On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, 290325.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
Lorraine Zadroga, the successful proponent of the Will of Anna M. Addevensky, appeals from the August 11, 2006 orders granting counsel fees to the opponent, Robert Addevensky ("Addevensky"), the putative son of the testator.*fn1 The Chancery judge declined appellant's request to first determine the issue of Addevensky's birth, instead proceeding with the trial of the Will contest, after which he found under Rule 4:42-9(a)(3) that, although unsuccessful, Addevensky had "reasonable cause" to challenge the Will, and that the fees sought were reasonable under R.P.C. 1.5. On appeal, the proponent contends the judge erred in failing to first hear and decide the issue of Addevensky's standing and in awarding counsel fees to the opponent because he had no legal right or interest in filing and pursuing the action. Appellant does not challenge the quantum of the fees. We discern no abuse of discretion or misapplication of law by the trial court and affirm substantially for the reasons articulated by Judge Olivieri on the record on April 5, 2006 and August 11, 2006.
On February 10, 2005, a new Will was executed by Anna Addevensky at Secaucus Meadowlands Hospital, naming appellant, her niece, as the executrix and sole beneficiary of her estate and disinheriting Addevensky by making a bequest of "One Dollar to my son ROBERT S. ADDEVENSKY" (emphasis added). The testator died on February 20, 2005 at the age of seventy-four. After a caveat was filed, verified complaints for and against probate were filed in April 2005. Addevensky's complaint alleged lack of testamentary capacity and undue influence. Trial was scheduled for March 1, 2006, and adjourned to April 5, 2006. In February 2006, appellant filed a motion to amend its answer to deny that Addevensky was the testator's son, based on new evidence. On March 31, 2006, appellant informed the court that Ann Eckel, the sister of the testator's deceased husband, testified in depositions she gave birth to Addevensky out of wedlock and placed him with her brother and sister-in-law to raise as their own, and that she would be present at trial to testify. Appellant raised the issue of Addevensky's standing, stating she intended to move orally to dismiss Addevensky's caveat and complaint.
At the commencement of trial, Addevensky's attorney represented that the testator's and her husband's names were on Addevensky's birth certificate; that Addevensky was raised by the testator; and that Addevensky had testified in depositions when he asked the testator about the rumor, she denied it and claimed she was his mother. He argued Addevensky was either the testator's birth son or her "child" under the intestacy statutes, by application of the New Jersey Parentage Act, N.J.S.A. 9:l7-38 to -59, and N.J.S.A. 3B:5-10, which for purposes of intestate succession addresses the parent-child relationship. In the interests of judicial economy, the judge declined appellant's request to proceed first with the issue of Addevensky's birth and standing, reasoning that if the Will were admitted to probate, it would obviate the necessity of a further plenary hearing and resolution of the issue of Addevensky's relationship to the testator.
Following trial, Judge Olivieri found a confidential relationship between appellant and the testator and suspicious circumstances surrounding execution of the Will, but found in favor of appellant on the issues of testamentary capacity and undue influence and admitted the Will to probate. In denying appellant's request to have her counsel fees and costs reimbursed to the Estate by Addevensky based on the frivolous litigation statute, N.J.S.A. 2A:15-59.1, and in granting Addevensky's motion for counsel fees and costs to be paid out of the Estate pursuant to Rule 4:42-9(a)(3), the court noted Addevensky's birth certificate listed the testator as his mother and their blood relationship did not become an issue until after the litigation commenced; appellant chose not to file a formal motion to dismiss after she received the new information; and it made no finding on the birth or standing issue, which was rendered moot by the determination upholding the Will. The court concluded that Addevensky had reasonable cause to contest the validity of the Will, R. 4:42-9(a)(3), entitling him to a counsel fee from the Estate, stating:
And certainly this court found during the course of the trial that there was a confidential relationship between Ms. Zadroga and the decedent, that most -- a number of her needs, Ms. Addevensky, depended on Ms. Zadroga and certainly Ms. Zadroga, during her testimony and from the testimony of others, the court inferred that there was in fact a confidential relationship.
In fact Ms. Zadroga testified that there was a mother daughter relationship between the decedent and her. So the confidential relationship was certainly there. Suspicious circumstances? Well Ms. Zadroga was the one who got the will forms, went to the hospital once Ms. Addevensky was admitted, had the forms executed and when I say the forms I mean the will, executed around the same time that Ms. Addevensky had a heart episode . . . and Ms. Zadroga notwithstanding that fact, went to the intensive care unit and had the forms executed.
Now I took all that into consideration and determined that she had testamentary capacity, meaning Ms. Addevensky, and was not under any undue influence because this was a -- kind of a double barreled approach in attacking this will, and made a determination that the will was to be upheld. Notwithstanding the experts that had been called by Mr. Addevensky, the court made note that it was very impressed with the one expert that was called on the issue of testamentary capacity but notwithstanding that . . . I found that Ms. Addevensky did have testamentary capacity and on the issue of und[ue] influence that the executrix had proven by a preponderance of the credible evidence that there was no undue influence.
However this was not a case that was crystal clear. That is when I say the case, I mean the case surrounding execution of this will. I want to make myself very clear about that. This was not as I said before, a slam dunk when it came to the execution of this will. This court labored tediously during the trial and in rendering its decision going over its findings of fact to make the determination that it made.
Now the fact that -- quite frankly the fact that Mr. Addevensky may or may not have been the biologi[cal] -- or was not the biological son of Ms. Addevensky did not make the attack on the will and I'm looking at this very narrowly right now, any less of a significant attack.
We are not convinced by appellant's argument that the procedure Judge Olivieri chose to follow in this case constituted reversible error. The conduct of a trial is within the discretion of the trial court. Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003); Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000). Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which ...