IN THE MATTER OF THE ESTATE OF
MARYANN CALVERT, deceased.
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ABDELRAZEK SEIRAFY,
Plaintiff-Appellant,
v.
FRANCIS LESTER CALVERT, JR., and
LESLIE CALVERT WEILL,
Defendants-Respondents.
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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NOT FOR PUBLICATION WITHOUT THE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
APPELLATE DIVISION
PER CURIAM
Contestant
Abdelrazek Seirafy, the decedent Maryann Calvert's husband, appeals from an order
dated September 23, 2014[1]
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.[2]
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.
Affirmed.
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