IN THE MATTER OF THE ESTATE OF CHRISTINE D. CENAFFRA

NOT FOR PUBLICATION WITHOUT THE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-5731-17T1

IN THE MATTER
OF THE ESTATE OF
CHRISTINE D. CENAFFRA,
     Deceased.
_________________________

                Submitted October 24, 2019 – Decided September 9, 2020

                Before Judges Suter and DeAlmeida.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Warren County, Docket No. P-14-
                145.

                Hegge & Confusione, LLC attorneys for appellant
                Patricia Stollenmaier (Michael Confusione, of counsel
                and on the brief).

                Mitchell H. Spingarn, attorney for respondent Michael
                Cenaffra.

PER CURIAM

       Defendant Patricia Stollenmaier appeals the July 17, 2018 judgment for

$200,422 entered against her following a bench trial. The judgment is based on

payments defendant made as a power of attorney and then as the executrix of
the Estate of Christine D. Cenaffra (the Estate). We affirm the judgment in part

because it is based on substantial credible evidence in the record, but we remand

the case to the trial court for a recalculation of the amount of the judgment.

                                        I.

      We relate the facts from the bench trial. Christine D. Cenaffra (decedent)

had six children: Diane Cenaffra (plaintiff), Patricia Stollenmaier (defendant),

Barbara DiNapoli, Mark Cenaffra, Michael Cenaffra, and Matthew Cenaffra.

Decedent died testate on March 7, 2015. Her Last Will and Testament named

defendant as the executrix. Defendant also was her mother's power of attorney

(POA). Decedent resided with defendant from 2008 until her death.

      Decedent's house was sold in April 2015, netting $229,543.72 for the

Estate. Plaintiff received a $10,000 check from the Estate in December 2015.

When she did not receive any other payments, she began to inquire through her

attorney about the Estate's finances.

      Plaintiff filed an Order to Show Cause and Verified Complaint in July

2016, seeking to enjoin defendant, as executrix, from distributing assets of the

Estate and requested a verified accounting of all financial activity for the period

when defendant was POA (August 2007 to March 7, 2015) and as executrix. (A-

2; A-218). The trial court ordered defendant to provide a verified accounting in


                                                                           A-5731-17T1
                                        2
sixty days and restrained her from distributing any assets outside the ordinary

course of business or any monies she had paid to herself.

      Defendant did not provide the accounting. The court ordered defendant's

removal as executrix on February 7, 2017.          Plaintiff was appointed as

administrator substitute executrix.   She learned the inheritance tax return

showed a gross value of $319,368 for the Estate, but by then the Estate only had

$6886 in its account. Defendant was deposed in December 2017.

      The court conducted a two-day bench trial. Defendant was present but did

not testify because her counsel notified the court she invoked the Fifth

Amendment right against self-incrimination. On July 17, 2018, the court entered

a judgment against defendant for $200,422 in favor of plaintiff.

      At trial, plaintiff challenged four payments made by defendant as not

legitimate expenses of the Estate.

      On April 13, 2015—after decedent's death—defendant paid Gregory

Guzman $40,000 for "Home Repair." Plaintiff found no proof of building

permits for the work. The Work Statement that showed a cost of $30,200 for

labor and materials was not dated or notarized. There was a document that

purported to provide an estimate, but this was dated prior to decedent's death.

Defendant already paid $11,000 to Guzman before her mother died. The items


                                                                        A-5731-17T1
                                       3
on the Work Statement and the estimate were not for the same work. Plaintiff

contends there was no proof that the $40,000 was made for actual expenses of

the Estate.

      Plaintiff contends a check for $110,184.39 that defendant wrote to herself

as executrix and deposited in her personal account was not a legitimate expense

of the Estate. This check was comprised of $72,000 for payments to Steven

Owens—her former finance—for transportation and other assistance he gave

defendant and decedent. Another $38,184.39 was to reimburse her for payments

she made in cash to numerous "immigrant" workers hired to clean out the house

and garage and for other expenses. Plaintiff found no receipts for any of these

expenditures. Owens testified that he transported decedent for just a short period

of time before her death; most of the transportation was for defendant.

      Plaintiff contends a check for $27,774.81 that defendant wrote to herself

on December 15, 2015—with the notation in the memo line that it was a "gift"—

was not a legitimate expense of the estate. Although defendant contended this

was reimbursement for a certificate of deposit gifted to her by her mother and

then used for her mother's care, there was no written proof to support this.

      Plaintiff alleged that two other payments were not expenses of the Estate.

These included a $1000 debit withdrawal from the Estate account by defendant


                                                                          A-5731-17T1
                                        4
and a bank check she made payable to herself for $5000, both on the day she

was removed as executrix. Defendant acknowledged these payments were made

after she was removed.

      The trial court determined defendant had "no lawful authority to perform

these actions or to act on behalf of the Estate at this time." The court found the

payment to Owens for transporting decedent for a short period of time was "not

an authorized expense for the Estate." It found defendant had shown "a clear

pattern of improper financial decisions" as executrix and that this "continued

after her removal from this role" by writing checks to herself. The court found

defendant did not provide support for any of the contested expenses. It entered

judgment against defendant for $200,422.

      On appeal, defendant argues the court's findings are not supported by

adequate, substantial and credible evidence. She contends the court should

correct the amount of the judgment.

                                        II.

      Our review of a trial court's fact-finding in a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A.,  205 N.J. 150, 169 (2011). We will "not

disturb the factual findings and legal conclusions of the trial judge unless we are

convinced that they are so manifestly unsupported by or inconsistent with the


                                                                           A-5731-17T1
                                        5
competent, relevant and reasonably credible evidence as to offend the interests

of justice[.]" Ibid. (alteration in original) (quoting In re Trust Created By

Agreement Dated Dec. 20, 1961, ex rel. Johnson,  194 N.J. 276, 284 (2008)).

"[F]indings by the trial court are binding on appeal when supported by adequate,

substantial, credible evidence." Ibid. (quoting Cesare v. Cesare,  154 N.J. 394,

411-12 (1998)). "Deference is especially appropriate when the evidence . . .

involves questions of credibility." Ibid. (quoting Cesare,  154 N.J. at 411-12).

However, "[a] trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference[,]" and

are reviewed de novo. Mountain Hill, LLC v. Twp. Comm. of Middletown,  403 N.J. Super. 146, 193 (App. Div. 2008) (quoting Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      Under  N.J.S.A. 3B:14-21, a court may remove a fiduciary from office

when, "[a]fter due notice of an order or judgment of the court so directing, [he]

neglects or refuses, within the time fixed by the court, to file an inventory, render

an account or give security or additional security[.]"  N.J.S.A. 3B:14- -21(a). "A

fiduciary is individually liable for obligations arising from ownership or control

of the estate or for torts committed in the course of administration of the estate

only if [she] is personally at fault."  N.J.S.A. 3B:14-32. To recover for a breach


                                                                             A-5731-17T1
                                         6
of duty, an interested party must prove that the loss probably occurred as a result

of the breach; there is no need for the interested party to prove with certainty

that the loss occurred as a result of the breach. See Branch v. White,  99 N.J.

Super. 295, 313 (App. Div. 1968). The fiduciary charged will then have the

burden of proving clearly there was no causal connection between the breach

and the loss sustained by the beneficiary. Ibid.

      In this case, we see no reason to disturb the factual findings made by the

trial court.   The credibility determinations and factual findings were fully

supported by the record. We add only these brief comments.

      Plaintiff provided substantial evidence that the court found to be credible

that four transactions were not valid expenses of the estate. Regarding the

payment to Guzman, there was no written contract showing an amount due to

Guzman for $40,000. There is only an estimate from 2014, payments of $5000

and $6000—that do not appear to be challenged—and an undated Work

Statement for work that is different from the estimate. Some of that work

appears to duplicate expenses that defendant claimed to pay to other workers.

Defendant did not rebut plaintiff's testimony at trial that there was no proof the

Estate owed Guzman $40,000.




                                                                           A-5731-17T1
                                        7
      For the $110,189.39 payment, there were no receipts for the payments

made to clean-out the house. Owens testified that a lot of the transportation

services he provided were for defendant, not decedent. He testified he received

approximately sixty to seventy thousand dollars over an eight–year period for

his services. There was nothing to document that other significant payments

were owed to Owens or the need for defendant to reimburse herself. For the

$27,774.81 payment, there was no proof at trial that decedent made a gift of her

money to defendant or that defendant's monies were used for decedent's care.

      The court entered a judgment against defendant for $200,422. However,

we are not able to determine from this record how this figure was derived. The

amounts that are challenged by plaintiff total $183,959.20. Although the court

had substantial credible evidence to support these amounts, it did not explain

how it arrived at the actual amount of the judgment. See R. 1:7-4(a). Therefore,

we remand the calculation of amount of the judgment to the trial court. We do

not retain jurisdiction.

      Affirmed.




                                                                        A-5731-17T1
                                       8