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In the Matter of the


September 6, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-304-10.

Per curiam.


Submitted August 17, 2011

Before Judges J. N. Harris and Fasciale.

This appeal involves the question of the proper forum to resolve certain post-divorce equitable disputes swirling around what may become an insolvent estate. More fundamentally, however, we are faced with reviewing a pragmatic judicial decision related to the allocation of the business of the Chancery Division. See R. 4:3-1(a)(2) and -1(a)(3).

Peter Kokinakos (Kokinakos), Administrator of the Estate of John Kokinakos,*fn1 appeals from the November 19, 2010, judgment of the Chancery Division, Probate Part, dismissing his declaratory judgment complaint seeking that "all future matrimonial proceedings involving the Decedent, John Kokinakos, take place in the venue of Monmouth County Superior Court, Chancery Division, Probate Part." We affirm.


Decedent and Rena J. Kokinakos, now known as Rena J. Seter, were divorced pursuant to a dual final judgment dated August 18, 2009. That judgment incorporated the parties' Divorce Settlement Agreement, which secured decedent's alimony and child support obligations -- there were four children born of the union -- through a promise to execute a Last Will and Testament (the proposed will) "within ten (10) days" of August 18, 2009. The terms of the proposed will were supposed to (1) name Rena "as beneficiary of the first $600,000 of [decedent's] estate" to secure the alimony obligation, and (2) "designate the [children] as equal beneficiaries of the next $400,000 of [decedent's] estate, with [Rena] as trustee" to secure the child support obligation.

A draft of the proposed will was prepared, which provided for the payment to Rena of both the alimony and child support components. Unfortunately, the instrument was never executed, and on November 1, 2009, decedent passed away intestate. On December 2, 2009, Kokinakos qualified as the administrator of his son's estate.

Several months later, in July 2010, Rena filed an order to show cause in the Family Part seeking to join the estate as a party to her matrimonial action, and demanding immediate monetary, equitable, and declaratory relief reflective of the terms of the Divorce Settlement Agreement. By order dated August 31, 2010 -- later amended on October 5, 2010 -- a Family Part judge granted the application to join the estate as a party in the matrimonial action, directed the manner of disposing of the proceeds from the sale of the marital home,*fn2 enjoined the disposition of decedent's minority interest in two business entities in the hotel industry,*fn3 but denied the balance of Rena's application without prejudice. The Family Part judge specifically directed the parties to address "the issue of jurisdiction" by motion in either the "Probate Court or the Family Court."

On September 24, 2010, Kokinakos filed a verified complaint and order to show cause in the Probate Part seeking only a declaration of rights "[m]andating that all future proceedings involving the Estate of John Kokinakos be conducted in the Monmouth County Superior Court, Chancery Division, Probate Part." The complaint did not seek to initiate a proceeding pursuant to Rule 4:91-1 (relating to insolvent estates). After consideration of the parties' legal positions, the Probate judge dismissed the declaratory judgment complaint with prejudice. This appeal ensued.*fn4


Although the Family and Probate judges couched the dispute in terms of jurisdiction, and the parties have followed those leads in their arguments to us, we consider the dispositive issue as wholly unconnected to jurisdiction. Cf. Nicastro v. McIntyre Mach. Am., Ltd., __ U.S. __, __, 131 S. Ct. 2780, 2789, 180 L. Ed. 2d 765, 776 (2011) (explaining that "jurisdiction is in the first instance a question of authority rather than fairness"). Instead, we view the problem as one related to the proper allocation of the judicial business of the Chancery Division, not implicating jurisdictional concerns. When so viewed, we believe that the Probate judge's decision to decline Kokinakos the declaratory relief he sought was plainly not an abuse of discretion, and comported with applicable legal principles.

Each Part of the Chancery Division has full authority -- jurisdiction -- to resolve equitable disputes within the orbit of Rule 4:3-1(a). That Rule serves as a division of labor, allocating to each of the three Parts certain types of business in order to foster the effective administration of justice. However, it does not purport to create hermetically sealed niches to the exclusion of other related matters. The Family Part, for example, is not jurisdictionally barred from resolving probate matters, even though the Rule commends such disposition to the Probate Part. This is simply not a jurisdictional issue.

Moreover, we do not write upon a clean slate regarding the interplay between the Family and Probate Parts. In light of In re Estate of Roccamonte, 174 N.J. 381 (2002), the Probate Part is not the appropriate forum for the resolution of Seter's family-type claims, and therefore the Probate judge properly refrained from determining those disputes. In Roccamonte, the Court addressed the issue of whether palimony claims should be brought in the Family Part or Probate Part. Id. at 398-400. The Supreme Court modified our decision in the case by "requir[ing] the remand proceedings to be conducted in the Family Part." Id. at 400. The Court reasoned that "[b]ecause palimony claims typically are unique to a family-type relationship, the Family Part is where they should be brought." Id. at 399. The Court also observed that "Family Part judges have developed a special expertise in dealing with family and family-type matters." Ibid. Because Seter's claims have their genesis in the unique family setting, the Probate judge properly deferred to the Family Part "all future matrimonial proceedings involving the Decedent, John Kokinakos."

This determination is fortified by the utter absence of an actual probate dispute at the time the Probate judge was asked to seize control of the matter. Not only had Kokinakos not yet filed an application to address the consequences of a potentially insolvent estate, it was entirely conjectural that the estate, indeed, would become insolvent. Accordingly, the decision to have Seter's family claims resolved outside of the Probate Part was sound.

In so concluding, we by no means intend our decision to obviate the potential for actual probate proceedings to occur in the future.*fn5 We also do not suspend the operation of N.J.S.A. 3B:22-2 (dealing with disposition of an insolvent estate) or any other statutes or court rules relating to the administration of estates. We simply observe that Kokinakos's application to the Probate Part in essence sought an advisory opinion based upon the assumption that his son's estate might be rendered insolvent by either economic forces or the decisions of the Family Part. In declining to get involved in the matter at this stage, the Probate judge acted faithfully to the dictates of Roccamonte.

We see no warrant to intervene at this stage of the proceedings.


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