On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Graves.
In a prior appeal, we affirmed Judge MacKenzie's March 28, 2005, Chancery Division order dismissing defendant, Emily Springer's palimony counterclaim against plaintiff, the Estate of John C. Sasson (Estate), thereby foreclosing her claim to certain Estate assets, including a townhouse condominium located in Randolph. In this appeal, Emily challenges, pro se, a subsequent order entered on January 11, 2007, requiring her to reimburse the Estate $60,518.67 for costs associated with her approximate two-year occupancy of the Estate's townhouse following John Sasson's death. The order also gave Emily thirty days to retrieve the bedroom set she asserted decedent gave her as a gift. We vacate that order insofar as it included payments made by the Estate toward monthly principal on the townhouse's mortgage and remand to the Chancery Division for reconsideration in accordance with this opinion. In all other respects, we affirm the order entered.
The underlying facts are set forth in the August 16, 2006, reported decision, In re Estate of John Sasson, 387 N.J. Super. 459 (App. Div.), certif. denied, 189 N.J. 103 (2006), and need not be repeated here. Our prior opinion was limited to an appeal of the order dismissing defendant's palimony counterclaim insofar as it related to her claim on the assets of the Estate, including decedent's townhouse condominium. We determined that the two year and one-half month period that Emily and decedent lived together did not amount to "a significant period of time" to support her palimony claim when considering Emily's failure to present proofs that she was induced to live with John by a promise of support for the rest of her life. Id. at 467-68 (internal quotations omitted).
In addition to dismissing defendant's palimony claim, Judge MacKenzie's order required defendant to vacate the townhouse no later than May 31, 2005, and "reimburse the Estate for all carrying costs, including, but not limited to, mortgage, utilities, and condominium association fees incurred from October 12, 2004 until the day she vacates . . . ." However, on May 2, 2005, while Emily's earlier appeal was pending, Judge MacKenzie granted her motion to stay summary judgment and permitted her to "continue [to] use and occupy" the townhouse and required the Estate to pay the monthly mortgage payments and condominium association fees. The stay order, however, required Emily to post a bond in the amount of $56,000 "in order to satisfy any judgment affirming the March 28 . . . Order . . . and any monies that may be due to plaintiff as a result of defendant's use and occupancy of the . . . premises, as well as any cost that . . . may [be] award[ed] to [the Estate]." Notably, Judge MacKenzie supplemented the prepared order, inserting in handwriting that the reason for granting Emily's motion was because she had "a bona fide argument on appeal, although the court believes its grant of summary judgment will be upheld."
On August 5, 2005, Judge MacKenzie entered an order modifying the May 2, 2005, stay order by allowing Emily, "an attorney at law of the State of New Jersey" to maintain $56,000 in her Sequoia IRA in lieu of posting a $56,000 bond. The August 5 order also provided, with the express consent of Emily, that she "waive[d] her right under N.J.S.A. 25:2-1 to be protected from any claim that the plaintiff Estate may have to recover up to $56,000 from her Sequoia Fund IRA in the event defendant-counterclaimant's appeal . . . is not successful and agrees to pay same to plaintiff estate."
On September 7, 2006, following our decision, Judge MacKenzie vacated the stay, requiring Emily to give up her occupancy of the townhouse and "reimburse the Estate . . . for all of the carrying costs, including, but not limited to, mortgage, utilities and condominium association fees, incurred from October 12, 2004 until the day she vacates." Emily vacated the townhouse on October 4, 2006, following our denial of her emergent application seeking to stay the October 12 order.
On December 26, 2006, the Estate moved to enforce the order requiring her to reimburse the Estate. Because Judge MacKenzie had retired, the motion was assigned to another judge. In support of the motion, the Administrator certified the following carrying costs paid by the Estate on the Randolph property.
* Mortgage and property taxes: $60,833.16
* Condominium association dues: 7,122.77
* Homeowners insurance: 363.00
* Water and sewer/utilities: ...