On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. P-174-43.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges A. A. Rodríguez and C. L. Miniman.
In 1953 decedent Wilton J. Halbig married his first wife, Nancy D. Halbig. Three children were born of the marriage: James Halbig, Elizabeth Weller and Donna Parisi (Respondents). Wilton and Nancy divorced in January 1993. Incorporated into the dual judgment of divorce was an inter-spousal agreement (Agreement), providing among other things:
The Husband [Wilton] agrees that notwithstanding his remarriage, any inheritance which he may receive from any source whatsoever, shall, upon his death, be devised by him to [Respondents] in equal shares, share and share alike.
Shortly after the divorce, Wilton's mother, Frieda Burns, died testate, leaving Wilton a house in Hewitt, along with its contents, a 1980 Ford Futura and one-quarter of the remainder of her estate. Wilton also inherited a number of bank accounts and certificates of deposit from his mother.
In April 1994, Wilton married appellant Arlyne J. Halbig. Subsequently, he named her executrix of his estate. In June 1994, Wilton sold the Hewitt property to his son James and James's wife for $130,000. James executed a mortgage to Wilton for $125,000.
Wilton died testate in 1998. Arlyne, as executrix, assigned the mortgage, the balance of which was amortized at $115,401.17, to Respondents. By that time, James and his wife had paid $37,511.92 towards the mortgage.*fn1
Upon application by Respondents, Judge Michael K. Diamond entered an order enjoining the Estate and Arlyne from distributing, encumbering, devising, converting, transferring, selling or disbursing any of the Estate proceeds until further order of the court.
In a May 22, 2002 written decision, Judge Ernest Caposela found that the Agreement was binding on the Estate. Therefore, the Estate was liable to Respondents. Judge Caposela found:
Wilton J. Halbig had an obligation to devise to his children the following inheritance he received from Frieda Burns: (a) the property located [in] Hewitt, . . . valued at $145,000 at the time of Ms. Burns'[s] death; (b) the contents of the property . . . valued at approximately $1,500.00; (c) a 1980 Ford Futura, valued at $500.00; and (d) one-quarter of the residuary estate. By failing to do so, the late Wilton J. Halbig violated the Inter-spousal Agreement.
Neither the Estate nor Arlyne appealed Judge Caposela's decision. Discovery was taken. According to her 2002 deposition testimony, in 2001, while Judge Diamond's restraining orders were in effect, Arlyne sold a condominium jointly owned by her and Wilton in Pine Island, Florida for $160,000. With those proceeds she purchased a condominium in Naples, Florida for $95,000. With the remaining $65,000 she paid bills and traveled.
In September 2005, Judge Diamond, in response to Respondent's motion for summary judgment, ordered that the matter "be transferred to the Probate Division of the Chancery Court for further proceedings."
Respondents filed a verified complaint, seeking to enjoin the Estate and Arlyne, individually and as Executrix, from dissipating the assets of the Estate and for other relief. Two days later, Judge Margaret Mary McVeigh entered an order to show cause why she should not grant the relief Respondents sought. Judge McVeigh referred the matter to Judge Peter Ciolino for mediation. The parties could not reach a compromise. The parties agreed to submit the matter to the court as a summary action, pursuant to Rule 4:67.
Judge McVeigh issued a written opinion and noted that the issues before her were "rather limited." She found Judge Caposela's 2002 opinion, which held Wilton obligated under the Agreement to provide certain benefits to Respondents and found that Wilton failed to do so, controlling. She found the Estate liable to ...