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Divigenze v. Estate of Divigenze

December 6, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. C-00-1009.

Per curiam.


Submitted October 30, 2007

Before Judges Skillman and Yannotti.

Defendant Rosalie Labo, administratrix of the Estate of Michael DiVigenze, appeals from a final judgment entered in this probate matter on November 9, 2006, which awarded plaintiff Anthony DiVigenze $57,753.83 and attorneys' fees in the amount of $35,681.75. For the reasons that follow, we affirm.


Michael DiVigenze died intestate on September 1, 2000. Plaintiff was Michael's father; defendant was his mother. They had divorced in the early 1960's. Michael had been married to Nancy Russo, but the marriage was dissolved by a final judgment of divorce filed on June 28, 2000. No children were born of the marriage.

Defendant applied to the Gloucester County Surrogate for appointment as administratrix of the estate. Defendant posted a surety bond issued by Harleysville Insurance Company, and on October 23, 2000, the Surrogate granted defendant letters of administration for the estate. Defendant published notice of the issuance of the letters of administration in two newspapers, one published in Gloucester County and one published in Salem County.

Plaintiff is a life-long resident of South Philadelphia, Pennsylvania. He asserted that he did not see the published notices and was not informed that he might have an interest in his son's estate. On November 22, 2004, plaintiff commenced this action seeking an accounting and one-half of the estate.*fn1

Defendant filed an answer in which she asserted that Michael's expenses exceeded the value of the estate, and therefore, the estate was not liable to plaintiff. Defendant also filed a counterclaim in which she alleged that plaintiff had "forcefully and violently" raped her, causing her severe and permanent injuries; plaintiff "willfully failed to support" Michael; and plaintiff's complaint was frivolous.

In a certification dated December 28, 2004, which was filed with her answer and counterclaim, defendant asserted that she only married plaintiff "to legitimize [her] son." Defendant stated that shortly after Michael was born, plaintiff was incarcerated for a homicide and she divorced him.

Defendant additionally asserted that plaintiff's family members knew about Michael's death and she published notice of her appointment as administratrix of the estate because she did not know of plaintiff's whereabouts. Defendant said that if the court were to allow plaintiff to appear in this matter, he should be required to pay the child support that he owed defendant over eighteen years of Michael's life.

Plaintiff filed a motion to dismiss defendant's counterclaims pursuant to Rule 4:6-2(e). The judge entered an order dated February 22, 2006, which dismissed without prejudice any claims related to the alleged sexual assault based on the statute of limitations. The order additionally required defendant to provide a formal accounting for the estate.

In September 2005, plaintiff filed a motion to compel defendant to deposit the estate's funds with the Surrogate. According to plaintiff, defendant stated in her deposition that she had placed all of the estate's funds in her own name. Defendant responded to this motion with a certification dated September 30, 2005, in which she alleged that she raised Michael on her own without any financial assistance from plaintiff. She noted that she had provided plaintiff with a preliminary accounting and he was not entitled to any monies from the estate.

Defendant additionally asserted that plaintiff sent flowers when Michael died but he did not appear at the funeral, "and there was no communication from [p]laintiff whatsoever until four years later when he found out through a friend that" he might be allowed "to step in and take half of the net proceeds of the estate." Defendant stated that plaintiff had not provided Michael with financial assistance when he needed it. Defendant said that she had provided Michael with financial assistance in the form of loans that she had documented.

On February 10, 2006, plaintiff filed a motion for summary judgment seeking a determination that he was entitled to one-half of Michael's net estate; approving certain exceptions to defendant's informal accounting; granting him one-half of certain benefits paid upon Michael's death; and requiring defendant to provide copies of all documents related to Michael's death benefits.

On May 1, 2006, the judge entered an order which stated that plaintiff was entitled to one-half of Michael's net estate, including any life insurance and annuities that were payable to the estate. The judge ordered defendant to provide copies of all documents related to the life insurance, annuities and other such benefits that were payable upon Michael's death.

On August 3 and 7, 2006, the judge conducted a trial on certain contested issues. The judge filed a written opinion on October 11, 2006, in which he found that plaintiff was entitled to judgment against defendant in the amount of $57,270.65 and counsel fees in the amount of $35,681.75. The judge determined that defendant was personally liable, as administratrix of the estate, to pay plaintiff his share of the estate. The judge stated that defendant's administration of the estate and the distribution of the estate's assets, "could be considered, at best, to be grossly negligent."

The judge found that the value of the real property owned by Michael at the time of his death or at the time when the property should have been sold was $180,000. The judge held that the following costs were validly incurred in connection with the sale of the property: septic repair; plumbing repairs; termite inspection; septic hauling; water tests; the mortgage payoff; the application fee for the certificate of occupancy; and carpet cleaning. The judge also allowed as charges against the estate certain costs incurred in connection with the property in the few months after Michael's death. The judge determined that the net proceeds from the real estate should be $112,700.48, after allowable expenses.

The judge rejected defendant's claims for reimbursement of certain monies she claimed were loans that she made to Michael. The judge noted that there were no documents memorializing the alleged loans. The judge stated that defendant had written "lone" on certain checks which she alleged were evidence of the loans, but there were "significant credibility issues" related to those documents. The judge also noted that there was no documentary evidence that Michael had repaid any of the loans. The judge determined that defendant had not overcome the presumption ...

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