IN THE MATTER OF THE ESTATE OF JAMES E. MELLODGE(047164, HUNTERDON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4161-15T3

IN THE MATTER OF THE ESTATE
OF JAMES E. MELLODGE, DECEASED.

_________________________________________________

Argued September 19, 2017 – Decided September 26, 2017

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New
Jersey, Chancery Division, Probate Part,
Hunterdon County, Docket No. 047164.

Ronald P. Colicchio argued the cause for
appellants Joyce Sealtiel and Saul Ewing, LLP
(Saul Ewing, LLP, attorneys; Russell J.
Fishkind and Mr. Colicchio, on the brief).

Paul W. Norris argued the cause for respondent
Joan Bozan (Stark & Stark, attorneys; Mr.
Norris, on the brief).

PER CURIAM

James E. Mellodge died in 2013. He disposed of his property

by way of a last will and testament and through the creation of

certain bank accounts payable on death (POD accounts). His youngest

surviving child, Joyce Sealtiel, qualified as executrix of the
estate; she was also a beneficiary of a few POD accounts.1 The

last will and testament made specific monetary requests to one

daughter and one son, while the other four children, including

Joyce, were bequeathed equal shares of the residuary estate.

In an earlier probate action involving this estate, Joan

Bozan,2 the decedent's oldest daughter, asserted that undue

influence was the cause of decedent's designation of Joyce, the

youngest daughter, as a beneficiary of POD accounts totaling

approximately $139,000. Joan's complaint also alleged that Joyce

had failed to account for $800,000 in assets – a claim soon

abandoned. After a two-day trial, the judge rejected Joan's claim

that any POD account was the product of undue influence.

Joyce then filed a verified complaint. As is the practice,

R. 4:87-1(a), the surrogate entered an order requiring, on the

return date, that any interested parties show cause why Joyce's

final accounting should not be approved and why the estate should

not bear certain fees incurred in the prior undue-influence suit.

On the return date, the judge heard Joyce's testimony as well as

the testimony of the estate's prior attorney. Requiring further

1
Decedent's other children were beneficiaries of other POD
accounts.
2
Two other siblings – James Mellodge and Judy Newman – were also
plaintiffs but withdrew from the matter soon after its
commencement.

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amplification, the judge later accepted additional submissions and

documents from the parties before rendering his March 28, 2016

written decision.

In relying on what was provided in response to the order to

show cause, as well as his own familiarity with the proceedings

as a result of presiding over the undue-influence trial, the judge

determined that the counsel-fee requests of Saul Ewing, a law firm

which represented both Joyce and the estate, and Stark & Stark,

which represented Joan, were "breathtakingly excessive" due to

their "scorched-earth" approach; the judge held that if permitted,

a full award of their fees – both firms sought awards of

approximately $200,000 each, and the probate assets totaled

$650,000 – "would swallow more than half of the probate estate."

The judge found that Saul Ewing, in its role as the estate's

litigation counsel, was entitled to a $25,000 fee and, in its role

as Joyce's counsel in defending her right to benefit from the POD

accounts, was entitled to a $40,000 fee. And, because the estate

had already paid Saul Ewing slightly in excess of $200,000, the

judge found Saul Ewing obligated to reimburse the estate; Joyce

was also obligated to return funds to the estate, insofar as Saul

Ewing had been paid from the estate for fees due to Saul Ewing

from her individually. The April 21, 2016 judgment disposed of all

other issues concerning the accounting and the fees sought.

3 A-4161-15T3
 Joyce and Saul Ewing appeal, arguing:

I. THE COURT ABUSED ITS DISCRETION IN HOLDING
A FORMAL TRIAL ON THE RETURN DATE OF THE ORDER
TO SHOW CAUSE WITHOUT PROVIDING PROPER NOTICE
TO THE PARTIES.

II. THE COURT ABUSED ITS DISCRETION IN
LIMITING THE AWARD OF COUNSEL FEES INCURRED
BY THE ESTATE IN THE UNDERLYING LITIGATION AND
ACCOUNTING ACTION TO $25,000.

III. THE COURT ABUSED ITS DISCRETION IN
SEEKING TO BIND THE EXECUTRIX TO REIMBURSE THE
ESTATE FOR ANY ADDITIONAL FEES PROPERLY
AWARDED TO SAUL EWING AFTER APPEAL.

IV. THE COURT ABUSED ITS DISCRETION IN
GRANTING EXCEPTIONS TO THE EXECUTRIX'S ACCOUNT
FOR WORK SHE ACTUALLY PERFORMED ON BEHALF OF
THE ESTATE.

We find insufficient merit in Points I, II and IV to warrant

further discussion in a written opinion, R. 2:11-3(e)(1)(E), and

we affirm the disposition of the counsel-fee requests

substantially for the reasons set forth by Judge William M.

D'Annunzio in his thorough and well-reasoned written decision. The

judge was imbued with considerable discretion in ascertaining the

appropriate fee awards. The written decision reveals that the

judge thoroughly assessed the nature of the claims and the parties'

"scorched-earth" efforts in seeking vindication of their

positions; the experienced judge then employed his considerable

discretion in fixing a reasonable fee in these circumstances. We

agree with the judge that this case presented no particular

4 A-4161-15T3
difficulties other than those generated by an "antagonism" between

Joan and Joyce that ventured well "beyond sibling rivalry." Joyce

and Saul Ewing have presented no principled reason for either

second-guessing the experienced trial judge's view of the matter

or his determination of what constituted a reasonable fee in such

a case.

We add only a few brief comments about Point I. Joyce and

Saul Ewing argue they were deprived of due process because the

judge elicited testimony on the return date despite a contrary

direction contained in the order to show cause. That is, the order

to show cause stated that testimony would not be taken on the

return date unless the parties were otherwise advised three days

before the return date. Because they were not so notified, Joyce

and Saul Ewing claim surprise and prejudice in what occurred on

the return date. We reject this because Joyce and Saul Ewing were

not prejudiced. Even now they have not shown how their causes were

hampered or limited because of the manner in which the case

proceeded. Indeed, the issues on appeal concern counsel fees, and

the judge did not permit testimony in that regard – let alone on

the return date – deciding instead to consider the fee dispute by

examining the certifications that had been submitted and his

familiarity and understanding of the case – a sound approach.

Moreover, the record was not closed on the return date, and the

5 A-4161-15T3
parties were given the opportunity to provide additional

submissions prior to the judge's disposition of the pending issues.

Finally, we have no reason to reach Point III because it

contains Joyce and Saul Ewing's argument about a portion of the

judgment – a direction that if Saul Ewing, "as the result of an

appeal, is not required to fully reimburse the estate, . . . then

Joyce . . . is surcharged in the amount due to the estate" – which

has not been triggered here.

Affirmed.

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