IN THE MATTER OF THE ESTATE OF ANNA FABICS(247609, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5576-14T2

IN THE MATTER OF THE
ESTATE OF ANNA FABICS.
_______________________

Submitted May 10, 2017 – Decided July 19, 2017

Before Judges Simonelli and Gooden Brown.

On appeal from the Superior Court of New
Jersey, Chancery Division, Middlesex County,
Docket No. 247609.

Ellen Heine, appellant pro se.

Shamy & Shamy, LLC, attorneys for respondent
Laszlo Fabics (Joseph J. Catanese, of counsel
and on the brief).

PER CURIAM

In this probate matter, Ellen Heine, as executrix of the

Estate of Joseph Fabics, appeals from several Chancery Division

orders and a final judgment involving the Estate of Anna Fabics

(the Estate). For the following reasons, we affirm all orders and

the final judgment.
 I.

The following facts are pertinent to our review. Anna Fabics,

the mother of Joseph1 and Laszlo Fabics, died testate on January

7, 2015. Anna's last will and testament devised her residuary

estate in equal shares to her sons. The will appointed Laszlo as

executor and directed him

to sell any property of which I die seized or
possessed, or to which at the time of my death,
I may be or thereafter become entitled,
without prior approval of any person or court,
at public or private sale, at such times, upon
such terms, in such manner and for such prices
as he deems to the best interest of my estate,
or to dispose of whatever is not saleable, to
execute and deliver deeds or other instruments
for the transfer and conveyance thereof, and
to transfer and pay over the proceeds in
accordance with the instructions herein
contained.

[(Emphasis added.)]

It appears that Anna's home was the Estate's major asset,

which Joseph wanted to purchase, but Joseph claimed there was

jewelry and other valuable personal property in the home that

Laszlo had stolen or improperly disposed. In March 2015, Joseph

filed a complaint and order to show cause in the Chancery Division,

seeking an order enjoining Laszlo from removing, selling, or

disposing of any Estate property; requiring Laszlo to return all

1
We use first names to identify the family members for ease of
reference. We mean no disrespect in so doing.

2 A-5576-14T2
items taken from the home and identify items of sentimental value;

requiring Laszlo to provide an accounting; and removing Laszlo as

executor and appointing Joseph as executor.

In an April 24, 2015 order, the court ordered Laszlo to cease

removal, disposition and/or sale of all estate property until

completion of a plenary hearing. Thereafter, on May 19, 2015,

Joseph filed a second complaint and order to show cause in the

Chancery Division to set aside probate of the will, alleging the

will was a "stolen" will because the probated copy had the name

"Joseph" written on it, and because the death certificate

misidentified Anna as Anna R. Fabics. Joseph also sought Laszlo's

removal as executor based on his "bad faith performance of the

[w]ill."

In a May 29, 2015 order, Judge Douglas K. Wolfson scheduled

a hearing for June 15, 2015, to determine whether to remove Laszlo

as executor. The order also permitted Joseph to enter Anna's home

to conduct an inventory of Anna's personal property.

Joseph conducted a two-day inventory. Laszlo gave Joseph an

opportunity to purchase the personal property he wanted, the value

of which would be deducted from Joseph's share of the Estate's

proceeds. Laszlo told Joseph to make a valid offer and warned him

that if he did not do so, the property would be sold, donated, or

3 A-5576-14T2
disposed. Joseph listed the items he wanted, but never made a

valid offer.

On the Friday before the start of trial, Joseph filed a motion

on short notice to compel discovery. At the beginning of trial

on Monday, June 15, 2015, Joseph advised Judge Wolfson that the

discovery he needed was a list of all bills of the Estate that

remained unpaid. Judge Wolfson denied the motion, finding it was

untimely filed and the discovery sought was irrelevant to the

issues to be tried.

After a two-day bench trial, on June 19, 2015, Judge Wolfson

entered final judgment dismissing Joseph's two complaints with

prejudice. The judge dismissed Joseph's request for an accounting

without prejudice, as premature, finding Laszlo was not required

to provide an accounting at that time. The judge also discharged

a lis pendens Joseph had filed against Anna's home.

In a written opinion, the judge determined that Joseph failed

to substantiate his allegations of Laszlo's waste of Estate assets,

misconduct, or abuse of discretion. The judge was satisfied that

Laszlo had carried out his duties as executor properly, in good

faith, and within the bounds of his discretion. The judge noted

that while Joseph claimed Laszlo wasted estate assets, Joseph did

not identify specific assets or their purported economic value.

4 A-5576-14T2
 Judge Wolfson found that Joseph's primary motivation in this

litigation was to purchase Anna's home, and Joseph consistently

insisted that Laszlo's refusal to sell it to him violated his

fiduciary duty as executor. The judge determined that Laszlo had

offered to sell the home to Joseph, but Joseph's contingencies

were unacceptable. Laszlo eventually accepted a third-party

contract for a cash sale without contingencies. The judge found

Laszlo had the authority to enter into the contract, his conduct

was entirely consistent with his responsibilities as executor, and

his decision to sell the home to a third-party and not Joseph was

made in good faith.

Judge Wolfson determined there was no authority requiring

Laszlo to update Joseph regarding the estate's assets and

liabilities within any specific timeframe, and Joseph failed to

demonstrate special causes to warrant an accounting prior to the

one-year period set forth in N.J.S.A. 3B:17-2. The judge denied

Joseph's request for an accounting without prejudice to his right

to challenge the final accounting. The judge also found that

Laszlo was not required to consult with Joseph and did not abuse

his authority or violate his fiduciary duty to make unilateral

decisions. Lastly, Judge Wolfson found Joseph presented no

evidence that the probated will was a forgery, was stolen, or how

the misspelling of Anna's name on the death certificate was

5 A-5576-14T2
relevant to Laszlo's position as executor. Joseph filed a motion

for reconsideration of the June 19, 2015 final judgment and for

other relief.

In an attempt to circumvent the final judgment, on June 25,

2015, Joseph filed a petition for discovery in the Law Division

requesting, in part, access to financial information regarding the

Estate's assets and liabilities. The next day, he filed a second

lis pendens against Anna's home. He also served a subpoena duces

tecum on Laszlo.

In a July 24, 2015 order, Judge Wolfson denied Joseph's motion

for reconsideration and barred him from filing any other actions

in the Chancery Division without prior leave of court. In a

separate July 24, 2015 order, the judge dismissed the petition for

discovery with prejudice; discharged a second lis pendens; quashed

a subpoena duces tecum; ordered Joseph to pay $3500 for Laszlo's

counsel fees; and barred Joseph from filing any other action in

the Law Division.

On August 10, 2015, Joseph filed a notice of appeal from the

May 29, 2015 and July 24, 2015 orders and the June 19, 2015 final

judgment. That same day, he filed a third lis pendens against

Anna's home, which Laszlo moved to discharge. In a December 18,

2015 order, Judge Wolfson discharged the third lis pendens;

enjoined Joseph from filing any additional lis pendens without

6 A-5576-14T2
leave of court; and ordered him to pay $1750 for Laszlo's counsel

fees for the motion.

Joseph died on December 16, 2015, and Heine was appointed

executrix of his estate. Heine moved to substitute Joseph's estate

as the proper party in this matter, and amended the notice of

appeal to include the December 18, 2015 order. Since then, Anna's

home was sold by agreement of the parties. Accordingly, any claim

Joseph or his estate had to the home is moot.

II.

Heine first argues that Judge Wolfson abused his discretion

by determining that Joseph must accept a cash distribution from

the Estate rather than an in kind distribution. However, she does

not point to any specific personal property that Joseph should

have received in kind. Nevertheless, her argument lacks merit.

"Remedies available to courts of equity 'are broad and

adaptable.'" In re Estate of Hope, 390 N.J. Super. 533, 541 (App.

Div.) (quoting In re Mossavi, 334 N.J. Super. 112, 121 (Ch. Div.

2000)), certif. denied, 191 N.J. 316 (2007). "While equitable

discretion is not governed by fixed principles and definite rules,

'[i]mplicit [in the exercise of equitable discretion] is

conscientious judgment directed by law and reason and looking to

a just result.'" Ibid. (quoting State v. Madan, 366 N.J. Super.

98, 109-10 (App. Div. 2004)).

7 A-5576-14T2
 "A trial court's rulings on discretionary decisions are

entitled to deference and will not be reversed on appeal absent a

showing of an abuse of discretion involving a clear error in

judgment." Ibid. (citations omitted). "[A]n abuse of discretion

only arises on demonstration of 'manifest error or injustice[,]'"

Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,

183 N.J. 554, 572 (2005)), and occurs when the trial judge's

"decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.

2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002)). We discern no abuse of discretion here.

In disputes over the distribution of the assets of an estate,

"[w]e first look to the language of the will to determine if the

testator expressed an intent as to how the property should be

distributed." In re Estate of Hope, supra, 390 N.J. Super. at 539

(citation omitted). Here, Anna's will directed Laszlo "to sell

any property" and "pay over the proceeds" to the beneficiaries.

Anna clearly expressed her intent that all of her property should

be sold and the proceeds distributed in cash, not in kind. Because

Anna's will did not authorize in kind distributions, Judge Wolfson

correctly determined that Joseph must accept a cash distribution

from the Estate.

8 A-5576-14T2
 In any event, in kind distributions are only permitted where:

The person entitled to the payment has not
demanded payment in cash;

The property distributed in kind is valued at
fair market value as of the date of its
distribution; and

No residuary devisee has requested that the
asset in question remain a part of the residue
of the estate.

[N.J.S.A. 3B:23-1(b).]

Laszlo demanded payment in cash, and Joseph never made a valid

fair market offer. Accordingly, an in kind distribution could not

be made here.

III.

Heine next argues that Judge Wolfson erred in denying Joseph's

motion on short notice to compel discovery. We disagree.

We generally defer to the trial court's decision regarding

discovery matters absent an abuse of discretion or mistaken

understanding of the applicable law. Pomerantz Paper Corp. v. New

Comty. Corp., 207 N.J. 344, 371 (2011); see also Pressler &

Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2

(2017). There was no abuse of discretion in the denial of Joseph's

motion.

Rule 1:6-3(a) provides as follows:

Other than an ex parte motion and except as
otherwise provided by Rule 4:46-1 (summary

9 A-5576-14T2
 judgment) and Rule 5:5-4(c) (post judgment
motions), a notice of motion shall be filed
and served not later than [sixteen] days
before the specified return date unless
otherwise provided by court order, which may
be applied for ex parte.

Under Rule 1:6-3(a), Joseph's motion was untimely. Although a

party may seek relief from the sixteen-day time requirement, Joseph

did not do so here. He merely filed the tardy motion on the eve

of trial without seeking prior approval and without an explanation

for his delay. See Shulas v. Estabrook, 385 N.J. Super. 91, 94

n. 1 (App. Div. 2006).

Nonetheless, Judge Wolfson correctly found that Joseph's

request for a list of all bills that remained to be paid was

irrelevant to Laszlo's removal as executor. The judge was not

required to compel discovery of irrelevant evidence.

IV.

In her final argument, Heine rehashes the discovery and in

kind distribution issues, and argues that Judge Wolfson erred in

awarding counsel fees.

Judge Wolfson entered a final judgment dismissing Joseph's

two complaints with prejudice and discharging the first lis

pendens. Thereafter, Joseph ignored the judge's rulings and filed

a second and third lis pendens and a petition for discovery that

was based on dismissed claims. Joseph's actions required the

10 A-5576-14T2
Estate to respond and incur counsel fees. Based on Joseph's

improper conduct, Judge Wolfson did not abuse his discretion in

awarding the Estate counsel fees. Packard-Bamberger & Co. v.

Collier, 167 N.J. 427, 443-44 (2001).

Affirmed.

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