Kianka v. Errickson Court rejects attorney breach of fiduciary duty.

Kianka v. Errickson Court rejects attorney breach of fiduciary duty.  Daily briefing December 12, 2022 

Plaintiff appealed the grant of summary judgment to defendants in his action asserting breach of fiduciary duty. Plaintiff, beneficiary of a will and decedent's nephew, sued attorney and law firm that prepared decedent's will. Decedent hired defendant attorney and her law firm to prepare his will in 2017. That will named plaintiff as a beneficiary. A later revised will kept plaintiff as a beneficiary but made changes to the executor. Decedent died in 2019 and executor submitted the will for probate. Other beneficiary challenged the validity of the will, contending she should be executor. The matter settled in 2020 and court appointed an administrator to oversee the estate. Plaintiff sued defendants alleging they were negligent in overseeing the execution and probation of the will. Trial court dismissed because defendants owed no duty to plaintiff. Plaintiff filed a new complaint asserting breach of fiduciary duty and trial court granted defendants' motion to dismiss because they had no duty to plaintiff and even if they did, plaintiff could not show damages proximately caused by defendants. Plaintiff argued his damage claims were not barred by the settlement of the will dispute action. Court found plaintiff did not show a special relationship with defendants and could not bring a breach of fiduciary duty against a lawyer who did not represent him.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

WILLIAM KIANKA, JR., Plaintiff-Appellant,

v.

KATHARINE ERRICKSON, ESQ., and ERRICKSON LAW OFFICES, LLC,

Defendants-Respondents. ___________________________

Submitted October 18, 2022 – Decided December 12, 2022 Before Judges Messano, Gilson, and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0270-21.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1314-21

Plaintiff William Kianka, the beneficiary of a will, sued a lawyer and her firm alleging defendants had breached a fiduciary duty owed to him in preparing a revised will that was subsequently contested. We affirm the order granting summary judgment to defendants and dismissing plaintiff's complaint with prejudice because plaintiff was not the lawyer's client and plaintiff made no showing of a special relationship establishing a fiduciary obligation owed to him.

I.
We summarize the facts from the record, viewing them in the light most

favorable to plaintiff, the party opposing summary judgment. See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). In doing so, we note that the material facts are undisputed because plaintiff admitted that the facts set forth in defendants' statement of material facts were accurate. Although plaintiff submitted a statement of additional facts, those facts do not relate to or dispute the lack of his direct relationship with defendants.

Jack Kisthardt hired defendants Katharine Errickson, Esq. and her firm, Errickson Law Offices, LLC (collectively, defendants) to prepare his will. Plaintiff was the nephew of Kisthardt.

   

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On June 2, 2017, Kisthardt executed a will prepared by Errickson that named plaintiff and Deborah McCarthy as beneficiaries (the Original Will). The Original Will named McCarthy as executor and William Wilton as alternate executor.

A few weeks later, on June 26, 2017, Kisthardt executed a revised will that he had instructed Errickson to prepare (the Revised Will). The Revised Will kept plaintiff and McCarthy as co-beneficiaries of Kisthardt's estate but named Wilton as executor and McCarthy as alternate executor.

Kisthardt died on May 17, 2019. A few weeks later, Wilton submitted the Revised Will to the surrogate's office for probate as Kisthardt's last will and testament.

In October 2019, McCarthy filed an order to show cause and verified complaint challenging the validity of the Revised Will and contending that she should be named as executor. Wilton opposed McCarthy's action and plaintiff voluntarily intervened in the will dispute action.

Approximately a year later, Wilton, McCarthy, and plaintiff settled the will dispute, and they submitted a consent order that was entered by the Chancery court on August 31, 2020. Under the consent order, McCarthy agreed not to be executor, Wilton agreed to withdraw as executor and was paid a

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commission, and Robert Shanahan, Esq., was appointed as administrator to oversee Kisthardt's estate.

Shortly thereafter, plaintiff sued Errickson and her law firm alleging that defendants were negligent in overseeing the execution and probation of the Revised Will (the First Action). Plaintiff asserted that the will dispute had needlessly diminished Kisthardt's estate because the estate has incurred extra legal fees and commissions and the estate would incur higher costs with Shanahan as the administrator. Plaintiff also claimed that he had been damaged by paying legal fees in intervening and participating in the will dispute.

Defendants moved to dismiss the First Action. On April 14, 2021, the Chancery court granted that motion dismissing without prejudice the complaint in the First Action. The court held that defendants were not plaintiff's attorneys and, as the attorneys who prepared Kisthardt's wills, they owed no duty to plaintiff who was a beneficiary of the wills.

Two months later, in June 2021, plaintiff filed a new complaint against defendants under a new docket number (the Current Action). The complaint in the Current Action alleged essentially the same facts and sought the same damages as the complaint in the First Action. The complaint in the Current Action added an express cause of action for breach of fiduciary duty.

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Defendants moved for summary judgment, arguing that they owed no duty to plaintiff and plaintiff could not prove that defendants caused him any damage arising out of the settlement of the will dispute. After hearing argument, on November 23, 2021, the same judge who had presided over the will dispute and had dismissed the First Action, issued a written opinion and order granting defendants' motion. The Chancery court reasoned that even if plaintiff could establish that defendants owed him a duty, plaintiff had not shown any damages proximately caused by defendants. Consequently, the court dismissed the complaint in the Current Action with prejudice. Plaintiff now appeals from the November 23, 2021 order dismissing the complaint in the Current Action.

II.
On appeal, plaintiff argues that the Chancery court erred in granting

summary judgment to defendant. He contends that his damage claims are not barred by the settlement of the will dispute action and he can prove a claim for breach of a fiduciary duty against defendants. We do not need to reach the damage issue. Instead, we hold that plaintiff did not show a special relationship with defendants and, therefore, he cannot bring a breach of fiduciary duty claim against the lawyer who represented his deceased uncle, but not him.

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A. Our Standard of Review.

Appellate courts review a grant of summary judgment "de novo and apply the same standard as the trial court." Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "An issue of material fact is 'genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.'" Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

B. A Fiduciary Duty.

"A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship." F.G. v. MacDonell, 150 N.J. 550, 563 (1997) (citing Restatement (Second) of Torts § 847 cmt. a (1979)). "[A] lawyer serves

    

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in a fiduciary role to a client . . . ." Delaney v. Dickey, 244 N.J. 466, 484 (2020). "'All fiduciaries are held to a duty of fairness, good faith and fidelity, but an attorney is held to an even higher degree of responsibility in these matters than is required of all others.'" Id. at 485 (quoting In re Honig, 10 N.J. 74, 78 (1952)). "Above all else, a lawyer's fiduciary role requires that the lawyer act fairly in all dealings with the client." Ibid.

"Generally, an attorney owes a duty only to his or her client . . . ." Est. of Albanese v. Lolio, 393 N.J. Super. 355, 368 (App. Div. 2007). "The absence of a direct relationship between an attorney and a nonclient ordinarily negates the existence of any duty and, by extension, affords no basis for relief." LoBiondo v. Schwartz, 199 N.J. 62, 101 (2009). "[A]ttorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorney's representations and the non-clients are not too remote from the attorneys to be entitled to protection." Petrillo v. Bachenberg, 139 N.J. 472, 483-84 (1995). Whether a duty is owed to a non-client is a question of law to be determined by the court. Fitzgerald v. Linnus, 336 N.J. Super. 458, 468 (App. Div. 2001). In determining if a duty exists, courts will consider "the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Albanese, 393 N.J. Super. at 369 (quoting Barner v. Sheldon, 292

        

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N.J. Super. 258, 261 (Law. Div. 1995), aff'd, 292 N.J. Super. 157 (App. Div. 1996)).

An attorney retained to prepare a will generally owes a duty only to the testator. See Barner, 292 N.J. Super. at 265-66. Similarly, "an attorney retained for an estate 'generally' represents the executor or executrix as a fiduciary, and not the estate as an entity." Est. of Spencer v. Gavin, 400 N.J. Super. 220, 246 (App. Div. 2008) (citing Albanese, 393 N.J. Super. at 374). The absence of an attorney-client relationship does not necessarily bar a claim by a beneficiary provided there is an independent duty owed to the beneficiary. See Albanese, 393 N.J. Super. at 372; Fitzgerald, 336 N.J. Super. at 468; Barner, 292 N.J. Super. at 261.

The material undisputed facts in this case establish that defendants owed no fiduciary duty to plaintiff. Defendants were retained by Kisthardt to draft his wills. Plaintiff complains of alleged deficiencies in executing the Revised Will, which he alleges caused a dispute concerning who should serve as executor. Plaintiff was never named as an executor. Instead, the will dispute was between McCarthy and Wilton as to who should be the executor of the estate. Plaintiff's position as beneficiary was never at issue. Consequently, plaintiff cannot

     

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identify a special relationship that would allow him to bring a claim against Errickson and her law firm.

Plaintiff cites to and primarily relies on a 1988 federal district court decision. See Rathblott v. Levin, 697 F. Supp. 817 (D.N.J. 1988). In Rathblott, the federal court tried to predict where New Jersey law would go on the issue of the duty owed by attorneys who prepared a will to a beneficiary. The court denied summary judgment in that case finding that there were material issues of disputed facts concerning the foreseeable harm to the beneficiary, causation, and damages. Since Rathblott was issued, New Jersey law has evolved, and we have held that a special relationship must be shown to a beneficiary to establish a duty by an attorney drafting a will. See Albanese, 393 N.J. Super. at 369.

Plaintiff concedes that he was not defendants' client. Indeed, he did not challenge the dismissal of his complaint in the First Action. As already noted, that First Action was dismissed because plaintiff showed no special duty owed by defendants to him. In the complaint in the Current Action, plaintiff alleged no new facts; rather, he merely identified his cause of action as a breach of fiduciary duty.

More critically, in opposing the motion for summary judgment, plaintiff pointed to no material fact establishing a special relationship between

   

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defendants, who prepared Kisthardt's wills, and plaintiff, who was a beneficiary under the wills. An allegation is not enough to defeat summary judgment; the non-moving party "must produce sufficient evidence to reasonably support a verdict in [his] favor." Invs. Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018), aff'd as modified, 243 N.J. 25 (2020). Plaintiff did not certify that he had any direct dealings with defendants when they drafted his uncle's wills. He also failed to identify any facts that defendant knew or reasonably should have known that they were undertaking a duty to protect him from a dispute that might arise between the executor and the alternate executor. Because plaintiff was not defendants' client, the risk of a dispute over the executor was too attenuated to create a fiduciary duty to plaintiff who was a beneficiary. Our holding in this regard is based on the material undisputed facts of this case. In short, although there maybe circumstances when an attorney who drafts a will owes a duty to a beneficiary; this case does not present those circumstances.

 

Affirmed.

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Court rejects challenge to Will IN THE MATTER OF THE ESTATE OF JOEL PERKEL, deceased.

 

In the Matter of the Estate of Perkel

Plaintiffs appealed the dismissal of their complaint to revoke the probate of their late father's will, compel a formal accounting by the executor, and appoint one of the plaintiffs as administrator of their father's estate. Plaintiffs alleged that their parents divorced when their mother discovered that their father was having an affair with his secretary, whom he later married after the divorce. Plaintiff Jane Perkel alleged that she maintained a relationship with her father after his divorce, claiming that he stated he would always provide for his children in his will. Plaintiffs alleged that their father's second wife had become adept at signing their father's signature and therefore the will admitted to probate was a forgery. Plaintiffs further alleged that their father's second wife's children were grown by the time of their marriage and thus it was improbable that their father would have excluded his biological children from his will in favor of his second wife's children. Defendants moved to dismiss the action, arguing that plaintiffs' suit was untimely and failed to state a claim. The trial court denied that initial motion, ruling that plaintiffs were entitled to depose the attorney who drafted the will. Plaintiffs' signature expert further could not conclude whether the signature on the will was genuine. The trial court ultimately dismissed the case on the merits. On appeal, the court affirmed, agreeing with the trial court that plaintiffs had failed to present any evidence in support of their allegations of forgery and undue influence by defendants even after being afforded opportunity for discovery. Daily briefing December 14, 2022

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.

IN THE MATTER OF THE ESTATE OF JOEL PERKEL, deceased. _________________________

Argued February 7, 2022 – Decided December 14, 2022 Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. P-000034-20.

The opinion of the court was delivered by ACCURSO, J.A.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0283-20

In this probate matter, Jane and Robert Perkel, sister and brother, appeal from an August 24, 2020 judgment dismissing their verified complaint seeking to revoke the probate of their late father Joel D. Perkel's Will, compel a formal accounting by the executor, Frank L. Cannella, and appoint plaintiff Jane Perkel administrator of the estate. We affirm.

Certifications submitted by plaintiffs averred their parents divorced in 1978 when their mother Rita Perkel, also deceased, learned their father was having "extra-marital relations with his then secretary," whom their father married after the divorce, the decedent's surviving wife, Jane L. Perkel. Plaintiffs averred "it was known to everyone" that Jane L. Perkel, who at the time of her marriage to the decedent "was a single divorced woman, . . . extremely materialistic while [their] mother was an educated intellectual, not materialistic, and a pianist," [and Jane L. Perkel] would regularly sign their father's name to checks "for him in the office" and had "once signed his signature to obtain an insurance broker's license in his name."

Jane Perkel averred she maintained a relationship with her father after the divorce, and he would assure her that "he divorced [her] mother not his children, when [she] would joke with him about writing his old family out of the will." She certified that she and her father "discussed in great detail that he

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would always treat his own children fairly and that he would always provide for [them]." She claimed that during their visits in recent years, her father "would tell [her] to take good care of [her] mother" and "appeared . . . full of regret for his failed marriage." She insisted her father most recently told her in 2018 during his hospitalization "that he had taken care of all his children in his will and not to worry about anything." Because she maintained Jane L. Perkel "had become highly adept in signing [plaintiffs'] father's signature at the insurance brokerage" some forty years ago, plaintiff Jane Perkel believed "that the purported Will was signed" by Jane L. Perkel and thus concluded "it is a forgery."

Plaintiff Robert Perkel had been estranged from his father for many years after his parents' divorce. He certified that after his father remarried, "he significantly decreased his contacts with [him] and [his] sister Jane Perkel." Robert Perkel only introduced his father to his three children in 2013, while the decedent was at Kessler Institute for rehabilitation following an injury. Robert Perkel maintained his father "was more actively in communication with [him] and [his] three children, [the decedent's] three grandchildren, as well as with his daughter Jane Perkel" from that time, six years before his death.

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Robert Perkel certified his father "reminded [him] on numerous occasions that he regretted" divorcing plaintiffs' mother "but that he would never forget his children in his death; and stated and reiterated that his Will had been prepared by Sheldon N. Witt, Esq., of Englewood." Based on those conversations, he averred his "father would never remove his own children or grandchildren from any Will of his own volition."

Robert Perkel certified Frank Cannella, Jane L. Perkel's son by a prior marriage, "is believed to be a retired police officer from North Bergen and, as such, he would have had training and ability to pressure [Robert and Jane's] late father to do things that he, [their] father, would not do voluntarily." He averred that when their father remarried, Jane L. Perkel's children "had been fully grown" and he did "not believe that [his father] would have been so emotionally connected with any of them that he would have disowned his own children and grandchildren and would have left everything to his new wife's children." It was for that reason, he explained, that he had "come to challenge the purported Will excluding [the decedent's] own children and grandchildren as a product of either undue influence and/or forgery."

The decedent's Will offered for probate was executed in 2007, when the decedent was seventy-five years old, eleven years prior to his death at eighty-

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six. In his Last Will and Testament, the decedent left his home in Fair Lawn
to his stepson, Frank Cannella, with the stipulation Jane L. Perkel should have life tenancy. In the event Cannella pre-deceased him, the decedent directed the property would go to Cannella's three children in equal shares, with the same life tenancy to decedent's wife Jane L. Perkel. The decedent left the remainder of his estate to his wife, and should she have pre-deceased him, to seven grandchildren — five Cannella grandchildren and two children of his daughter from his first marriage, Susan Weinrub, plaintiffs' sister — as well as to his daughter, plaintiff Jane Perkel. The Will expressly stated the decedent had "chosen not to bequeath anything to [his] daughter, Susan Weinrub, or to [his] son, Robert Yale Perkel, for reasons known to them."

Following the filing of the complaint, Cannella and Jane L. Perkel moved to dismiss in lieu of answer, claiming the complaint was untimely in accordance with Rule 4:85-1, failed to state a claim and was otherwise insufficient under Rule 4:5-8(a). The Will was probated and Letters Testamentary issued to Cannella by the Bergen County Surrogate on May 13, 2019. Plaintiffs did not file their complaint, however, until January 24, 2020, over four months beyond the four months provided in Rule 4:85-1 for a will

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challenge.1 Cannella and Perkel also argued the allegations as to forgery and undue influence were conclusory and without sufficient factual support to sustain plaintiffs' causes of action. Alternatively, Cannella and Perkel argued they were entitled to a more definite statement of the allegations of the complaint under Rule 4:5-8(a), requiring that all allegations of fraud or undue influence be pled with particularity.

Plaintiffs countered that the four-month period for challenging the Will did not begin to run until they were served by Cannella with the notice of probate, which did not occur until September 30, 2019. Robert Perkel averred that was "[t]he first time" he and his sister Jane became aware of any will other than the one they understood had been drafted for their father "by a lawyer named Sheldon N. Witt, Esq., in Englewood," thus making their complaint timely. Counsel for plaintiffs argued no more definite statement of claim was required as the verified complaint and the "facts and circumstances" revealed "a substantial likelihood that Jane [L. Perkel] was involved in a series of

1 The Rule requires that a will challenge by an in-state resident be "filed within four months after probate or of the grant of letters of appointment," unless relief is sought based on "R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court)." In that event, "the complaint shall be filed within a reasonable time under the circumstances."

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events that manipulated [the decedent's] signature and [his] credentials to her advantage and those facts really warrant an investigation in a civil action."

The probate judge denied the motion without prejudice. The judge declined to dismiss the complaint on timeliness grounds, finding a factual dispute over when plaintiffs became aware of the Will, as plaintiffs averred in the verified complaint that they obtained a copy from the Surrogate's Office in August 2019, prior to it being served by the estate. As to the factual allegations sufficing to set forth causes of action for undue influence and forgery, the judge remarked "if this suffices, it's hanging by a thread," noting the complaint contained "nothing but supposition and speculation." The judge nevertheless determined plaintiffs should be permitted the opportunity to find and depose the lawyer who drafted the 2007 Will as well as locate any will drafted for decedent by Sheldon Witt, serve basic interrogatories and depose Cannella and Jane L. Perkel, if they wished, over the next sixty days.

Over the next few months, plaintiffs located the lawyer who drafted the 2007 Will, Michael A. Jimenez, who advised the decedent and Jane L. Perkel were clients of Joseph J. Ryglicki when Jimenez was employed in Ryglicki's office. Jimenez claimed he had no recollection of the matter beyond being asked to assist in the drafting and execution of the Will, that he'd left the firm

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in 2016 and understood that most of the firm's files were destroyed in Superstorm Sandy in 2012. The Ryglicki firm confirmed all of its files created before the storm, including that of the decedent, were destroyed in its aftermath. Cannella and Perkel renewed their motion to dismiss the complaint, which plaintiffs successfully sought to have adjourned for several weeks while they obtained a report from a handwriting expert.

Plaintiffs' expert report was, at best, inconclusive. Examining six known signatures of the decedent, three made near the time of the Will, and three known signatures of Jane L. Perkel, the expert stated he could come to "no conclusion" as to whether the decedent's signature on the Will was genuine.2Noting that "whether Jane L. Perkel was the actual writer of either questioned signature [on the Will] is moot until a determination regarding genuineness

can be reported," the expert further concluded, however, that "the nature of both questioned signatures is such that, if it were determined that one or both questioned signatures is non-genuine, no actual writer could be identified."

2 The expert wrote that a comparative analysis between the two questioned signatures and the group of six known specimen signatures revealed "similarities in form between the questioned signature and those exhibited by the entire group of known specimens and a lack of observable significant differences, with some exceptions which might be attributable to natural variation."

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Plaintiffs' counsel also reported plaintiffs had been unable to locate lawyer Sheldon Witt of Englewood3 and had no other will to offer.

Despite defense counsel having established by virtue of the Surrogate's records that Robert Perkel obtained a copy of his late father's Will from the Surrogate on May 7, 2019, three months earlier than plaintiffs claimed in the complaint, and well before the estate served him and his sister with a copy in late September 2019, the judge did not rest his decision dismissing the complaint on the grounds it was untimely. While the judge discussed the timeliness of the complaint, he ultimately determined plaintiffs had failed to muster any facts to support their allegations that their father's Will, drafted eleven years before his death, was either forged or the product of undue influence after having been permitted several months of discovery.

Plaintiffs' expert could not support their claim of forgery and their efforts to find some irregularity in the execution of the Will through the scrivener were thwarted by his lack of recollection and the destruction of the file in the hurricane. Plaintiffs' counsel also conceded to the trial court that the Will probated by Cannella appeared to be the only Will for decedent in

3 Attorney Sheldon N. Witt, admitted in 1966, who formerly practiced in Englewood, is deceased according to Bar records.

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existence. While plaintiffs' counsel noted Cannella and Jane L. Perkel had not responded to the interrogatories he propounded, he could not identify any discovery that would support the allegations of the complaint. Viewing the evidence adduced on the motion beyond the pleadings, the judge concluded the complaint had to be dismissed under the summary judgment standard as plaintiffs' belief that Cannella "is a devious person who can manipulate" and decedent's wife Jane L. Perkel "is a devious person who can forge [the decedent's] name" was insufficient to sustain their causes of action, and plaintiffs had adduced no evidence "to back that up in order to continue to do discovery much less to go to trial."

Plaintiffs appeal, contending the probate judge erred in dismissing their complaint as it was timely filed and discovery was incomplete. They maintain the judge should have compelled defendants to answer interrogatories "or deem their refusal as admissions." We disagree.

Plaintiffs spend the majority of their nineteen-page brief explaining why their will challenge was timely filed, devoting only two-and-a-half pages to the substance of their argument that the decedent's Will was forged or the product of undue influence. Like the trial court, however, we find no need to decide whether the complaint could be considered timely filed, notwithstanding it was

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admittedly filed beyond the four-month period provided by Rule 4:85-1, because plaintiffs failed to muster even a scintilla of evidence in support of their claims.

As the trial court first noted on the return date of the order to show cause in March 2020, will challenges under Rule 4:85 proceed as summary actions in accordance with Rule 4:67-1 because the issues are narrow and the matter can ordinarily be fairly and expeditiously resolved with limited discovery based on well-settled precedent. See Garruto v. Cannici, 397 N.J. Super. 231, 240-41 (App. Div. 2007). Plaintiffs filed this case alleging forgery and undue influence without any particulars, contrary to Rule 4:5-8(a). See State, Dep't of Treasury, Div. of Inv. ex rel. McCormac v. Qwest Commc'ns Int'l., Inc., 387 N.J. Super. 469, 484 (App. Div. 2006) (discussing the requirements of pleading fraud). In an attack on the validity of a will, our law presumes "the testator was of sound mind and competent when he executed the will," Gellert v. Livingston, 5 N.J. 65, 71 (1950), and the burden is on the challenger to prove otherwise by clear and convincing evidence, Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981).

Although the probate judge acknowledged plaintiffs' claims appeared to be based on nothing more than bruised feelings and rank speculation, he

     

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denied Cannella and Jane L. Perkel's initial motion to dismiss in order to allow plaintiffs an opportunity for limited discovery and the chance to flesh out their claims. But after over four months of discovery, including inquiry of the scrivener of the Will and retention of an expert to opine on the genuineness of the decedent's signature, plaintiffs had nothing more to offer than the bare bones pleading of their complaint. While a plaintiff may bolster a cause of action through discovery, the Rules do not permit a plaintiff to file a conclusory complaint to find out if a claim exists. See Camden Cnty. Energy Recovery Assocs., L.P. v. N.J. Dep't of Env't Prot., 320 N.J. Super. 59, 64 (App. Div. 1999) ("Discovery is intended to lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of a legal theory.").

We are satisfied the probate judge provided plaintiffs a fair opportunity to undertake limited discovery to flesh out the conclusory allegations of their complaint, including the opportunity to take the depositions of defendants. Plaintiffs' failure to avail themselves fully of that opportunity or to move to compel outstanding answers to interrogatories, the overwhelming bulk of which related to the decedent's assets and their disposition, does not constitute

  

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error on the judge's part. Plaintiffs' failure to adduce any facts to support the allegations of their complaint warranted the dismissal of their will challenge.

Affirmed.

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Crane v. Crane burial discussed

 Crane v. Crane Defendant appealed the order finding deceased mother did not designate him to determine her burial location or dispose of her remains.  

Defendant appealed the order finding deceased mother did not designate him to determine her burial location or dispose of her remains. Mother died in 2020 survived by two children, plaintiff and defendant. Mother's siblings were buried at Mt. Carmel Cemetery. Mother left two wills, naming sister as executor and plaintiff as substitute executor. Her Health Care Proxy named defendant as her agent if sister were unable to serve. Mother executed a durable power of attorney in 2003 designating defendant as her agent and authorizing him to "make advance arrangements for [her] funeral." Parties disputed mother's observance of Judaism. Plaintiff testified mother was not observant. Defendant testified that mother was ordained as an interfaith minister based on the Kabbalah and the Jewish faith. Plaintiff testified mother visited Mt. Carmel and said it would be her last resting place. Defendant asserted mother said she wanted to be buried in Israel. Defendant produced a document at trial, purportedly signed by mother, designating defendant to control the disposition of her remains. Trial court found the purported designation was based on New York law enacted years after the purported execution of the document, rejected defendant's testimony, found parties had equal statutory standing under the Cemetery Act and concluded mother intended to be buried at Mt. Carmel. Court affirmed

Daily briefing December 29, 2022

New case on Deceased Child's Remains

 

Parents' Fight Over Deceased Child's Remains, Personal Effects Leads to New Guidance on Intestate Estates

RICHARD FREEDMAN, II,

Plaintiff-Appellant/ Cross-Respondent,

v.
COLLEEN FREEDMAN,

Defendant-Respondent/

Cross-Appellant. _________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3425-20

Argued December 13, 2022 – Decided January 5, 2023

Before Judges Sumners, Geiger and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-0314-09.

The opinion of the court was delivered by GEIGER, J.A.D.

APPROVED FOR PUBLICATION December 5, 2023 APPELLATE DIVISION

This sad case involves the disposition of the cremation remains and personal effects of the parties' son, who died unexpectedly and suddenly at age twenty, while attending college in Colorado. The mother unilaterally decided to have the body cremated without informing the father that their son had died, preventing him from participating in that decision and attending the memorial service. The mother has sole possession of the cremation remains and the son's remaining personal effects and refuses to divide them with the father. The parties filed contested proceedings in the Family Part to resolve the dispute and to terminate child support and medical insurance coverage. Following limited oral argument, the court decided those applications without conducting a plenary hearing.

Plaintiff Richard Freedman appeals from two Family Part orders entered on consecutive days regarding the disposition of his adult son's cremation remains and personal property. Among other things, the first order scheduled the case for a plenary hearing. The second order held those decisions should be controlled by their son's mother, defendant Colleen Freedman, now known

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as Colleen Thrower, because she had the closer relationship with their son. Colleen1 cross-appeals from certain aspects of the first order.

Richard had ample opportunity to litigate Colleen's alleged alienation of their son's affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son's eighteenth birthday. He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues. We deem those issues waived and, in turn, conclude that a plenary hearing regarding the parties conduct during the last five years of their son's life is not required as the evidence overwhelming demonstrated that Colleen had a closer relationship with their son. We therefore hold that Colleen shall have control over the cremation remains and affirm in part and reverse and remand in part. We also provide guidance on the proper procedure to be utilized in future similar disputes.

The parties married in December 2001, about six months after the birth of their only child, Richard James Hendrix Freedman (Hendrix). After they separated, custody and parenting time changed over time. When Hendrix was

1 The parties and their son share the same surname. We refer to them by their first names and middle name, respectively. We mean no disrespect.

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six, the parties agreed to joint legal custody, with Hendrix spending four overnights per week with Richard and three overnights per week with Colleen. The marriage was terminated by a divorce granted by a Pennsylvania court in January 2007. A property settlement agreement was incorporated into the divorce decree and the custody agreement later filed with the court in March 2007. Thereafter, both parties moved to Haddonfield.

In August 2010, Colleen filed an emergent application for full custody of Hendrix, which the court denied "without passing on the merits." A few months later, she filed a motion to modify custody and other relief. The court issued an October 22, 2010 order that: (1) designated Colleen parent of primary residence (PPR) and Richard parent of alternative residence (PAR); (2) granted Richard's request for court-ordered reunification therapy for Hendrix, the parties, and Richard's wife; (3) directed the therapist to determine the parenting time schedule, except the parties were to follow the court's holiday visitation schedule; (4) ordered Hendrix to undergo an evaluation; (5) required Richard to provide medical insurance coverage for Hendrix. Colleen withdrew her request for child support pending a new parenting time schedule.

Five years later, the parties disputed whether Colleen cooperated with the reunification therapy. Colleen filed a motion for child support and other relief. A July 2, 2015 order required Richard to pay child support, awarded

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Colleen counsel fees, and directed Hendrix to participate in reunification therapy.

A May 24, 2019 order terminated Richard's child support and medical insurance coverage obligations effective May 25, 2019, Hendrix's nineteenth birthday. In September 2019, Colleen filed a motion to reinstate child support, which was resolved by a consent order that reinstated child support, required Richard to cover Hendrix under his medical insurance policy, and required Colleen to provide Richard with proof of Hendrix's enrollment and credits for so long as Hendrix remained a full-time college student.

After initially attending Camden County College, Hendrix transferred to Colorado Mountain College for the Spring 2021 semester. On February 10, 2021, Hendrix was found dead. The death certificate stated the manner of death was accidental. It inaccurately listed the name of Hendrix's father and the maiden name of Hendrix's mother.

Colleen did not advise Richard of Hendrix's death. Richard first learned of Hendrix's death from a third party on February 17, 2021. As a result, Richard was unable to participate in the memorial service held for Hendrix in Pennsylvania or the decision to cremate Hendrix's remains. Instead, Colleen unilaterally made those decisions. Through counsel, Richard requested one- half of the cremation ashes, copies of all photographs of Hendrix, and one-half

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of Hendrix's personal belongings, to keep in Hendrix's memory. Colleen refused.

On March 31, 2021, the court granted an order to show cause (OTSC) with temporary restraints that restrained Colleen or anyone acting on her behalf from discarding or destroying Hendrix's ashes, personal property, photographs, and cell phone data.

The parties filed cross-motions that were heard the following month. Richard sought an order compelling Colleen to provide him with a copy of Hendrix's birth and death certificates and to cooperate in correcting the death certificate. He also requested that one-half of the cremation ashes be transferred to the crematory to confirm they were Hendrix's ashes and a sanction if Colleen discarded the ashes. Richard also requested access to photographs of Hendrix so they could be copied and one-half of Hendrix's belongings. He further sought an order granting him subpoena power to obtain Hendrix's college records and information from the crematory and funeral home. Finally, Richard sought to terminate child support as of the date of death, reimbursement of any child support overpayment, information concerning Hendrix's healthcare bills, and an award of counsel fees.

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In her cross-motion, Colleen sought to dissolve all restraints, sole control over Hendrix's remains, cell phone, photographs, and personal property, and an award of counsel fees.

The court issued an oral decision on April 30, 2021. Before an order reflecting the court's decision was entered, Colleen moved for reconsideration, or in the alternative, for summary judgment.

The court's oral decision was embodied in a June 21, 2021 order that: (1) determined Richard's request for a copy of Hendrix's birth certificate and original death certificate was moot; (2) directed Colleen to cooperate in correcting Hendrix's death certificate to properly list Richard as his father and Colleen as his mother; (3) reserved the issue of transfer of one-half of the cremation ashes to the crematory "until trial"; (4) denied sanctions without prejudice; (5) directed Colleen to provide Hendrix's photographs to Richard, to be copied by him and returned within fourteen days; (6) denied Richard's request to receive one-half of Hendrix's personal belongings without prejudice; (7) granted the requested subpoena power to Richard; (8) restrained Colleen from tampering with Hendrix's cell phone; (9) directed the parties to "cooperate to make the cell phone [ready] for data extraction"; (10) directed Colleen to provide Richard with information and documentation relating to Hendrix's healthcare from January 1, 2020 through the date of death; (11) held

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Colleen solely responsible for any outstanding uncovered medical expenses incurred for Hendrix; (12) terminated child support effective February 10, 2021, and directed reimbursement of any overpayment; (13) denied termination of the restraints; (14) denied Colleen's request to grant her sole control over Hendrix's remains, cell phone, photographs, and other property; and (15) denied without prejudice Colleen's request for counsel fees.

The next day, the court unexpectedly issued an amended order that substantially modified the terms of the June 21, 2021 order without further notice or hearing. The amended order stated the court had "reconsidered its decision." The amended order provided: (1) Colleen "shall retain possession of Hendrix's ashes based on her representation that she plans to distribute them in various locations that she knows her son either visited or wanted to visit"; (2) Colleen shall "distribute the ashes and advise [Richard] . . . of each location by latitude and longitude, so that he may create a memorial for himself"; (3) Richard was "free to visit any/all of the locations at his leisure"; (4) the issue of Hendrix's belongings was moot based on Colleen's representation that none of his belongings are still available; (5) permitted Richard to review copies of the requested police reports in the presence of his attorney, after which the copies were to be destroyed; (6) each party was

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responsible for their own counsel fees; and (7) the reconsideration/summary judgment motions returnable July 9, 2021 were "rendered moot."

The trial court stayed the June 21, and June 22, 2021 orders pending appeal. We denied Richard's application to file an emergent motion.

Colleen's Version of the Disputed Material Facts

Hendrix was diagnosed at a young age with Asperger's syndrome and an anxiety disorder. Despite these conditions, Richard "bullied and lashed out at Hendrix," making him feel "inadequate, uncomfortable, unsafe and scared." Hendrix did not stay overnight at Richard's residence after the fourth grade.

On the last day of school in June 2010, Richard and Hendrix had an argument, during which Richard screamed at Hendrix that he was "completely out of control," "totally messed up," and that there was "something wrong" with him. Richard then told Colleen that she could keep Hendrix for the entire summer and, "if Hendrix doesn't have any problems when he's with you, then why don't you just deal with him." Richard had no parenting time that summer. In August 2010, Colleen filed an application to suspend Richard's parenting time and require him to participate in reunification therapy.

The therapist terminated the reunification therapy in November 2011, because Hendrix refused to meet with Richard and exhibited "a great deal of anxiety [and] resistance." The therapist noted Hendrix does well with his

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mother and opined that the problems between Hendrix and Richard stemmed from "a poor match between [Hendrix's] needs [and Richard's] parenting style." The therapist suggested reunification therapy be tried again in one year. Richard did not return to reunification therapy.

Thereafter, neither Richard nor his family made any attempts to have a relationship with Hendrix. For the five years following the failed reunification therapy, Richard had no parenting time or relationship with Hendrix.

When Colleen sought child support from Richard in 2015, he requested a paternity test. The request distressed Hendrix, who viewed it as an act of rejection. The parties were once again ordered to attend reunification therapy, this time with a different therapist. Despite being ordered to arrange the therapy, Richard never contacted the therapist and did not provide necessary information to Colleen to schedule it.

For a brief period in 2016, Hendrix unsuccessfully tried to have a relationship with Richard. During the five years preceding his death, Hendrix did not see or hear from Richard and received no birthday or Christmas cards or gifts from him. Richard did not acknowledge Hendrix's graduation from high school, did not reach out to Hendrix about college, and did not know he transferred to Colorado Mountain College.

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Colleen seemed increasingly "unstable and deceitful" over time. She withheld Hendrix from Richard and told Hendrix lies about Richard.

In 2010, the parties verbally agreed that Colleen would keep Hendrix in her care for three weeks because he was exhibiting behavioral issues and needed a short break from the friends he was hanging out with.

Prior to 2010, Richard was Hendrix's primary caretaker and had an excellent father-son relationship with him. Beginning around June 2010, Colleen would not allow Richard to see or speak to Hendrix. Shortly thereafter, Colleen unsuccessfully applied for full custody. She did not permit Hendrix to participate in the court-ordered reunification therapy or to undergo a psychiatric evaluation. Richard blames Colleen's lack of cooperation for reunification therapy not being completed and the failure to establish a parenting time schedule.

When Richard stopped by Colleen's residence to talk to Hendrix, no one would answer the door or other conduct thwarted the attempted communication. When Richard attempted to speak to Hendrix at school, Colleen would pull Hendrix away and not let him speak to Richard. Colleen's conduct resulted in Richard not having any communication with Hendrix from 2010 to 2015. Richard backed off in the hope Hendrix would eventually realize what was happening. This led to Richard experiencing depression,

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interrupted sleep, and nightmares. During this same period, Hendrix was suffering, struggling in school, and in danger of failing classes.

For most of 2016, Richard and his family enjoyed parenting time with Hendrix, which Hendrix enjoyed. Hendrix seemed happy and developed a relationship with his stepsiblings. He spent Christmas at Richard's house that year. Unfortunately, Hendrix experienced trouble with a student at school relating to Colleen's living arrangement. Hendrix was arrested when he faked a break-in to scare the student who was bothering him. Richard attempted to help in any way he could, including communicating directly with Hendrix. Colleen cut Richard out of Hendrix's life and continued to alienate Hendrix's affections.2

Richard did not know whether Hendrix was attending college. It was only after Colleen filed a motion to reinstitute child support that he learned Hendrix was enrolled at Camden County College. Colleen remained uncooperative and did not comply with the October 4, 2019 consent order.

When Richard learned that Hendrix had died in Colorado seven days

earlier, he did not know Hendrix was attending college there. The coroner

advised Richard that Hendrix appeared to have died from an accidental

2
regarding custody or parenting time or to enforce litigant's rights.

Despite Colleen's alleged conduct, Richard filed no subsequent motions

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overdose and that his body was transported to Pennsylvania to be cremated. When Richard located the funeral home, he was advised that a memorial service had already been held. The funeral home representative indicated he was told Richard's parental rights had been terminated. When Richard attempted to obtain a copy of the death certificate, he was advised by vital records that he was not listed as a parent.

On appeal, Richard argues:

I. A PLENARY HEARING SHOULD BE HELD WHERE THERE IS A GENUINE AND SUBSTANTIAL FACTUAL DISPUTE TO RESOLVE THAT FACTUAL DISPUTE AND THUS, A PLENARY HEARING SHOULD HAVE BEEN HELD AS INITIALLY DETERMINED AND ORDERED ON APRIL 30, 2021 AND JUNE 21, 2021.

POINT II

II. AN ABUSE OR MISTAKE OF DISCRETION WAS EXERCISED BY THE TRIAL COURT BY DENYING [RICHARD'S] RIGHT TO A PLENARY HEARING AS A LEGAL CUSTODIAN TO DETERMINE THE APPROPRIATE DISTRIBUTION OF THE UNEMANCIPATED CHILD'S ASHES.

In her cross-appeal, Colleen argues:

I. THE NEW JERSEY CEMETERY ACT, N.J.S.A. 45:27-1 ET. SEQ., AND CASELAW DEVELOPED UNDER THAT STATUTE GOVERN WHICH PARTY SHOULD HAVE CONTROL OVER THE DISPOSITION OF HENDRIX'S REMAINS.

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II. PLENARY HEARINGS ARE REQUIRED ONLY IN CASES IN WHICH THERE ARE GENUINE ISSUES OF MATERIAL FACTS.

III. THE STANDARD OF REVIEW IN THIS CASE SHOULD BE DE NOVO, THE STANDARD THAT ALLOWS FOR THE LEAST AMOUNT OF DEFERENCE TO THE TRIAL COURT.

IV. IN THE EVENT THAT THIS MATTER IS REMANDED, IT SHOULD BE REMANDED TO A DIFFERENT TRIAL JUDGE IN LIGHT OF THE FACT THAT THE TRIAL COURT JUDGE GAVE GREAT WEIGHT TO INAPROPRIATE FACTORS AND BECAUSE OF A LEGITIMA TE CONCERN THAT THE TRIAL JUDGE WILL BE COMMITTED TO ITS INITIAL FINDINGS.

We initially note that the proceedings involved in this appeal should have been filed and heard in the Probate Part, not the Family Part. Excepting for the application to terminate child support and medical insurance coverage, the Family Part lacked jurisdiction to hear the applications filed after Hendrix's death.

The disposition of Hendrix's cremation remains is governed by the New Jersey Cemetery Act, 2003 (Cemetery Act), N.J.S.A. 45:27-1 to -41, and its interpretive case law. N.J.S.A. 45:27-22 "addresses who may control the funeral and disposition of a decedent's remains." Gately v. Hamilton Mem'l Home, Inc., 442 N.J. Super. 542, 554 (App. Div. 2015). It provides:

If [a] decedent has not appointed a person to control the funeral and disposition of the remains . . . the right

 

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to control the funeral and disposition of the human remains shall be in the following order of priority class, unless other directions have been given by a court of competent jurisdiction:

(1) The surviving spouse of the decedent or the surviving civil union or domestic partner.

(2) A majority of the surviving adult children of the decedent.

(3) The surviving parent or parents of the decedent.

(4) A majority of the brothers and sisters of the decedent.

(5) Other next of kin of the decedent according to the degree of consanguinity.

(6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

[N.J.S.A. 45:27-22(a).]
Therefore, if a "decedent has not left a will appointing a person to

control disposition and has no surviving spouse or adult children, the statute provides that the right to control the funeral and disposition of the remains passes to '[t]he surviving parent or parents of the decedent.'" Gately, 442 N.J. Super. at 554 (quoting N.J.S.A. 45:27-22(a)(3)).

In Gately, "we conclude[ed] that the more sensible reading of the phrase [the surviving parent or parents] is that where there are two surviving parents, a single parent alone does not have the unilateral right to control disposition."

 

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Id. at 556. Therefore, "if both parents are surviving, then the decision-making authority presumptively is to be jointly exercised." Id. at 557. "Had the Legislature intended to give either surviving parent the singular right to control disposition, it could have so stated . . . ." Ibid.

Here, Hendrix was unmarried, died without children, without a will, and without any written directive regarding his funeral or the disposition of his remains. In re Estate of Travers, 457 N.J. Super. 477 (Ch. Div. 2017), involved similar facts. There, the decedent died at age twenty-two, "was unmarried and died without issue, without a will, and without any written directive regarding his funeral or disposition of remains." Id. at 481. The decedent's parents, who were divorced, "differ[ed] on how their son's remains should be disposed, and each [sought] control over the remains pursuant to N.J.S.A. 45:27-22." Ibid. The decedent's father wanted his son's remains buried, while the decedents' mother wanted her son's remains cremated. Ibid.

The court recognized that under these circumstances, N.J.S.A. 45:27-22 "confer[red] the right to control the funeral arrangements and disposition of the remains to the surviving parents of the deceased," Travers, 457 N.J. Super. at 482 (citing Gately, 442 N.J. Super. at 554), and "in the event of a dispute," the court has authority under the statute to resolve disputes between next-of- kin, id. at 482-83 (citing Marino v. Marino, 200 N.J. 315, 322 (2009)). The

   

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court noted the Cemetery Act and New Jersey case law provided no guidance "on how to resolve a dispute that arises between" parents. Id. at 483; accord Gately, 442 N.J. Super. at 554.

In Travers, the court held that where a decedent dies intestate, the court "should carefully consider which next-of-kin of equal standing under the [s]tatute will likely control the funeral [and] disposition of remains in a manner that most closely reflects the wishes, desires and expectations of the decedent." 457 N.J. Super. at 484. "Additionally, relationships between the decedent and next-of-kin of equal standing may be highly relevant." Ibid. "Therefore, the court should consider the closeness of the relationships between next-of-kin of equal standing and the decedent to inform its decision on the appointment of control under the [s]tatute." Id. at 485. "[T]he religious and/or cultural background of the decedent should also be considered." Ibid. "[T]he court may consider, if known, which next-of-kin of equal standing will ultimately be designated as the administrator of the estate, as that person will be obligated to act in the best interests of the estate to protect the estate's assets and ensure payment for funeral [and] disposition expenses." Id. at 486 (citing N.J.S.A. 3B:10-23; Fitzgerald v. Linnus, 336 N.J. Super. 458, 468 (App. Div. 2001)). The court formulated a four-prong test incorporation those

   

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factors for determining who should control the funeral arrangements and disposition of remains. Id. at 486-87.

Applying that test, Colleen contends that because she had a closer relationship with Hendrix during the years leading up to his death, and the other factors are inapplicable, further analysis and a plenary hearing are unnecessary, and she should be granted sole control over the disposition of Hendrix's remains. We agree.

We adopt and apply a modified version of the test formulated in Travers. Where parents of a deceased child dispute the funeral arrangements or disposition of remains, the court shall consider the following factors in selecting the person in control under N.J.S.A. 45:27-22:

(1) Which parent is more likely to abide by the decedent's expressed preferences, if any;

(2) Which parent had a closer relationship with the decedent and is in a better position to deduce the decedent's preferences and expectations upon death;

(3) Which parent is more likely to adhere to the religious beliefs and cultural practices of the decedent, to the extent that such beliefs and practices pertain to funeral arrangements or the disposal of remains and reflect the decedent's preferences; and

(4) Which parent will likely be designated administrator of the estate and act in the best interests of the estate relating to the funeral arrangements and disposition of the decedent's remains.

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The trial court must undertake a qualitative analysis of each factor, assign appropriate weight, and balance the factors.

Applying this modified test, we note that certain facts are undisputed. As to factor one, Hendrix left no will and did not express any preferences regarding funeral arrangements or disposition of his remains.

As to factor two, Hendrix lived exclusively with Colleen since at least 2015, until he left for college. Although the parties shared joint legal custody, Colleen was designated parent of primary residence. Despite the parties residing in the same municipality, Richard exercised no parenting time after 2016. By any measure, Colleen had the closer relationship with Hendrix at the time of his death and was in a better position to ascertain Hendrix's to deduce the decedent's preferences and expectations, even though the parties contested the reasons why that occurred.

As to factor three, there appears to be no evidence that Hendrix practiced any religion or that religious beliefs are a factor in the disposition of his remains. Nor do the parties express any personal religious beliefs as a factor to be considered.

As to factor four, Hendrix's assets appear to consist mainly of personal effects having minimal economic value. Because an estate has not been filed with the Surrogate's Office, an administrator has not been appointed.

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Factor two is clearly controlling in this case. Although the parties presented diametrically opposed versions of their conduct, Richard's evolving relationship with Hendrix, and the reasons for the erosion of his relationship with Hendrix, Richard had ample opportunity to seek relief in the Family Part from Colleen's alleged conduct when his parenting time and ability to communicate with Hendrix was curtailed or prevented from 2016 until Hendrix's eighteenth birthday. He chose not to do so.

While a plenary hearing is generally required when there are genuine issues of material fact about custody and parenting time, they must be litigated in the Family Part before the child reaches eighteen, not for the first time in applications filed more than two years after the child's death, when he was twenty years old. Although Richard was conversant with motion practice in the Family Part as reflected by the considerable post-divorce procedural history, in this instance he sat on his rights. We decline to remand this matter to the Family Part or to direct new filings in the Probate Part to litigate those stale issues, which we deem waived. Accordingly, a plenary hearing is not required.

Because the record clearly establishes that Colleen had the closer relationship during the years leading up to Hendrix's death and to discern his preferences, we hold that Colleen shall be granted control over Hendrix's

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cremation remains. Any remaining issues regarding Hendrix's personal effects shall be pursued in the Probate Part.

We affirm the following aspects of the trial court's rulings: (1) the termination of child support and medical insurance obligation; (2) the subpoena power granted to Richard (which was properly brought in the Family Part); (3) the denial of sanctions; (4) the requirement that Colleen provide Richard with information and documentation relating to Hendrix's healthcare from January 1, 2020 through the date of death; (5) the requirement that Colleen advise Richard of each public location where the cremation remains are deposited so that he may create a memorial for himself; (6) that restrained Colleen from tampering with Hendrix's cell phone; (7) that directed the parties to "cooperate to make the cell phone [ready] for data extraction"; and (8) denied an award of counsel fees. Any other aspects of restraints entered against Collen are terminated. We reverse the aspects of the trial court's orders that are contrary to our rulings. On remand, the trial court shall enter an order reflecting our ruling.

Finally, because the judge expressed comments regarding credibility, see J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div. 1999), and may have a commitment to her prior findings, see P.T. v. M.S., 325 N.J. Super. 193, 220- 21 (App. Div. 1999), any subsequent proceedings regarding concerning

 

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Hendrix's cremation remains and estate shall be conducted by a different judge.

We provide the following guidance for future cases involving similar disputes in intestate estates. The proceedings contesting the funeral arrangements or disposition of remains should be brought by complaint in the Probate Part, rather than by application in the Family Part. The probate judge should consider appointing a pendente lite administrator who shall investigate the facts and attempt to resolve the issues. If a resolution is not reached, the probate court shall apply the test we have adopted and determine which parent or next of kin of equal standing shall control the funeral arrangements and disposition of remains, which should not involve protracted hearings relating to the history of the parties over multiple years leading up to the death. All unresolved aspects of the decedent's estate, including disposition of the decedent's assets and personal effects, should likewise be brought, and decided in the Probate Part.

Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.

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