February 16, 2010
BONNIE HILLER, AS THE EXECUTRIX OF THE ESTATE OF IRVING GOTTESMAN, PLAINTIFF-RESPONDENT,
WASHINGTON CEMETERY, DEFENDANT-RESPONDENT, AND BERT GOTTESMAN, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
YOUNG BEREGER SICK & BENEVOLENT SOCIETY, THIRD-PARTY DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-235-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2010
Before Judges Lisa and Coburn.
Plaintiff, Bonnie Hiller sued for disinterment of the body of the decedent, Irving Gottesman, so that it can be cremated and the ashes scattered as he himself directed. The primary defendant is decedent's brother Bert Gottesman, who caused decedent's body to be interred in Washington Cemetery, which is located in New Jersey, and who vigorously disputes plaintiff's claim. Plaintiff named Washington Cemetery as a necessary party but made no claim against it other than to permit the exhumation. Bert cross-claimed against Washington Cemetery and filed a third-party complaint against Young Bereger Sick & Benevolent Society ("Young Bereger") in essence demanding that each entity maintain the decedent's grave and defend against any interference with it. Neither Washinton Cemetery nor Young Bereger opposed the relief sought by plaintiff.
After a three-day trial in the Chancery Division, Judge Berman ruled in favor of plaintiff in a written opinion issued on November 12, 2008. Thereafter, Bert moved for a new trial, which was orally denied. Washington Cemetery moved for an assessment of counsel fees and costs against Bert on the ground that his cross-claim was frivolous and Young Bereger moved for assessment of its costs against Bert. During argument on the motions, Bert agreed that if plaintiff ultimately prevailed he would be obliged to reimburse her for the exhumation costs, and it was further agreed that the precise amount of reimbursement should be left open pending the event. The motions were heard and decided on December 22, 2008, on which date judgment was also entered.
The judgment did not refer to the judge's disposition of the new trial motion and no other order was entered respecting that motion. The judgment granted plaintiff the right to have the decedent's body exhumed and cremated and to have his ashes disposed of in accordance with his wishes. In addition, it provided that plaintiff is awarded a judgment and compensatory damages against Defendant Gottesman for all reasonable and customary costs incurred in exhuming the decedent's remains fifteen days after receipt by Defendant Gottesman's counsel of records demonstrating payment of such costs by Mrs. Hiller.
The judgment then stated that if the parties cannot agree on those costs, Hiller can apply to court to amend the judgment.
The judgment dismissed Bert's claims against Washington Cemetery and Young Bereger and granted the former $12,603.75 in fees and costs and the latter $1,561.50 in costs. Lastly, the judgment provided that it be stayed pending appeal.
Irving was born in Germany in 1947 and Bert was born two years later in Brooklyn, where the family then resided. Although they were raised as Orthodox Jews, Irving, unlike his brother Bert, did not remain observant after his early years. Irving married twice and divorced. He had two children by his second wife; they were still minors when he died. Irving and Bert mostly saw each other from time to time at family gatherings. When they spoke, they often argued about religion. When Irving died, Bert was his closest adult relative.
Irving met Bonnie Hiller in 2000 or 2001 and they became romantically involved. They lived nearby, speaking daily and seeing each other two or three times a week.
In March 2007, Irving was diagnosed with bladder cancer and hospitalized in New York City. He and Hiller began talking about his funeral arrangements. He rejected her suggestions that he be buried in Washington Cemetery near his parents' graves or on Long Island near his children. Hiller then recalled that Irving had talked about the positive experience his children had while attending the scattering of his father-in-law's ashes and suggested cremation and spreading of his ashes near Sunset Lake in Foxboro, Massachusetts. He had often visited her there at her summer residence. Irving agreed and they decided that his wishes should be written. In May 2007, Hiller told Bert that Irving wanted to be cremated, which upset Bert. On May 21, 2007, Hiller prepared the following letter for Irving:
I have spoken with my friend Ms. Bonnie Hiller concerning final plans for me and for my remains in the event of my death. She knows my wishes and has agreed to fulfill them.
I do not wish to have a religious ceremony of any kind. I would like my remains to be cremated and to have the ashes scattered in Sunset Lake in Foxboro, MA. If my children wish to participate in that, they should be allowed to do so.
Bonnie has offered to give a party at her apartment in my memory. May there be good music, good food, good drinks, and good laughs.
She read the letter to him and he read it himself, all while he was alert. An employee in the patient assistance department witnessed Irving's signing of the letter and notarized it. Hiller gave copies of the letter to the hospital, a social worker, and the hospice center in the Bronx where decedent was transferred in June 2007.
Later in June, Hiller contacted New York Burial and Cremation Service to make arrangements for the cremation, and made a deposit of $800 from a fund that had been created by friends of Irving, including her. The Cremation Service advised that a will would be necessary and sent her a form document that it would find satisfactory.
Hiller was in Massachusetts when she received the form will, so she sent it to Barbara LaCava, a social worker at Calvary, the hospice center in the Bronx where decedent had been transferred on June 1, 2007. Two of decedent's friends, Mark and Lana McGorry, visited decedent, who was expecting them to bring the will. Mark read the will aloud to the decedent, and he read it himself, expressing satisfaction with its content. He signed it and the McGorrys then signed as witnesses.
The will did not distribute any property, apparently because the decedent had little to leave. But it clearly appointed Hiller as executrix and directed that she "make all appropriate and necessary funeral" arrangements. Although the will was dated June 27, 2007, Hiller testified that it was likely executed on June 30, 2007. Both Hiller and Lana testified that at the time the decedent, though weak physically, was sharp mentally.
Rabbi Rabinowitz, the Jewish Chaplain at Calvary, frequently visited with the decedent. He kept notes of his visits, and on July 12, 2007, wrote this: "When time comes, want (sic) cremation." The topic arose on other visits and decedent never changed his mind. Also, decedent told the rabbi that he had informed Bert about his desire to be cremated, which led to an argument about the subject. During visits with Bert, he and the decedent had religious disagreements that left the decedent feeling agitated.
Decedent died on September 21, 2007. Hiller was notified at 2:00 a.m. and asked the doctor to inform Bert. She returned to sleep, intending to call the funeral home in the morning during regular business hours. When she called Calvary, she was told that decedent's body had been taken at 6:30 a.m. She called the funeral home where decedent's body had been taken only to learn that decedent had already been buried.
The doctor had called Bert and he immediately arranged for removal of the body and its interment later that day in Washington Cemetery. He paid $6,000 for the arrangements. Bert did not attend the funeral. Nor did he notify Bonnie, decedent's second ex-wife, or decedent's children before the funeral.
Before addressing the issues raised by appellant, Bert Gottesman, we should note that his appeal was premature. An appeal as of right may be taken only from a final judgment. R. 2:2-3(a)(1). To be final, a judgment must dispose of all parties and all issues. Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). The judgment entered in this case left open the issue of the amount to be paid by Bert for the exhumation of decedent's body. Therefore, it was obviously not a final judgment. Nonetheless, given the circumstances of this case, we are satisfied that the proper course is to relax the rules pursuant to Rule 1:1-2 and to grant leave to appeal nunc pro tunc.
Bert offers the following arguments in support of his appeal:
POINT I. THE DECEDENT SHOULD NOT BE DISINTERRED.
A. BERT GOTTESMAN ACTED LAWFULLY AND IN GOOD FAITH.
B. THE INSTRUMENTS SHOULD HAVE BEEN REJECTED.
C. THE BODY SHOULD REMAIN IN THE SANCTIFIED GROUND OF THE CEMETERY.
POINT II. NUMEROUS TRIAL ERRORS REQUIRE REVERSAL.
A. THE TRIAL SHOULD HAVE BEEN ADJOURNED UNTIL DECEDENT'S MEDICAL RECORDS WERE OBTAINED.
B. THE AWARD OF COSTS AND FEES WAS IMPROPER.
C. A NEW TRIAL SHOULD HAVE BEEN GRANTED.
After carefully considering the record, briefs, and oral argument, we are satisfied that all those arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Berman in his thorough and well-reasoned written opinion of November 12, 2008, and in his oral opinion of December 22, 2008, concerning the imposition of costs and the denial of the new trial motion. Nevertheless, we add the following comments.
Respecting the first point, we note that the applicable principles of law were recently set forth in Marino v. Marino, 200 N.J. 315 (2009). Among other things, the Court noted when the issue is disinterment, a judge may "consider the decedent's wishes, however expressed." Id. at 335. Thus, the arguments under POINT I(B) concerning the formal validity of the letter and will are irrelevant. Although the sanctity of the cemetery ground, to which POINT I(C) is directed, is relevant it is not determinative. Rather, the judge was obliged to consider the interests of all concerned, but was also "entitled to strike the balance in favor of giving voice to decedent's clear preference." Id. at 336. Bert's claim that he acted in good faith provides no basis for disturbing the judge's ruling that Irving's clearly expressed desire to be cremated should be respected.
The awards of costs and fees are affirmed substantially for the reasons expressed by Judge Berman in his oral opinion of December 22, 2008. The denial of Bert's motion for a new trial was not confirmed in an order or judgment. Appeals may be taken only from formal orders or judgments and not from written or oral decisions. Do-Wop Corp v. City of Rahway, 168 N.J. 191, 199 (2001). Since the denial of the new trial motion was never confirmed by order or judgment, that issue is not properly before us. Nonetheless, we observe that the motion was properly denied for the reasons expressed by Judge Berman.
After the case was argued before us, Bert formally moved for a stay of judgment if Hiller prevailed. The well-known principles governing a stay are set forth in Crowe v. DeGioia, 90 N.J. 126, 132-22 (1982). Applying those principles, we recognize that if our judgment is incorrect, exhumation and cremation would constitute irreparable harm. Id. at 132. On the other hand, "to prevail on an application for temporary relief, a [party] must make a preliminary showing of a reasonable probability of ultimate success on the merits." Id. at 133. Of course, "mere doubt as to the validity of the claim is not an adequate basis for refusing to maintain the status quo." Ibid. But this is not a case of doubt. The material facts are uncontested, and there is no reasonable probability that the filing of a petition for certification with our Supreme Court would take away the right of Irving Gottesman to have his body exhumed and cremated in accordance with his clearly expressed wishes. Therefore, the motion for a stay is denied.
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