On appeal from the Superior Court of New Jersey, Chancery Division - Probate Part, Salem County, Docket No. CP-24-2008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Pok Sil MacLean appeals from a December 8, 2008 order entered in the Chancery Division, Probate Part, dismissing her potential palimony claim against the estate of Robert M. Figlio, with whom MacLean contends she had a "marital-type relationship." She also appeals from a March 4, 2009 order denying her motion for reconsideration. We agree with MacLean's contentions that: 1) because Jean Figlio, Robert's widow, never served her with a copy of the probate complaint and never named her as a "party in interest" who was obliged to assert any claim against the estate, the Probate Part lacked authority to determine whether MacLean's palimony claim was meritorious; 2) even if the court had such authority, it exercised it improvidently, as she had presented sufficient facts to survive the motion for dismissal of her palimony claim; and 3) in light of In re Estate of Roccamonte, 174 N.J. 381, 400 (2002), the Probate Part is not the appropriate forum for the resolution of palimony claims, and therefore the judge should have refrained from determining whether MacLean's claim was viable.
We therefore reverse the orders under review and remand for the entry of an order authorizing MacLean to file a palimony complaint in the Family Part.
Robert and Jean Figlio married in 1968. After Robert's death in March 2008, Jean filed a verified complaint and order to show cause in the Chancery Division, Probate Part seeking to probate the holographic will Robert allegedly executed in 1972, and to have herself appointed as administratrix of his estate. The holographic will left all of Robert's assets to Jean. In paragraph sixteen of her Probate Part complaint, Jean asserted that "[a]side from plaintiff, [Jean], the only other parties in interest are the surviving two children of [Robert], both of whom are competent adults and listed below, Sarah Figlio and Nathan Figlio." Sarah and Nathan are Robert's children from a prior marriage.
A few days after filing her complaint, Jean filed an order to show cause specifying "that the parties in interest named in the verified complaint" should appear and show cause why a judgment should not be entered admitting Robert's handwritten 1972 will to probate and appointing Jean as the permanent administrator. The order to show cause, which was returnable on July 18, 2008, was served only upon Sarah and Nathan Figlio; it was not served upon MacLean.
On July 8, 2008, MacLean filed a certification dated July 1, 2008 with the Surrogate of Salem County. In her July 1, 2008 certification, MacLean asserted that she had a "marital-type relationship" with Robert "from June 2005 until he died on March 18, 2008." She explained that on June 28, 2005, she and Robert purchased a home in Glassboro as joint tenants with rights of survivorship for a purchase price of $325,000 secured with purchase money mortgages of $292,500. She asserted that she and Robert had "cohabited" at their Glassboro home from the date the property was purchased until he entered the hospital immediately prior to his death. Her certification stopped short of asserting a palimony claim.
When MacLean's attorney, Robert Paschon, forwarded MacLean's certification to the Salem County Surrogate by letter of July 8, 2008, he commented that "[w]e provide this information to the court since we believe in order for the court to make a fair decision it must be fully aware of all these facts as well as those contained in the complaint." Without elaborating further, the letter also stated that MacLean "has a potential claim against the Estate." Although Paschon forwarded a copy of MacLean's July 1, 2008 certification to Jean's attorney, Jean never amended her complaint to name MacLean as a party in interest, nor did she ever serve MacLean with a copy of the complaint or order to show cause.
Even though MacLean was never made a party to the action and never filed any formal pleading, Paschon was copied on much of the correspondence in the action and participated in a telephone conference with the court. On August 14, 2008, Jean's attorney met with Paschon, at which time Paschon described in more detail the nature of his client's claims against the estate and made a settlement demand on MacLean's behalf. In particular, MacLean sought exoneration of the mortgage on the Glassboro home, which had passed to her as a result of Figlio's death, and sought palimony payments from Robert's estate.
When those settlement discussions were unsuccessful, Jean served discovery requests upon MacLean by forwarding a request for production of documents to Paschon, and later issued a notice to depose MacLean. MacLean did not cooperate with Jean's discovery requests.
On November 4, 2008, Jean filed a motion and accompanying brief entitled "Brief in Support of Dismissal of Claims of Pok Sil MacLean." Although Paschon later asserted that he never received that brief, Jean's attorney certified that in addition to mailing the brief to Paschon, he had also called Paschon in advance of the November 21, 2008 hearing date to discuss his motion to extinguish MacLean's palimony claim. Paschon has not denied receiving such a telephone call.
Neither MacLean nor Paschon appeared at the November 21, 2008 hearing. The judge made clear at the hearing that the claims subject to dismissal were those "set forth in the original [July 1, 2008] certification of Ms. MacLean." The judge granted Jean's motion to bar MacLean's palimony claim. He made the following findings of fact:
With regard to the [palimony] claim[,] [Jean asserts that] Ms. MacLean fails to provide clear and convincing evidence to support her claim that the decedent promised to support her for her lifetime.
Frankly, this [issue is] tougher [than the mortgage issue] and potentially if it had been opposed there could be, I would think, significant factual differences, but there are none at this point. This is an unopposed motion.
And on the facts before this [c]court I would suggest that there would be insufficient evidence to establish by clear and convincing evidence any claim that Mr. Figlio had made any promises. As a matter of fact there's nothing in the record, other than Ms. MacLean's bare assertion in the certification, that Mr. Figlio had made any promises to support her beyond his death.
I note that we have a -- I would suggest a very short term relationship. We also have significant assets passing to Ms. ...