IN THE MATTER OF THE INTESTATE ESTATE OF RICHARD C. FEINSTEIN 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NOT FOR PUBLICATION WITHOUT THE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-0890-18T2

IN THE MATTER OF THE
INTESTATE ESTATE OF
RICHARD C. FEINSTEIN,
     Deceased.
_________________________

                 Argued November 12, 2019 – Decided December 26, 2019

                 Before Judges Ostrer, Vernoia and Susswein.

                 On appeal from the Superior Court of New Jersey,
                 Chancery Division, Middlesex County, Docket No. P-
                 261461.

                 Joel N. Kreizman argued the cause for appellant David
                 Fried (Scarinci & Hollenbeck LLC, attorneys; Joel N.
                 Kreizman, of counsel and on briefs; Kevin M. Foltmer,
                 on briefs).

                 Craig S. Provorny argued the cause for respondent Paul
                 Feinstein (Herold Law PA, attorneys; Craig S.
                 Provorny, of counsel; Brian S. Baum, on the brief).

PER CURIAM

       David Fried, the stepson of intestate decedent Richard C. Feinstein

(decedent), appeals from an order rejecting his claim that he was equitably
adopted by decedent and thereby entitled to inherit decedent's estate. Based on

our review of the record, we are satisfied Fried failed to allege facts or present

evidence establishing an equitable adoption. We therefore affirm the court's

order finding Fried was not equitably adopted by decedent and determining

decedent's brother, Paul Feinstein (Paul), 1 is the sole beneficiary of decedent's

estate.2

                                        I.

      This action commenced with Fried's filing of a caveat with the Middlesex

County Surrogate Court, objecting to the grant of any letters of administration

and the probate of any purported will of decedent, who died on May 27, 2018.

Paul later filed a caveat interposing the same objections.

      Paul filed a verified complaint requesting appointment as the

administrator of decedent's estate and an order directing that Fried provide an

accounting and turn over of decedent's property. The complaint asserted that

Paul is decedent's brother; decedent died intestate; and decedent died without a



1
  Because decedent Richard C. Feinstein and his brother Paul Feinstein share
the same surname, for purposes of clarity we refer to Richard as "decedent" and
Paul Feinstein as "Paul." We intend no disrespect in doing so.
2
  The court's order included other determinations that are not challenged on
appeal. We affirm the court's order on those determinations as well.
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spouse, domestic partner, or any children. Paul asserted that decedent's estate

therefore passed to him pursuant to  N.J.S.A. 3B:5-4. The court entered an order

that in pertinent part required that Fried show cause why an order should not be

entered appointing Paul the administrator of the estate, requiring that Fried

provide an accounting, and granting such other relief the court finds just and

reasonable.

      Fried filed an answer and counterclaim asserting his mother married

decedent in 1981 when Fried was three years old, and "[t]hereafter, in all

respects, [decedent] became [Fried's] father and [Fried] became [decedent's]

son." Fried asserted that "[t]he only reason [decedent] did not legally adopt

[Fried] was that [Fried's] birth father refused to acquiesce." Fried also presented

a certification from decedent's cousin, Elaine Giarrusso, stating that decedent

"let [her] [k]now that one day [decedent] expected his Porsche, among other

things, would be" Fried's. Fried claimed he was entitled to inherit decedent's

estate because decedent equitably adopted him. Fried also alleged he acted

solely for the estate's benefit following decedent's death, Paul offered and

provided no assistance with the administration of the estate, and Fried should be

named the estate's administrator.




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      Fried further submitted a certification asserting that, following his

mother's and decedent's 1981 marriage, decedent "was the only father [he]

knew." Fried averred that he "barely know[s] his birth father[,]" but that he "was

advised that when [decedent] sought to adopt [him], [his] birth father refused to

acquiesce and therefore the adoption never went through." He also asserted

decedent's and Paul's relationship "was very limited," Paul "live[d] on Long

Island, [and] never came to visit" decedent, and he did not believe Paul and

decedent spoke "more than once or twice a year." Fried also detailed the actions

he took on the estate's behalf following decedent's death and claimed Paul "never

objected and . . . never offered to take over or participate."

      Paul submitted a certification disputing Fried's claim that he was not close

with decedent. Paul explained that since 2000, he and decedent suffered from

serious medical issues, and he underwent many medical procedures, including

amputations, a kidney transplant, and numerous cancer surgeries, and that, as a

result, he and decedent "agreed to speak to each other by telephone rather than

undergo the rigors of travel."     Paul asserted that, nonetheless, during their

telephone conversations he and decedent "were each other's support system,

giving each other advice, encouragement and love through [their] various major




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illnesses." Paul stated that decedent never "mention[ed] anything about his step-

son" Fried during their telephone conversations.

       According to Paul, he made decedent's funeral arrangements, and Fried

told him that he could not gain access to decedent's apartment because the police

declared it to be a crime scene. Paul also asserted that Fried failed to inform

him about the disposition of decedent's assets and refused to provide him with

decedent's death certificate and information about decedent's bank accounts.

Paul averred that Fried "made a conscious decision not to inform" him about

Fried's actions concerning decedent's estate.

       The court heard argument on the return date of the order to show cause.

Fried argued he was equitably adopted by decedent based on an implied

agreement by decedent to adopt him. The court rejected Fried's claim, reasoning

that equitable adoption has been found only in cases where there was evidence

of an intention to adopt, but Fried failed to present such evidence. The court

determined Fried did not present any evidence that decedent agreed to adopt

him.   The court also rejected Fried's waiver, estoppel, and unclean hands

defenses.

       The court entered an order appointing Paul administrator of the estate and

declaring him the sole heir of decedent's estate pursuant to  N.J.S.A. 3B:5- -4(c);


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discharging Fried's caveat; declaring Fried was decedent's stepson and was not

equitably adopted; instructing Fried to turn over all estate property in his

possession to Paul within ten days—with the exception of the decedent's

Mercedes and Porsche, for which the order was stayed pending appeal;

instructing Fried to submit a list of expenses he incurred on behalf of the estate

for which he would be reimbursed; and dismissing Fried's counterclaim in its

entirety with prejudice. This appeal followed.

                                        II.

      "Regulating succession or [intestate] inheritance is a legislative province."

In re Estate of Sapery,  28 N.J. 599, 605 (1959). "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).

 N.J.S.A. 3B:5-4(c) provides that the estate of an intestate decedent, such as

decedent here, who does not have a surviving spouse, domestic partner,

descendants, or surviving parents, passes to the "descendants of the decedent's

parents." The sole descendant of decedent's parents is decedent's brother Paul.

Thus, under  N.J.S.A. 3B:5-4, Paul is the sole heir to decedent's estate.

      In support of his claim that he is the sole heir to the estate, Fried seeks

refuge in the assertion he was equitably adopted by decedent, is decedent's


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descendant under  N.J.S.A. 3B:5-4(a), and is entitled to inherit the estate over

Paul.3 Fried contends the court erred by applying the wrong legal standard in

concluding that he was not equitably adopted and not entitled to inherit

decedent's estate. We exercise plenary review of the court's decision 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, LP v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      "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.

Div. 1933)). An equitable adoption has been defined as follows:

            [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

 3 Under N.J.S.A. 3B:5-4(a), a decedent's descendant inherits the estate if the
decedent dies without a spouse or domestic partner.  N.J.S.A. 3B:1-1 defines
"descendant" of a decedent as "all of his [or her] progeny of all generations, with
the relationship of parent and child at each generation being determined by the
definition of "child" contained in [N.J.S.A. 3B:1-1] and "parent" contained in
N.J.S.A. 3B:1-2." A child is "any individual, including a natural or adopted
child . . . and excludes any individual who is only a step child."  N.J.S.A. 3B:1-
1. A parent is "any person entitled to take or who would be entitled to take if
the child, natural or adopted, died without a will . . . and excludes . . . a
stepparent."  N.J.S.A. 3B:1-2. Fried claims that because he was equitably
adopted, he qualifies as a child and is decedent's descendant under  N.J.S.A.
3B:5-4(a).
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                                        7
            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.

            [In re Trust Under Agreement of Vander Poel, 396 N.J.
            Super. 218, 232 (App. Div. 2007) (emphasis added).]

"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." In re Adoption of Baby T,  311 N.J. Super. 408, 415 (App. Div. 1998), rev'd on other grounds,  160 N.J. 332

(1999).

      To establish an equitable adoption, there is a "critical need for an

agreement to adopt." In re Estate of Castellano,  456 N.J. Super. 510, 517 (App.

Div. 2018) (emphasis added), certif. denied,  237 N.J. 186 (2019); see also In re

Adoption of a Child by N.E.Y.,  267 N.J. Super. 88, 97 (Ch. Div. 1993)

(explaining "[e]quitable 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"

(quoting Kupec v. Cooper,  593 So. 2d 1176, 1177 (Fla. Dist. Ct. App. 1987))).


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In Burdick, the court found that an unfulfilled oral agreement to adopt could

support a finding of an equitable adoption,  113 N.J. Eq. at 595, because "[t]he

implied agreement, arising from an agreement to adopt, not legally

consummated, when the child has fulfilled its part thereof, is that the child

should receive a child's share of the estate of which his foster-parent dies

possessed and undisposed of by will or otherwise," id. at 596. Similarly, in

Hendershot v. Hendershot, the court found an equitable adoption where 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, 237 (Ch. Div. 1944). The court noted

that the putative beneficiary of an estate is entitled to "enforce specific

performance of . . . an agreement" to "devise or bequeath by will." Ibid.; see

also Ashman v. Madigan,  40 N.J. Super. 147, 149-50 (Ch. Div. 1956) (finding

that statements and conduct of the decedent demonstrated the existence of an

enforceable agreement to adopt).

      A finding of an equitable adoption "should . . . 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." Burdick,  113 N.J. Eq. at 597. Although there


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is no requirement that there be direct evidence of an agreement to adopt, "the

statements and conduct of the adopting parents [should be] such as to furnish

clear and satisfactory proof that an agreement of adoption must have existed."

Ashman,  40 N.J. Super. at 150. Because parol agreements "are easily fabricated

and most difficult to disprove," and provide opportunities for "the perpetration

of fraud and the wrongful diversion of a decedent's property," they are viewed

"with grave suspicion," are subject to "close scrutiny," and shall "stand only

when established by evidence that is clear, cogent[,] and convincing, leaving no

doubt with respect to their actual making and existence." Burdick,  113 N.J. Eq.

at 598; accord Hendershot,  135 N.J. Eq. at 237.

      Fried argued he was equitably adopted by decedent based on an alleged

implied agreement to adopt. He therefore had the burden of either alleging facts

or providing evidence that decedent impliedly agreed to adopt him. Burdick,

 113 N.J. Eq. at 597. There is no direct evidence of an agreement to adopt Fried.

      Fried alleged and presented evidence showing only that following his

mother's marriage to decedent in 1981, decedent was his stepfather, decedent

treated him as a son for the thirty-seven years prior to decedent's death, and he

viewed decedent as his father. He also represented that he was "advised"

decedent expressed an interest in adopting him when he was a child, but his birth


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father objected and decedent never took any further action to adopt him, even

during the twenty-years that passed after Fried attained his majority in 1998. He

further presented Giarrusso's certification in which she stated only that decedent

"let [her] know" he expected that "one day" his Porsche "among other things"

would be Fried's.

      Missing from Fried's allegations and supporting certification is any

evidence suggesting decedent impliedly agreed to adopt him.           Giarrusso's

statement is unrelated to any agreement to adopt. And even accepting all of

Fried's assertions and supporting evidence as true, the record is bereft of any

facts supporting an implied agreement by decedent to adopt him. Fried's claim

he was advised decedent expressed interest in adopting him when he was a child

but did not do so bespeaks only one logical conclusion; decedent decided not to

adopt Fried because Fried's birth father objected. The record is devoid of any

facts or evidence that decedent changed his mind and, more importantly,

provides no basis for a finding that decedent ever agreed, impliedly or otherwise,

to adopt Fried.




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      Fried contends his situation is like that presented by the plaintiff in

Ashman, but the comparison is misplaced. 4 In Ashman, the putative adopted

daughter believed she was the natural daughter of the decedent.  40 N.J. Super.

at 148. Although she could not produce a birth certificate, she presented a

baptismal certificate listing the purported adoptive parent as her birth parent.

Ibid. In addition, "[a] number of witnesses testified concerning [admissible]

declarations" by the deceased mother "in which she referred to the plaintiff as

her daughter." Ibid. The evidence further showed the plaintiff and the decedent

had "a normal relation of mother and daughter extending over a period of

upwards of [fifty] years." Id. at 149.

      In contrast, Fried knew himself to be decedent's stepson and had no reason

to believe decedent was his birth father or that he had ever been adopted. Fried



4
   The other equitable adoption cases Fried cites required direct evidence of
specific agreements to adopt. See D'Accardi v. Chater,  96 F.3d 97 (4th Cir.
1996) (finding equitable adoption because the decedent agreed to adopt and
began adoption proceedings, even though he changed his mind and decided to
discontinue adoption proceedings prior to his death); Hendershot,  135 N.J. Eq.
at 232 (finding equitable adoption of stepson based on an oral agreement
between the decedent and the stepson's mother). Fried also relies on In re
Adoption of Baby T,  160 N.J. 332, 342 (1999), but the Court "decline[d] to
address the issues related to . . . the applicability of equitable adoptions" in that
matter.



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had a thirty-seven-year relationship with decedent as a stepson and, as noted,

produced no evidence decedent impliedly or otherwise agreed to adopt him.

Fried has not presented any evidence of "statements and conduct of the

[decedent]" sufficient "to furnish clear and satisfactory proof that an agreement

of adoption must have existed," that was found extant in Ashman. 5 Id. at 150.

      In sum, the limited facts presented in support of Fried's claim are

insufficient to support a finding that an "agreement to adopt" existed. See

Burdick,  113 N.J. Eq. at 595. Lacking evidence of such an agreement, the court

correctly determined that Fried failed to demonstrate he was equitably adopted

and therefore the sole beneficiary of decedent's estate. See id. at 599 (declining

to find an equitable adoption because the stepson did not present "direct cogent

evidence" that the decedent specifically agreed to adopt him).


5
  We are also not persuaded by Fried's reliance on In re Estate of Ford,  200 A.3d 1207 (D.C. Appeals 2019). Fried relied on the decision in a letter brief filed
with this court's permission following oral argument. Fried relies on the
decision in support of an argument that was not raised before the trial court –
that he should be deemed equitably adopted based solely on equitable
considerations and fairness and without regard to whether he can establish an
implied agreement to adopt. We do not consider the merits of the argument
because it does not go to the court's jurisdiction or involve a matter of public
concern. Zaman v. Felton,  219 N.J. 199, 226-27 (2014). We note, however,
that the court in Ford expressly rejected the legal theory upon which Fried's
claim was presented to the trial court—he is entitled to an equitable adoption
based on specific performance of an implied contract to adopt. That is the
singular legal theory supporting equitable adoption in New Jersey.
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                                       13
      We find no merit in Fried's claim that Paul is estopped from, waived his

right to, or under the doctrine of unclean hands is barred from, serving as the

estate's administrator or from inheriting the estate. The parties dispute their

respective roles in addressing the administration of decedent's estate and

property, but resolution of the disputes would have no effect on the outcome

here. Paul is the estate's sole heir and the court determined that any costs

incurred by Fried in the administration of the estate prior to Paul's appoi ntment

as administrator shall be paid from the estate. The court's determinations are

supported by the record presented, and, even accepting as true Fried's allegations

concerning Paul and the initial handling of decedent's assets and estate, we find

no basis to reverse the court's order.

      Fried also argues the court erred by granting Paul's requested relief

because there are disputed material facts upon which Paul's claims are premised.

Fried claims he "demonstrated good cause [because] the fundamental premises

on which [Paul's] requests for relief are based are materially disputed." Fried

also claims it is "not clear" that Paul is a remaining heir of the intestate estate

under  N.J.S.A. 3B:10-2.        Fried also voices "serious concerns with the

appointment of [Paul] as a capable administrator."




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                                         14
      Fried's equitable adoption argument presents legal issues, not genuine

issues of fact, that have been decided on the record presented. Again, even if

Fried's allegations and evidence presented to the court are accepted as true, he

did not sustain his burden of alleging or demonstrating sufficient facts

establishing the agreement to adopt essential to his equitable adoption claim.

The other undisputed evidence established that Paul is decedent's brother and

sole heir, and therefore is entitled to inherit the estate,  N.J.S.A. 3B:5-2, and be

appointed as administrator,  N.J.S.A. 3B:10-2. Fried's vague "concerns" about

Paul's ability to serve as administrator do not raise a fact issue requiring a

plenary hearing.

      We do not address the merits of Fried's claim, raised for the first time on

appeal, that the court erred by summarily granting Paul's application. Fried

contends he lacked notice that the court would summarily decide the equitable

adoption issue on the return of the order to show cause. The issue do es not go

to the court's jurisdiction or involve matters of public concern. Zaman,  219 N.J.

at 226-27. Moreover, the court is authorized to proceed summarily on a probate

complaint, R. 4:83-1, and where "no objection is made by any party . . . or the

affidavits show palpably that there is no genuine issue as to any material fact,

the court may try the action on the pleadings and affidavits, and render final


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judgment thereon," R. 4:67-5. Fried never objected to the court addressing the

equitable adoption issue or summarily deciding it during the hearing.

      Any arguments we have not expressly addressed are without sufficient

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

      Affirmed.




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