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In the Matter of the

July 25, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Hunterdon County, Docket No. 39904.

Per curiam.


Argued Telephonically July 18, 2012

Before Judges Espinosa and Koblitz.

Plaintiff Brian Hogan appeals from an order of November 17, 2011, denying his application to set aside a November 10, 2010 consent order of settlement resolving a probate matter. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Lillian A. Hogan died on January 26, 2002, leaving two surviving children, Brian Hogan and Betty Ann Fort. The terms of decedent's will divided her estate into two equal shares. Plaintiff's share of the estate was to be held in trust (the Hogan Trust) for his benefit during his lifetime. Pursuant to the will, Fort and Linda Atack, a cousin, serve as trustees of the Hogan Trust.

The Hogan Trust provides that the trustees may make discretionary distributions out of the income or principal of the trust to plaintiff for his benefit as the trustees in their sole and non-reviewable discretion deem necessary and advisable to provide for his maintenance, support and education, as well as for any expense incurred by him because of illness, infirmity or emergency. Upon plaintiff's death, the remaining principal shall be distributed to Fort or, if she is deceased, her descendants.

Plaintiff, who lives in Maine, enjoys purchasing old fire trucks, restoring them and then gifting the trucks to local fire departments. Aside from monthly support payments, the trustees distributed at least $300,000 to plaintiff for debts incurred in this pursuit. The remaining corpus of the trust is approximately $3 million. After the trustees refused to distribute additional funds sought by plaintiff to continue restoring fire trucks, plaintiff commenced litigation on May 20, 2009. He alleged a breach of fiduciary duty, waste of trust property, conflict of interest and tortious interference with an inheritance against the trustee and sought an accounting in the event the Hogan Trust was not terminated. The parties were represented by counsel.

A settlement was placed on the record on August 26, 2010. The parties agreed that the trustees would pay plaintiff $110,000 from the Hogan Trust to satisfy his debts. The trustees also agreed to pay an automobile dealership no more than $35,000 to assist plaintiff to purchase one new and one used van. They also agreed to continue to pay plaintiff $6600 each month, as well as $500 for his monthly health insurance expense. In exchange, plaintiff agreed to release and discharge defendants from all claims.

Plaintiff agreed to the terms on the record under oath. He told the judge that he waived his right to a trial, understood the agreement and entered into it voluntarily. After the consent order was signed, plaintiff communicated to his counsel that he was dissatisfied and instructed counsel not to abide by the agreement. Counsel filed a motion to be relieved and defendants filed a cross-motion seeking an order directing plaintiff to abide by the agreement. Both applications were granted in an order of February 25, 2011.*fn1

Plaintiff then filed an application on August 18, 2011, to set aside the August 26, 2010 settlement. The motion judge indicated that he denied this application for the same reasons he had granted defendants' application to enforce the agreement in the February 25, 2011 order, in which he found that plaintiff understood and voluntarily agreed to the terms of the agreement. He found that plaintiff's claim that he was asleep during the proceeding was belied by the lengthy colloquy between the judge and plaintiff.

On appeal, plaintiff raises numerous arguments.*fn2 He attacks the validity of his mother's will, decries his sister's treatment of their mother before her death, complains of the insufficiency of funds provided to him, the high counsel fees and many other aspects of the situation. He seeks to set aside his mother's will and the Hogan Trust and to invalidate the settlement agreement because of fraud, undue influence, duress, lack of independent advice and trickery. He claims that he was pressured to accept the settlement.

"Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); see also Marino v. Marino, 200 N.J. 315, 334 (2009). Here, the judge who decided plaintiff's motion to vacate the settlement is the same judge who had questioned plaintiff extensively regarding his satisfaction with the settlement. Thus, the judge had the opportunity to observe plaintiff's demeanor and ensure that plaintiff understood the settlement. As the Supreme Court noted in State v. NunezValdez, 200 N.J. 129, 141 (2009), "[a] reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." The Court added, "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964))).

Plaintiff complained during the settlement hearing that the Hogan Trust was not earning a sufficient return on the corpus. He also stated that "trusts should not [be] torturous or induce emotional stress or break your religious beliefs." In light of these comments, the judge was careful to ask sufficient questions to ensure that plaintiff voluntarily ...

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