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In re Zwerdling

Superior Court of New Jersey, Appellate Division

August 30, 2013


Submitted August 27, 2013


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Passaic County, Docket No. P-197937.

Jeffrey Samel & Partners, attorneys for appellant Blanche Zwerdling (Gary R. Matano, on the brief).

Fiorello, Puccio & Fiorello, LLC, attorneys for respondent Linda Couso Puccio, Court-appointed counsel for Blanche Zwerdling (Linda Couso Puccio, on the brief).

Hunziker, Jones & Sweeney, P.A., attorneys for respondent Susan E. Champion, former Co-Guardian of Blanche Zwerdling (Christopher E. Miller, on the brief.

Masessa & Cluff, attorneys for respondent Tania M. Nemeth, Guardian Ad Litem for Blanche Zwerdling (Tania M. Nemeth, on the brief).

Before Judges Harris and Fasciale.


These back-to-back appeals stem from a long-running probate dispute arising in the Passaic vicinage. We consolidate the appeals for purposes of this opinion and affirm both matters.


On November 5, 2009, a judgment adjudicating the incapacity of nonagenarian Blanche Zwerdling was entered, which called for the appointment of Susan E. Champion, Esq. and Sandra Scala (Zwerdling's niece) to be "limited co-guardians of the person and property of Blanche Zwerdling." Among its several provisions, the judgment declared, "the limited co-guardians shall handle and manage Blanche Zwerdling's legal matters and the execution of legal documents; the limited co-guardians shall consult with Blanche Zwerdling on all legal matters, but the decision of the limited co-guardians shall prevail."

On March 16, 2010, the court entered an "Order Directing Co-Guardians, " which declared that in light of the prior judgment of incapacitation, Zwerdling "does not have the capacity to retain" an attorney to represent her. However, the order further provided that "[e]ither Co-Guardian has the option to retain . . . any . . . counsel of choice" on behalf of Zwerdling.

On February 28, 2011, Scala and Zwerdling entered into a letter agreement with the law office of Jeffrey Samel & Partners, [1] which served as a fee arrangement (at $175 per hour) for legal representation "to fully protect Blanche Zwerdling's rights, protect her income and to preserve her assets." The agreement provided that it be subject to the approval of the judge managing the probate matter.[2]

In short order, Zwerdling's newly retained attorney filed applications with the court seeking the for-cause removal of Champion as a co-guardian. Champion herself formally sought to be relieved as co-guardian, but subsequently withdrew her application. Against this backdrop were several similar applications by other family members seeking analogous relief.

After conducting several hearings, the probate judge issued a comprehensive seventeen-page opinion outlining a detailed account of Zwerdling and her family's drama, and the litigation "maelstrom" surrounding her condition. Ultimately, the judge "determined to accept Susan Champion's resignation as limited co-guardian." The judge noted, "[t]his court is in essence granting the original motion that was filed by Ms. Champion to be permitted to resign and discharge her obligations to Blanche Zwerdling." In Champion's place, the judge appointed the Office of the Public Guardian for Elderly Adults (the Public Guardian). N.J.S.A. 3B:12-25.[3]

The judge invited applications for fees that any of the parties chose to file. She specifically noted that "some consideration" needed to be given to "the issue of whether or not Mr. Matano is entitled to payment of his fees from Mrs. Zwerdling's assets or from some other source." A "Final Judgment" memorializing the findings of the judge was entered on July 29, 2011.

In response to the judge's invitation for fee applications, Matano submitted a series of affidavits outlining his claimed entitlement to the award of legal fees. By February 2012, the total claim had grown to $41, 035.67. Other attorneys submitted fee applications, and on March 20, 2012, the judge ruled on all of the matters. Of relevance to this case, she determined not to award Matano a fee, and "Gary Matano's fees shall not be paid from Mrs. Zwerdling's assets or Estate." The appeal in A-3795-11, filed on April 20, 2012, followed.

Prior to the appeal being filed, however, several of the attorneys in the case informally communicated with the judge requesting clarification and modification of provisions of the March 20, 2012 order. Appellant's attorney wrote to object "to any revision of the Court's ruling as to the responsibility for the legal fees awarded in this case." Additionally, on April 30, 2012, appellant filed a motion seeking the "disqualification and recusal" of the judge "on the basis of bias, favoritism, impropriety, systematic denial of Blanche Zwerdling's rights and appearance of impropriety."

Appellant alleged that the judge's "bias and prejudice is exhibited by the systematic refusal to enforce support payments." Furthermore, appellant listed her grievances as including, among other things, the "undercut[ting]" of the decision to retain Matano, the denial of attorneys' fees to Matano, and the "intimidation of Ms. Scala in an effort to prevent her from contesting the Court's appointment of the Public Guardian."

On July 25, 2012, the judge issued an order denying appellant's motion for disqualification and recusal. The order addressed several other issues, including counsel fees, and in so doing, modified the March 20, 2012 order to reflect an award of $4620 to Matano for "various legal work he performed for the benefit of Blanche Zwerdling concerning housing violations, tax appeals, landlord tenant matters and other real estate matters." A subsequent motion for reconsideration was denied on August 3, 2012. The appeal in A-6315-11 followed.


We address the latter appeal first. The disposition of a recusal motion is entrusted to the "'sound discretion' of the judge whose recusal is sought." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-2 (2013) (citing Chandok v. Chandok, 406 N.J.Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J.Super. 57, 63 (App. Div. 1990). The denial of a motion seeking recusal is reviewed under an abuse of discretion standard. See Panitch v. Panitch, 339 N.J.Super. 63, 71 (App. Div. 2001).

Based upon our review of the record as a whole, we find no basis to conclude that the probate judge was biased or prejudiced in any fashion. We are likewise not convinced by appellant's argument that the judge should have recused herself. The judge handled this tempestuous matter in an evenhanded manner, and the fact that she ruled against appellant and Matano is not evidence of bias. See State v. Marshall, 148 N.J. 89, 186-87, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997). We find no abuse of discretion in the decision to deny the recusal motion. See Jadlowski v. Owens-Corning Fiberglass Corp., 283 N.J.Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Appellant's arguments on this point do not warrant further discussion. R. 2:11-3(e)(1)(E).[4]

Turning to the appeal of the February 22 and March 20, 2012 orders that refused to remove the Public Guardian and initially denied Matano all counsel fees, we conclude that they fare no better. Our scope of review of both orders requires that we determine whether the probate judge engaged in mistaken exercises of discretion. All of the parties' briefs agree that decisions to remove a fiduciary are discretionary. See In re Trust for the Benefit of Duke, 305 N.J.Super. 408, 438 (Ch. Div. 1995) (the decision to remove a fiduciary is left in the sound discretion of the court, and it will not be disturbed by an appellate court in the absence of manifest abuse) (citing Wolosoff v. CSI Liquidating Trust, 205 N.J.Super. 349, 360 (App. Div. 1985), aff'd o.b., 305 N.J.Super. 407 (App. Div.), certif. denied, 151 N.J. 73 (1997). In like vein, whether to award counsel fees is likewise discretionary. See Heyert v. Taddese, ___ N.J.Super. ___, ___ (App. Div. 2013) (slip op. at 63) (attorneys' fee determinations by trial courts will be accorded substantial deference and disturbed only on the rarest of occasions and then only because of a clear abuse of discretion) (citing Packard-Bamberg & Co. v. Collier, 167 N.J. 427, 444 (2001)). From our review of the record, we are unable to agree that the probate judge erred.

An abuse of discretion may be demonstrated "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J.Super. 181, 193 (App. Div. 2005). Here, in considering whether to remove the Public Guardian, the probate judge had the benefit of familiarity with the unsavory history of the parties' long-standing dispute, having just permitted one of the co-guardians to resign. Given that the transition from the individual co-guardian to an institutional co-guardian was just completing, and there being little evidence of tangible harm to Zwerdling (at least when compared to her unwholesome living conditions at the inception of the litigation) retaining the Public Guardian was if not prudent at least well-within the reservoir of authority of the judge We cannot say based upon this record that the judge neglected her parens patriae obligations in any fashion There is no basis to disturb the February 22 2012 order

The March 20 2012 order denying all counsel fees must be tempered by the judge's later order granting $4620 At first the judge denied all relief based upon her view that Matano's litigational posture did nothing to benefit Blanche Zwerdling Later the judge expanded her view and recognized that there were limited actions by Matano largely related to real estate matters that warranted the award of fees We fully subscribe to the probate judge's perspective as it is supported by the record and we see no need to adjust the March 20 2012 order


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