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In the Matter of Jennifer Rogiers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 21, 2012

IN THE MATTER OF JENNIFER ROGIERS, DECEASED.

On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Surrogate's No. 285377.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 27, 2012

Before Judges Yannotti, Kennedy and Guadagno.

Ruben Martinez (Martinez) appeals from a July 7, 2010 judgment of the Chancery Division granting $441,391.16 to Rosa Rogiers (Rogiers) in unreimbursed expenses to be paid from the funds remaining in a special needs trust established for the benefit of the parties' now deceased daughter, Jennifer Rogiers (Jennifer). Rogiers cross-appeals from the denial of prejudgment interest. We have considered the arguments of the parties in light of the record and the applicable legal principles, and we affirm on the appeal and the cross-appeal.

I.

This is not the first time this matter has come before us. In In re Jennifer Rogiers, Deceased, 396 N.J. Super. 317 (App. Div. 2007), we addressed various issues pertaining to the parties' claims and vacated summary judgment in favor of Rogiers on her "requests for payment of expenditures she claims she incurred for Jennifer's support," having determined that "these issues are not ripe for summary judgment." Id. at 328. We remanded for discovery and "a plenary hearing" if needed. Id. at 329.

Following the completion of discovery, the trial judge presided over a five-day bench trial and thereafter entered the judgment which is now being appealed. We recite the factual background of this case, as set forth in our prior opinion:

Jennifer Rogiers was born on September 30, 1983, severely handicapped as a result of a cervical cord injury doctors inflicted upon her at birth. On her behalf, her mother, Rosa Rogiers (Rogiers), filed a medical malpractice claim and recovered a $2.6 million judgment that was placed in a trust for Jennifer's benefit.

On September 2, 2005, Jennifer died intestate and without children. The issues on appeal concern the disposition of the remaining trust monies, which totaled approximately $1.1 million.

Throughout Jennifer's lifetime, she was in her mother's custody. Her mother received funds from the trust to attend to Jennifer's needs. After Jennifer died, her father, Ruben Martinez (Martinez), sought half of the balance remaining in the trust as his intestate share under New Jersey intestacy laws. Rogiers challenged his entitlement to share in Jennifer's estate, and sought reimbursement for expenses she incurred and services she provided on Jennifer's behalf during her lifetime. Rogiers also claimed she was entitled to retroactive child support, though she made no claim for child support while Jennifer was alive.

The medical malpractice suit, filed in New York, settled on August 14, 1989. Rogiers received $150,000 for her loss of Jennifer's services, and $2,595,000 was placed in trust for Jennifer. The settlement order reads, in pertinent part: the remaining balance of $2,595,000 . . . be paid . . . to Rosa Rogiers and Irving Trust Company, [now Bank of New York (the Bank)] co-guardians of the property of the infant Jennifer Rogiers[,] and that said funds shall be deposited for the use and benefit of the infant plaintiff Jennifer Rogiers with [the Bank]. They shall . . . pay the bills for Jennifer Rogiers care, maintenance and other needs pursuant to allowance orders to be issued by the Surrogate of New York County.

After Rogiers moved to New Jersey, the Bank was removed as trustee. The Chancery Division subsequently transferred the funds to an irrevocable Special Needs Trust, appointing Thomas M. Venino, Jr. as trustee . . . .

The order [creating the trust] states that upon Jennifer's death, "[a]ny portion of the principal and undistributed income of [the Trust] . . . which she shall not have validly appointed by her Last Will and Testament . . . shall be paid over and distributed to the persons who would be entitled to receive the property under the laws of the State of New Jersey then in force and in the proportions prescribed by such laws as if the primary beneficiary had then died intestate and a resident of the State of New Jersey." [Id. at 319-21]

In a supplemental order appointing Rogiers as permanent guardian, the judge directed that she not remove Jennifer from Hudson County without the court's permission. Rogiers nonetheless took Jennifer to Ecuador without the court's permission, where they remained from January 2003 through December 2003.

As noted earlier, we reversed the grant of summary judgment entered on behalf of Rogiers and remanded for a plenary hearing. Id. at 329. We also had addressed other issues which are no longer being challenged.

II.

Following the appeal, the Chancery Division judge conducted a bench trial and issued a written opinion setting forth his findings of fact and conclusions of law. He noted that "Jennifer lived with her mother for her entire life and . . .

Rogiers attended to Jennifer's needs and incurred substantial expenses on her behalf." He also noted that Jennifer required "24 hour a day care" and that a plan approved by the New York Surrogate's Court provided that Rogiers "would also be compensated for eight hours a day at $15 per hour for Jennifer's care."

The judge found that

Ms. Rogiers, although not a trained medical or nursing specialist, was able to perform many of the services that Jennifer required, such as the Cuirasse treatment that was required several times a day to assist her breathing and the nebulizer medication treatments that were also required. Her care supplemented the care provided for a number of years by licensed nurses paid out of Jennifer's trust funds, but from August 2002 there were many days on which Ms. Rogiers was Jennifer's sole caregiver and was not receiving compensation.

He also determined that while the Bank of New York, the trustee appointed by the New York Surrogate's Court, had reimbursed Rogiers in the past, by 2002 "the Bank began withholding payment" to her.

Further, the judge determined that with respect to the prior order precluding Jennifer's removal from Hudson County,

Although the language of the order appears absolute, it may have originated in a concern that Jennifer's residence remain unchanged so that educational services could be arranged for her. I find, based on Ms. Rogiers' testimony that she understood the order to mean that Jennifer was not to be permanently removed from the county and that she was not violating the order by taking Jennifer to Ecuador several times in 2003 to visit Ms. Rogiers' other children, who were living there. As it turned out, Jennifer became ill in Ecuador in December 2003 and was hospitalized there, then returned to New Jersey where she remained hospitalized until her death.

He added that there was no evidence that the trip to Ecuador had any causal connection with Jennifer's December 2003 hospitalization or with medical treatment she thereafter received in New Jersey. He found the bills, therefore, to be "legitimate medical expenses that should be paid for by the trust."

In calculating the amounts due to Rogiers, the Chancery

Judge held as follows:

Ms. Rogiers' claim in this case consists of several components. One is for reimbursement of the $204,963.91 in out-of-pocket expenses detailed on Exhibit D-4. There is no dispute by Mr. Martinez that any of the expenses set forth in Exhibit D-4, totaling $204,936.91, were in fact incurred by Ms. Rogiers and I find that Ms. Rogiers' description of those items establishes that the expenses set forth in D-4 were the type of expenses that the governing trust documents envisioned as being payable from the trust. She will, therefore, be granted reimbursement for the full amount of the expenses set forth on D-4.

In Exhibit D-5 Ms. Rogiers sets forth the dates from August 2002 (when the Bank stopped paying) through December 2003 (when Jennifer was hospitalized) for which she seeks compensation. From a review of the document and Ms. Rogiers' explanation of how the entries on it were calculated, I find this [] accurately sets forth the time that Ms. Rogiers was Jennifer's sole caregiver during the period in question . . . . Ms. Rogiers' claim for $172,320 in this regard, as detailed on D-5, will also be allowed.

The unpaid bills from Ecuador amount to $16,278.05 and those from New Jersey total $13,856.20 . . . . Those bills should also be paid from the trust fund in Mr. Venino's possession.

Finally, as was true with regard to the payment to Ms. Rogiers, the Bank for many years provided Ms. Rogiers with a $2000 household allowance which it simply stopped paying in June 2002 and did not resume. It provided no explanation for its action and the circumstances which led to the institution and continuance of those payments over the years did not change. Especially with the simultaneous end of the allowance for caring for Jennifer, the suspension of the housing allowance effectively left Ms. Rogiers with no dependable means of providing for any of Jennifer's essential housing or medical needs, given that even part-time employment was out of the question when Jennifer was neither in school nor being cared for by an outside nurse. The trust fund was established just so that needs like those could be met and the housing allowance was a key component of the overall plan to see that Jennifer's needs were met. That allowance should also be paid to Ms. Rogiers for the period from July 2002 until December 2003.

[footnotes omitted]

Judgment was entered on July 7, 2010, and this appeal followed.

III.

Martinez's brief on appeal raises eleven issues, several of which overlap or only relate to a discrete part of the judgment. We determine the issues on appeal to be as follows:

A. WHETHER THE COURT ERRED IN ADMITTING INTO EVIDENCE THE SUMMARY OF ROGIERS' CLAIMED EXPENSES (appellant's points I, IV and IX).

B. WHETHER THE COURT ERRED IN EXCLUDING THE GUARDIAN AD LITEM'S JANUARY 20, 2004 REPORT (appellant's points II and X).

C. WHETHER THE COURT ERRED IN REFUSING TO REJECT ROGIERS' CLAIMS BASED UPON THE TRUSTEE'S ACCOUNTING (appellant's points III and XI).

D. WHETHER ROGIERS' EXPENSE CLAIM IS BARRED IN PART BY THE STATUTE OF LIMITATIONS (appellant's point V).

E. WHETHER THE COURT ERRED IN FAILING TO HONOR THE TRUSTEE'S DISCRETIONARY DECISION NOT TO PAY ROGIERS' CLAIMS (appellant's point VI).

F. WHETHER THE COURT ERRED IN PERMITTING THE REIMBURSEMENT OF HOSPITAL EXPENSES INCURRED AFTER ROGIERS VIOLATED A COURT ORDER (appellant's point VII).

G. WHETHER THE COURT ERRED IN REIMBURSING ROGIERS FOR NURSING SERVICES AND HOUSING COSTS (appellant's point VIII).

We shall address each issue in the order noted above.

A.

Martinez contends that D-4, a summary or compilation of Rogiers unpaid expenses, was improperly admitted into evidence because it was based on business records generated by several commercial entities, none of which appeared at trial to authenticate the records. However, Rogiers testified that D-4 was predicated upon receipts she had received when she paid various expenses on Jennfier's behalf and thus she had personal knowledge of the expenses. Rogiers' counsel advised that D-4 was not, in any event, being offered under the business record exception to the hearsay rule, N.J.R.E. 803 (c)(6), but rather as a summary of voluminous writings under N.J.R.E. 1006.

The trial judge agreed that D-4 was admissible under N.J.R.E. 1006, explaining it was "being offered instead of having each of those receipts marked into evidence and submitted here." The judge also noted that Martinez's counsel had the opportunity to review the actual receipts upon which D-4 was, in part, based.

The decision to admit or exclude evidence is left to the discretion of the trial court. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). An appellate court will reverse a trial court's evidence ruling only where there has been an abuse of that discretion. Estate of Hanges, supra, 202 N.J. at 384; Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).

Pursuant to N.J.R.E. 1006

[t]he contents of voluminous writings . . . which cannot conveniently be examined in court may be presented by a qualified witness in the form of a chart, summary, or calculations. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.

This exception to the best evidence rule is based upon "practical necessity." Assoc. Metals & Minerals Corp. v. Dixon Chem. & Research, Inc., 82 N.J. Super. 281, 310 (App. Div. 1963), certif. denied, 42 N.J. 501 (1964). A witness qualified to testify regarding the summary is one who has reviewed all of the underlying documents and can state summarily the net result. Id. at 309.

We perceive no abuse of discretion here. Further, Martinez's reliance upon Hackensack Hospital v. Tiajoloff, 85 N.J. Super. 417 (App. Div. 1964), certif. denied, 44 N.J. 396 (1965), for the proposition that Rogiers had to produce independent evidence that the expenses were reasonable, is misplaced. Rogiers was seeking payment for expenses she actually paid on behalf of Jennifer, and was not seeking payment for services rendered as a general service provider. The remainder of Martinez's challenges to D-4 are meritless and require no discussion in a written opinion. R. 2:11-3(e)(2)(E).

B.

At the conclusion of trial, Martinez's counsel sought to admit into evidence a report from Diahn McGrath, a New York attorney who was Jennifer's guardian ad litem. The report contained a statement from an Ezra Cohen that "I have been paying for everything" on behalf of Jennifer. Martinez now claims the court erred in not admitting the report. We disagree.

We discern no basis for admission of the report or for the "included hearsay" ascribable to Cohen. See N.J.R.E. 805 (included hearsay in a writing must itself meet the requirements of N.J.R.E. 802). Also, Rogiers was cross-examined about the alleged statement. We find no abuse of discretion by the trial judge in refusing to admit the report into evidence.

C.

Martinez argues that Rogiers' claims for payment of unreimbursed expenses is barred by her failure to object to a 2004 accounting by the Bank of New York. In support of this argument, Martinez relies on N.J.S.A. 3B:17-8, which states, in pertinent part, that "a judgment allowing an account . . . shall be res judicata as to all exceptions . . . ." While we question the applicability of this statute to the case before us, we note that the record is devoid of any evidence that a "judgment" was entered by the New York Surrogate's Court approving the 2004 accounting. Further, the New York accounting did not address the claims now before us, in any event. We therefore conclude that N.J.S.A. 3B:17-8 did not bar Rogiers' claims.

D.

Martinez contends the trial judge erred in permitting Rogiers to obtain reimbursement of expenses incurred prior to April 5, 2000. In making this argument, Martinez relies upon N.J.S.A. 2A:14-1 which establishes a six-year limitations period for a "contractual claim . . . or upon an account . . . . " Martinez calculates the limitation period based upon Rogiers' April 5, 2006 filing of a cross-motion in opposition to Martinez's claims against the estate.

In making this claim, however, Martinez fails to take into account N.J.S.A. 2A:14-23, which tolls the statute of limitations for six months upon the death of the person against whom the claim has arisen. Jennifer died on September 2, 2005. Further, the statute of limitations does not bar claims which are "equitable in nature", such as those before us. Zuhlcke v. Zuhlcke, 136 N.J. Super. 266, 269 (Ch. Div. 1975).

Consequently, the trial judge did not err in allowing the few claims which pre-dated April 5, 2000.

E.

Martinez argues that the trial judge erred in allowing Rogiers' claims which arose after July 2002 because the Bank of New York stopped paying Rogiers after that date, and its decision constituted a discretionary act by a trustee which cannot be reversed absent a finding of abuse. Mears v. Addonizio, 336 N.J. Super. 474 (App. Div. 2001). We disagree.

The Bank of New York offered no explanation why it stopped paying Rogiers. The trial judge found, on the record before him, that the Bank of New York simply abdicated its responsibility as trustee to provide for Jennifer, and improperly left Rogiers, and consequently Jennifer, in a precarious financial position. Judicial intervention is permitted when the exercise of power is left to the judgment of a trustee who arbitrarily and improperly fails to exercise that judgment. Restatement (Third) of Trusts § 50 comment b (2003). Consequently, we reject this argument.

F.

Martinez asserts that the trial judge erred in allowing payment for hospital bills after Rogiers took Jennifer to Ecuador. He claims that Rogiers incurred the expenses in "violation" of a court order and failed to demonstrate the reasonableness of the bills. We are satisfied that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)(E).

G.

Next, Martinez contends that "paying a parent for parenting" is improper and that the trial judge erred in allowing Rogiers compensation for her services on behalf of Jennifer. We reject this argument. It was undisputed that Jennifer required nursing care twenty-four hours a day and that Rogiers performed that task with fidelity and devotion. In undertaking such a task, Rogiers was not "merely parenting Jennifer," but she was performing a duty for which people are normally compensated. Under the circumstances, the trial judge did not err by concluding that Rogiers was entitled to compensation.

Further, we have determined that the remaining arguments raised by Martinez, not specifically addressed herein, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)(E).

IV.

On her cross-appeal, Rogiers asserts that the trial judge erred in declining to award her $109,851.99 in prejudgment interest. We disagree.

On August 6, 2010, Rogiers moved for prejudgment interest, arguing that she had wrongfully been denied the monies comprising her award since 2005. The trial judge found that prejudgment interest was not warranted because "[i]n large part the delay between the time that these expenses were incurred or the services provided [and Rogiers' eventual award] was due to the time that was expended on the appeal." He also noted that one trial date had to be adjourned due to the court's unavailability.

Moreover, Martinez did not have use of the trust monies that the bank improperly denied to Rogiers and Jennifer. While the bank did have use of the monies to which Rogiers was entitled, it did not use those monies for its own purposes, but invested those monies for Jennifer's benefit, as reflected in accountings to which Rogiers did not object. Thus, the $1,100,000 that remained in the trust at the time of Jennifer's death and available to her creditors and heirs had to have included income and interest generated at least in part from the funds that should have been paid to Rogiers years earlier.

"[T]he award of prejudgment interest on contract and equitable claims is based on equitable principles" and is left to the sound discretion of the trial court. County of Essex v. First Union Nat'l Bank, 186 N.J. 46, 61 (2006). Such an award is not meant to be punitive, but is simply a payment for the use of money. Sulcov v. 2100 Linwood Owners, Inc., 303 N.J. Super. 13, 39 (App. Div. 1997).

The primary consideration in awarding prejudgment interest is that the defendant has had the use, and the plaintiff has not, of the amount in question; and the interest factor simply covers the value of the sum awarded for the prejudgment period during which the defendant had the benefit of monies to which the plaintiff is found to have been earlier entitled. [Litton Indus. v. IMO Indus., 200 N.J. 372, 390 (2009) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 506 (1974).]

We are satisfied that the trial judge did not abuse his discretion by denying Rogiers' claim for prejudgment interest.

Affirmed on both the appeal and the cross-appeal.

20120821

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