Allen v. Estate of Allen
| Decision Date | 07 January 2019 |
| Docket Number | DOCKET NO. A-2605-17T1 |
| Parties | JENNIFER K. ALLEN, Administratrix of the Estate of NORMA ALLEN, deceased, Plaintiff-Respondent, v. ESTATE OF DONALD L. ALLEN, and KAREN DILLARD ALLEN, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-000060-16.
James M. Nardelli argued the cause for appellants (Parsons & Nardelli, attorneys; James M. Nardelli, on the briefs).
John L. Bonello argued the cause for respondent (Manna & Bonello, PA, attorneys; Jeff Thakker, of counsel; John L. Bonello, on the brief).
Defendants appeal from orders of the Chancery Division which granted plaintiff's motion for summary judgment and denied defendants' cross-motion for summary judgment. The Chancery Division judge determined that the Estate of Norma Allen has sole legal and equitable title to certain real property on Riverview Avenue in the Borough of Little Silver. We affirm.
This appeal arises from the following facts. In 1961, Norma Allen and Donald L. Allen were married. Three children were born of the marriage - David, Drew, and Jennifer. On July 18, 1972, Norma and Donald executed a divorce agreement, which provided that Norma would have custody of the children, and Donald would pay $100 "per month, per child, for the support and maintenance of [the] children." The agreement further provided that Donald would pay Norma $200 per month in alimony, and the marital debts owed as of the date of the agreement.
In addition, the agreement provided that Donald would "immediately sell the present home . . . and from the equity therefrom make the down payment on the new home for [Norma] and children as hereinbefore stipulated." The agreement further provided that all of the personal property in the marital home, except Donald's "personal effects," shall be the "permanent property" of Norma and the minor children.
On September 6, 1972, the Superior Court of the State of Georgia issued the final judgment of divorce, which incorporated Donald and Norma's agreement. Five days later, on September 11, 1972, Elliot Enterprises, Inc.transferred title to the property in Little Silver to Donald and Norma, who were identified in the deed as "husband and wife." The purchase price of the Little Silver property was $36,000. Karen Dillard Allen, who eventually became Donald's third wife, asserted that Donald made the down payment, which she claimed was $7200.
On September 11, 1972, Donald and Norma granted a mortgage to Monmouth Savings and Loan Association to secure repayment of a loan for $28,800. The mortgage identified Donald and Norma as "husband and wife." Norma made the payments on the loan, which was fully paid on September 2, 1997.
It is undisputed that Norma lived in the house in Little Silver until her death. She paid the property taxes, homeowner's insurance, and general property maintenance. She did not remarry. There is no evidence that Donald ever entered the home; however, he did pay for the installation of a fence on the property, ostensibly for the well-being of the children, or other children for whom Norma provided daycare. Drew was Donald's business partner from 1993 to 1998. He stated that Donald had suggested that he considered the Little Silver home to be Norma's property.
Donald remarried and after living for a time in Georgia, moved with his second wife to Rumson, New Jersey. Donald's second wife died, and he married Karen. In either 1998 or 1999, Donald and Karen relocated to Florida. Karen claimed Donald told her about his interest in the Little Silver property. According to Karen, Donald said he had a one-half interest in the property, which he would receive when "Norma sold the property, remarried, moved, or died." Donald told Karen his "half" interest in the property would be hers someday, if he died before Norma.
On November 14, 2001, Donald executed a last will and testament. He bequeathed his entire estate to Karen, and named her as the estate's personal representative. Donald died on November 22, 2001. After Donald's funeral, Drew claims he asked Karen whether she was interested in the Little Silver property. According to Drew, Karen said she had no interest in the property. Karen denied every making that statement.
Thereafter, Karen had Donald's will admitted to probate in the State of Florida. The will does not mention the Little Silver property. Karen claims that after Donald's death, she contacted an attorney to determine if she had an interest in the property. She claims the attorney told her she could not do anything regarding the property until Norma remarried, sold the property, or died.
In 2014, Drew learned that Norma had not been paying property taxes and was in danger of losing her home. At some point during 2014, Norma signed an agreement to sell the property to a company for $80,000. Drew stated that an attorney contacted the company and advised that Norma was an elderly person and she did not understand the agreement. Drew states the company was never heard of again. In December 2014, Drew paid the back taxes on the property.
On April 15, 2016, Norma filed a complaint in the Chancery Division against Donald's Estate and Karen, seeking a judgment declaring that she has sole legal and equitable title to the Little Silver property. Norma advanced several alternative theories for her claim. Among other things, she alleged that she and Donald intended that she alone would have title to the property, and that Donald held his interest under the deed in constructive trust for her.
Norma died on March 17, 2017, and the trial court thereafter entered an order substituting Jennifer, the Administratrix of Norma's Estate, as plaintiff in this action. Defendants eventually filed an answer and counterclaim, alleging that Donald's Estate is entitled to one-half of the equity in the property.
In November 2017, the parties filed cross-motions for summary judgment. In January 2018, the Chancery Division judge heard oral arguments on the motions, and placed her decision on the record. The judge found that the legaltitle reflected in the deed dated September 11, 1972, was inconsistent with Donald and Norma's understanding, as evidenced by their divorce agreement. The judge noted that Norma had lived in the house in Little Silver throughout her life. She paid the mortgage loan in full, as well as the property taxes and other expenses.
The judge also noted that after Donald died, Norma continued to act in conformity with the agreement, and until this litigation, neither Donald nor his Estate asserted a formal claim for the property. The judge found that, under the circumstances, the appropriate remedy is a constructive trust, with Donald deemed to have held his interest in the property in trust for Norma. The judge therefore found that Norma's Estate has sole legal and equitable title to the property.
Accordingly, the judge entered orders granting plaintiff's motion for summary judgment, and denying defendants' cross-motion for summary judgment. This appeal followed.
On appeal, defendants first argue that the trial court erred by granting summary judgment to Norma's Estate because discovery was not complete. Defendants assert they served a subpoena duces tecum upon the companybelieved to have negotiated with Norma in 2014 for the sale of the property. They also assert they did not have an opportunity to depose Jennifer, Drew, or Drew's wife.
Ordinarily, summary judgment should not be granted if discovery is incomplete. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (citing Martin v. Educ. Testing Serv., Inc., 179 N.J. Super. 317, 326 (Ch. Div. 1981), overruled on other grounds by Brady v. Dep't of Pers., 149 N.J. 244, 261-62 (1997)). The non-moving party must, however, show that additional discovery will elicit critical facts that will affect the outcome of the matter. See Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citing Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)); Tisby v. Camden Cty. Corr. Facility, 448 N.J. Super. 241, 247 (App. Div.) (citing Badiali, 220 N.J. at 544), certif. denied, 230 N.J. 376 (2017).
In this case, the trial court was required to determine whether Norma's Estate has sole legal and equitable title to the property. The facts material to that determination are essentially undisputed. Those facts consist of the terms of Norma and Donald's divorce agreement, the judgment of divorce entered by the Georgia court, the...
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