On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-243-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued December 8, 2011
Before Judges Sabatino and Ashrafi.
The discrete issue in this appeal is whether the trial court erred in releasing funds to a third-party plaintiff who claimed ownership of the funds, which years earlier had been confiscated by authorities following the arrest of his son. In particular, appellant, the son's ex-wife, argues that the trial court should have instead imposed a constructive trust on the funds so as to secure her former spouse's future payment of child support. For the reasons that follow, we conclude that the trial court soundly rejected the ex-wife's demand for a constructive trust and affirm the order releasing the funds to the ex-husband's father.
We briefly summarize the facts pertinent to this appeal. In November 2001, the ex-husband, defendant Nicholas A. Lucarella, was divorced from his wife of ten years, plaintiff Ann Marie Lucarella ("the ex-wife"). Although the ex-husband has since contested or sought to modify certain terms of the divorce, including custody of the couple's three children, it is undisputed that he has timely made all support obligations.
In February 2003, the ex-husband was arrested and charged with attempted murder, conspiracy to commit murder, and aggravated assault after his matrimonial attorney was seriously injured in a hit-and-run incident. The prosecution based its case largely on the anticipated incriminating testimony of two individuals who had told the police that the ex-husband had hired them to kill his matrimonial attorney.
In November 2009, the ex-husband's criminal trial ended in a hung jury after the two key witnesses recanted their prior statements. The State and the federal government have not since pursued any criminal charges against the ex-husband.
The funds in question, $72,525, had previously been in the possession of the ex-husband. When law enforcement authorities arrested the ex-husband, they confiscated the cash from his apartment and deposited it with the clerk of the court. At that time, it was unclear whether federal or state authorities planned to investigate the source of the funds. However, in 2007, the county prosecutor's office advised the trial court by letter that the State had no interest in the money. In the more than eight years since the funds were seized, federal authorities evidently have not undertaken any investigation regarding the money. Shortly after their son's arrest, the ex-husband's father, Nicholas L. Lucarella, and his mother, Rose Lucarella,*fn1 asserted that the confiscated money was theirs and accordingly filed a motion with the Family Part, as third-party plaintiffs, requesting that the funds be released to them. They also petitioned for visitation rights to their grandchildren.*fn2
Initially, the ex-husband's parents were to use the money for a down payment on a house. Apparently, the money was not used for that purpose, and in his certification, the ex-husband's father relates that he now needs the money to cover his burgeoning medical expenses.
After consolidating the matrimonial and third-party actions, the Family Part initially declined to release the funds. In 2007, the ex-husband's father renewed his motion to release the funds. Again, the trial court declined, this time because the ex-husband and ex-wife's matrimonial case was then on appeal.*fn3 The trial court perceived that it lacked jurisdiction to hear the motion concerning the release of the funds until that appeal was resolved.
In 2010, following the verdict in his son's criminal trial, the ex-husband's father again moved in the Family Part to release the funds. The father noted that he is elderly, that he has health problems and financial difficulties, and that he needs access to the funds.
The ex-wife opposed the motion. She maintained that the funds instead should be placed in a constructive trust for the benefit of her children. She claimed the funds actually belonged to the ex-husband, despite the fact that the ex-husband had asserted no claim to the money. She expressed concern that if her former spouse were ultimately convicted of criminal charges, he would be unable to meet his child support obligations. She argues that the fact that the ex-husband has not responded to her discovery requests, apparently invoking his right against self-incrimination, should operate as an admission and that the court should draw an adverse inference against the ex-husband.
Notably, the ex-husband has asserted no claim to the confiscated funds. He did not oppose the release of the funds to his father.*fn4 As we have noted, the State also advised the trial court in correspondence that it took ...