On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Passaic County, P188404.
The opinion of the court was delivered by: Lintner, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges Lintner, Sabatino and Alvarez.
Defendant, Barbara Quarg (Barbara) appeals from a judgment of the Chancery Division, Probate Part, imposing a constructive trust on the surviving spouse's share of the intestate estate of Robert Quarg, in favor of plaintiff, Francine Levy Quarg (Francine). We remand for further proceedings, as modified by us, to determine whether Francine's allegations establish an implied contractual right to the proceeds of Robert's estate, as set forth in In re Estate of Roccamonte, 174 N.J. 381 (2002).
The following are the undisputed facts presented to the Chancery judge on stipulation by the parties. Barbara and Robert were married on September 29, 1956. On December 24, 1957, Barbara gave birth to twins, Robert and Patricia Quarg. Barbara and Robert lived together until October 1958, when Barbara took the children and left the marital residence. Barbara and Robert never again lived as husband and wife but they never divorced.
The only legal proceedings that took place between them were for visitation and child support, which occurred in New York in 1959-1960. When Robert visited the children, Barbara made herself scarce to avoid having words with him. Robert's visitations with the children ended by 1968. From 1969 to 2004, the only contact Barbara had with Robert was one meeting to discuss an issue regarding their son. They also had three brief unplanned encounters. Barbara visited Robert in hospice nine days before his death.
Francine met Robert in 1961. They began a relationship shortly thereafter and Robert moved in with Francine. On November 13, 1962, a son, Jonathan, was born to the couple. Both Francine and Jonathan took Robert's surname. The couple lived together continuously from 1961 until Robert entered a hospital in 2004, just weeks before his death. During that time period, they bought a home together, which was deeded to them as husband and wife. They also listed themselves as husband and wife on health insurance applications and also in all other respects held themselves out as husband and wife.
Robert died intestate on December 8, 2004. His estate was valued at $345,568.63, of which $226,068.63 was personal property and $119,500 was real property. Letters of Administration were initially granted to Robert's daughter, Patricia. On June 29, 2005, Jonathan and Francine filed a Verified Complaint and Order to Show Cause seeking to establish a legal parent-child relationship between Jonathan and Robert.
In the first count of the complaint, Francine alleged that DNA testing established Jonathan as Robert's son. The second count sought to have Patricia's Letters of Administration set aside for failing to list Jonathan as a surviving son. In the third count, Francine asserted that she and Robert lived as unmarried cohabitants for more than four decades, during which they had formed an "intimate relationship founded on mutual trust, dependence and raised expectations." She sought to share in Robert's estate, claiming that if Barbara is permitted to inherit as surviving spouse, Francine would be "unjustly impoverished" and Barbara "unjustly enriched."
On September 8, 2005, the Chancery judge entered an order revoking Patricia as administrator and appointing a substitute administrator. A consent order was entered on October 25, 2005, establishing a legal parent-child relationship between Robert and Jonathan.
On December 19, 2006, the judge issued her opinion from the bench. She found that the intestacy statutes create a "statutory will . . . case law . . . militate[d] against [Barbara's] entitlement to any interest, either by way of intestacy taking or elective-share." The judge relied, in part, on the decision in Carr v. Carr, 120 N.J. 336 (1990), for the principle that spouses may acquire an interest in marital property by virtue of their mutual efforts during marriage that contribute to the creation, acquisition, and preservation of such property. She then reasoned that Barbara did not play a role in the joint enterprise with Robert nor did she establish that the assets accumulated were for her benefit. As to Francine, the judge recognized that, while not qualifying as Robert's statutory wife or registered domestic partner, Francine was his "partner, caregiver, builder of dreams and assets," thus entitling her the equitable remedy of a constructive trust establishing her share in Robert's estate.
On appeal, Barbara argues that she is entitled to receive one-half of Robert's estate under the applicable provisions of N.J.S.A. 3B:5-3d, which sets the intestate share of a surviving spouse at one-half if there is surviving issue, one or more of whom are not issue of the surviving spouse. Barbara also argues that N.J.S.A. 3B:8-1 does not apply because the elective share statute protects spouses who are disinherited by will by providing for an elective share. She maintains that the judge erred in fashioning a constructive trust. She asserts that the facts in Carr are not analogous because the plaintiff in Carr, although in the process of obtaining a divorce, was still married to the decedent and seeking equitable distribution ...