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Marino v. Marino

February 19, 2008

JOAN MARINO, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
LARRY L. MARINO, JR., BRETT MARINO, JENNIFER MARINO, JOHN MARINO AND DOROTHY MARINO, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Civil Part, Warren County, C-16011-06.

The opinion of the court was delivered by: C.L. Miniman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 13, 2007

Before Judges Stern, Collester and C.L. Miniman.

Plaintiff Joan Marino, who sought an order authorizing the disinterment of her husband's remains, appeals from a final judgment of the Chancery Division limiting her relief to the inclusion of her name and dates of birth and death on the plot-of-burial headstone. Defendants Larry L. Marino, Jr., Brett Marino, Jennifer Marino, John Marino and Dorothy Marino,*fn1 plaintiff's adult children (Jennifer and John),*fn2 adult step-children (Larry and Brett) and mother-in-law (Dorothy), cross-appeal from the portion of the final judgment that requires them to pay seventy-five percent of the cost of a new headstone. Because the judge failed to construe N.J.S.A. 45:27-23 in pari materia with N.J.S.A. 45:27-22, we reverse.

This action grew out of a dispute between Joan, the widow of Larry L. Marino, Sr., and her adult children, step-children and mother-in-law over the plot in which the decedent's remains should be buried. Joan and the decedent married on August 7, 1982. The decedent brought two children to the marriage and four more children were born of the marriage. All six children lived with Joan and decedent while they were minors.

Joan's husband died at home from lung cancer at the age of forty-nine on October 23, 2005. They had a good marriage although they had some rough spots at the end of April and early May 2005 and again during the first two weeks of July 2005. During those times they argued about decedent's relationship with another woman and his drinking. They planned to attend counseling, but chemotherapy precluded that effort. They continued to share a bed and their marriage was not estranged. A decade before his illness, Joan and her husband purchased a plot at a cemetery where both of their mothers owned plots and where decedent's father and five out of their eight grandparents were buried. The plot purchased by Joan and decedent was not contiguous with any other family plot, but title was held in the name of Joan's mother because she was a member of the parish that owned the cemetery.

After Joan's husband died, she and Brett went to the cemetery to confirm that the right grave had been staked out by the cemetery for the burial. The next day, Brett took Joan for a ride and told her that Jennifer did not want her father buried next to Joan's mother and instead wanted him buried next to his father.*fn3 However, Joan's mother did not own the plot next to the one owned by Joan and decedent. Joan became hysterical because she did not want her husband buried with his father and because decedent told her that he wanted to be buried on the right-hand side of their plot "because that was the side of the bed that he slept on, and I was going to be buried on the left hand side[,]

[s]o it was like we were sleeping." She insisted that Brett take her home.

Soon after they arrived home, all of the children except Nicholas met with her and she begged them to bury decedent in her plot. One of them said that Joan and decedent were not even staying together and Joan denied this statement and told them to ask Bob Maribelli, one of the men with whom decedent worked. They told her that they had voted where to bury their father but, if Maribelli said that Joan and her husband were staying together, they would bury decedent in Joan's plot.

Maribelli came over to the house and told the children that the decedent had told him that he and Joan were staying together. After this conversation, the children voted again but they still would not agree to bury their father in the plot he and Joan owned. Joan protested that it was her decision where to bury her husband, but they told her she did not have that right because Larry Jr. and Jennifer were the executors and that Joan had no say in the matter. Although she continued to beg them to bury their father in the plot she and her husband purchased, they would not relent. Finally, Larry Jr. told her that if she did not stop arguing about it, they would not allow her to attend the viewing or funeral and that she was lucky they allowed her to pick out the casket and help with the arrangements. Even after the burial Joan continued to try to persuade her children to rebury their father in the plot he had selected with her. However, Larry Jr. told Joan that it was his decision and his alone where his father would be buried.

Joan's mother, Rose Sciabica, also testified and confirmed that Joan and decedent purchased a plot at her suggestion about ten years before decedent's death because available plots were dwindling. Rose and the decedent had a conversation about a week or so before he died during the course of which he said, "when Joan and I are gone, I know where we will be because we have our plots there, . . . it's one less headache for Joan."

Before the funeral Rose interrupted a conversation between Joan and Larry Jr. Joan was very upset. Larry Jr. was screaming at Joan, saying "shut your F'ing mouth because I'm in charge, and what I say goes. I'm the executor, and when my dad gets buried, it's up to me and no one else." When Joan protested that she and her husband had bought the plots, Larry Jr. said, "shut your F'ing mouth or you're not going to go to the funeral or the viewing." When Rose asked what was wrong, Larry Jr. said, "shut your F'ing mouth, you old lady, this is none of your business." Similar comments were made at a subsequent argument that Rose overheard.

Joan's version of the events surrounding the burial of her husband and the quality of her relationship with him was, by and large, disputed by defendants and their witnesses. However, the judge found the testimony of Joan and her mother to be "generally credible." The judge found that Joan did not abandon decedent when he was ill or when he became involved with another woman. Rather, she stayed by his side and continued to care for him and have marital relations with him as late as six weeks before his death. She determined that the decedent died without a provision in his will specifying the place of burial. Of note is the fact that his Last Will and Testament was executed on May 20, 2005, five months before he died. The judge found that Jennifer and Larry Jr. asserted that they alone had the prerogative to decide in which plot their father would be buried and that Larry Jr. threatened to exclude her from the funeral. The judge found that Joan was unduly pressured to acquiesce in the burial and was overwhelmed by the circumstances in which the issue arose.

The judge observed that the testimony of the defense witnesses "seemed rehearsed and their answers appeared molded so as to understate [Joan's] reaction to the family decision and overstate the marital problems of the decedent and [Joan]." Indeed, the judge specifically found that John's testimony was especially not credible. Nonetheless, the judge found from the testimony of the defense witnesses that the decedent's "preference at the end of his life, although not stated in his Last Will and Testament, was to have his remains located adjacent to his father's remains and not in his own plot nor would the decedent want his remains disinterred."

The judge observed that Joan had a statutory right under N.J.S.A. 45:27-22 to decide where her husband would be buried that was superior to any adult child's right to make that decision. However, she found that Joan's frustrated right of burial did not control the issue of disinterment because, recognizing a strong policy against disinterment, the decedent's preference to was to be buried with his father. Specifically, the judge ruled that "[t]he decedent['s] stated preference must be accorded the same priority as if the decedent had articulated his wishes in a Will." Accordingly, the judge denied the application to disinter decedent's remains.

Joan contends in this appeal that her statutory right to determine the burial of her husband's remains was paramount to any preference he may have had because he did not express that preference in writing, as required by N.J.S.A. 45:27-22. She argues that any such preference should not have informed the decision respecting disinterment. On the other hand, defendants contend that the correct rule of decision is found in N.J.S.A. 45:27-23, which governs disinterment, and that it is proper under this statute to consider the wishes of the decedent.

Our review of a judgment entered in a non-jury case, as here, is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The findings on which the judgment is "based should not be disturbed" except in "a clear case where there is no doubt about the matter." Ibid.

That the finding reviewed is based on factual determinations in which matters of credibility are involved is not without significance. Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," and the appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions. [Id. at 484 (citations omitted); see also Sager v. O.A. Peterson Const. Co., 182 N.J. 156, 163-64 (2004); Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001), cert. denied, 535 U.S. 1077, 122 S.Ct. 1959, 152 L.Ed. 2d 1020 (2002); Mizrahi v. Cannon, 375 N.J. Super. 221, 227 (App. Div. 2005).]

Joan does not contend that the judge's fact-findings should be disturbed on appeal. Rather, she contends that the judge erred in applying the law to the facts, which triggers a different scope of review. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999) (stating that "[m]atters of law are subject to a de novo review"). Additionally, a fundamental error in ...


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