On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Cape May County, Docket No. P-83-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 29, 2008
Before Judges Cuff and Fisher.
Appellant Carl J. Roeder (Roeder), the son of decedent Donald A. Roeder, appeals from the February 7, 2008 order dismissing his complaint without prejudice to Roeder's right to pursue his claim to a condominium located in Philadelphia in the Pennsylvania courts. We affirm.
Following the death of his father, Roeder filed a caveat with the Cape May Surrogate. The executor, decedent's second wife, filed an action to discharge the caveat and admit the questioned will to probate. The caveat was discharged and the will offered by the executor was admitted to probate. Roeder did not appeal this order.
The bone of contention between Roeder and the executor is a condominium in Philadelphia purchased by decedent and his wife during decedent's final illness and in which Roeder resides. When the executor attempted to have the condominium appraised, Roeder obstructed these efforts. Eventually the executor commenced an ejectment action in a Pennsylvania court.
In response, Roeder filed a complaint seeking removal of the executor, the creation of a trust for his benefit, an adjudication of his rights to the Philadelphia condominium, and assorted other relief. Judge William C. Todd, III, ruled that much of the relief sought by Roeder had been addressed and denied in the first round of litigation. As to the condominium, the judge held that the dispute regarding what, if any, interest Roeder may have in the Philadelphia property is not a probate matter. It is, rather, a claim that Roeder wishes to assert against the estate. Accordingly, Roeder's claim should not be adjudicated in the Probate Part and should be dismissed. Judge Todd reasoned, however, that the dismissal is without prejudice to pursuit of Roeder's claim in a Pennsylvania court. The judge noted that the General Equity Division may have jurisdiction of the dispute, but the executor had commenced an ejectment action in Pennsylvania, and the Pennsylvania courts definitely had jurisdiction of the dispute.
On appeal, Roeder argues that the Superior Court of New Jersey, Chancery Division-Probate Part has jurisdiction of property located out-of-state, that the judge should have granted him an evidentiary hearing to explore his claim of a property interest in the condominium, and the will must be interpreted by the overall intent of the testator. Roeder also contends that Title 3B is not limited to protection of mentally ill disabled individuals, denial of legal fees is a denial of equal protection and due process of law, public policy favors imposition of protective remedies for disabled individuals, and claims of domestic violence and other intentional acts are protected from the imposition of sanctions.
We have thoroughly reviewed the briefs and the voluminous appendices submitted in this appeal and conclude that the arguments presented by Roeder are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that most of the issues concerning the administration of the estate were presented and adjudicated in the initial probate proceeding from which Roeder did not appeal. As to the central issue in this complaint, Roeder's disputed property right to the Philadelphia condominium, Judge Todd correctly determined that Roeder's claim of a property interest in this real property does not arise from any provision of the will, and thus is not properly venued in the Probate Part. See D'Angelo v. D'Angelo, 208 N.J. Super. 729, 732 (Ch. Div. 1986) (enforcement of judgment of divorce and property settlement agreement entered prior to the decedent's death enforceable in Family Part not Probate Part).
Judge Todd correctly recognized that the General Equity Division probably would have jurisdiction of the dispute between Roeder and the executor and that Pennsylvania would be required to give full faith and credit to that judgment. See Higginbotham v. Higginbotham, 92 N.J. Super. 18, 36 (App. Div. 1966) (New Jersey court required to honor out-of-state judgment awarding realty in this State to litigant). Judge Todd recognized, however, that enforcement of any judgment entered in New Jersey might require initiation of another proceeding in Pennsylvania and that the executor had already commenced an ejectment action in Pennsylvania. Moreover, well-settled principles of comity ordinarily require a New Jersey court to dismiss a civil action in deference to a pending similar civil action in another state. Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 386 (2008). Under these circumstances, Judge Todd did not mistakenly exercise his discretion to dismiss this action without adjudicating the merits of Roeder's claim in order to allow Roeder to pursue his claim in the Pennsylvania courts.
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