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In the Matter of Jennifer Rogiers

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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