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In re Estate of Adornetto

Superior Court of New Jersey, Appellate Division

November 13, 2013

IN THE MATTER OF THE ESTATE OF JOSEPHINE ADORNETTO (DECEASED).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 29, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 216833.

Thomas F. Adornetto, appellant, argued the cause pro se.

Antonio Inacio argued the cause for respondent Lucy Gallo.

David B. Rubin argued the cause for respondent Carmela Dietze.

Before Judges Reisner and Carroll.

PER CURIAM

This matter arises out of a protracted probate dispute between siblings over their late mother's estate. Plaintiff, Thomas Adornetto, appeals from the December 13, 2012 order of the Chancery Division, Probate Part, confirming an arbitrator's award, after the parties agreed to a settlement which dismissed the probate litigation and submitted their remaining disputes to binding arbitration. We affirm.

We briefly summarize the relevant facts and procedural history. Decedent, Josephine Adornetto, passed away on April 6, 2007. She was survived by five children, plaintiff Thomas Adornetto, Charles Adornetto, Joseph Adornetto, and defendants Lucy Gallo and Carmela Dietze. One child, Sam Adornetto, predeceased decedent. In January 2008, plaintiff filed a verified complaint, seeking to invalidate decedent's purported will and pre-death transfers of assets, and related relief. Following the exchange of written discovery, depositions, and significant motion practice, on October 5, 2010, the parties entered into a handwritten settlement agreement. The settlement was then memorialized in a November 4, 2010 Consent Order, which provided, in relevant part, that (1) decedent would be deemed to have died intestate; (2) plaintiff and Gallo would be appointed to serve as co-administrators of decedent's estate; (3) decedent's residence would be sold, and the proceeds distributed in accordance with certain agreed-upon percentages; (4) all claims with respect to various United States Treasury bonds were preserved; (5) the court retained jurisdiction to resolve any disputes concerning the terms of sale of decedent's residence, and reimbursement of the parties' attorney's fees; (6) any other disputes were to be submitted to binding arbitration before a retired Middlesex County judge; and (7) the verified complaint and all counterclaims were dismissed with prejudice.

Following the sale of decedent's residence, application was made to Judge Frank M. Ciuffani for an award of counsel fees. On January 20, 2012, the judge ordered the payment of fees, in varying amounts, to the attorneys for the respective parties. While plaintiff now asserts that this award resulted in a $1770 overpayment to one of the attorneys, we note that no appeal was taken from this order.

In February 2012, plaintiff moved to modify certain provisions of the Consent Order, citing a number of unresolved issues. Defendants cross-moved to enforce the settlement and Consent Order. On May 8, 2012, Judge Ciuffani denied both applications, finding no basis to invalidate the settlement agreement, and ordered that the parties submit all current and future disputes to the arbitrator, consistent with the Consent Order. Again no appeal was taken, despite the fact that the May 8, 2012 order was appealable as of right. R. 2:2-3(a)(3). Thus, because plaintiff thereafter fully participated in the arbitration process, we do not address any contention by plaintiff that the court abused its discretion in ordering that all issues raised in his motion be submitted to arbitration. See GMAC v. Pitella, 205 N.J. 572, 586 (2011) ("[A] timely appeal on the issue must be taken then or not at all. A party cannot await the results of the arbitration and gamble on the results.")

The arbitration hearing took place before a retired judge on July 30, 2012. On September 5, 2012, the arbitrator issued a final award, embodied in a comprehensive twelve-page written decision. The arbitrator's decision listed the eight issues that were submitted to him, as well as his detailed resolution of each issue. The arbitrator also specifically referenced the parties' arbitration statements, including exhibits and deposition transcripts, the sworn testimony of the five witnesses who testified at the arbitration hearing, and the parties' written summations, all of which he considered in arriving at his arbitration award.

Gallo then moved to confirm the arbitration award, partially joined in by Dietze. Plaintiff opposed the motion, and cross-moved to vacate it. Judge Ciuffani heard argument on the motions on November 30, 2012, and on December 13, 2012, entered judgment on the arbitration award. In his ...


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