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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5646-16T4






                    Submitted November 13, 2018 - Decided December 5, 2018

                    Before Judges Sumners and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Sussex County,
                    Docket No. FM-19-0123-16.

                    Kornitzer Family Law, LLC, attorneys for appellant
                    (Robert B. Kornitzer, on the brief).

                    Faith A. Ullmann & Associates, LLC attorneys for
                    respondent (Faith A. Ullmann, of counsel; Dina M.
                    Mikulka, on the brief).

      The executor of defendant Cesar A. Santana's estate (the executor) appeals

from a trial court order granting summary judgment to plaintiff Nildia Acosta-

Santana and dismissing the divorce complaint with prejudice, and a subsequent

order denying the executor's motion for reconsideration. We affirm.

      Plaintiff and defendant were married on March 27, 1990. On September

10, 2015, plaintiff filed a complaint for divorce against defendant. On June 3,

2016, defendant executed a last will and testament, which divided his estate into

equal shares for his and plaintiff's three children and directed that if all of his

children predeceased him, his estate should be given to his brother and sister-

in-law. Defendant's will nominated Richard A. Vera as executor of the will. On

October 28, 2016, defendant passed away, before the entry of a final judgment

of divorce.

      On February 27, 2017, the executor filed a motion to interplead in the

divorce action pursuant to Rule 4:31, and to replace defendant in the divorce

action. By order dated May 3, 2017, the Honorable Noah Franzblau denied the

executor's motion to interplead, granted plaintiff's cross-motion for summary

judgment, and dismissed the divorce complaint with prejudice.

      On May 24, 2017, the executor filed a motion for reconsideration. As part

of the motion for reconsideration, the executor certified that defendant "was

always very clear that he did not want his share of assets to be acquired by

[plaintiff], but to be left directly to his children[.]" The executor argued that

dismissing the divorce action would result in plaintiff's unjust enrichment and

harm to defendant, his children, and his creditors. According to the executor,

plaintiff would receive approximately $615,000 from defendant's estate and

from the property that defendant and plaintiff held jointly. However, "had

[defendant] survived and the divorce been finalized, [plaintiff] would have

likely received less than half of that amount because [defendant's] premarital

portion of his assets would have ultimately been taken into account in the

equitable distribution of their assets."

      Judge Franzblau granted plaintiff's motion for summary judgment and

denied the executor's motion for interpleader. The judge recognized the New

Jersey precedents of Carr v. Carr,  120 N.J. 336 (1990) and Kay v. Kay,  405 N.J.

Super. 278 (App. Div.), aff'd  200 N.J. 551 (2010), but ruled that both cases were

inapposite. Judge Franzblau dismissed the divorce complaint based on the well-

established New Jersey law that "absent exceptional circumstances, divorce

proceedings abate with the death of one of the parties." Judge Franzblau found

that no exceptional circumstances existed and that plaintiff would not be

unjustly enriched by inheriting defendant's estate as a matter of law. The judge

also denied the executor's motion for reconsideration because the motion did not

"assert any new or material facts that were not previously considered by this

Court." This appeal followed.

      We review a trial court's grant of summary judgment de novo. Conley v.

Guerrero,  228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida Corp. v.

Nat'l Union Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016)). Thus,

"summary judgment will be granted if there is no genuine issue of material fact

and 'the moving party is entitled to a judgment or order as a matter of law.'"

Ibid. (citing Templo Fuente,  224 N.J. at 199). In reviewing a grant of summary

judgment, we consider "whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520,

536 (1995) (quoting Anderson v. Liberty Lobby,  477 U.S. 242, 251-52 (1986)).

However, "conclusory and self-serving assertions by one of the parties are

insufficient to overcome [a summary judgment] motion." Puder v. Buechel,  183 N.J. 428, 440 (2005) (citing Martin v. Rutgers Cas. Ins. Co.,  346 N.J. Super.
 320, 323 (App. Div. 2002)). If there is no issue of fact, appellate courts give no

special deference to the trial court's rulings on matters of law. Templo Fuente,

 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

 140 N.J. 366, 378 (1995)).

      As Judge Franzblau found, divorce proceedings abate when one of the

parties dies before the entry of the final order of divorce. Carr,  120 N.J. at 342;

Castonguay v. Castonguay,  166 N.J. Super. 546, 550 (App. Div. 1979); Jacobson

v. Jacobson,  146 N.J. Super. 491, 493 (Ch. Div. 1976). However,

                   if the facts justifying the entry of a decree
                   were adjudicated during the lifetime of the
                   parties to a divorce action, so that a decree
                   was rendered or could or should have been
                   rendered thereon immediately, . . . the
                   death of one of the parties to the action
                   subsequently to the rendition thereof, but
                   before it is in fact entered upon the record,
                   does not prevent the entry of a decree . . . .

                   [Olen v. Olen,  124 N.J. Super. 373, 377
                   (App. Div. 1973) (quoting 
104 A.L.R.

      Furthermore,     absent    "highly       unusual   circumstances,"   equitable

distribution of marital assets occurs only upon the adjudication of divorce. Carr,

 120 N.J. at 342-43;  N.J.S.A. 2A:34-23(h).            Highly unusual circumstances

include one party's fraud or unjust enrichment. Kay,  405 N.J. Super. at 284

(citing Carr,  120 N.J. at 351). In such cases, the trial court may, acting in equity,

impose a constructive trust on the marital assets, even after one of the spouses

has died during the pendency of the proceedings. Id. at 285.

      Here, defendant died before the divorce proceeds concluded; thus, the

divorce proceedings abated with defendant's death, and absent exceptional

circumstances, equitable distribution would also abate. See Jacobson,  146 N.J.

Super. at 493; Carr,  120 N.J. at 342-43. Further, defendant and plaintiff had not

completed equitable distribution calculations when defendant died; thus, not all

of the facts were adjudicated while defendant was alive and a divorce decree

could not have been entered on those grounds. Olen,  124 N.J. Super. at 377.

      We agree with the trial court's conclusion that this case does not present

any exceptional circumstances such as those presented by the facts in Carr and

Kay. See Carr,  120 N.J. at 350-51; Kay,  405 N.J. Super. at 285. In Carr, the

Court was concerned because, absent judicial intervention, the surviving spouse

of a seventeen-year marriage would have received nothing from the estate. See

 120 N.J. at 344, 346 n.2. She did not qualify for equitable distribution because

the death of her spouse abated the divorce proceedings. Id. at 342. She also

could not obtain her elective share of the estate because the parties we re not

living together at the time of the husband's death. Id. at 344 (citing  N.J.S.A.

3B:8-1). The Court in Carr court likened her situation to a "black hole." Ibid.

Under those unique facts, the Court upheld the lower court's rulings that the

surviving spouse was entitled to equitable relief, and that the proper relief under

the circumstances was the imposition of an equitable trust. Id. at 351.

      As the trial court found, unlike Carr, the executor brought this interpleader

not to protect an innocent living spouse; rather, the executor seeks the

imposition of a constructive trust to enrich defendant's estate to the detriment of

the surviving spouse.  1 See id. at 340-41.

      Furthermore, the executor has not demonstrated that plaintiff would be

unjustly enriched in the absence of a constructive trust. Unlike the facts in Kay,

there are no allegations of dissipation of marital assets.  405 N.J. Super. at 286.

While plaintiff certainly received a benefit by being the primary beneficiary of

defendant's insurance policies and retirement accounts and obtaining full

ownership of the house by operation of law, the executor failed to present an

argument that these benefits are unjust. The executor's primary argument is that

defendant's intent for his estate cannot be fulfilled if the court does not impose

a constructive trust, because most of defendant's property was held jointly with

plaintiff and defendant was unable to change the beneficiaries of his insurance

  The parties' three adult children submitted certifications in opposition to the
executor's motion to interplead or establish a constructive trust and supporting
their mother's inheritance of the marital estate by operation of law.
policies before he died. However, the record does not indicate that plaintiff

committed any fraud or misconduct that would benefit her to the detriment of

the marital estate.        Thus, the judge correctly found that there were no

exceptional circumstances that required equitable relief in this case and properly

denied the executor's motion to interplead and granted summary judgment in

favor of plaintiff.

      Similarly, we agree that the trial court correctly denied defendant's motion

for reconsideration.       We review a trial court's denial of a motion for

reconsideration for abuse of discretion. Guido v. Duane Morris L.L.P.,  202 N.J.
 79, 87 (2010). Motions for reconsideration "shall state with specificity the basis

on which it is made, including a statement of the matters or controlling decisions

which counsel believes the court has overlooked or as to which it has erred[.]"

R. 4:49-2.

                      Reconsideration should be utilized only for
                      those cases which fall into that narrow
                      corridor in which either 1) the Court has
                      expressed its decision based upon a
                      palpably incorrect or irrational basis, or 2)
                      it is obvious that the Court either did not
                      consider, or failed to appreciate the
                      significance of probative, competent
                      evidence . . . .

                      [Cummings v. Bahr,  295 N.J. Super. 374,
                      384 (App. Div. 1996) (quoting D'Atria v.

                   D'Atria,  242 N.J. Super. 392, 401-02 (Ch.
                   Div. 1990)).]

      Furthermore, "if a litigant wishes to bring new or additional information

to the [c]ourt's attention which it could not have provided on the first

application, the [c]ourt should, in the interest of justice (and in the exercise of

sound discretion), consider the evidence." Ibid.

      Here, the executor's argument is fundamentally a disagreement with the

trial judge's decision. The executor loosely argues that the judge failed to

consider Carr and Kay. However, Judge Franzblau's written opinion provides a

full analysis of both cases and correctly found that they were inapposite. The

executor also argues that the trial court did not consider that its ruling would

create an unjust result for defendant's estate.      To the contrary, the judge

recognized that defendant's testamentary plans would not be carried out, but

ruled that it was not an unjust result. Thus, the executor failed to present any

new evidence, material evidence, or case law that the judge failed to consider.

See R. 4:49-2. Furthermore, the executor failed to establish that the trial court's

decision was based on "a palpably incorrect or irrational basis." See Cummings,

 295 N.J. Super. at 384 (quoting D'Atria,  242 N.J. Super. at 401-02). We thus

find that the trial judge did not abuse his discretion in denying the executor's

motion for reconsideration. See Guido,  202 N.J. at 87.

      The remaining arguments raised by the executor are without sufficient

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



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