Before Judges Kestin and Fall.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Union County.
Plaintiff, Mary Sopko, appeals from a final order entered in the Chancery Division, Probate Part, Union County, granting the summary judgment motion of defendant, Estate of Arthur A. Roccamonte, Sr., and dismissing the complaint. An interlocutory order entered in the Chancery Division, Probate Part, Essex County is also challenged on appeal. That order was based upon a denial of plaintiff's motion to return the matter to the Family Part in Essex County, instead transferring it to the Probate Part in Union County. We denied plaintiff's timely motion for leave to appeal. For the reasons articulated herein, we now affirm the interlocutory order and reverse the final order; and remand to the Probate Part, Union County for such proceedings as may be required to conclude the matter.
Plaintiff sought lifetime support from the decedent's estate in a two-count complaint alleging an express oral contract as well as a quantum meruit and unjust enrichment basis for her claim of entitlement. The matter was initially filed in the Chancery Division, Family Part, Essex County, with a jury trial demand. On October 11, 1995, the trial court clerk's office rejected the suit papers for filing in the Family Part, with a question on the transmittal form: "Does this belong in Superior Court or Surrogate?" Some three months later, the complaint was accepted for filing in the Family Part. Plaintiff then moved to transfer the matter to the Chancery Division, Probate Part. That motion was granted on May 10, 1996; but on May 14, 1996, the trial court entered another order denying the motion. The latter order contained the recital: "This is a palimony case against an estate." Then, on June 13, 1996, the May 14 order was, sua sponte, "set aside and the matter . . . transferred from the Chancery Division, Family Part to the Chancery Division[,] Probate Part" as plaintiff had sought.
Issue was joined on June 11, 1996. Some time later, plaintiff moved for return of the matter to the Family Part. The motion Judge in the Essex County Probate Part decided that motion in a letter opinion dated March 26, 1997:
"Plaintiff cites to [R.] 5:1-2, which establishes the Family Part as the division to handle all claims that arise out of 'family or family-type relationships.' However, R. 4:3-1(b) indicates in pertinent part that 'actions transferred from one division to another shall not be retransferred,' and would prevent this Court from ordering another transfer."
In addition, the palimony cases cited to by plaintiff are inapposite of this matter, since palimony suits are predicated on the fact that both parties to the suit would still be living, whereas one of the parties to this action is deceased. See Lopatkin v. Lopatkin, 236 N.J. Super. 555 (Ch. Div. 1989). Although the case law is clear that, under certain circumstances, the Family Part has continuing jurisdiction after the death of a party to a divorce action, the parties in such instances were divorced prior to the death of one of the spouses, and thus the right sought to be enforced stemmed from a judgment already entered [in the] Family Part . . . . Id. at 557. This is not the case here. Mr. Roccamonte died prior to the institution of this suit, and thus the matter was not brought while he was still alive, thereby curtailing the jurisdiction of the Family Part.
This Court finds that the proper venue for this matter lies in Union County, precisely because this lawsuit involves the Estate of Arthur Roccamonte, of which Doreen Slackman is the administratrix. [R.] 4:83-2 states that:
"In all matters relating to estates of decedents, trusts, guardianships and custodianship, other than those set forth in R. 4:80 and R. 4:81, all papers shall be filed with the Surrogate of the county of venue as the Deputy Clerk of the Superior Court, Chancery Division, Probate Part, pursuant to R. 1:5-6."
Thus, pursuant to this rule, the case must be venued in the court where the administrator is appointed, and renders moot any further involvement by the Essex County courts in this matter.
The matter was, accordingly, by order dated March 26, 1997, transmitted to the Probate Part in Union County, the venue for the probate of the decedent's estate. Plaintiff's motion for reconsideration was denied on June 25, 1997. Our order denying plaintiff's motion for leave to appeal was entered on August 7, 1997.
Defendant's motion for summary judgment was heard on an adjourned return date, May 28, 1998. The trial court's reasons for granting the motion were set out in a letter opinion dated June 30, 1998. ...