On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-479-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 The will has never been revoked, substituted or modified.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. 4:27-23, 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 ...