Tuesday, July 26, 2016
Monday, July 25, 2016
Elective share rejected where spouses not cohabitating IN THE MATTER OF THE ESTATE OF MARYANN CALVERT, deceased.
IN THE MATTER OF THE ESTATE OF
MARYANN CALVERT, deceased.
FRANCIS LESTER CALVERT, JR., and
LESLIE CALVERT WEILL,
Submitted April 13, 2016 – Decided
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. 12-326.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
Contestant Abdelrazek Seirafy, the decedent Maryann Calvert's husband, appeals from an order dated September 23, 2014 denying reconsideration of a written order dated May 22, 2014 and filed May 24, 2014. The May order denied his request to set aside his wife's will, or, in the alternative, provide him with an elective share, N.J.S.A. 3B:8-1. Because contestant proffered no appropriate reasons for reconsideration to the chancery judge, we affirm.
At a case management conference on May 14, 2014, two weeks after he discharged his counsel, contestant told the judge on the record that he wanted "[n]o more proceedings." He informed the judge that he had rejected a settlement offer, and when questioned by the judge, agreed that he wanted her "to decide the case based on the affidavits that have been submitted."
Based on those affidavits, the judge made the following findings. The decedent and contestant married in 2004, approximately three months after he divorced his prior wife, who he married in Egypt in 1967. On February 11, 2008, shortly before undergoing heart surgery, the decedent executed her Last Will and Testament (the Will) and told her lawyer of her intention to exclude her husband from the Will. The decedent told her lawyer she was estranged from her husband and he traveled back and forth from Egypt at her expense. The decedent also told her lawyer her husband did not provide her with the kind of support, either financial or emotional, that one would expect between husband and wife.
The judge found that, at the time of death, the decedent and contestant "were not in a co-habitation relationship" under circumstances giving rise to a cause of action for divorce. The judge thus concluded that contestant was not entitled to "an elective share of one-third of the augmented estate." See N.J.S.A. 3B:8-1.
Contestant subsequently filed a motion on June 11, 2014, seeking an order to "Vacate Dismissal and Reinstate Case." At oral argument on what the judge referred to as his motion for reconsideration, contestant alleged that the May order, which denied his claim with prejudice, did not correctly reflect the judge's decision.
The judge wrote in her September order denying reconsideration:
1. While the parties' certifications contained disputes of fact, the certification of the lawyer who prepared Maryann Calvert's will and provided advice to her is not disputed.
The attorney's certification makes clear that Maryann Calvert thought she had a cause of action for divorce and that she had a specific intent that her husband not profit from her death.
2. The motion for reconsideration is denied. The claims of [Abdelrazek] Seirafy remain dismissed with prejudice.
In his appeal of this September order, contestant raises the following issues, which we reproduce exactly as typed in contestant's appellate brief:
I. Lower Court supplemented false evidence on its own discertion neither Plaintiff nor Defendants furnished the Court with. The Lower Court abused its discertion, and Summary judgement should be returned. (Not below).
II. The rationale underlying the Court Order of Dismissal is a mere speculation initiating "cause-of-action" for divorce, based on false evidence supplemented by the Court on her own discertion, which revokes the statutory rights of Plaintiff in an elective share. The Dismissal Order entered is evidentially speculative, and should be vacated. (Not below).
III. Whatever the merit of litigations, mediation, and discoveries after the Will file was filed and whatever orders the Court entered thereafter, they are all superfluous litigations which express and prove different ways of the Court abuse of its discertion. The summary judgment be returned. (Not below).
IV. 1) The Court did not make any effort in discovery to know the truth of undue influence underlying co-habitation and cause-of-action for divorce assessed for dismissal. Whereof, the Court abused its discertion in not conducting discoveries to satisfy its lack of understanding, and the summary judgment should be returned, and the Will should be invalidated.
2) The fraud scheme applied by Defendants bracketed many fraudulent elements, absent in the Court plan for discovery. It could substantially satisfy the Court lack of understanding. Executor should be removed, compensation against fraud should be granted in the relief thought, and the Will should be invalidated.
V. Lower Court abused its discertion when approved a defective informal accounting. Executor should be removed and account for all his dispositions after probation.
VI. Lower Court is corrupted and abused its discertion in listening to one party and not the other, speculating evidences, interpreting, and conducting discoveries in favor of Defendants. Appellate Division has to enter the judgment, or remand to another judge. The summary judgment should be returned, and the Will be invalidated. (Not below).
Contestant failed to raise these issues before the chancery court, and thus we decline to address these arguments. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . .").
Contestant also filed this appeal too late to appeal the underlying May decision. An appeal in a civil case must be filed within forty-five days from the date of the order or final judgment, and in no event should be extended beyond an additional thirty-day period. See R. 2:4-1(a), :4-4(a); see also Cabrera v. Tronolone, 205 N.J. Super. 268, 271 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986). Thus, contestant properly indicates in his notice of appeal that he appeals only from the September order denying reconsideration.
Under Rule 4:49-2, a motion "for rehearing or reconsideration" of an order or judgment must include "a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." The proper object of such a motion is to correct a court's error or oversight, "not to re-argue [a] motion that has already been heard for the purpose of taking the proverbial second bite of the apple." State v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), certif. granted and remanded on other grounds, 143 N.J. 482 (1996).
We review a trial judge's decision denying a reconsideration motion for an abuse of discretion. Guido v. Duane Morris LLP, 202 N.J. 79, 87 (2010). Reconsideration should only be used in cases where "1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." J.P. v. Smith, ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 17) (alterations in original) (quoting State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015)). "[A] litigant must initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actual reconsideration process." Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Contestant brought no "matters or controlling decisions" to the judge's attention that he claimed she had overlooked or weighed arbitrarily. Based on the record before us, the judge did not abuse her discretion in failing to reconsider her May decision.