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In re Estate of Giamo

May 29, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, P-253-05.

Per curiam.


Submitted May 14, 2007

Before Judges Lintner and S.L. Reisner.

Defendant, Gail Giamo Leibowitz, appeals from a trial court order dated August 28, 2006, resolving litigation over the Estate of Louise Giamo. We affirm in part and reverse in part.


This appeal arises from a series of probate disputes between two siblings, Michael Giamo and Gail Giamo Leibowitz. By order dated July 11, 2001, the siblings resolved litigation over the guardianship of their mother Louise Giamo.*fn1 Under the terms of the settlement, Michael was appointed Louise's guardian to serve without posting a bond and without receiving fees or commissions. Louise's will named Michael and Gail as co-executors of her estate.

After Louise's death, Michael filed a verified complaint in which he contended that he had spent over $118,000 to maintain Louise during the guardianship and that some of that money had come from his funds. He attached to the complaint a very detailed record of income and expenditures made during the guardianship. The complaint also alleged that Gail was refusing to cooperate with Michael in executing the dictates of Louise's will and in sharing estate expenses, including real estate taxes, thus exposing estate assets to possible foreclosure. The complaint asked that the decedent's assets be distributed in accordance with the will and that the estate debts be paid from the assets prior to distribution. The complaint did not seek fees or commissions of any kind.

In response, Gail filed a motion to compel an accounting and to remove Michael as co-executor. Gail contended that it was Michael who was uncooperative in settling the estate. She also contended that Michael had mishandled Louise's assets during the guardianship, improperly mortgaged real estate,*fn2 and failed to file a properly-documented accounting.

The court ordered financial discovery. The court also ordered, on March 9, 2006, that a ring previously owned by Louise be appraised by both parties. Michael was given the option to purchase the ring, and if he did not purchase it, Gail would have the option to purchase the ring. If the parties could not agree on a value, that would become an issue in the scheduled trial. They were unable to agree.

The court held a bench trial on August 7, 2006, at which Michael and Gail testified. We have read the trial transcript. Michael testified in great detail concerning his accounting. During cross-examination, Michael testified and Gail's counsel conceded that Michael had provided to Gail's accountant extensive documentation of disbursements from the account. Gail's counsel conceded that her accountant agreed Michael had provided "receipts supporting [$]9761.87 for cash reimbursement." Michael also produced a bill for the cost of the funeral and the repast which he testified that he paid.

Gail testified at the trial concerning the value of Louise's ring. She testified that she would pay $9000 for the ring. The judge observed that he took her testimony "to establish fair market value." When Michael's counsel asked her to clarify, "The 9,000, do you mean you would give your brother 9,000 for the ring?" Gail replied, "Yes, I do mean that." She was then asked, "You don't mean half?" and she replied, "No, I do not mean half of that."

During summation Gail's counsel clarified that the total amount in dispute concerning funds owed to Michael or owed by him amounted to "2852.43," plus $125 per month that he undercharged a tenant. Counsel also asserted a claim for shares of Tucker Drilling stock, as to which he agreed his client would be satisfied if the judge surcharged Michael for the value of the stock and allowed him to keep the stock.

The trial judge rendered a detailed oral opinion on the record on August 8, 2006. He found Michael to be a credible witness who "performed his obligations honestly, caringly, with a sincere effort to meet his fiduciary duties." He also concluded that Michael "did offer substantial corroboration and detail" to support his informal accounting and that a formal accounting was not warranted. He concluded that "[a]ll books, records, checks, ledgers, and the like were presented to the defendant's accountant and presumably reviewed by him." He found no discrepancy in the amount of money owed on the line of credit Michael took out to pay for Louise's care. After reviewing the documentation concerning the accounting, and accepting Michael's testimony concerning his claim for reimbursement of his own loans to the estate, the judge noted "after all is said and done, about these various and ...

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