Opinion
DOCKET NO. A-2577-13T3
04-16-2015
TEBEYENE MAMO, Plaintiff-Appellant, v. ESTATE OF AUGUSTIN NGUWE MANDENG, Defendant-Respondent.
Anthony Scordo argued the cause for appellant (Stueben & Scordo, attorneys; Mr. Scordo, on the brief). Jeffrey T. Kampf argued the cause for respondent (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom, & Sinins, attorneys; Mr. Kampf, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-867-12. Anthony Scordo argued the cause for appellant (Stueben & Scordo, attorneys; Mr. Scordo, on the brief). Jeffrey T. Kampf argued the cause for respondent (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom, & Sinins, attorneys; Mr. Kampf, of counsel and on the brief). PER CURIAM
This appeal concerns the second chapter of litigation involving claims brought by plaintiff, Tebeyene Mamo (Mamo), against defendant, the estate of Augustin Nguwe Mandeng (decedent). In a prior unpublished opinion, we affirmed the decision of the Chancery Division, Probate Part, that Elizabeth Mandeng (Mandeng), and not Mamo, was the decedent's lawful surviving spouse. Accordingly, Mandeng was entitled to all the legal benefits attendant to that status, including the right to serve as administratrix of decedent's estate. In re Estate of Mandeng, No. A-2143-07 (App. Div. Feb. 24, 2009), certif. denied, 199 N.J. 541 (2009) (the probate litigation).
We present the relevant background of this case, drawn from our prior opinion.
On February 16, 2005, Augustin Ngwe Mandeng died intestate. On August 9, 2005, the Essex County Surrogate's Court issued letters of administration for his estate to Mandeng, as his surviving spouse. On January 31, 2007, Mamo filed an order to show cause and verified complaint seeking reversal of Mandeng's appointment as administratrix, an accounting, rescission of any death certificates that did not name Mamo as the decedent's sole surviving spouse, and similar equitable relief.
. . . .
On October 26, 2007, the court rendered an oral opinion and issued a written order dismissing Mamo's complaint with prejudice. The court found that Mandeng was the last surviving spouse of the decedent and was thereby entitled to all the legal benefits resulting from that status. On November 13, 2007, Mamo moved for reconsideration. The application was denied on December 14, 2007, and this appeal followed.
The decedent, a native of the Republic of Cameroon, married Mandeng on August 25, 1973, in Ohio. They had two children, both born in New York, one in 1975, and the
second in 1977. The decedent was employed by the United Nations (U.N.) and was posted to Burkina Faso in 1989. Mandeng and the children remained in New York, although they visited the decedent in August 1989. While he continued to be posted to other African locations, she and the children continued to reside in New York.
Mamo, also an employee of the U.N., commenced her relationship with the decedent in Ethiopia in 1982. He invited her to New York, where she continued to work for the U.N. Although the decedent remained in the marital home, Mamo maintains that he was separated from Mandeng at the time. In January 1987, Mamo and the decedent had a son. When the decedent was posted to Burkina Faso, he and Mamo, who was then posted to Chad, frequently visited each other.
The decedent allegedly obtained a divorce from Mandeng dated May 15, 1989, in Cameroon. The motion court found the divorce decree to be a fraud, however, noting questionable spellings and obvious errors on the face of the document as well as a letter proffered by Mandeng from an attorney in Cameroon indicating that the purported divorce document was a fake. In a May 16, 2007 letter supplied to the motion court, the chief registrar of the Littoral Court of Appeal of Cameroon stated that there was no record of the purported divorce on file in their registry. On July 26, 2007, the chief registrar authored another letter stating that because there was no record of the divorce decree in their court, "it is to be concluded that the said decision is not authentic."
Mamo claims that she believed that the Cameroonian divorce was legitimate. After the decedent made her aware of the document, he married Mamo in a civil ceremony in
Cameroon on November 28, 1989, and later participated in a ceremonial wedding on September 15, 1990, in her home country of Ethiopia.
Mandeng and her oldest son claim that they knew nothing of the decedent's marriage to Mamo or of any divorce decree from Cameroon or elsewhere. In fact, the first Mandeng learned of any divorce proceeding was a New Jersey divorce complaint served upon her in November 2004, a few months before her husband's death.
In November 1998, Mamo purchased a home in West Orange, and the decedent co-signed the loan. They lived there until his death on February 16, 2005. On May 1, 2004, the decedent gave Mamo a durable power of attorney. When he filed for divorce from Mandeng in New Jersey in September 2004, he certified that he and she separated in 1989, and that there had been "no previous proceedings between the [decedent] and [Mandeng] respecting the marriage or its dissolution or respecting maintenance of the [decedent] in any court." This is standard "boiler plate" language.
Mamo was identified as the decedent's surviving spouse on the original death certificate. The decedent's divorce complaint was dismissed without prejudice on March 7, 2005. The death certificate was amended in May 2005, at the request of Mandeng's older son, to reflect that she, and not Mamo, was the decedent's surviving spouse.
Mandeng obtained letters of administration in early August 2005. That same month, the U.N. Pension Entitlements Section informed her that she was entitled to the decedent's surviving spouse benefits.
At some unspecified later date, Mamo attempted to transfer the title of the decedent's car into her son's name and was advised that Mandeng was the administratrix of the estate. Her complaint seeking to vacate the appointment followed.
In support of her claim, Mamo produced an August 18, 1998 letter from the decedent to an attorney referring to her as his wife, a retail installment contract signed for the purchase of an automobile by both Mamo and the decedent, and the title for the decedent's automobile citing his address as the West Orange home he shared with her. Curiously, Mamo also provided copies of cancelled checks written from 1999 to 2004 from a joint bank account in the names of Mandeng and the decedent. The West Orange address appears on the front of the checks, although the account is in both names. On three of the checks, Mandeng's name is blacked out.
. . . .
Generally, when multiple marriages exist simultaneously, there is a strong presumption in favor of the latest marriage, which accords with the presumption that the earlier marriage was properly ended by death or divorce. Kazin v. Kazin, 81 N.J. 85, 96 (1979). The burden is on the individual challenging the legality of the latest marriage "to prove its invalidity by clear and convincing evidence." Ibid. See also Newburgh v. Arrigo, 88 N.J. 529, 538 (1982) (holding that the presumption of validity can only be overcome by "clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was not terminated by death or divorce before the latest marriage").
In this case, the validity of the earlier marriage is undisputed. Mandeng presented clear and convincing evidence refuting the legitimacy of the Cameroonian divorce. Mamo's marriage to the decedent is invalid because the first marriage was never terminated. Ibid. Mamo, who had no personal knowledge of the divorce but relied on her husband's statements to her and on the purported divorce document, did not refute Mandeng's proofs. Having proved by clear and convincing evidence that the decedent's latest marriage was void, Mandeng established that she was the surviving spouse for succession purposes under the New Jersey intestacy statute, N.J.S.A. 3B:5-1 to 3B:5-14.
[Estate of Mandeng, supra, slip op. at 2-6, 9-10 (alterations in original).]
Although we affirmed the decision denying Mamo relief in the probate litigation, in a footnote we added:
A question not before us is whether Mamo may be entitled to some equitable relief in the Family Court in light of the Supreme Court's determination in In re Estate of Roccamonte, 174 N.J. 381 (2002), as well as our decision in In re Estate of Quarg, 397 N.J. Super. 559 (App. Div. 2008). Should Mamo file an action in the Family Court, she may be entitled to some equitable relief on the basis of implied contract, as a promise of support may be expressed or implied. Kozlowski v. Kozlowski, 80 N.J. 378, 394 (1979).Mamo then filed a palimony action against decedent's estate, the dismissal of which forms the basis of this appeal.
[In re Estate of Mandeng, supra, slip op. at 13 n.1.]
Mamo's palimony complaint was filed on February 24, 2011, and recited facts consistent with those stated above. Mamo asserted that her relationship with decedent "demonstrates that decedent intended and represented, either expressly, or impliedly, to support and provide for [her] and her son for the remainder of her life should decedent die or become incapacitated." Mamo sought judgment against decedent's estate for her "rightful share of said [e]state to be determined by this [c]ourt."
Mamo filed two prior palimony complaints in October 2009, and October 2010, both of which she voluntarily dismissed. Although the February 24, 2011 complaint was originally filed in the Chancery Division, Probate Part, it was transferred to the Family Part on August 26, 2011.
The Family Part judge conducted a plenary hearing on plaintiff's palimony claim on December 4, 2012, and January 4, 2013. Mamo, Mandeng, and several other witnesses testified. At some point, defendant verbally moved to dismiss Mamo's complaint on the basis that since the estate had no assets to satisfy a palimony award, any ruling by the court would merely represent an advisory opinion. After affording counsel the opportunity to brief the issue, the court placed an oral decision on the record on May 2, 2013. The judge made no findings with respect to the merits of Mamo's palimony claim. Instead, the court dismissed the complaint on the basis that it sought an advisory opinion. The judge reasoned:
In Mamo's brief she asserts that "[o]n the date of trial and prior to [the] start of the hearing, defendant's counsel in chambers raised the issue of whether the [c]ourt had jurisdiction over the matter and whether the [c]ourt would be issuing an advisory opinion by rendering a ruling on [Mamo's palimony] claim . . . ." Defendant does not dispute this account.
Analyzing the facts of this case, under the case law that I just cited, the [c]ourt finds that basically . . . the relief that plaintiff is now seeking, that is palimony, is really asking the [c]ourt to issue an [advisory] opinion. As I noted in the factual history, the plaintiff has been to various tribunals, the Probate Court, the Appellate Division, the United Nations Appeals Tribunal, and it has been determined by several, all those tribunals, that she is not entitled to any benefits under the decedent's pension. And that's when she then filed this application for palimony.
The [c]ourt finds that if in fact, the [c]ourt were to decide the issue of palimony, it would . . . be hypothetical. And it would not grant any effective relief to [] plaintiff, for the simple reason that there are no assets in the estate of the decedent. As I noted earlier all of the assets that were in the decedent's name, have already been distributed via the mechanisms of the documents that created those assets or established those assets. As [I] indicated earlier the life insurance policy designated that the beneficiaries under that were the plaintiff who received 50% of the policy, and the decedent's children who received 50%. That was an
asset that he established and that was an asset that he designated the beneficiaries on, that passed outside of the estate. With regard [to] the bank accounts they likewise passed outside of the estate because [] plaintiff was listed as a joint owner or co-owner of those accounts. And the pension, which is really the bone of contention, which is what really plaintiff is seeking, was also determined by the United Nations Tribunal by their fund.
So there's no money in the estate for payment of any palimony, if in fact the [c]ourt were inclined to grant [] plaintiff palimony. There's no source of income in the estate, where in fact palimony could be paid on a weekly or monthly basis. Moreover, there's no assets in the estate . . . from which a lump sum payment could be paid or awarded.
Since the . . . estate has no assets, a decision by this [c]ourt would not grant [] plaintiff any effective relief. In essence it would be hypothetical and it would be advisory. And plaintiff argues that it is not [an] advisory opinion because she argues that if in fact, it was granted and the [c]ourt found that there was an obligation to pay [p]alimony that that would then bestow an obligation upon the estate to now sue [] defendant for the payments that she received under the widow benefits of decedent's pension. But those benefits aren't an asset of the estate. Those are the benefits to which she, Elizabeth Mandeng is entitled based upon the pension plan documents and based upon the decision of the UN Tribunal. So I find that the relief that plaintiff is seeking is an [advisory] opinion. This [c]ourt does not have jurisdiction to issue [advisory] opinions.
Much of the argument on defendant's motion to dismiss centered on a pension that decedent maintained through his employment with the United Nations. Following decedent's death, both Mamo and Mandeng filed claims for widow's benefits under Article 34 of the rules and regulations of the United Nations Joint Staff Pension Fund (Pension Fund). Article 34(a) provides that:
A widow's benefit shall . . . be payable to the surviving female spouse of a participant who was entitled to a retirement, early retirement, deferred retirement or disability benefit at the date of his death, or who died in service, if she was married to him at the date of his death in service or, if he was separated prior to his death, she was married to him at the date of separation and remained married to him until his death.
The Standing Committee of the Pension Fund awarded the widow's benefit to Mandeng, deeming her to be the decedent's surviving spouse. Mamo appealed to the United Nations Appeals Tribunal, which affirmed the Pension Fund's determination on March 30, 2010. In its ten-page written opinion, the Appeals Tribunal noted the Probate Part's decision in the probate litigation. Although it did not consider itself bound by that determination, the Appeals Tribunal considered it "evidence that we find credible. In addition to all the other evidence in this case, it convinces this [c]ourt that [the Pension Fund] did not err in awarding the widow's benefit to [Mandeng]." The Appeals Tribunal further stated that "[w]hile we believe [Mamo] has always acted in good faith, we are constrained to affirm the [Pension Fund's] decision."
In this appeal, plaintiff argues, among other things, that the court's decision dismissing her palimony complaint failed to consider Article 38 of the Pension Fund regulations. That article, entitled "Residual Settlement," provides:
(a) A residual settlement shall be payable if, upon the death of a participant and the exhaustion, as the case may be, of any entitlements due under these Regulations to his or her survivors, the total amount of the benefits paid to and on account of the participant is less than the participant's own contributions.Mamo argues that this "residual settlement" is a potential asset of the estate. Thus, Mamo asserts, the trial court erred in dismissing her complaint on the basis that it merely sought an advisory opinion since the estate lacked any assets to pay a palimony award. We agree.
(b) The settlement shall be payable to a beneficiary designated by the participant and alive when the payment is due; failing such beneficiary, the settlement shall be paid to the estate of the participant.
(c) The settlement shall consist of the participant's own contributions at the date of his or her separation or death in service, reduced by the total amount of the benefits paid to and on account of the participant.
[(Emphasis added.)]
It is well settled that our courts refrain from rendering advisory opinions or exercising jurisdiction in the abstract. See De Vesa v. Dorsey, 134 N.J. 420, 428 (1993); Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 108 (1971); see also G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009) (instructing that courts should not "answer abstract questions or give advisory opinions").
We find no support for the proposition that, simply because a judgment obtained on a litigant's claim is or may later prove to be uncollectible, the court's ruling on such a claim constitutes an advisory opinion. In any event, considering the potential availability of decedent's "residual settlement" pension benefit, we are unable to conclude that the estate lacks any assets that may now or in the future serve to satisfy a palimony award should Mamo prevail on the merits of her claim. Accordingly, we conclude that the trial court erred in dismissing Mamo's application for palimony on the grounds that she sought an advisory opinion.
Mamo also argues that the United Nations recognizes non-traditional living arrangements and will apportion pension benefits among multiple claimants where the non-traditional claim is recognized by the law of the resident jurisdiction as legitimate. Mamo points to a certification submitted by François Loriot, the attorney representing her on her claim for benefits from the Pension Fund. Specifically, Loriot represented that:
On 12 December 2012, [I] met with Mr. Bernard Cochemé, Administrator of the . . . Pension Fund to explain the recent disclosures, [c]ourt orders and developments in the [palimony] case, and asked him if the [Pension Fund] would take into consideration the [up]coming [c]ourt ruling in [the palimony case]. Mr. Cochemé confirmed that, as [the Pension Fund's] CEO, he has the authority to consider such new facts, evidence[,] and court rulings which may alter the previous pension decisions, and that he would welcome a ruling on [Mamo's palimony] claim, from the NJ Superior Court, Chancery Division.Additionally, Mamo argues that the trial court failed to address Article 45 of the Pension Fund's rules and regulations, which permits the Fund to remit a portion of a pension benefit "to satisfy a legal obligation on the part of a participant or former participant arising from a marital or parental relationship and evidenced by an order of a court . . . ."
Defendant argues that Article 45 is inapplicable because, under subsection (b) of the Article, any such payments cease following the death of the Fund's participant or former participant.
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Since our conclusion that Section 38 of the Pension Fund's rules and regulations alone provides a sufficient basis to reinstate Mamo's complaint, we need not decide these additional arguments. Suffice it to say that if Mamo should ultimately prevail on her palimony complaint, she is free to advance her claims before the Standing Committee of the Pension Fund with respect to any benefits to which she may be entitled.
In conclusion, we vacate the trial court's order dismissing Mamo's application for palimony on the grounds that it sought an advisory opinion from the court. We remand the matter to the trial court to determine the merits of Mamo's palimony claim, with the benefit of the information elicited during the plenary hearing and any additional argument that the court should see fit to entertain. In doing so, we express no opinion on whether Mamo's allegations establish an express or implied contractual right to any portion of the proceeds of decedent's estate. See, e.g. Kozlowski, supra, 80 N.J. at 384; In re Estate of Roccamonte, supra, 174 N.J. at 389-90; In re Estate of Quarg, supra, 397 N.J. Super. at 563. We similarly express no opinion on Mamo's entitlement to benefits from the Pension Fund should she prevail on her palimony claim.
Vacated and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION