On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-513-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Defendants Robert Trocolor, II, and his wife Genevieve Trocolor appeal from two May 11, 2010 orders and a May 17, 2010 order concerning the Estate of Mildred Trocolor. We affirm, substantially for the reasons stated in the opinion of Judge Robert P. Contillo dated March 3, 2010.
The facts are set forth in Judge Contillo's comprehensive opinion and
need not be repeated here in the same level of detail. In summary,
this case was a dispute between plaintiff Daryl Wallace and her
brother Robert Trocolor, II, who were co-executors of the estate of
their mother, Mildred Trocolor. In her complaint, Daryl*fn1
alleged that while Mildred was alive, Robert and Genevieve
(defendants) misappropriated substantial sums of money from three
reverse mortgages on Mildred's house. In their counterclaim,
defendants alleged that Daryl misappropriated money from Mildred.
Prior to the trial, the judge put both sides on notice that if either
side proved that the other side looted the mother's estate and
defrauded her, he might, as an equitable remedy, bar the guilty party
from inheriting from the estate. Neither party objected.
After a three-day bench trial in which all parties testified, Judge Contillo found Daryl to be a completely believable witness and concluded that she did not misappropriate any money. He credited Daryl's testimony that her mother had lent her relatively modest sums of money that Daryl either repaid or that Mildred forgave in a gift letter that the judge found to be authentic.
Robert testified that three reverse mortgages were placed on Mildred's house because she was running out of money to support herself. Yet he also admitted taking at least $200,000 from the proceeds of those mortgages to pay for improvements to his own house and his children's college tuition. He claimed that Mildred knew about, and approved of, those expenditures, and he produced a purported gift letter from Mildred which he claimed authorized him to take her money to spend as he saw fit. Genevieve testified that she was present when Mildred signed the gift letter. Daryl produced expert testimony that Robert's gift letter was a forgery.
For reasons he explained in considerable detail, Judge Contillo found that Robert was a completely incredible witness. Based on the expert's testimony and his own comparison of Mildred's alleged signature on Robert's gift letter with exemplars of her signature, Judge Contillo determined that the signature was a forgery. The judge found that, without Mildred's knowledge or consent, Robert took approximately $240,000 of her money and used it to improve his own house and pay his children's college tuition. He also found that, as a result of Robert's misconduct, the equity in Mildred's house was drained, and she was left without assets at her death. As the judge stated:
What I doubt, and affirmatively disbelieve, and have no credible evidence of, is that Mildred ever agreed to have her lifeline funds - the proceeds of any of the 3 reverse mortgages - used to reconstruct and improve Robert's home - or to finance Robert's children's education. Even Robert's wife did not know that her home improvements -and her children's educations - were being financed by Mildred, or, more accurately, at Mildred's expense, and to Mildred's detriment. And, I find, Mildred clearly did not know, or approve, of the depletion of her assets for these or any other purposes.
In addition to determining that Robert must repay the approximately $240,000 that he stole from his mother, the court awarded punitive damages, finding that he "helped himself, wrongfully, secretly, recklessly and actionably, to the mother's monies, before she died." In the March 3 decision, the judge directed plaintiff's counsel to submit a form of judgment under the five day rule. Plaintiffs' attorney sent two proposed orders to his adversary and the court, by letter dated May 4, 2010.
Based on his factual findings, the judge signed an order on May 11, 2010, removing Robert as co-executor, and entering judgment against Robert in favor of the Estate and Daryl Wallace for approximately $260,000. That sum included the amount Robert misappropriated, plus interest and $1000 in punitive damages.
The judge also authorized Daryl, as executrix, to attempt to collect those sums, and provided that Robert would have no claim against Mildred's estate as a beneficiary, i.e., he would not be entitled to inherit any of the stolen money. The May 11 order also ...