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In re Sutton-Logan

August 31, 2009

IN THE MATTER OF FLORETTA SUTTON-LOGAN, AN INCAPACITATED PERSON.


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Atlantic County, Docket No. 105261.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 11, 2009

Before Judges Lihotz and Baxter.

Appellant Ben Logan is the husband of Floretta Sutton-Logan, an incapacitated person. Ben appeals from a June 9, 2008 judgment granting guardianship of the person and property of Floretta to her daughter Karen Sutton-Bailey. Ben also appeals from the court's February 27, 2008 order determining New Jersey, rather than Virginia, had jurisdiction to determine who would serve as Floretta's guardian. After a thorough review of the record, the parties' briefs and applicable law, we affirm.

The facts are as follows. Floretta and Ben were married on June 15, 1996, in Atlantic City. This was the second marriage for each of them. Ben and Floretta had adult children born during their prior marriages.*fn1

Floretta lived in New Jersey throughout her first marriage and resided in Atlantic City prior to her marriage to Ben. Ben was the Pastor of Grace Cathedral Baptist Church in Atlantic City, where he served for twenty-seven years. After their marriage, the couple resided in Floretta's Atlantic City home.

Ben retired in 2004 and accepted an offer to assist his friend who served as a minister at the Miracle Temple Baptist Church in Newport News, Virginia. The position was unsalaried, except for a periodic stipend, and of no pre-determined duration. Ben reported Floretta stated to him, "where you go, I'll go." Thus, Floretta and Ben traveled to Virginia and rented a home in Newport News.

Approximately one year following their move to Virginia, the couple decided to purchase a home near the church where Ben was serving. At this time, Floretta obtained a Virginia driver's license, registered to vote, opened bank accounts and paid taxes using the Virginia address. However, Floretta frequently returned to New Jersey to visit family, consult doctors, and manage the couple's rental properties.*fn2

Additionally, her pension benefits and Social Security payments were directly deposited into a joint New Jersey bank account Floretta held with Karen.

In January 2007, Ben and Floretta traveled to Atlantic City to perform maintenance tasks on their properties. During this visit, Floretta, accompanied by Karen, visited an attorney, Michael Mallen, Esq. Mallen prepared a power of attorney and an advance directive for Floretta's medical care in the event she became unable to make her own decisions. Karen was named Floretta's attorney in fact. Additionally, Floretta designated Karen to make medical decisions on her behalf and serve "as [g]uardian in the event of her incapacity." Floretta did not tell Ben she executed these documents.

Later, in May, 2007, Floretta and Ben returned to New Jersey to attend Floretta's granddaughter's college graduation. Prior to the visit, Floretta was treated in Virginia for what was believed to be a cyst in her right eye. While in New Jersey, Floretta sought a second opinion and learned she had cancer. Ben returned to Virginia and Floretta stayed with Karen to commence cancer treatments. Floretta suffered a stroke on June 26, 2007 and was admitted to the Atlantic City Medical Center. Once stabilized, she was transferred to a skilled nursing facility in Pleasantville, where she remains. Neither party disputes Floretta is legally incapacitated due to the serious complications that resulted from her stroke.

Ben filed a complaint asserting Karen took control of Floretta's individual and jointly owned property, both real and personal, and denied him input in medical and financial decisions. He sought to enjoin Karen from impeding his access to or transferring Floretta's real and personal property, and he also sought a financial accounting.

On September 18, 2007, Karen filed a verified complaint seeking to be named Floretta's guardian. Thereafter, the court dismissed Ben's complaint without prejudice, as it was determined his contentions would best be settled in the course of a guardianship action. The court declared Floretta legally incapacitated and appointed Karen and Ben temporary ...


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