NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0322-20
RICHARD GABEY,
Plaintiff-Respondent,
v.
RUTH GABEY,
Defendant. ______________________________
DEBORAH FINCH, as executrix for the ESTATE OF RUTH GABEY,
Proposed Intervenor/Appellant. _______________________________
Submitted May 4, 2021 – Decided May 20, 2021
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1452-19. Dwyer, Bachman, Newman & Solop, attorneys for appellant1 (Elliot S. Solop, of counsel and on the briefs; Lauren Conway, on the briefs).
Richard A. Amdur, Jr., attorney for respondent.
PER CURIAM
Richard and Ruth Gabey were married in 1978. There were no children
born of their marriage, but they were both previously married and their children
from those marriages are now adults. In April 2019, Richard sued Ruth for
divorce. There appears to be no dispute that a year prior to commencing th e
action, Richard moved out of their Manalapan home and into an assisted living
facility. Ruth remained in the home, and her adult son moved in to assist her
with her daily needs.
It appears that little occurred during the early stages of this matrimonial
action. Correspondence between counsel suggested only a few possible
equitable distribution issues relating to their jointly-owned marital home and
Richard's use of marital funds when he moved to the assisted living facility.
1 The briefs filed by this law firm purport to be filed not only on behalf of the executrix of Ruth Gabey's estate but also on Ruth's behalf. Since there is no dispute that Ruth died in November 2019, the firm, which represented her in this matrimonial action during her lifetime, can no longer represent her. Once dead, a person ceases to be a juridical entity. See Repko v. Our Lady of Lourdes Med. Ctr., Inc., 464 N.J. Super. 570, 575-76 (App. Div. 2020). A-0322-20 2 The appellate record also includes what appears to be Ruth's September
2019 Last Will and Testament in which she recognized she was "currently
married" to Richard but "anticipate[d]" they would be divorced "shortly." In
light of that circumstance, she declared in the Will that Richard "is to receive no
benefit from my estate." Ruth died a few months after executing this Will. The
divorce action was then still pending, and no issue had been resolved.
In December 2019, Richard wrote to Ruth's children to advise that
ownership of the Manalapan home "reverted" to him. 2 The following month,
the executrix of Ruth's estate moved in the matrimonial court, seeking to be
substituted as the real party in interest in Ruth's place. The executrix also
sought:
• an accounting from Richard for any furniture or personalty removed from the marital residence;
• restraining Richard and his adult children from removing any furniture or personalty from the marital home;
2 We assume Richard was asserting that the property was owned by him and Ruth as "tenants by the entirety," meaning that "after the death of one, the survivor takes the whole," see Est. of Van Riper v. Dir., Div. of Tax'n, 241 N.J. 115, 119 (2020) (quoting Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 389 N.J. Super. 219, 227 (Ch. Div. 2006)), because the law in that instance views the spouses as one person. The record on appeal does not clearly establish the nature of their ownership of the Manalapan home. A-0322-20 3 • an immediate sale of the former marital residence;
• the appointment of a realtor and a real estate attorney to sell and transfer title to the marital home;
• the imposition of "a constructive trust to avoid unjust enrichment" by Richard "and his eventual estate";
• a discovery schedule; and
• the scheduling of an early-settlement-panel date.
Richard cross-moved for summary judgment dismissing the action in light of
Ruth's death or, in the alternative, for leave to withdraw his divorce complaint.
The judge denied the executrix's motion in its entirety and granted
Richard's motion to dismiss by order and written opinion issued on April 13,
2020. The executrix moved for reconsideration, and the judge denied that
motion on August 19, 2020.
In appealing, the executrix argues that the trial judge abused his discretion
by denying reconsideration of those parts of the April 13, 2020 order that: (1)
denied the executrix's requests to substitute in Ruth's place as the real party in
interest and amend Ruth's responsive pleading; (2) denied the executrix's
requests to order the sale of the marital home, to appoint a realtor and real estate
attorney, for a constructive trust, and for a discovery schedule for this suit; and
A-0322-20 4 (3) granted Richard's motion to terminate this litigation. We find insufficient
merit in these arguments to warrant further discussion in a written opinion, R.
2:11-3(e)(1)(E), adding only the following brief comments.
There is no doubt that divorce proceedings abate with the death of one of
the parties. See Carr v. Carr, 120 N.J. 336, 342 (1990); Castonguay v.
Castonguay, 166 N.J. Super. 546, 550 (App. Div. 1979); Dunham v. Dunham,
82 N.J. Eq. 395, 399 (Ch. 1913). There are, however, exceptions in "unusual or
exceptional" circumstances. Carr, 120 N.J. at 343. For example, because one
will not be permitted to profit from a wrong, it has been held that a spouse's
estate could pursue equitable distribution by showing that the death was
intentionally caused by the other spouse. Jacobson v. Jacobson, 146 N.J. Super.
491, 494-95 (Ch. Div. 1976). We have also held that if "the facts justifying [the
divorce judgment] were adjudicated during the lifetime of the parties" to a point
that a judgment "could or should have been rendered" before death, the court
may enter a judgment equitably distributing the parties' marital property. Olen
v. Olen, 124 N.J. Super. 373, 377 (App. Div. 1973); see also Fulton v. Fulton,
204 N.J. Super. 544, 548-49 (Ch. Div. 1985). It may be, as well, that a court
may enforce a pendente lite agreement by the parties to sell and divide the
proceeds of a marital home even though one of them had died prior to the entry
A-0322-20 5 of judgment. Cf. Witt v. Witt, 165 N.J. Super. 463, 467 (Ch. Div. 1979)
(acknowledging the authority to enforce such an agreement when one of the
spouses had disappeared and was presumably deceased). None of these
exceptions is applicable here.
But another circumstance was recognized in both Carr and the more recent
decision in Kay v. Kay, 200 N.J. 551 (2010), aff'g o.b., 405 N.J. Super. 278
(App. Div. 2009). In Carr, the Court held that a surviving spouse could continue
a matrimonial action "for the limited purpose of proving that the deceased
spouse had diverted marital assets, because equity demanded that the innocent
spouse have a forum through which to recover those assets for equitable
distribution." Kay, 200 N.J. at 552 (citing Carr, 120 N.J. at 353-54). And, in
Kay, the Court held that the flip side is also true: a deceased spouse's
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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-0322-20
RICHARD GABEY,
Plaintiff-Respondent,
v.
RUTH GABEY,
Defendant. ______________________________
DEBORAH FINCH, as executrix for the ESTATE OF RUTH GABEY,
Proposed Intervenor/Appellant. _______________________________
Submitted May 4, 2021 – Decided May 20, 2021
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1452-19. Dwyer, Bachman, Newman & Solop, attorneys for appellant1 (Elliot S. Solop, of counsel and on the briefs; Lauren Conway, on the briefs).
Richard A. Amdur, Jr., attorney for respondent.
PER CURIAM
Richard and Ruth Gabey were married in 1978. There were no children
born of their marriage, but they were both previously married and their children
from those marriages are now adults. In April 2019, Richard sued Ruth for
divorce. There appears to be no dispute that a year prior to commencing th e
action, Richard moved out of their Manalapan home and into an assisted living
facility. Ruth remained in the home, and her adult son moved in to assist her
with her daily needs.
It appears that little occurred during the early stages of this matrimonial
action. Correspondence between counsel suggested only a few possible
equitable distribution issues relating to their jointly-owned marital home and
Richard's use of marital funds when he moved to the assisted living facility.
1 The briefs filed by this law firm purport to be filed not only on behalf of the executrix of Ruth Gabey's estate but also on Ruth's behalf. Since there is no dispute that Ruth died in November 2019, the firm, which represented her in this matrimonial action during her lifetime, can no longer represent her. Once dead, a person ceases to be a juridical entity. See Repko v. Our Lady of Lourdes Med. Ctr., Inc., 464 N.J. Super. 570, 575-76 (App. Div. 2020). A-0322-20 2 The appellate record also includes what appears to be Ruth's September
2019 Last Will and Testament in which she recognized she was "currently
married" to Richard but "anticipate[d]" they would be divorced "shortly." In
light of that circumstance, she declared in the Will that Richard "is to receive no
benefit from my estate." Ruth died a few months after executing this Will. The
divorce action was then still pending, and no issue had been resolved.
In December 2019, Richard wrote to Ruth's children to advise that
ownership of the Manalapan home "reverted" to him. 2 The following month,
the executrix of Ruth's estate moved in the matrimonial court, seeking to be
substituted as the real party in interest in Ruth's place. The executrix also
sought:
• an accounting from Richard for any furniture or personalty removed from the marital residence;
• restraining Richard and his adult children from removing any furniture or personalty from the marital home;
2 We assume Richard was asserting that the property was owned by him and Ruth as "tenants by the entirety," meaning that "after the death of one, the survivor takes the whole," see Est. of Van Riper v. Dir., Div. of Tax'n, 241 N.J. 115, 119 (2020) (quoting Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 389 N.J. Super. 219, 227 (Ch. Div. 2006)), because the law in that instance views the spouses as one person. The record on appeal does not clearly establish the nature of their ownership of the Manalapan home. A-0322-20 3 • an immediate sale of the former marital residence;
• the appointment of a realtor and a real estate attorney to sell and transfer title to the marital home;
• the imposition of "a constructive trust to avoid unjust enrichment" by Richard "and his eventual estate";
• a discovery schedule; and
• the scheduling of an early-settlement-panel date.
Richard cross-moved for summary judgment dismissing the action in light of
Ruth's death or, in the alternative, for leave to withdraw his divorce complaint.
The judge denied the executrix's motion in its entirety and granted
Richard's motion to dismiss by order and written opinion issued on April 13,
2020. The executrix moved for reconsideration, and the judge denied that
motion on August 19, 2020.
In appealing, the executrix argues that the trial judge abused his discretion
by denying reconsideration of those parts of the April 13, 2020 order that: (1)
denied the executrix's requests to substitute in Ruth's place as the real party in
interest and amend Ruth's responsive pleading; (2) denied the executrix's
requests to order the sale of the marital home, to appoint a realtor and real estate
attorney, for a constructive trust, and for a discovery schedule for this suit; and
A-0322-20 4 (3) granted Richard's motion to terminate this litigation. We find insufficient
merit in these arguments to warrant further discussion in a written opinion, R.
2:11-3(e)(1)(E), adding only the following brief comments.
There is no doubt that divorce proceedings abate with the death of one of
the parties. See Carr v. Carr, 120 N.J. 336, 342 (1990); Castonguay v.
Castonguay, 166 N.J. Super. 546, 550 (App. Div. 1979); Dunham v. Dunham,
82 N.J. Eq. 395, 399 (Ch. 1913). There are, however, exceptions in "unusual or
exceptional" circumstances. Carr, 120 N.J. at 343. For example, because one
will not be permitted to profit from a wrong, it has been held that a spouse's
estate could pursue equitable distribution by showing that the death was
intentionally caused by the other spouse. Jacobson v. Jacobson, 146 N.J. Super.
491, 494-95 (Ch. Div. 1976). We have also held that if "the facts justifying [the
divorce judgment] were adjudicated during the lifetime of the parties" to a point
that a judgment "could or should have been rendered" before death, the court
may enter a judgment equitably distributing the parties' marital property. Olen
v. Olen, 124 N.J. Super. 373, 377 (App. Div. 1973); see also Fulton v. Fulton,
204 N.J. Super. 544, 548-49 (Ch. Div. 1985). It may be, as well, that a court
may enforce a pendente lite agreement by the parties to sell and divide the
proceeds of a marital home even though one of them had died prior to the entry
A-0322-20 5 of judgment. Cf. Witt v. Witt, 165 N.J. Super. 463, 467 (Ch. Div. 1979)
(acknowledging the authority to enforce such an agreement when one of the
spouses had disappeared and was presumably deceased). None of these
exceptions is applicable here.
But another circumstance was recognized in both Carr and the more recent
decision in Kay v. Kay, 200 N.J. 551 (2010), aff'g o.b., 405 N.J. Super. 278
(App. Div. 2009). In Carr, the Court held that a surviving spouse could continue
a matrimonial action "for the limited purpose of proving that the deceased
spouse had diverted marital assets, because equity demanded that the innocent
spouse have a forum through which to recover those assets for equitable
distribution." Kay, 200 N.J. at 552 (citing Carr, 120 N.J. at 353-54). And, in
Kay, the Court held that the flip side is also true: a deceased spouse's
representative could proceed with a claim – asserted prior to death in a pending
matrimonial action – that the surviving spouse had diverted marital assets. Id.
at 554. The Kay Court held that permitting the continuation of such a claim
"would promote fair dealing between spouses by ensuring that marital property
justly belonging to the decedent will be retained by the estate for the benefit of
the deceased spouse's rightful heirs and by preventing unjust enrichment of the
surviving spouse." Id. at 553.
A-0322-20 6 Ruth's executrix argues the exception recognized in Carr and Kay
authorizes the equitable distribution of marital property notwithstanding Ruth's
death. She is mistaken. In Kay, the Court carefully explained the limits of its
holding by describing two circumstances in which further litigation would not
be permitted by the deceased spouse's representative. The Court held that an
estate: (1) could not pursue a claim that was "merely one for equitable
distribution of an agreed-upon universe of marital property," ibid.; and (2) could
not "assert a new claim," but would be relegated only to "continu[ing] claims
raised before death [that], in fairness, should not be extinguished lightly or
prematurely," id. at 554.
In recognizing the limits imposed by Carr and Kay, we must affirm the
order that terminated this matrimonial litigation without resolution of any
equitable distribution issues. Unlike the established or arguable exceptions to
abatement, here there was no agreement to sell or divide marital property and
no adjudicated disposition of any property by the trial court before Ruth's death.
More importantly, as is clearly demonstrated by the record, Ruth never asserted
a claim that Richard wrongfully diverted marital assets. Her attorney may have
informally inquired of Richard's attorney about the disposition of funds from a
joint account prior to Ruth's death, but Ruth never filed a claim asserting a
A-0322-20 7 wrongful diversion of those or any other assets. Indeed, she filed no answer or
counterclaim, only an appearance, which gave her a right to be heard "on issues"
including equitable distribution issues "incidental to the proceeding." R. 5:4-3.3
Her general appearance 4 cannot be so broadly interpreted as to incorporate an
assertion of a claim for the recoupment of wrongfully diverted marital property.
Kay and Carr, as relevant, clearly limit the particular exception from the general
rule of abatement to a personal representative's continuation of claims already
asserted – a circumstance not present here.
Affirmed.
3 Ruth's appearance undoubtedly authorized her to seek equitable distribution of what Kay referred to as "an agreed-upon universe of marital property," 200 N.J. at 553, but not a specific claim of wrongfully diverted marital property. 4 The pleading Ruth filed – entitled "appearance" – stated nothing except that she, through her attorney, had "enter[ed] an appearance in the above-entitled cause of action." A-0322-20 8