NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1380-22
IN THE MATTER OF THE ESTATE OF TYRONE MAY, SR., deceased. _____________________________
Argued October 8, 2024 – Decided January 28, 2025
Before Judges Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. P- 000097-20.
Lawrence Alan Katz argued the cause for appellant/cross-respondent Hazel May (Lento Law Group, attorneys; Lawrence Alan Katz, of counsel and on the brief).
Patricia A. Darden argued the cause for Teresa May respondent/cross-appellant.
PER CURIAM
Hazel May, the mother of decedent Tyrone May, Sr., appeals from a
November 2, 2022 Chancery Division Probate order, awarding counsel fees and sanctions against Hazel1 and her attorneys, the Lento Law Group (Lento Law).
Teresa May, who is Hazel's daughter-in-law, also cross-appeals from the April
29, 2022 order, holding Hazel as the beneficiary of two life insurance policies
and denying Teresa her motion to stay disbursements of the insurance proceeds.
Having considered the record and the applicable governing principles, we affirm
both orders.
I.
We glean from the record that Teresa and Tyrone met in 2004 when he
managed her father's funeral arrangements. They lived together and were
married in 2006. Relevant to this appeal, Tyrone purchased two life insurance
policies naming Teresa as beneficiary: a MONY Incentive Life Legacy variable
life policy (MONY Life Legacy) with a $250,000.00 initial face amount and
valued at $545,181.82 at the time of his death, and an AXA Equitable Term 20
policy (AXA Equitable Term 20), with a $350,000.00 death benefit.2
1 We refer to the parties and family members by their first names for the purposes of clarity because they share a common surname. In doing so, we intend no disrespect. 2 The Life Legacy policy was issued by Mony Life Insurance Company of America and the Term 20 policy was issued by AXA Equitable Life Insurance Company. Both policies were distributed by AXA Advisors, LLC. A-1380-22 2 On February 22, 2011, Tyrone signed an AXA Equitable change of
beneficiary form for both the Life Legacy and Term 20 policies in the presence
of May Funeral Homes insurance adjuster, David S. Pozzi, designating Hazel as
the new beneficiary under the policies. Two days later, Pozzi then faxed that
signed form to the insurance company with the subject referencing only the
AXA Equitable Term 20 policy. In a March 2, 2011 letter to Tyrone, AXA
Equitable certified the change in beneficiary designation to Hazel and that the
proceeds would be paid in a single sum.
In February 2019, Teresa filed for divorce,3 but Tyrone refused to file a
responsive pleading because he wanted to reconcile. Tyrone was a general
partner and oversaw six funeral homes that comprised his parents' business, May
Funeral Homes, at the time of his death in April 2020. The divorce complaint
was subsequently dismissed. He was survived by his parents, Teresa, and three
adult children: Jasmyne, Tyrone, Jr., and Tiffany.
Thereafter, on April 22, 2020, Hazel filed a complaint in the Probate Part,
seeking appointment as the administrator of Tyrone's estate. In response, Teresa
filed a cross-motion also seeking appointment as estate administrator.
3 Docket No. FM-04-1082-19. A-1380-22 3 In July 2020, Lento Law submitted a limited power of attorney , on behalf
of Hazel, to Equitable concerning the death claim for both policies. On July 22,
2020, Hazel and Lento Law endorsed a check for $350,025.60 and six days later
endorsed the Life Legacy benefits check for $545,181.82. On August 14, 2020,
the court granted Hazel's application, appointed her temporary administrator of
Tyrone's estate, and directed to provide an informal accounting of the estate
within forty-five days.
With the assistance of Lento Law, on September 15, 2020, Hazel
deposited $884,270.63 into "TMFT, Inc.," a trust account allegedly established
for her and Tyrone's children's benefit. Hazel was listed as the account holder
with a Wyoming address.
Also, on September 15, Teresa served written discovery demands on
Hazel. Specifically, interrogatory number 37 asked: "What insurance policies
of any kind did Tyrone May, Sr. have? Please list name of company, contact
information, and policy number." Correspondingly, number 38 of the notice to
produce requested: "Copies of any and all policies of insurance on the
Decedent’s life in effect at the time of the Decedent’s death."
A-1380-22 4 As of October 23, 2020, Hazel failed to comply with the court's order and
provided a deficient accounting, and two weeks later Hazel again provided a
second deficient accounting.
Unbeknown to Teresa and the court, the EIN number4 for the estate with
Hazel as executor was issued on November 12, 2020. Thereafter, on November
20, 2020, the court removed Hazel as temporary administrator and appointed
Maisie Chin Smith as temporary administrator for the estate.
In Hazel's December 4, 2020 certified answers to interrogatories, she
stated: "Decedent had health insurance at the time of his death." Decedent did
not have a life insurance policy at the time of his death. In response to the
document request, Hazel stated: "[p]laintiff is not in possession of any
documents responsive to this [r]equest. As with all other responses, [p]laintiff
reserves the right to amend this [r]esponse should she discover documentation
responsive to this [r]equest."
4 An employer identification number (EIN) is a nine-digit number assigned by the Internal Revenue Service for a decedent's estate. Internal Revenue Service, www.irs.gov/businesses/small-businesses-self-employed/information-for- executors (last visited Jan. 17, 2025).
A-1380-22 5 Those discovery responses initiated protracted and contentious discovery
hearings regarding Tyrone's estate assets and death benefits that spanned two
years. From November 2020 through April 2021, Teresa's counsel and the court-
appointed administrator were unable to obtain information regarding Tyrone's
assets, the EIN number, and death benefits.
The court initially addressed the insurance checks deposited in the
Wyoming account at three hearings held in April 2021. During the first hearing
on April 5, Hazel told the court she received benefits from Tyrone's "personal
policy" worth "over $800[,000.00]" and distributed some of the money to
Tyrone's children. When questioned further by the court, Hazel said she wrote
checks to the adult children if they "wanted something." Also, at the April 5
hearing, Hazel's counsel, John A. Fonte, admitted that the EIN was an
"outstanding issue" concerning the administration of the estate.
Following that hearing, in the April 7, 2021 order, the court directed: (1)
May Funeral Home insurance adjuster Pozzi to produce the insurance documents
to both Teresa's counsel and the court-appointed administrator, and (2) Lento
Law to produce a sworn statement concerning its efforts to obtain an EIN, bank
account statements and copies of the checks drawn on the account where the
A-1380-22 6 insurance proceeds were deposited. Lastly, the order provided for no further
disbursements from the account.
In an April 12, 2021 certification, Fonte stated that he was told by Hazel
and May Funeral Homes manager Toni May-Jervey that "they did nothing to
anything to obtain an EIN." Further, it was "their understanding that [Lento
Law] had performed the work." Fonte then contacted his paralegal Denise Stone
and supervisor John Groff regarding the firm's efforts, and both stated "they
'believed' they had taken care of that" and would get back to him with the
"relevant information." Fonte stated that "between February 26 and March 2,
2021 . . . no EIN was taken out for the [estate], no accounts were opened in the
name of the estate."
At the next hearing on April 15, Hazel confirmed that she gave one child
$30,000.00, a second child $10,000.00, and a third child $136,000.00. The
court-appointed administrator confirmed she received bank statements for the
Wyoming account but not copies of the checks. Moreover, she was concerned
that the Wyoming account was opened in the name of TMFT and Hazel May.
In the April 16 order, the court redirected Pozzi to produce the insurance
documents because he received Hazel's consent to fully cooperate with the court
and the court-appointed administrator. The court also directed Lento Law to
A-1380-22 7 clarify the firm's role in establishing the Wyoming bank account. Hazel was
directed to immediately produce copies of the front and back of all checks drawn
on the bank account that held the deposited insurance proceeds.
Fonte submitted a second certification dated April 18, 2021, stating that
he was told by Groff an EIN was obtained in Hazel's individual name to establish
the Wyoming trust. Fonte further stated that he lacked personal knowledge
regarding the establishment of the trust.
At the third hearing on April 19, additional questions arose concerning the
Wyoming bank account, the trust documents, and EIN number. In an April 2021
order, the court directed Joseph Lento, Esq. to provide a certification concerning
the firm's efforts to obtain an EIN and establish the Wyoming trust. Hazel was
directed to turnover the balance of the funds in the Wyoming account to the
court-appointed administrator by April 19, 2021.
In compliance with the court's order, in an April 21, 2021 certification,
Joseph Lento stated that he directed and approved the "establishment of a
Wyoming domiciled corporate entity 'TMFT, Inc.,'" an irrevocable asset
protection, setup to "protect [Hazel's] assets as the beneficiary of life insurance
policies." Lento also admitted the firm obtained the EIN for the estate "as part
of [p]laintiff's status as [the] then-temporary administrator of the [e]state."
A-1380-22 8 Lastly, Lento stated neither he nor Lento Law were affiliated with or a member
of the Wyoming trust.
Even with co-counsel's entry in the case in May 2021, Hazel continued to
obfuscate assets and insurance policy documents from April 18, 2021 through
October 28, 2022. Numerous hearings and orders were issued directing Pozzi
to provide Teresa's counsel and the court-appointed administrator with both life
insurance policy documents. 5 The court, ultimately, sanctioned Hazel for
discovery violations prior to June 2021 and ordered her to pay counsel fees to
both Teresa's counsel and the court-appointed administrator. Those sanctions
and orders are not on appeal.
Hazel moved for summary judgment, seeking a declaration that the
insurance benefits from both the MONY Life Legacy and the AXA Equitable
Term 20 policies were non-probate assets, among other items. Teresa opposed
and cross-moved for summary judgment, asserting she was the lawful
beneficiary of the MONY Life Legacy policy and other items.
5 The record on appeal contains only a one-page summary for the Life Legacy and the Term 20 policies. We discern from our review of the record that the complete policy documents were never produced during discovery.
A-1380-22 9 Following oral argument, on July 30, 2021, in an oral opinion, the trial
court granted summary judgment in favor of Hazel for the AXA Equitable Term
20 Policy.6 The court reasoned that it was undisputed that Tyrone changed the
beneficiary to Hazel based on the 2011 change of beneficiary form, the letter
from the insurance company accepting the form, and the issuance of the
proceeds. Accordingly, the court concluded Hazel was the beneficiary of the
AXA Equitable Term 20 policy and directed those insurance benefits remain in
the court-appointed administrator's trust account until the MONY Life Legacy
benefits were resolved.
As to the MONY Life Legacy benefits, the court determined a plenary
hearing was necessary to resolve the disbursement of the $250,000 death benefit
to the lawful beneficiary. Thus, in a separate order, the court denied Teresa's
cross-motion regarding the Life Legacy policy. The court-appointed
administrator continued attempts to obtain the missing document regarding the
Life Legacy policy from Hazel's co-counsel, Pozzi, and Equitable.
6 A copy of the order for the July 30, 2021 hearing was not included within the appendix. We discern the court's ruling from the transcript. A-1380-22 10 In a February 16, 2022 response to a letter from co-counsel, Equitable
confirmed that Hazel was listed as the beneficiary for the MONY Life Legacy
policy. The letter provided:
This policy was owned by Tyrone May, who was the sole owner and the insured. The policy owner has the right to change a revocable beneficiary at any time without notifying or getting permission from the current beneficiary. As a practice, the Equitable Financial Insurance will restrict a beneficiary change on a policy if served with a court order that provides directive and explicitly state any obligation, or lack of obligation, to carry a life insurance policy to benefit the ex-spouse as a result of a divorce. Equitable Financial never received any such directive.
In the April 6, 2022 order, co-counsel was directed to produce the change
of beneficiary form for the MONY Life Legacy policy and Pozzi for a hearing
scheduled for April 20, 2022.
On April 20 and April 28, 2022, a two-day hearing was held and consisted
of only one witness, Pozzi, who testified on behalf of Hazel. Pozzi testified
Tyrone requested a change of beneficiary form for both policies in 2011. As to
the change of beneficiary form, Pozzi completed the form in Tyrone's presence,
Tyrone signed the form, and faxed the form to the insurance company a couple
of days later. He explained that it was company policy to complete one form if
the same owner was changing to the same beneficiary on more than one policy.
A-1380-22 11 At the outset, the court noted the "complete non-compliance" by Hazel
and non-responsiveness from Pozzi and the insurance company. In an oral
ruling rendered on April 28, 2022 at the conclusion of the hearing, the court
determined that the insurance proceeds from both the MONY Living Legacy and
AXA Equitable Term 20 policies held in the court-appointed administrator's
account were non-probate assets.
The court reasoned there was no dispute concerning the lawful beneficiary
of the AXA Equitable Term 20 policy based on the February 16, 2022 letter
from Equitable and the change of beneficiary form because it was unrebutted.
The court further reasoned the "confusion" arose from the change of beneficiary
form used for both policies instead of a separate form for each policy. The court
also concluded "the owner/decedent properly executed a change of beneficiary
form that was acceptable to the life insurance company and proceeds are payable
to his mother, Hazel."
The order directed the release of the $600,000.00 insurance proceeds for
both policies from the court-appointed administrator's trust account to Hazel.
Anticipating a fee award and perhaps sanctions, the court further directed that
$67,986.86 remain in the trust account until Teresa's counsel made an
application for counsel fees and sanctions to be paid by Hazel from this fund.
A-1380-22 12 Thereafter, Hazel moved for the release of $69,965.00 from Tyrone's
estate account, which was denied. Teresa cross-moved seeking $125,716.00 in
attorney fees and costs for services rendered from June 29, 2021 to October 20,
2022, and sanctions.
Following a hearing on both motions, in an oral opinion rendered on
October 28, 2022, the court denied Hazel's motion and granted Teresa's cross-
motion for attorney fees from June 29, 2021 through November 2, 2022. The
court concluded Teresa was entitled to an award of $44,000.00 for 111 hours of
time expended since June 2021. The court reasoned counsel's billing was
"excessive" — $34,700.00 for 86.75 hours billed for the opposition to Hazel's
motion and the preparation for the cross-motion for attorney fees and sanctions
was "way out of bounds" because of the "significant motions" filed and on the
basis the "information was readily available" to counsel.
The court also imposed $20,000.00 in sanctions against Hazel, finding her
actions were "intentional, willful, and malicious." Also, Hazel's "inability to
provide information that was read[ily] available was done solely for the purpose
to deceive the [c]ourt, to deceive Teresa[,] and to retain much of the money for
herself as possible to the detriment of everyone else." The court amplified its
reasoning, stating that (1) Hazel was removed as administrator because she "lied
A-1380-22 13 [at] every single turn of the way from the onset of this matter," (2) Hazel's
"intentional" actions were to "make sure no one else receives any of the money"
by withholding the EIN number, hiding the money, assets, information about the
401K, the life insurance benefits, and created bank accounts in Wyoming
"thinking the court could not access them." The court concluded that
"[e]verything that was done in [the] case was done to be painful." A
memorializing order was entered on November 2, 2022. This appeal follows.
II.
A. Hazel's Appeal on Attorney Fees and Sanctions.
We first address Hazel's claims on appeal that the trial court erred in
awarding counsel fees and costs because Teresa engaged in "frivolous
discovery" concerning the May Funeral Homes and the life insurance policies.
She first argues the $44,000.00 award was unreasonable and an abuse of
discretion because Tyrone had no ownership interest in his parents' business and
the life insurance proceeds were a non-probate asset.
We review an award of attorneys' fees for an abuse of discretion.
Empower Our Neighborhoods v. Guadagno, 453 N.J. Super. 565, 579 (App. Div.
2018); Shore Orthopaedic Grp., LLC v. Equitable Life Assurance Soc'y of the
U.S., 397 N.J. Super. 614, 623 (App. Div. 2008). "[F]ee determinations by trial
A-1380-22 14 courts will be disturbed only on the rarest of occasions, and then only because
of a clear abuse of discretion." Empower Our Neighborhoods, 453 N.J. Super.
at 579 (alteration in original) (quoting Packard-Bamberger & Co. v. Collier, 167
N.J. 427, 443-44 (2001)).
The decision to award attorney's fees rests within the sound discretion of
the trial court. See Maudsley v. State, 357 N.J. Super. 560, 590 (App. Div.
2003). In awarding fees, the court has "broad discretion," but not "unbridled
discretion." In re Clark, 212 N.J. Super. 408, 416 (Ch. Div. 1986). An abuse of
discretion occurs "when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260,
1265 (7th Cir. 1985)). Substantial deference is accorded a trial court's fee award
in a probate action. See In re Prob. of Alleged Will of Hughes, 244 N.J. Super.
322, 328 (App. Div. 1990).
It is well established that New Jersey courts adhere to the American rule
that litigants bear their own fees unless otherwise provided by court rule, statue,
or contract. Henderson v. Camden Cnty. Mun. Util. Auth., 176 N.J. 554, 564
(2003); see In re Niles Trust, 176 N.J. 282, 294 (2003); However, the recovery
A-1380-22 15 of counsel fees and costs associated with probate actions, is one exception to
that rule. In re Farnkopf, 363 N.J. Super. 382, 395 (App. Div. 2003).
Rule 4:42-9(a)(3) permits the court to award counsel fees in probate
actions to be paid out of the estate if the "contestant had reasonable cause for
contesting the validity of the will or codicil, the court may make an allowance
to the proponent and the contestant[.]" "To satisfy the rule's 'reasonable cause'
requirement, those petitioning for an award of counsel fees must provide the
court with 'a factual background reasonably justifying the inquiry as to the
testamentary sufficiency of the instrument by the legal process.'" In re Probate
of Will and Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010)
(quoting In re Caruso, 18 N.J. 26, 35 (1955)).
Here, the court considered counsel's certification and concluded the
$400.00 hourly rate was reasonable. See Rendine v. Pantzer, 141 N.J. 292, 317
(1995). After reviewing the parties' submissions and all the transcripts, the court
concluded counsel was "entitled to an award of attorney fees." We agree given
the tortuous procedural history.
We, however, reject Teresa's argument the trial court erred in reducing the
attorney fees. As part of the analysis, the court found the certification of
services "excessive" because there were "significant motions" filed and that the
A-1380-22 16 "information was readily available." On this record, we discern no abuse of the
court's discretion in excluding and thereby reducing counsel's fees and we are
satisfied the court properly exercised its discretion in determining counsel's time
and tasks were excessive given the significant motion practice. See Rendine,
141 N.J. at 334-35. The trial court's findings are supported by evidence in the
record, and we decline to disturb the counsel fee award.
We next address Hazel's argument the additional $20,000 awarded against
Hazel and the Lento Law Group as sanctions was likewise unreasonable, an
abuse of discretion, and duplicative. This argument is likewise rejected.
We also review the trial court's imposition of sanctions under an abuse of
discretion standard. See Kornbleuth v. Westover, 241 N.J. 289, 300-01 (2020).
A trial court has the inherent authority, independent of Rule 1:4-8, to award
attorney's fees for unreasonable litigation conduct. See, e.g., Triffin v.
Automatic Data Processing, Inc., 394 N.J. Super. 237, 251 (App. Div. 2007).
However, "it must be exercised with restraint and discretion because of its
potency." Dziubek v. Schumann, 275 N.J. Super. 428, 439. "[T]he imposition
of such a sanction is generally not imposed under this power without a finding
generally that the . . . conduct constituted or was tantamount to bad faith." Id.
at 440.
A-1380-22 17 The court noted Hazel's "intentional, willful, and malicious" conduct in
withholding documents from the court, counsel, and the court-appointed
administrator from the inception of this matter. The trial correctly found that
Hazel's failure to provide or disclose the EIN number, documents related to the
Wyoming trust, and the insurance proceeds was done with the intention to
deceive the court and Teresa and keep the funds for herself. These material facts
were not disputed by Hazel or Lento Law. The court did not abuse its discretion.
Accordingly, we affirm the court's award of sanctions.
B. Teresa's Cross-Appeal Regarding the Life Legacy Insurance Policy.
Lastly, we address Teresa's argument that the court erred in finding Hazel
was the lawful beneficiary of the MONY Life Legacy policy. The court's ruling
is supported by ample credible evidence in the record establishing Tyrone's
change in beneficiary and Equitable's acceptance and confirmation of Hazel as
the then-newly designated beneficiary. Teresa has not made the required
showing that she was the lawful beneficiary. Thus, we find no abuse of
discretion by the court.
Affirmed.
A-1380-22 18