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Conforti v. Faccone

July 2, 2010

PETER CONFORTI, PLAINTIFF-RESPONDENT,
v.
RITA FACCONE, DEFENDANT-APPELLANT.
MARY ELIZABETH CONFORTI, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
GEORGE FACCONE, MICHAEL FACCONE, JOSEPH FACCONE, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS, AND WACHOVIA SECURITIES, LLC, DEFENDANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Union County, C-123-07, L-2839-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 1, 1010

Before Judges Reisner and Yannotti.

Defendants George Faccone, Michael Faccone, and Joseph Faccone appeal from a trial court order dated August 10, 2009. Plaintiff Mary Elizabeth Conforti cross-appeals from the order.*fn1

We affirm, substantially for the reasons set forth in Judge Malone's comprehensive opinion dated June 8, 2009.

I.

The facts are discussed at length in Judge Malone's opinion and need not be repeated here in detail. To summarize, this case arises from a dispute over the estate of Adeline Conforti and over a house she deeded to her two children, Rita Faccone and Peter Conforti prior to her death.*fn2 The parties to this appeal are Peter's surviving spouse, Mary Elizabeth Conforti (Elizabeth), and Rita's husband and children.

In 1994, Adeline deeded her house to her children Rita and Peter, reserving a life estate for herself. In 2002, about two years prior to her death, Adeline executed a will devising all of her property to a simultaneously created living trust. The trust provided for the equal distribution of the residuum to Adeline's son and daughter upon her death. While acting as trustee, Adeline deposited significant amounts of stock and cash into the trust.

In 2004, Adeline resigned her duties as trustee, appointing Rita as the sole trustee. Shortly after Rita took over as trustee, $133,000 in cash was withdrawn from the trust account. At the trial, Rita's husband George, who had replaced Rita as trustee after her death in 2008, was unable to account for the money with any legally competent evidence.

After Adeline died in November 2004, Rita failed to distribute the trust assets and did not sell the house she and Peter jointly owned, although Peter repeatedly inquired as to the status of the trust and asked her to list the house for sale. Instead, Rita and her husband George sought to buy Peter's share of the home at a reduced value for the benefit of their son Michael. Peter refused their proposal.

Although the house was vacant, and was not part of the trust, Rita and George withdrew substantial amounts from the trust to maintain the property, including over $500 a month to heat it. George and his sons also billed the trust tens of thousands of dollars for time they allegedly expended to clean and maintain the house.

In 2006, Peter's attorney requested that Rita produce an accounting of the trust, and he filed suit in 2007. Although suit was filed in 2007, Rita still did not distribute Peter's shares of stock, nor did she immediately list the house for sale. While the action was pending, Rita distributed stock to Adeline's grandchildren, pursuant to the terms of the trust. She also made distributions to herself, but she distributed nothing to Peter.

The house was finally sold in 2008, but the funds were placed in escrow instead of being divided between Rita and Peter. According to George, the funds were escrowed to ensure that there would be money to reimburse George and his sons for their expenses of maintaining the vacant house. Both Rita and Peter passed away while the case was pending, and ...


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