NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0318-18T4
IN THE MATTER OF THE TRUST UNDER THE WILL OF FRANCES T. SHAW AND THE SHAW FAMILY TRUST, DATED DECEMBER 21, 1995. ____________________________
Argued October 3, 2019 – Decided October 24, 2019
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. CP- 0184-2017.
Janice S. Countess, appellant, argued the cause pro se.
Thomas A. Whelihan argued the cause for respondent Carolyn F. Shaw.
PER CURIAM
Defendant Janice Countess appeals from a July 25, 2018 Chancery
Division order granting summary judgment to plaintiff Carolyn Shaw. That
same order granted plaintiff a judgment totaling $36,961.50. We affirm. The parties are sisters. In 1995, their parents, Frances and Larnie Shaw,
prepared a number of estate planning documents. One of the documents was a
testamentary trust created for the benefit of the parties and their sister, Shirley.1
This trust, created by Frances was called the "Frances T. Shaw Trust," but it also
was known as "Credit Shelter Trust." Janice and Larnie were designated as co-
trustees of the Credit Shelter Trust.
According to the terms of the Credit Shelter Trust, if Larnie predeceased
his daughters, the trust principal and accrued income were to be divided equally
among Carolyn, Janice and Shirley. However, Carolyn's one-third share was to
be distributed to a second trust, known as the "Shaw Family Trust." Carolyn
was the sole beneficiary of the Shaw Family Trust. Larnie was named as primary
trustee of this second trust, and Janice was designated as successor trustee.
In 2004, Larnie and his three daughters executed a family agreement
whereby all parties agreed that Carolyn would receive her inheritance outright
upon Larnie's death. Frances predeceased the formation of the 2004 agreement.
Consistent with the terms of the 2004 agreement, in 2005, Larnie signed
and submitted paperwork to Northwestern Mutual Insurance Company to
1 We refer to members of the Shaw family by their first names for the sake of clarity. We intend no disrespect by this practice. A-0318-18T4 2 designate Carolyn as the sole and direct beneficiary of his life insurance policy.
In 2007, he and his daughters reconvened to execute a supplemental family
agreement, which terminated the Credit Shelter Trust, and distributed all its
accrued interest and assets to Larnie.
The record demonstrates that less than two months after Larnie's death in
2016, Janice removed Carolyn as sole beneficiary on the Northwestern Mutual
policy and designated the Frances T. Shaw Trust as the new beneficiary. Janice
represented she was sole trustee of this trust, even though it had been terminated
by family agreement.
In February 2017, Northwestern Mutual complied with Janice's request
and paid the insurance policy proceeds, totaling $136,451.97, to the trust. These
monies were deposited into a TD Bank account controlled exclusively by Janice.
Only $99,490.47 remained in this account as of November 2017.
When Carolyn learned Janice had diverted these insurance proceeds she
requested that Janice turn over these monies to her. Janice refused, so Carolyn
filed a complaint and Order to Show Cause to recoup the diverted proceeds.
Following a hearing, Judge Nan S. Famular enjoined Janice from dissipating the
insurance proceeds and required her to provide an accounting of these funds.
A-0318-18T4 3 The judge also directed Northwestern Mutual to produce copies of any and all
documents related to the insurance policy.
Northwestern Mutual complied with this order and Carolyn's counsel
produced the pertinent insurance documents at a subsequent case management
conference. As a result of that conference, Judge Famular ordered Janice to turn
over a check for the remaining insurance proceeds to Carolyn's counsel, so the
proceeds could be held in trust. Because Janice had not yet accounted for the
missing insurance proceeds, Judge Famular again ordered Janice to account for
all expenditures from the TD Bank account. No such accounting was produced.
Accordingly, by order dated May 8, 2018, the court authorized Carolyn's counsel
to release the remaining funds directly to Carolyn.
Carolyn moved for summary judgment arguing that the documents
produced by Northwestern Mutual clearly established Janice removed Carolyn
as the sole beneficiary of Larnie's insurance policy approximately two months
after Larnie's death. Carolyn further contended Janice wrongfully diverted these
funds to the Frances T. Shaw Trust, despite knowing that trust had been
terminated. Moreover, Carolyn claimed the Northwestern Mutual documents
substantiated Janice's receipt of the policy proceeds.
A-0318-18T4 4 Judge Famular concluded Janice failed to produce any proofs to rebut
Carolyn's assertions. The judge noted that Janice "talk[ed] about the errors that
are contained in [plaintiff's] certification. The things that she challenges are
unimportant . . . . She doesn't quite directly address why she changed . . . the
beneficiary designation on the Northwestern policy . . . ." Finding the
beneficiary designation should never have been changed and there were no
material facts at issue, Judge Famular granted summary judgment to Carolyn
and entered judgment against Janice in the amount of $36,961.50.
We review a ruling on a summary judgment motion de novo, applying the
same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)). Hence, we consider, as the motion judge
did, "'whether the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.
Div. 2017) (citation omitted).
A party opposing summary judgment does not create a genuine issue of
fact simply by offering a sworn statement. Carroll v. N.J. Transit, 366 N.J.
A-0318-18T4 5 Super. 380, 388 (App. Div. 2004). "'[C]onclusory and self-serving assertions'
in certifications without explanatory or supporting facts will not defeat a
meritorious motion for summary judgment." Hoffman v. Asseenontv.com, Inc.,
404 N.J. Super. 415, 425-26 (App. Div. 2009).
What is required of a party opposing summary judgment is affirmative
evidence that is competent, credible, and shows that there is a genuine issue of
material fact in dispute that must be resolved by the factfinder at trial. R. 4:46-
2(c). Summary judgment will not be precluded by self-serving statements,
Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed
facts "of an insubstantial nature." Miller v. Bank of Am. Home Loan Servicing,
LP, 439 N.J. Super. 540, 547 (App. Div.
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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-0318-18T4
IN THE MATTER OF THE TRUST UNDER THE WILL OF FRANCES T. SHAW AND THE SHAW FAMILY TRUST, DATED DECEMBER 21, 1995. ____________________________
Argued October 3, 2019 – Decided October 24, 2019
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. CP- 0184-2017.
Janice S. Countess, appellant, argued the cause pro se.
Thomas A. Whelihan argued the cause for respondent Carolyn F. Shaw.
PER CURIAM
Defendant Janice Countess appeals from a July 25, 2018 Chancery
Division order granting summary judgment to plaintiff Carolyn Shaw. That
same order granted plaintiff a judgment totaling $36,961.50. We affirm. The parties are sisters. In 1995, their parents, Frances and Larnie Shaw,
prepared a number of estate planning documents. One of the documents was a
testamentary trust created for the benefit of the parties and their sister, Shirley.1
This trust, created by Frances was called the "Frances T. Shaw Trust," but it also
was known as "Credit Shelter Trust." Janice and Larnie were designated as co-
trustees of the Credit Shelter Trust.
According to the terms of the Credit Shelter Trust, if Larnie predeceased
his daughters, the trust principal and accrued income were to be divided equally
among Carolyn, Janice and Shirley. However, Carolyn's one-third share was to
be distributed to a second trust, known as the "Shaw Family Trust." Carolyn
was the sole beneficiary of the Shaw Family Trust. Larnie was named as primary
trustee of this second trust, and Janice was designated as successor trustee.
In 2004, Larnie and his three daughters executed a family agreement
whereby all parties agreed that Carolyn would receive her inheritance outright
upon Larnie's death. Frances predeceased the formation of the 2004 agreement.
Consistent with the terms of the 2004 agreement, in 2005, Larnie signed
and submitted paperwork to Northwestern Mutual Insurance Company to
1 We refer to members of the Shaw family by their first names for the sake of clarity. We intend no disrespect by this practice. A-0318-18T4 2 designate Carolyn as the sole and direct beneficiary of his life insurance policy.
In 2007, he and his daughters reconvened to execute a supplemental family
agreement, which terminated the Credit Shelter Trust, and distributed all its
accrued interest and assets to Larnie.
The record demonstrates that less than two months after Larnie's death in
2016, Janice removed Carolyn as sole beneficiary on the Northwestern Mutual
policy and designated the Frances T. Shaw Trust as the new beneficiary. Janice
represented she was sole trustee of this trust, even though it had been terminated
by family agreement.
In February 2017, Northwestern Mutual complied with Janice's request
and paid the insurance policy proceeds, totaling $136,451.97, to the trust. These
monies were deposited into a TD Bank account controlled exclusively by Janice.
Only $99,490.47 remained in this account as of November 2017.
When Carolyn learned Janice had diverted these insurance proceeds she
requested that Janice turn over these monies to her. Janice refused, so Carolyn
filed a complaint and Order to Show Cause to recoup the diverted proceeds.
Following a hearing, Judge Nan S. Famular enjoined Janice from dissipating the
insurance proceeds and required her to provide an accounting of these funds.
A-0318-18T4 3 The judge also directed Northwestern Mutual to produce copies of any and all
documents related to the insurance policy.
Northwestern Mutual complied with this order and Carolyn's counsel
produced the pertinent insurance documents at a subsequent case management
conference. As a result of that conference, Judge Famular ordered Janice to turn
over a check for the remaining insurance proceeds to Carolyn's counsel, so the
proceeds could be held in trust. Because Janice had not yet accounted for the
missing insurance proceeds, Judge Famular again ordered Janice to account for
all expenditures from the TD Bank account. No such accounting was produced.
Accordingly, by order dated May 8, 2018, the court authorized Carolyn's counsel
to release the remaining funds directly to Carolyn.
Carolyn moved for summary judgment arguing that the documents
produced by Northwestern Mutual clearly established Janice removed Carolyn
as the sole beneficiary of Larnie's insurance policy approximately two months
after Larnie's death. Carolyn further contended Janice wrongfully diverted these
funds to the Frances T. Shaw Trust, despite knowing that trust had been
terminated. Moreover, Carolyn claimed the Northwestern Mutual documents
substantiated Janice's receipt of the policy proceeds.
A-0318-18T4 4 Judge Famular concluded Janice failed to produce any proofs to rebut
Carolyn's assertions. The judge noted that Janice "talk[ed] about the errors that
are contained in [plaintiff's] certification. The things that she challenges are
unimportant . . . . She doesn't quite directly address why she changed . . . the
beneficiary designation on the Northwestern policy . . . ." Finding the
beneficiary designation should never have been changed and there were no
material facts at issue, Judge Famular granted summary judgment to Carolyn
and entered judgment against Janice in the amount of $36,961.50.
We review a ruling on a summary judgment motion de novo, applying the
same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)). Hence, we consider, as the motion judge
did, "'whether the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.
Div. 2017) (citation omitted).
A party opposing summary judgment does not create a genuine issue of
fact simply by offering a sworn statement. Carroll v. N.J. Transit, 366 N.J.
A-0318-18T4 5 Super. 380, 388 (App. Div. 2004). "'[C]onclusory and self-serving assertions'
in certifications without explanatory or supporting facts will not defeat a
meritorious motion for summary judgment." Hoffman v. Asseenontv.com, Inc.,
404 N.J. Super. 415, 425-26 (App. Div. 2009).
What is required of a party opposing summary judgment is affirmative
evidence that is competent, credible, and shows that there is a genuine issue of
material fact in dispute that must be resolved by the factfinder at trial. R. 4:46-
2(c). Summary judgment will not be precluded by self-serving statements,
Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed
facts "of an insubstantial nature." Miller v. Bank of Am. Home Loan Servicing,
LP, 439 N.J. Super. 540, 547 (App. Div. 2015) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 523 (1995)). Applying these standards, we
discern no reason to disturb the summary judgment ruling of Judge Famular.
It is well established that life insurance proceeds are to be paid to a
beneficiary, based on contract principles. Such proceeds are considered non-
probate assets, so they are not part of an individual's estate. Edgardo Vasconi
v. Guardian Life Ins. Co., 124 N.J. 338, 344 (1991). A "designated beneficiary
of a life insurance policy has a vested right to the insurance proceeds payable in
the event [s]he survives the insured subject to divestment only if the insured
A-0318-18T4 6 changes the beneficiary in the manner provided by the policy." Prudential Ins.
Co. of Am. v. Prashker, 201 N.J. Super. 553, 557 (App. Div. 1985) (citation
omitted). Further, the "failure of an insured to change the beneficiary [of a life
insurance policy] is indicative of an intent not to effect a change." Gerhard v.
Travelers Ins. Co., 107 N.J. Super. 414, 425 (N.J. Ch. 1969).
Here, it is uncontroverted that Larnie designated Carolyn as the
beneficiary of the Northwestern Mutual policy in 2005. That beneficiary
designation remained intact until Larnie died. Janice only received the
Northwestern Mutual proceeds because she removed Carolyn as the designated
beneficiary of this policy shortly after Larnie's death. Janice then admitted to
spending $36,961.50 of these proceeds before she was enjoined from further
dissipation of the policy sum. Janice never accounted for her expenditures.
We are satisfied Judge Famular carefully considered the evidential
materials in the light most favorable to Janice, before concluding there was no
evidence to permit a finding other than that Janice had misappropriated a portion
of the Northwestern Mutual life insurance proceeds. Having considered the
same evidential materials and the law pertaining to defendant's arguments, we
affirm substantially for the reasons Judge Famular stated in her opinion.
A-0318-18T4 7 To the extent defendant raises issues which were not raised below, we
decline to address those issues. Appellate courts will not consider issues that
are not raised at the trial level when given an opportunity to do so, "unless the
questions so raised on appeal go to the jurisdiction of the trial court or concern
matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
235 (1973) (citing Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548
(App. Div. 1959)). We are satisfied the issues Janice neglected to address before
Judge Famular do not implicate jurisdictional issues or matters of great public
interest.
Any remaining arguments advanced by Janice lack sufficient merit to
warrant additional discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0318-18T4 8