the checks were signed

by Mary Jane and the record reflects this. Those checks, amounting

to $22,500,7 are to be excluded from the surcharge.           See R. 2:10-




7
 Specifically they are: (1) 8/15/05: $5,000 check to Nathan Lynch,
(2) 10/14/2005: $5,000 check to Nathan Lynch, (3) 3/24/2006:
$10,500 check to Mary Jane Lynch, and (4) 12/05/2006: $2,000 check
to John & Maggie Lynch.

                                    15                               A-5617-14T2
5. We modify Lynch's surcharge to $110,000 by deducting the amount

of these checks.

     Williams is critical of the accounting, contending it was

merely an expense list.     However, it was Williams' burden to prove

exceptions.      See Perrone, supra, 
5 N.J. at 521 ("[T]he burden of

showing   that    there   are    more    assets   in   an   estate   than   are

acknowledged by the executors in their inventory or account rests

upon the exceptants, and that their contentions must be sustained

with reasonable certainty.").           She did not include her exceptions

to the accounting in this record.            She never appealed the court's

approval of the final accounting in June 2012.              Williams does not

contest the judge's disallowance of certain expenses listed in the

formal accounting.

     Williams contends the court erred in not requiring Lynch to

account for every probate and non-probate asset.                However, the

court's June 2015 decision and order permit Williams to explore

"her claims against [] Lynch that predate their mother's death,"

including "claims against [] Lynch as Trustee of the Trust and an

accounting of the $426,000 borrowed from the margin account between

May 2005 and June 2007."        We are satisfied the court resolved what

issues were before it and preserved other issues for the parties'

future handling.



                                        16                             A-5617-14T2
                                            C.

      We review the assessment of attorney's fees under an abuse

of discretion standard.             Mears v. Addonizio, 
336 N.J. Super. 474,

479-80 (App. Div. 2001).             We find no error in the trial court's

allowance of attorney's fees for Puff & Cockerill as counsel for

the Estate of Mary Jane Lynch.

      There was clear authority for the executor to retain counsel

for the estate.         See 
N.J.S.A. 3B:14-23(1).          The court rules permit

the payment of counsel fees in a probate case.                       R. 4:42-9(a)(3).

"This Court has interpreted Rule 4:42-9 as generally 'codif[ying]

those specific instances where, in the absence of a separately

enabling statute or contract, fee shifting is permitted.'"                      In re

Estate    of    Folcher,      
224 N.J.   496,   507    (2016)      (alteration     in

original) (quoting In re Estate of Vayda, 
184 N.J. 115, 120

(2005)).

      Williams did not object to the attorney's fees that were

awarded    to    Puff    &   Cockerill      in   June    2012   in    the   amount    of

$46,237.17.          That issue is raised for the first time in this

appeal.        We, therefore, decline to consider this issue.                        See

Nieder, supra, 
62 N.J. at 234.

      On June 30, 2015, the court awarded $54,800 "for work done

on   behalf     of    the    Estate,"   finding     that    "[t]he      certification

supports the award of $54,800." Williams contends the fees awarded

                                            17                                A-5617-14T2
to Puff & Cockerill should have been apportioned between the estate

and Lynch personally.      However, Lynch was not sued individually

or as trustee.       Given that there were no claims against Lynch

individually, the court did not abuse its discretion in awarding

fees for the estate's counsel without the requested apportionment.

                                   D.

     Similarly, we find no abuse of discretion in the court's

order awarding an executor's commission to the executor.                  See In

re Estate of Moore, 
50 N.J. 131, 149 (1967) (applying abuse of

discretion standard).     Williams contends that Lynch should not be

entitled to any commission.       Certainly, the court has the ability

to reduce the commission or eliminate it.              See 
N.J.S.A. 3B:18-4;


N.J.S.A. 3B:18-5.      However, without any direct claims against

Lynch here, we cannot say the court abused its discretion in

allowing the executor the statutory commission.

                                       E.

     Given our opinion, we have no occasion to remand the case,

making moot Williams' request to remand to a different county and

a different venue.      Even if the result were different, we would

unequivocally deny the request.         We have thoroughly reviewed this

record,    finding   absolutely   no     basis   for   the   claim   of     bias.

Disagreement with the court's decision is not a basis to request

recusal.    See State v. Marshall, 
148 N.J. 89, 186 (1997) ("[B]ias

                                    18                                    A-5617-14T2
is not established by the fact that a litigant is disappointed in

a court's ruling on an issue.").

       Affirmed as modified.




                               19                         A-5617-14T2