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In the Matter of the Estate of Peggy Z. Puder


January 14, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-479-08.

Per curiam.



Argued November 16, 2010 - Decided Before Judges Carchman, Graves and Waugh.

This appeal requires us to review the rights of parties not identified as "stakeholders" in the disinterment statute, N.J.S.A. 45:27-23(a), and to determine whether such parties may challenge a surviving spouse's decision to disinter the remains of his spouse.

The challenger, Sophia Zigouras, the decedent's mother, urges that under the Supreme Court's decision in Marino v. Marino, 200 N.J. 315 (2009), she has the right to assert that the alleged wishes of the decedent supersede the decision of the surviving spouse to disinter. We disagree and conclude that the decedent's mother has no standing to challenge the surviving spouse's decision to disinter. We affirm the decision of the Chancery Division both dismissing the complaint and denying defendant's frivolous litigation claim under Rule 1:4-8 and N.J.S.A. 2A:15-59.1.

As is so often the case in family burial disputes, the conflict between the parties has its genesis in circumstances unrelated to the present quarrel. We recite the facts as presented to the judge on the motion for summary judgment.

Decedent Peggy A. Puder was married to defendant Arthur Puder by a rabbi in 1982 in a Jewish wedding ceremony, a circumstance viewed with disfavor by plaintiff. Defendant had two daughters from a previous relationship but had no children with decedent. In 1989, decedent and defendant executed reciprocal wills wherein the former named defendant as the executor of her estate, with powers to "be construed in the broadest possible manner." The will has never been revoked, substituted or modified. It bequeathed decedent's entire estate to defendant, with contingent bequests in the event her husband predeceased her, and specifically excluded any bequests to decedent's mother or her twin brother, Andreas Zigouras.*fn1

Decedent was diagnosed with terminal cancer in December 2006. Andreas claimed decedent visited him in January or February 2007 and asked him "to take charge of her burial and funeral arrangements" by having her buried in a plot next to their mother. He asked decedent if she had discussed her wishes with her husband. She indicated she had, but that she chose Andreas to make these arrangements instead of her husband because she wanted to be buried in accordance with the Greek Orthodox faith. Andreas considered decedent's instructions significant because she and plaintiff "had an estranged relationship in the past but had reconciled."*fn2

After Andreas met with decedent, decedent spoke to defendant and told him that she wished to be interred in a mausoleum. Andreas claimed he then made appointments to visit the Garden of Memories, an above-ground mausoleum in Paramus, with decedent and defendant, but they never made the visit due to decedent's declining health. Later, during a visit in his office, Andreas confirmed in front of defendant that he would handle decedent's burial and funeral arrangements.

Decedent died on May 9, 2007, and her will was admitted to probate on September 10, 2007. The will did not contain written instructions about her funeral or burial. Andreas and defendant visited a funeral home together to arrange funeral services and drove to the Garden of Memories to select a crypt. According to Andreas, defendant asked the cemetery's representative whether he would be able to later remove decedent's remains from the mausoleum and relocate them to an in-ground burial plot at the same cemetery. At that point, Andreas claims defendant asked him if he "had a problem with him doing so," and Andreas answered that defendant should acknowledge decedent's wish to remain interred in the mausoleum.

Decedent was interred in the mausoleum after a funeral service performed by a Greek Orthodox Priest. Her will was admitted to probate on September 10, 2007. On September 24, 2007, several months after decedent's interment, defendant authorized the disinterment of decedent's remains from the Garden of Memories and their reinterment in a marital burial plot in a section of the cemetery reserved for members of the Jewish faith. In anticipation of burial, defendant represented that decedent was a member of the Jewish faith.

Plaintiff filed a complaint in probate court on November 12, 2008, seeking to revoke the grant of probate, revoke decedent's will naming defendant as executor, to impose a constructive trust and to disinter decedent's remains from the Jewish cemetery where she was buried. She based her claims on allegations that defendant had destroyed a purported subsequent will created by decedent and had violated decedent's verbal burial instructions.

In granting defendant's motion for summary judgment on September 18, 2009, Judge Contillo indicated that "the law is plain," and explained:

[H]ere the surviving spouse was available. . . . If the person has not specified in writing, in testamentary form what their preferences were, it's left to the surviving spouse, period.

Under N.J.S.A. 4[5]:27-23, who gets to decide whether or not someone's remains are going to be disturbed and relocated? The surviving spouse, adult children and owner of the interment space. If they authorize it in writing and it's authorized by an estate disinterment permit and the cemetery finds that the removal is feasible, meaning there's no practical reason not to do it, then it gets done. . . .

There's no requirement in the law that you have to send out notices of what you're intending to do. . . . The statute says you have the authority as the surviving spouse as long as you meet these other steps to relocate the remains of your deceased spouse.

[W]hether or not the decedent belongs where she is situated is a matter between the surviving spouse who has exercised his statutory authority and perhaps the cemetery where she lies. Someone else does not have standing to come in and say whether the person does or does not belong there.

I declined to allow expert testimony or evidence on the subject of when is a person Jewish, when is a person not Jewish. . . . that issue . . . is not an issue that someone outside the hierarchy of authority under the statute can even raise.

[T]he statute says, but if a court order says otherwise, then you can do these removals in violation of the statutory hierarchy. . . . but that is only when there are disputes by the people that are authorized by the statute to exercise the authority.

The suggestion that [defendant] lost that authority because he had an interment here and allowed a religious ceremony to take place, that does not constitute a waiver of his rights under the statute to seek and authorize a re-interment or to disinter and re-inter.

I've given the family the benefit of all the facts. I'll assume, because I have no contrary evidence and you're entitled to the fact she never converted, I'll assume she expressed an interest or even a decision to be buried elsewhere. Because that's what the summary judgment standard requires me to look at the case from the eyes of the non-movant. . . . and I'll assume that there was an expression of intent to the husband that this is what she wanted. That does not disable the husband from exercising authority, temporary or permanent, with respect to the initial placement, the removal and a refusal to re-remove his wife's remains.

The husband is entitled to judgment of dismissal as a matter of law . . . [on all counts], because . . . there's no standing of the family to raise the issues. And if there was standing on the merits, nothing is here that would divest the husband of his right to exercise the authority that he has.

Within a week of this decision, the Supreme Court decided Marino. There, the Court held that the interment statute, N.J.S.A. 45:27-22, and the disinterment statute are not to be read in pari materia, and should be considered separately and distinctly "to view the circumstances attendant upon disinterment differently from those that are relevant to interment." Marino, supra, 200 N.J. at 331. Specifically, in a case involving a dispute between a surviving spouse and adult children of the decedent, the Court noted "the authority to disinter is not vested in the surviving spouse alone, [as it is in the interment provision,] but rather is given to the 'surviving spouse, adult children and the owner of the interment space,' who must give their authorization both jointly and in writing." Id. at 328 (quoting N.J.S.A. 45:27-23(a)). Consequently, the Court determined that a surviving widow's burial preference for her deceased husband was insufficient as a matter of law, in the context of her desire to disinter her husband's remains in a dispute with his adult children:

The language of the [disinterment] statute, see N.J.S.A. 45:27-23, expresses a legislative preference against disinterment. Even were that not so, the disinterment statute makes it plain that the surviving spouse's desire is not paramount. In fact, [his] status in the statutory decision-making hierarchy is reduced, from a position of having the primary authority to inter, to one of sharing authority to disinter equally with all surviving adult children. . . .

The record is undisputed that the preference about burial attributed to decedent was not his alone; rather it was also the preference of all of the surviving adult children, who spoke with a unified voice. Seen in that context, plaintiff's contrary preference was insufficient as a matter of law. [Marino, supra, 200 N.J. at 334-36.]

Following the Court's decision in Marino, plaintiff moved for reconsideration, but the trial judge distinguished plaintiff's case from Marino noting that "we don't get to the issue of the intent of the decedent, because the person with the authority to decide has decided." The judge explained that he had "never decided the question of what the wife wanted. That's not the issue. . . . Because Mr. Puder has the authority." The judge dismissed plaintiff's complaint as well as denying defendant's motion for frivolous litigation sanctions under Rule 1:4-8 and N.J.S.A. 2A:15-59.1.

On appeal, plaintiff argues that she has standing, and the court can exercise jurisdiction to determine the decedent's wishes. She further claims that the surviving spouse's desire is not paramount. Finally, she asserts that Marino stands for the proposition that the court can disregard the disinterment statute and exercise equitable powers to consider the decedent's wishes.

New Jersey's interment statute, N.J.S.A. 45:27-22, establishes a hierarchy of decision-making power among surviving members of decedent's family. The statute provides:

a. If a decedent, in a will as defined in N.J.S.A. 3B:1-2, appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. A person so appointed shall not have to be executor of the will. The funeral and disposition may occur prior to probate of the will, in accordance with section 40 of P.L.2003, c.261 (C.3B:10-21.1). If the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other directions have been given by a court of competent jurisdiction:

(1) The surviving spouse of the decedent or the surviving civil union or domestic partner; except that if the decedent had a temporary or permanent restraining order issued pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) against the surviving spouse or civil union or domestic partner, or the surviving spouse or civil union or domestic partner is charged with the intentional killing of the decedent, the right to control the funeral and disposition of the remains shall be granted to the next available priority class as provided in this subsection.

(2) A majority of the surviving adult children of the decedent.

(3) The surviving parent or parents of the decedent.

(4) A majority of the brothers and sisters of the decedent.

(5) Other next of kin of the decedent according to the degree of consanguinity.

(6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

For purposes of this subsection "domestic partner" means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).

In contrast, New Jersey's disinterment statute, N.J.S.A. 45:27-23(a), reflects a more limited class of those permitted to disinter and provides that a surviving spouse, all surviving adult children, and the owner of an interment space must agree to disinter:

a. Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:

(1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing;

(2) removal is authorized by a State disinterment permit issued by the local board of health; and

(3) the cemetery finds that removal is feasible.

In Marino, the Court recognized the distinct differences between the internment and disinterment statutes but noted that while the power of a court to act in a manner contrary to the statute was preserved, the underlying preference was that the practice be limited. Marino, supra, 200 N.J. at 335. The Court did acknowledge that the wishes of the decedent may be considered under the circumstances extant in that case. Ibid.

Critical to our analysis of Marino is the factual context in which the decision was rendered. The most obvious distinction is that in Marino, the dispute was between two parties identified as "stakeholders" in the decision-making process related to disinterment - the surviving spouse and the adult children. To resolve that dispute, where the standing of the parties was in parity, the Court found it appropriate to look to the decedent's wishes to resolve the dispute. The Court recognized that the circumstances mandated that the surviving spouse's preference was insufficient as a matter of law, and the trial judge "was entitled to strike the balance in favor of giving voice to decedent's clear preference" as "the preference about burial attributed to decedent was not his alone; rather it was also the preference of all of the surviving adult children, who spoke with a unified voice." Marino, supra, 200 N.J. at 336.

No such factual scenario is present here. The surviving spouse has acted pursuant to his statutory authority. A parent - here decedent's mother - is neither identified in the statute as a party in interest nor is she entitled to advance the decedent's wishes in this dispute.

To allow a "stranger" to the statutory scheme to advance a position contrary to the surviving spouse's wishes would expand the scope of the disinterment process beyond what the Court has identified as the legislative intent to limit the process. The objective of both the interment and disinterment statutory schemes is to allow the deceased to lie at rest. This objective would not be met if disinterment could be challenged by strangers to that scheme.

In the absence of contrary written burial instructions from decedent, defendant retains exclusive authority to decide his wife's interment under the plain language of New Jersey's interment statute, N.J.S.A. 45:27-22. Marino does not change the outcome.

We note that the Marino decision subjugates the primacy of a surviving spouse when there is a dispute with a co-equal participant - a majority of the decedent's adult children who disagree with a surviving spouse's decision to disinter. However, these are not the facts here, and we find no abuse of the judge's discretion in not exercising its residual authority to override the statute in the context of this case. See Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993).

The Marino Court was prescient in observing that "nothing in the disinterment statute suggests that it is intended to be used as a remedy, even for one who was deprived of the right to inter in the first place." Marino, supra, 200 N.J. at 335. That is the circumstance presented here. The judge properly dismissed plaintiff's complaint.

We now address the cross-appeal. In denying defendant's motion, Judge Contillo remarked:

[I]t is true Mr. Puder put in a proof right in the beginning, saying, I don't know anything about any other will. But [plaintiff] was not required to take that at face value and was permitted to do discovery to determine whether or not the daughter's intentions had been acted upon or not. And the pursuit of those claims is not frivolous within the meaning of the statute if I credit their claims that the daughter tells them, I'm going to go make a new will, I'm on my way to make a new will.

So while Mr. Puder may believe that this was all driven simply to get leverage on the re-burial issue, I can't make that finding. I mean, I've considered the case and made these evaluations of credibility and all the rest of it. So it's a high hurdle to overcome. It's not been overcome in this case.

We agree and conclude that he properly denied relief.

We affirm both the judgment dismissing the complaint and denial of defendant's motion.

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