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In the Matter of Lillian Glasser

July 21, 2011

IN THE MATTER OF LILLIAN GLASSER, A VULNERABLE ADULT. IN THE MATTER OF LILLIAN GLASSER, AN INCAPACITATED PERSON. IN THE MATTER OF LILLIAN GLASSER, AN INCAPACITATED PERSON.


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket Nos. 209568 and 209568-2.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 21, 2011

Before Judges Lisa, Reisner and Sabatino.

These three appeals, which we have consolidated for purposes of this opinion, arise from disputes between Mark Glasser (Mark) and his sister, Suzanne Glasser Mathews (Suzanne), over the guardianship and finances of their mother, Lillian Glasser (Lillian).*fn1 The underlying guardianship dispute spawned litigation in Texas and New Jersey. The New Jersey action entailed collateral disputes over the choice of a guardian of Lillian's person, Lillian's December 2002 will, and the right or obligation of assorted parties to either receive or pay counsel fees.

I

In broad outline, after a thirty-four day trial, Judge Alexander P. Waugh, Jr., then sitting as the Probate judge, determined that Suzanne exercised undue influence over Lillian in a variety of ways, including the preparation of a December 2002 will. He also found that Suzanne violated her fiduciary duty in exercising Lillian's power of attorney (POA). The judge found that while Mark primarily had his mother's best interests at heart, he also acted in ways that were disruptive to her medical care and otherwise counter-productive to her interests. The judge determined that Lillian was incapacitated, but that none of her family members should act as the guardian of her person. Instead, he appointed an attorney who, in the judge's view, could act independently and could adequately protect Lillian's interests in the face of competing, aggressive demands from her children and friends.*fn2 All parties agreed that a neutral financial institution should act as guardian of her property.

Based on his view of the law and the equities, the judge determined that Suzanne should reimburse Lillian's estate for monies Suzanne took from the estate and spent on her own counsel fees in the New Jersey litigation, and for counsel fees Suzanne spent in creating a family limited partnership in Texas, which Suzanne controlled and into which she improperly transferred almost all of Lillian's assets; he denied Suzanne's application for counsel fees and costs for the Texas litigation and ordered her to reimburse her mother's estate for those expenses as well; he awarded some counsel fees to Mark for the litigation in Texas; and he awarded no counsel fees to Suzanne's children for their effort to involve themselves in the New Jersey litigation. He also removed Suzanne as Lillian's health care representative, except for participation in end-of-life decisions.

Notably, no party to this appeal challenges the judge's finding that Lillian is incapacitated and requires the appointment of a guardian of her person and a guardian of her property. The appeals largely concern money - i.e., disputes over counsel fees and Lillian's will - and the judge's choice of Lillian's guardian of the person and health care representative.

In her appeal, Suzanne challenges the judge's decision to remove her as her mother's health care representative; she also contends the court erred in finding that she exercised undue influence concerning the December 2002 will and breached her fiduciary duty under the POA; and she challenges the counsel fee awards. In their cross-appeals, Lillian's nephew and her court-appointed guardian contend that the judge should have required Suzanne to pay additional counsel fees.

In his separate appeal, Mark argues that he was entitled to counsel fees for his participation in the New Jersey guardianship litigation, and that the judge unduly limited his fee award for the Texas action.

Finally, in their appeal, Suzanne's three children (Lillian's grandchildren) argue that the judge should not have adjudicated the validity of Lillian's December 2002 will, or in the alternative, that he should not have adjudicated the issue without their participation; that the judge should have appointed one of the grandchildren as Lillian's guardian; and that they were entitled to an award of counsel fees.

Having reviewed the record, including the entire trial transcript, we find no basis to disturb the factually well-founded and legally appropriate decisions of Judge Waugh. Therefore, we affirm the final order dated August 14, 2008, as well as all interlocutory orders that are the subject of these appeals.*fn3

II

Our review of Judge Waugh's factual determinations is limited. We are bound by the trial judge's factual findings so long as they are supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We owe particular deference to his credibility determinations, because he had the opportunity to see and hear the witnesses testify. State v. Locurto, 157 N.J. 463, 470-74 (1999); Cesare v. Cesare, 154 N.J. 394, 412 (1998). Mindful of the appropriate standard of review, we have canvassed the record to determine whether it supports the judge's factual findings, and we conclude that it does.

The procedural history and the evidence are discussed exhaustively in Judge Waugh's twenty-five page written opinion dated March 3, 2006, addressing jurisdiction; his eighty-two page written opinion dated March 8, 2007, addressing the merits; and his fifty-five page written opinion dated November 28, 2007, addressing counsel fees.

We will not repeat the background or the evidence in the same detail here. We address the most pertinent portions of the record, as it relates to the legal issues the parties are raising on these appeals.*fn4 In summary, the evidence supports the following findings.

The main actors in this drama are Lillian, a wealthy widow then in her eighties, her son Mark, her daughter Suzanne and son-in-law Gilbert, and her nephew Eric Smith (Rick). Lillian and her husband, Dr. Benjamin Glasser (Ben), had lived in New Jersey their entire married lives and had many friends here.

They also rented a home in Florida, and frequently visited Suzanne and her husband Gilbert in Texas. Ben died in February 2002. Both before and after Ben's death, Lillian spent more time with Suzanne than Mark, and Suzanne sometimes helped to schedule doctor's appointments for her mother. In April 2002, Suzanne arranged for her mother to be examined by Dr. Lichtenstein in Texas. He found that Lillian had significant cognitive deficits*fn5 which rendered her unable to manage her finances, and he recommended to Suzanne in writing that she activate a POA that, according to Suzanne, Lillian had given her. However, Suzanne did not activate Lillian's then-existing POA, a 1998 document naming Mark and Suzanne jointly as Lillian's attorneys-in-fact. In May 2002, a New York doctor, Dr. Freedman, diagnosed Lillian with mild dementia.

Despite her health issues, Lillian still had testamentary capacity in 2002. However, she was vulnerable to undue influence. In October 2002, Lillian met independently with an attorney from a New York law firm and had a new will prepared. Consistent with Lillian's recent prior wills, this will treated Mark and Suzanne equally.

Around Thanksgiving 2002, Lillian underwent surgery and experienced delirium during recovery. As Lillian was convalescing, Suzanne arranged for her to see an attorney whom Suzanne selected. Suzanne did not tell this attorney about Dr. Lichtenstein's or Dr. Freedman's diagnoses, but presented her mother simply as an older woman in need of a new will and POA. For reasons Suzanne did ...


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