Opinion
DOCKET NO. A-5181-10T3
05-29-2012
IN THE MATTER OF THE ESTATE OF FRANK M. LEONARD, Deceased.
Michael C. Leonard, appellant pro se. Elizabeth M. Leonard, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P415-08.
Michael C. Leonard, appellant pro se.
Elizabeth M. Leonard, respondent pro se. PER CURIAM
This is appellant Michael Leonard's second appeal in this probate matter. Appellant's father, Frank Leonard, Sr. (the decedent), was previously married to Ada Leonard, who predeceased him. On December 25, 1991, the decedent died testate, bequeathing a life estate in a residence located in Upper North Shore Culver Lake, Branchville (the Culver Lake residence) to his second wife, Elizabeth Leonard. The decedent also bequeathed all personal properly formerly belonging to Ada to his children, including appellant.
Elizabeth had filed a complaint, seeking to prohibit the children and their families from occupying the Culver Lake residence, interfering with her use and occupancy of the residence, and entering upon the property without her permission. Appellant filed a counterclaim for Elizabeth's alleged waste and mismanagement of the Culver Lake residence. The counterclaim also sought to remove Elizabeth as executrix of the estate, order the property be sold, and permit appellant and his sister to enter Elizabeth's home in Washington, D.C. to identify and remove Ada's personal property, which they believed was located there.
Following trial on the counterclaim, in an October 1, 2008 order, the trial judge denied the claim for waste, and denied the requests to remove Elizabeth as executrix, direct her to return Ada's personal property to the children, and compel the sale of the Culver Lake residence, among other things. Appellant did not appeal from this order.
Appellant subsequently filed a motion seeking access to the Culver Lake residence to identify and remove Ada's personal property, among other matters decided in the October 1, 2008 order. In a July 24, 2009, order, the trial judge denied the motion and awarded Elizabeth counsel fees.
Appellant appealed from the July 24, 2009 order. He also challenged matters that were tried and resolved by the October 1, 2008 order; however, we held this challenge was time-barred. IMO Estate of Frank Leonard, No. A-6403-08 (App. Div. September 28, 2010) (slip op. at 9). We remanded to the trial court solely to resolve the parties' dispute over the items that appellant claimed belonged to Ada, and reconsider the award of counsel fees to Elizabeth. Id. at 13-14.
Following our decision, appellant filed a motion to reverse the October 1, 2008 order pursuant to Rule 4:50 based on the alleged misconduct of the judge and adversary counsel. In a November 1, 2010 order, we denied the motion, stating that "[m]otions to vacate orders under Rule 4:50 must be made to the trial court to flesh out facts surrounding allegations forming the basis of such a motion. We take no position as to the timeliness of such a motion."
On November 10, 2010, appellant filed a motion with the trial court, arguing that the October 1, 2008 must be vacated due to misconduct on the part of the judge, plaintiff's attorney and plaintiff relating to a pre-trial inspection of the Culver Lake residence, mistakes of law by the judge, surprise, and a violation of appellant's due process rights. Appellant also requested other relief that went beyond the scope of our remand and our November 1, 2010 order -- to recuse the judge, vacate the restraints imposed under a December 14, 2007 order, appoint appellant and his sister as trustees, restrain Elizabeth from the Culver Lake residence, and damages for waste.
In a February 10, 2011 oral decision, the judge denied the motion, holding that there was no threshold basis upon which to grant relief under Rule 4:50-1, and the motion was time-barred under Rule 4:50-2. Addressing the merits, the judge held that the motion had no basis in law or fact, there was no misconduct by anyone in this matter, there was no reason for his recusal, appellant did not raise the misconduct issue on appeal, and the remand was limited to resolving the parties' dispute over the items that appellant claimed belonged to Ada and reconsidering the award of counsel fees to Elizabeth. The judge also vacated the award of counsel fees to Elizabeth, and required her to respond to a list of seventy-eight items of personal property that appellant claimed belonged to Ada. The judge memorialized his decision in a February 28, 2011 order. Appellant appeals from those parts of the February 28, 2011 order unfavorable to him..
In an April 11, 2011 oral decision, the trial judge awarded Elizabeth eight items from the list, some of which appellant conceded belonged to her. The judge memorialized his decision in a June 9, 2011 order. Appellant appeals from that part of the June 9, 2011 order, which awarded the eight items of personal property to Elizabeth.
On appeal, appellant raises the following contentions:
I. THE JUDGE ERRED IN FAILING TO DISQUALIFY HIMSELF AS PER R[ULE] 1:12 AND [CODE OF JUDICIAL CONDUCT] 3C, DENYING A FAIR AND IMPARTIAL HEARING.We have considered these contentions in light of the record and applicable legal principles and conclude they have no merit whatsoever to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the trial judge in his well-reasoned, and patiently rendered, oral decisions of February 10, 2011 and April 11, 2011. However, we make the following brief comments.
II. THE JUDGE FAILED TO PROVIDE THE FULL RIGHT TO BE HEARD AS PER [CODE OF JUDICIAL CONDUCT] 3A(6), DENYING DUE PROCESS.
III. THE JUDGE FAILED TO FOLLOW THE LAW IN DENYING A HEARING ON APPELLANT'S CLAIM THAT TIM[E]LINESS WAS ESTABLISHED BY LACK OF DUE PROCESS.
IV. THE JUDGE DENIED DUE PROCESS IN CONDONING MISCONDUCT ON THE PART OF OPPOSING COUNSEL.
V. THE JUDGE ERRED IN THE LAW CONCERNING: THE MOTION TO VACATE ON [THE] GROUND OF TIM[E]LINESS; AND THE TESTIMONY OF JUDGES.
VI. THE RULING OF OCTOBER 1, 2008, FORMULATED IN COLLUSION BETWEEN JUDGE AND RESPONDENT'S ATTORNEY, VIOLATED DUE PROCESS AND NEW JERSEY LAW.
We discern no misconduct, collusion, bias, denial of due process, or other improper conduct on the part of the trial judge in this matter. If appellant believed there was any pre-trial misconduct or a violation of his due process rights, as he now claims, he should have timely appealed from the October 1, 2008 order and addressed these issues in his first appeal. His belated attempt to vacate the October 1, 2008 order by way of his post-appeal motions that raised these issues for the first time was outside the scope of our remand and a blatant and improper attempt to sidestep our ruling that his appeal from the October 1, 2008 order was time-barred.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION