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In re Estate of Figlio


March 30, 2010


On appeal from the Superior Court of New Jersey, Chancery Division - Probate Part, Salem County, Docket No. CP-24-2008.

Per curiam.


Submitted March 15, 2010

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. MacLean outside the estate. . . .

The Probate Part judge thereafter concluded that "based on the arguments of counsel, [his] review of the case law and the fact that this is unopposed, [he was] grant[ing] the application to dismiss Ms. MacLean's claims against the estate."*fn1

MacLean moved for reconsideration. At the hearing on her motion, MacLean argued that the dismissal of her potential palimony claim should be vacated because she was never served with an amended complaint naming her as a party, nor was she ever joined as a party in the litigation. In response to that argument, the judge commented:

Well, the problem is my recollection of my conferences with counsel on this matter is that Mr. Paschon was very aware of the issues, and he's the one that raised the issues regarding the right[s] [of] Ms. MacLean and what she might be entitled to.

I don't find that there's any surprise from my, A, recollection, B, my review of the file.

Later, in response to MacLean's argument that the law does not permit "a party to force another party to interject into an action unless they request that relief, whether by way of complaint or motion," the judge stated:

While I agree with you to some degree, your client and your associate/partner*fn2 interjected themselves, and interjected the issues. There's no doubt that from the first conference the issues of claims of Ms. MacLean were raised by Mr. Paschon, and they weren't raised in the context of, "Gee, Judge, I want -- I just want to let you know that someday before the statute of limitations runs, I may file something for her." Not at all. They were raised as if -- they were raised in the context of litigation by him at each -- again, my recollection as to each time we had a conference[] . . . ."

The judge then concluded:

Ms. MacLean . . . was involved in this case from the beginning asserting claims, making demands, demanding that the estate pay certain expenses on her behalf, raising claims regarding ownership of property.

And, again, I'm really confused as to why Mr. Paschon would sit back and do nothing . . . when he gets a copy of an order . . . that . . . he . . . disagree[s] with and he does nothing. . . . He allows the order to be entered without objection, and there's no explanation as to why he did that in his certification. I note that he was noticed of all the proceedings. He doesn't suggest in his certification . . . that he didn't receive a copy of the brief [requesting dismissal of MacLean's claims]. He obviously knew the relief was being requested. I find no excusable neglect and I'm going to deny the application.*fn3

On appeal, MacLean argues the Probate Part judge erred by:

1) "granting judgment against a non-party for claims not yet properly before the court"; 2) adjudicating a palimony matter in the Probate Part that should have been resolved in the Family Part; and 3) dismissing a palimony claim that was sufficiently meritorious to withstand Jean's dismissal motion.


We turn to Point I, in which MacLean argues that because she was a non-party, the court lacked authority to bar her from asserting a potential palimony claim against Robert's estate. In response, Jean argues that the judge properly adjudicated MacLean's claims because MacLean "inserted" herself into the Probate action and had entered a "general appearance."

The rules governing the process for gaining personal jurisdiction over a defendant, and for obtaining a judgment that binds the defendant, are well-understood. A complaint must contain a statement of facts on which the claim is based and, importantly, must "demand . . . judgment for the relief to which the pleader claims entitlement." R. 4:5-2. The complaint must afford the defendant notice that is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950) (internal citations omitted). In addition, the notice "must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance." Ibid.

Actions in the Probate Part are brought "in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to R. 4:67." R. 4:83-1. "Service shall be made and the action shall proceed thereafter in accordance with that rule." Ibid. Rule 4:67-3, which prescribes the manner of service required in summary actions in the Probate Part, provides:

If the order to show cause issues ex parte pursuant to R. 4:67-1(a), no summons shall issue unless the court otherwise orders. Process shall be a copy of the order to show cause, certified by the plaintiff's attorney to be a true copy. The order to show cause, together with a copy of the complaint and affidavits similarly certified, shall be served within this State at least ten days before the return day and in the manner prescribed by R. 4:4-3 and R. 4:4 for the service of a summons, unless the court orders shorter or longer service or some other manner of service. [(Emphasis added).]

Thus, in summary proceedings in the Probate Part, due process requires that the complaint and order to show cause be served upon a person sought to be brought under the court's jurisdiction, and such service must be accomplished in the manner set forth in Rule 4:4-3 and Rule 4:4-4. R. 4:67-3. We turn to those two Rules.

Rule 4:4-3 requires a good faith attempt to serve the party personally, and authorizes mailed service to the person's residence only if personal service fails. R. 4:4-3. It does not allow service by sending a motion to the office of a person's attorney. R. 4:4-3. Moreover, for a plaintiff to obtain personal jurisdiction over a defendant, the defendant must be served in the manner prescribed by Rule 4:4-4. Like Rule 4:4-3, Rule 4:4-4 requires the plaintiff attempt to personally serve a defendant before resorting to constructive or substituted service. It does not allow the court to obtain personal jurisdiction over a party by simply mailing a summons and complaint, or by sending a brief to the party's attorney.

R. 4:4-4.

Only after an initial pleading has been served upon a party, may subsequent pleadings, as well as "orders, judgments, . . . written motions (not made ex parte), briefs, appendices, petitions and other papers except a judgment signed by the clerk," be served on a party's attorney of record without complying with the service of process requirements in Rule 4:4-3. R. 1:5-1(a). Thus, Jean's service of her brief on Paschon complied with neither Rule 4:4-3 or 4:4-4.

The order to show cause stated:

It is on this 16th day of June, 2008 ORDERED that the parties in interest named in the verified complaint appear and show cause on the 18th Day of July, 2008 . . . why judgment should not be entered:

1. Admitting to probate the handwritten Last Will of November 12, 1972, of Robert Figlio;

2. Appointing Jean Figlio as the permanent administrator of the estate of Robert M. Figlio, deceased; and

3. Awarding such other relief as the Court deems equitable and just.

And it is further ORDERED that:

a. Any party in interest who wishes to be heard with respect to any of the relief requested in the verified complaint served with this order to show cause shall file with the Surrogate of Salem County and serve upon the attorneys for the plaintiff . . . a written answer, an answering affidavit, a motion returnable on the date this matter is scheduled to be heard, or other response to this order to show cause and to the relief requested in the verified complaint, by July 11, 2008. . . . Such responding party in interest shall also file with such Surrogate by the foregoing date a proof of service upon the plaintiff.

g. A copy of this order to show cause, the verified complaint, and all affidavits submitted in support of this application . . . . shall be served upon the parties in interest listed in the complaint, by certified mail, return receipt requested . . . or alternatively shall be personally served upon the parties in interest listed in the complaint, within 7 days of the date hereof, in accordance with R. 4:67-3, R. 4:4-3, and R. 4:4-4, this order to show cause being original process.

[(Emphasis added).]

Thus, MacLean was never served with process that would make her an "interested party" with respect to the order to show cause heard on November 21, 2008. In particular, although the brief sent to MacLean's attorney may have served as notice to her attorney that MacLean's rights to the Estate were being challenged, the Rules of Court require that an initial pleading be served directly on a party and not solely upon the party's attorney. R. 4:67-3. No initial pleading was ever served upon MacLean naming her a party in interest whose rights to the Estate were being adjudicated before the court. Nor was the pleading amended to name MacLean a party in interest whose rights could be affected on the return date of the order to show cause, or to reflect that MacLean's "informal claims" were being challenged on the return date. Likewise, Jean never served upon MacLean an amended complaint providing her with notice that her rights were in jeopardy.

MacLean also argues, correctly, that the certification she filed with the Surrogate did not make her a party to the action. MacLean's certification could not have been a pleading because it did not "demand . . . judgment for . . . relief," as required by Rule 4:5-2. The Probate Part judge nevertheless treated the certification as if it were a pleading demanding judgment and cited the certification as deficient because it failed to provide "clear and convincing evidence to support [MacLean's] claim that the decedent promised to support her for her lifetime."

While it would have been preferable for MacLean's attorney to have appeared in court on the day when he knew, or should have known, that MacLean's right to assert a claim against the Estate was being challenged, that omission does not permit a judge to preemptively dismiss a claim that had not yet been filed, especially when the party whose claim was being dismissed had not been properly joined in the action. "[I]t is a tenet of our jurisdiction that resolution of disputes on the merits are to be encouraged rather than resolution by default for failure to comply with procedural requirements." St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008).

We turn to Jean's argument that although MacLean had not filed any formal pleadings in the case, she submitted to the authority of the Probate Part because her attorney, Paschon, made a "general appearance" in the action. This argument is unpersuasive. We agree with Jean's contention that Rule 4:4-6 authorizes "[a] general appearance or an acceptance of the service of a summons, signed by the defendant's attorney or signed and acknowledged by the defendant . . . , [which] shall have the same effect as if the defendant had been properly served." However, Rule 4:4-6 presupposes that a party has already been served with the summons and complaint, or has agreed to accept service by filing an acknowledgment of service without the need for actual service by a process server. Here, because MacLean was never served with process, Jean cannot legitimately take refuge in the provisions of Rule 4:4-6.

Jean's reliance upon our decision in Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152, 167 (App. Div. 1984), is unavailing. There, we held that the defendant was not entitled to assert non-party status where his attorney had expressly acknowledged receipt of an amended complaint, had waived further service, and where the party was physically present during trial proceedings. Ibid. Nothing in Hill supports Jean's argument that a general appearance may be entered by way of a single certification filed with the court.

We also reject Jean's contention that by participating in the action, MacLean waived her right to insist on compliance with the requirement that the court have jurisdiction over her. In support of that proposition, Jean relies upon our decision in Hupp v. Accessory Distributors, Inc., 193 N.J. Super. 701, 711 (App. Div. 1984), where we held that "[t]here is no doubt that a defendant may waive the requirement that a court ha[s] jurisdiction over him." Jean has, however, taken that portion of our holding in Hupp out of context. The prior sentence reads, "Plaintiff contends that [the defendant] waived any defense based on a lack of jurisdiction by appearing in Hawaii." Ibid. Thus, as is evident from a closer reading of Hupp, our conclusion that the defendant waived the defense of lack of jurisdiction was based upon the defendant having already participated in the related Hawaii litigation, having been served with the summons and complaint there, and raising no claims of lack of jurisdiction. Id. at 709.

Hupp merely stands for the uncontroversial proposition that if a party is served with a summons and complaint and thereafter makes no effort to assert the defense of lack of personal jurisdiction, he is deemed to have waived the right to assert such defense. See also R. 4:6-2(b) and R. 4:6-3 (specifying that the defense of lack of jurisdiction over the person is waived if not addressed by motion within ninety days after service of an answer to the complaint). We thus reject Jean's contentions that MacLean was properly joined in the Probate Part action because her attorney entered a general appearance, and that, even if service was defective, MacLean waived any right to object. For that reason, we agree with MacLean's contention that because she was not served with the summons and complaint, she was not properly joined in the action, and had done nothing on her own to subject her to the Probate Part's jurisdiction. Thus, the court lacked authority to bar her from proceeding with a palimony claim.


Moreover, even if MacLean's certification were to be deemed a proper pleading or claim for relief, the judge still would have erred by dismissing it because a genuine issue of material fact existed. Rule 4:67-5 provides that in a summary proceeding, "[i]f no objection is made by any party, or the defendants have defaulted in the action, or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon." (Emphasis added).

MacLean asserted in her certification that she and Robert lived together in a marital-type relationship. Robert named MacLean as the beneficiary on his TIAA-CREF retirement account, worth approximately $300,000, and purchased a house with her as a joint tenant with rights of survivorship. He also established an irrevocable insurance trust naming her as the primary beneficiary. All of these actions, when taken together, provide at least some evidence that Robert may have made an implied or express promise to MacLean to provide for her for the rest of her life. Thus, there was at least a genuine issue of material fact as to whether MacLean's relationship with Robert was sufficient to support an entitlement to palimony. See Devaney v. L'Esperance, 195 N.J. 247, 258 (2008). Under those circumstances, MacLean presented enough evidence to warrant the denial of Jean's motion to dismiss her palimony claim. We thus agree with her contention that the judge erred by extinguishing her right to file a palimony complaint.


In Point II, relying upon Roccamonte, supra, 174 N.J. at 399, MacLean argues that the Family Part, not the Probate Part, is the "appropriate forum" in which to bring palimony claims. In Roccamonte, the Court addressed the issue of whether palimony claims should be brought in the Family Part or Probate Part. Id. at 399-400. The Supreme Court modified our decision in the case by "requir[ing] the remand proceedings to be conducted in the Family Part." Id. at 400. The Court reasoned that "[b]ecause palimony claims typically are unique to a family-type relationship, the Family Part is where they should be brought[.]" Id. at 399. The Court also observed that "Family Part judges have developed a special expertise in dealing with family and family-type matters . . . ." Ibid. In light of the Court's holding in Roccamonte, we agree with MacLean's contention that the Probate Part should have refrained from ruling upon whether MacLean's palimony cause of action was viable or not. Recognizing the holding of Roccamonte, Jean nonetheless argues that Roccamonte's requirement that palimony cases be maintained in the Family Part is not binding. She points to three cases in support of her argument, two of which were decided before Roccamonte was even decided, Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 154 (App. Div. 2002), and Lopatkin v. Lopatkin, 236 N.J. Super. 555, 558 (Ch. Div. 1989). Obviously, the holdings of Kingsdorf and Lopatkin are superseded by Roccamonte.

Jean also relies upon our decision in In re Estate of Quarg, 397 N.J. Super. 559, 566 (App. Div. 2008), in which we determined that plaintiff's palimony claim was improperly dismissed by the Probate Part. We remanded that matter "to the Chancery Division for a plenary hearing, if necessary, to determine whether [the plaintiff] can establish an enforceable implied promise as detailed in Roccamonte." Ibid. We did not expressly decide that the Probate Part, as opposed to the Family Part, was the proper forum for the plaintiff's palimony claim, nor did we address the portion of the Roccamonte opinion that addresses that issue. Ibid. Thus, nothing in Quarg can be construed as in any way weakening the Court's clear statement in Roccomante that palimony claims should be brought in the Family Part.

That being so, the Probate Part should have declined to address Jean's motion to discuss MacLean's potential palimony claim. The Probate Part should have dismissed Jean's motion and directed the parties to resolve that question in the Family Part. The Probate Part's definitive ruling on the sufficiency of a palimony cause of action was therefore error.


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