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Moscato v. C.B.P.B. Associates

August 7, 2007

KATHERINE MOSCATO, PLAINTIFF-RESPONDENT,
v.
C.B.P.B. ASSOCIATES, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, FRANCES MOSCATO AND THE ESTATE OF FRANK MOSCATO, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. C-60-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 15, 2007

Before Judges Weissbard, Payne and Lihotz.

Defendants appeal from a final judgment entered by the Chancery Division imposing a constructive trust in favor of plaintiff, Katherine Moscato (Katherine), on realty located at 6285 Sand Hill Circle, Lake Worth, Florida, titled to her daughter-in-law, defendant Frances Moscato (Frances). We are required to recite a detailed statement of the facts surrounding not only the parties' familial relationship, but also their financial interactions, as taken from the trial record.

Katherine and her late husband, Leonard, had four children: Camille, Phillip, Frank, and Maryann. Leonard owned a variety of family businesses, including a hardware store, a lakeside recreation area and restaurant, a demolition business, a trash collection business, and a gas station. Leonard and his sons worked in these family enterprises. Leonard pooled the income from the family businesses and used the money to pay his own living expenses, along with those of his wife and his adult children, including payments for their cars and homes. In some instances, the primary cars and homes of the family members were actually titled to the family businesses, rather than to the individuals who used them.

In 1961, Leonard contracted to purchase a home at 86 Hazelwood Avenue, Bloomfield, New Jersey (New Jersey property) for $26,000. Because Leonard was in poor health, he titled the New Jersey property to Frank. After its purchase, Leonard, Katherine, and Maryann resided in the New Jersey property.

Frank, who was married to his first wife, Dorothy Lee, never lived in the home. Each month, Leonard gave Frank money from the family businesses to pay the mortgage and other expenses of the New Jersey property.

In 1971, Leonard died. Using income from the family businesses, which he was now running, Frank paid the mortgage and taxes, and transferred money to Katherine to pay the utility and other bills associated with the New Jersey property. By 1981, the mortgage on the New Jersey property was paid-off. Katherine and Maryann continued to live in the New Jersey property until 2000.

In 1985, Frank divorced Dorothy Lee and a year later, married Frances. While Frances initially stated Frank gave the New Jersey property to her "because he loved [her]," she later acknowledged that the realty was transferred to her in 1991, for one dollar because of Frank's poor health, his pending surgery, and his likely incarceration. Neither Katherine nor Maryann, who still resided in the home, were aware that the title to the realty had been transferred by Frank to Frances.

Frank and Frances moved to Florida. Frank suggested to his mother that she too, should move south. He instructed her to arrange for the sale of the New Jersey property with the expectation that the proceeds from the New Jersey property would be used to buy Katherine a new home in Florida.

In May, 2000, Urbano C. Dickel contracted with Frances to purchase the New Jersey property for $255,000. While trying to effectuate the sale of the realty, Katherine and Maryann learned that Frances was listed as the owner of record. Maryann testified that Frank told her this was done to accommodate the fact that he had been in legal and medical trouble. Frank assured Maryann that Frances knew the house belonged to Katherine. At closing, a title search revealed a lien against Frank arising from an obligation of one of the businesses, and prevented the transfer; consequently, Dickel and Frances entered into a "lease purchase agreement," under which his rent payments were credited toward his purchase of the house at the time of the lien's expiration in 2008.

Frances later transferred her interest in the New Jersey property, in exchange for one dollar, to C.B.P.B. Associates, L.L.C. (C.B.P.B), which is owned by Frances and her two children.

Katherine and Maryann moved to Florida and oversaw the construction of a new home in Lake Worth, Florida (Florida property). Upon the home's completion, on September 26, 2001, Frank and Frances took title to the Florida property. Following the same pattern as was done with the New Jersey property, neither Frank nor Frances lived in the Florida property, yet Frank paid the home's expenses. Katherine, then in her late nineties, was in ill health, as she was legally blind and suffering from dementia resulting from Alzheimer's disease. Katherine lived in the Florida property and was cared for by Maryann, who also managed the home.

Frank died in 2002. Title to the Florida property passed to Frances. During the first two years after Frank's death, Frances continued to follow the same financial arrangement Frank had practiced with Katherine. Frances testified that the Florida property was bought for "investment purposes," but admitted that she "knew that Katherine would live there" throughout her life. In September 2004, Frances advised Maryann and that she would no longer provide Katherine with financial support or unrestricted use of the Florida property. Frances told Maryann ...


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