Opinion
DOCKET NO. A-0369-14T2
03-07-2016
BARBARA BYER ANGELUCCI, individually, and as guardian ad litem of her minor daughter, AMBER ANGELUCCI, Plaintiffs-Appellants, v. TAMMY AGLIALORO, individually and as executor of the estate of RICHARD BYER, SR., deceased, Defendant-Respondent, and STATE OF NEW JERSEY DIVISION OF PENSIONS AND BENEFITS, Defendant.
Helmer, Conley & Kasselman, P.A., attorneys for appellants (Lisa Sarnoff Gochman, of counsel and on the briefs). Tara L. Vargo, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Cumberland County, Docket No. 23974. Helmer, Conley & Kasselman, P.A., attorneys for appellants (Lisa Sarnoff Gochman, of counsel and on the briefs). Tara L. Vargo, attorney for respondent. PER CURIAM
Following a non-jury trial at which thirteen witnesses testified, the court entered final judgment in favor of defendant Tammy Aglialoro and rejected plaintiffs' claims in their entirety. Plaintiffs now appeal, claiming that the court made erroneous findings of fact and misapplied the pertinent law. We affirm.
I.
The record shows that decedent, Richard D. Byer, Sr., passed away in October 2012 after having been diagnosed with lung cancer and suffering a stroke. Byer left an estate with assets of only nominal value. In addition, Byer had a pension administered by the New Jersey Division of Pensions and Benefits ("the Division") worth approximately $440,000, plus a life insurance policy worth approximately $16,000.
The Division, which is a neutral stakeholder, did not participate in the trial and has submitted a letter indicating it takes no position on the merits of the appeal.
About three months before his death and after he had been diagnosed with cancer, Byer changed the beneficiary designations on his State pension and life insurance policy to solely list Aglialoro, his long-time significant other. Prior to making that change, Byer had listed his daughter, plaintiff Barbara Angelucci and her daughter (Byer's granddaughter) Amber Angelucci, on those accounts. Byer's will left what few probate assets he had to Aglialoro and his cousin, Gary D. Cheli. The will expressly excluded both Barbara and Amber from Byer's estate, and named both Aglialoro and Cheli as co-executors.
For ease of reference, we shall refer to Barbara Angelucci and her daughter as, respectively, "Barbara" and "Amber," intending no disrespect.
Cheli's surname and Aglialoro's first name are each spelled slightly differently in portions of the record.
The will is not challenged in this case. --------
The change in beneficiaries to Byer's pension and life insurance policy occurred at a time when his illness had left him essentially bedridden. The form used to effectuate the change was filled out by Aglialoro, and purportedly signed by Byer.
Aglialoro conceded at trial that she had a confidential relationship with Byer, having taken care of him after his stroke and having been designated by Byer on his power of attorney. Barbara and Amber contended that Aglialoro used that relationship to unduly influence Byer into changing the designations, and that his signature on the form was forged. They maintained that Aglialoro isolated Byer from the rest of his family while he was in poor health.
The record shows that there had been significant turmoil within Byer's family prior to his illness, including allegations of financial misconduct allegedly committed by Byer's estranged wife and also involving his children, including Barbara. Those disputes caused Byer to sue his wife and children, although he voluntarily dismissed that lawsuit shortly before his death.
Plaintiffs claimed that Byer ultimately reconciled with Barbara, and that his true intention was to leave his pension to his granddaughter Amber to help finance her education. Aglialoro, meanwhile, denied exerting any undue influence over Byer, maintaining that the beneficiary changes reflected Byer's actual wishes, consistent with his action of disinheriting Barbara and Amber in his will. She also contended that Byer's signature on the designation form was authentic. Both sides presented handwriting experts at trial who offered differing opinions about the authenticity of Byer's signature.
After considering the evidence, the trial judge, the Honorable Richard J. Geiger, issued a detailed twenty-two-page written opinion rejecting plaintiffs' claims of undue influence and forgery. Judge Geiger generally found defendant's witnesses to be more credible than those presented by plaintiffs. The judge specifically found the testimony of James Sprague, Byer's former caretaker who testified that Byer intended to leave his assets to plaintiffs and who accused Aglialoro of improprieties, was incredible and biased.
The judge found that plaintiffs had not established the legal elements of undue influence. To the contrary, the judge found that "the evidence clearly and convincingly shows that [Byer's] will was not overborne," and that Byer was "the dominant force" in his relationship with Aglialoro and "not mentally weak." The judge also found that the evidence showed Byer was "mentally competent and in control of his affairs until he passed."
Noting Byer's "estranged relationship with [Barbara], her infrequent visits, the upsetting nature of her phone calls, his distrust of her, her failing to pay off [a] loan, her perceived involvement in the improper expenditures from the proceeds of the sale of his mother's home and subsequent litigation, his decision not to grant her a power of attorney, and her exclusion as a beneficiary of his Will," the judge ruled that Byer's decision to designate Aglialoro as the beneficiary of his pension and life insurance benefits was not "unnatural." Indeed, as the judge observed, "one could argue that it should have been expected."
The judge also rejected the claims of forgery, finding that plaintiffs had not proven the invalidity of Byer's signature by clear and convincing evidence. The judge observed that the alleged differences in Byer's signature on the beneficiary form and handwriting exemplars were explainable by differences in positioning and writing surfaces, referring to testimony that Byer had signed many of the exemplars in an oversized armchair with a padded, curved armrest, while the form containing the alleged forgery was signed at a kitchen table. The judge further noted that there was no need for Aglialoro to have forged Byer's signature, given their relationship and his prior decisions concerning the will. The judge also found that the testimony of plaintiffs' handwriting expert asserting forgery was not more convincing than the divergent opinion of defendant's expert who found the authenticity of Byer's signature to be inconclusive.
In sum, the judge found that Byer was not "the victim of undue influence or fraud[.]" Instead, the court found that "the decedent made hard choices" and that "[t]hose choices shall be enforced." Consequently, the judge declared the beneficiary designations on the form valid and dismissed plaintiffs' complaint with prejudice.
II.
On appeal, plaintiffs now argue that the judge: (1) ignored evidence that certain defense witnesses were biased because they would receive some financial gain from the pension distribution; (2) erred in finding Aglialoro's testimony credible; (3) arbitrarily ignored credible testimony presented by plaintiffs; (4) improperly relied on hearsay from a defense witness, Edward Gatier, Byer's attorney who had drafted his will; and (5) improperly relied upon negative character evidence about plaintiffs in violation of N.J.R.E. 404(b). Plaintiffs also argue that the defense failed to successfully rebut a presumption of undue influence and that there was, despite the court's rulings, clear and convincing evidence proving forgery of Byer's signature on the beneficiary designation.
We are unpersuaded by these contentions and affirm the final judgment substantially for the cogent reasons detailed in Judge Geiger's extensive written opinion. Although plaintiffs have identified certain minor flaws in the court's factfinding, those alleged errors do not undermine the overall clear soundness of the court's analysis of the evidence in light of the applicable law. We add only a few comments.
The applicable substantive law is well established. A decedent's bequest may be overturned if it is proven to be the product of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). "Undue influence" has been defined as "'mental, moral or physical' exertion" that destroys the "free agency of a testator" by preventing the testator "from following the dictates of his own mind and will and accepting instead the domination and influence of another." Ibid. (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).
To be successful on a claim of undue influence, a party contesting an instrument must demonstrate by a preponderance of the evidence that a "confidential relationship" existed between the decedent and the beneficiary, and the presence of "suspicious circumstances." Ibid. This raises a presumption of undue influence which the proponent of the instrument must overcome, again by a preponderance of the evidence. Id. at 177-78. The trial judge meticulously and correctly applied these principles in his written opinion.
Our scope of review of the judge's factual findings is narrow. An appellate court shall "not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011) (quoting In re Trust Created by Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)); Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974); Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007) (applying this standard to affirm a trial court's findings in an undue influence case). An appellate court only reviews de novo the trial court's legal determinations. 30 River Court E. Urban Renewal Co. v. Capograsso, 38 3 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84).
Applying these standards to plaintiffs' arguments on appeal in light of the record as a whole, we discern no persuasive basis for setting aside the trial court's determinations. We choose to comment specifically only about two of the arguments in plaintiff's appellate briefs.
First, plaintiffs assert that the judge erred by incorrectly perceiving that Byer's cousin Cheli had no financial stake in this case and finding that his testimony therefore could not be biased. As proof of bias, plaintiffs point to a handwritten letter allegedly signed by Byer and Aglialoro as his power of attorney, which contained a list of names with dollar amounts next to those names. The list included Cheli, with the figure $25,000, and Cheli's grandchildren, with the figure of $1,000 for each child. The list was purported to promise those sums to the persons named on the list upon Byer's death.
The judge's opinion does refer to the handwritten letter, although it does so only in passing. However, the judge did recognize that Byer's pension and life insurance benefits did not pass under the will. Hence, even if the sums on the handwritten list were hypothetically regarded as enforceable bequests, the meager assets in the estate would not enable those bequests to be paid.
Plaintiffs speculate that Cheli hoped that Aglialoro would honor the intentions set forth on the list by paying Cheli and his grandchildren out of the pension and life insurance assets if she prevailed in the lawsuit. That speculation is insufficient, however, to upend the court's overall assessment of the proofs as a whole, as well as the judge's pointed observations that Cheli's demeanor in court was that of an "extremely credible and believable" witness.
Even if the judge erred in overlooking Cheli's potential bias, there was nonetheless substantial credible evidence to support the judge's overall findings. See, e.g., Reinhart v. E.I. Dupont de Nemours, 147 N.J. 156, 164-67 (1996) (treating the trial court's mistake affecting a credibility finding harmless, in light of other sufficient credible evidence in the record supporting that finding). The bias issue does not warrant reversal of the court's well-reasoned decision on the merits.
The second issue we address is plaintiffs' argument that the court erred in rejecting their claim of forgery. In particular, plaintiffs fault the court for not adopting the opinions of their handwriting expert.
In the civil context, forgery, as a form of fraud, must be proven by clear and convincing evidence. See Stochastic Decisions, Inc. v. DiDomenico, 2 36 N.J. Super. 388, 395 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990) (stating that claims of fraud must be proven by clear and convincing evidence). The elements of fraud are "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief . . . of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).
In light of the abundant circumstantial evidence produced regarding Byer's actual intent, as well as what both sides' experts had acknowledged — that other factors could explain the differences between the signatures — the judge concluded that plaintiffs had failed to meet their heavy burden of proving forgery. Each of the judge's particularized findings explaining why the forgery claim was unpersuasive are supported by the record. The fact that plaintiffs' expert was more certain of his ultimate opinion is not dispositive. Indeed, the testimony indicates that defendant's expert utilized a broader array of sample signatures than her counterpart and reasonably gave more weight to external factors that could explain the variations. A factfinder "is not bound to accept the testimony of an expert witness," and "may accept some of the expert's testimony and reject the rest." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430-31 (App. Div. 2001).
Plaintiffs' remaining arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Because we are affirming the final judgment in favor of defendant, we need not address plaintiffs' claims for counsel fees and costs.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION