Wednesday, May 18, 2011


DOCKET NO. A-5673-09T4



Submitted May 4, 2011 – Decided May 13, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P621-10.


SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONIn this appeal, Heather Fernandes, a beneficiary of her mother's estate, appeals an order that granted respondent Glenn A. Coleman -- a removed co-executor -- compensation for his performance as a co-executor and reimbursement of certain legal fees incurred. Because the trial judge failed to explain his rulings, we remand.

The limited record presented by these pro se litigants reveals that Geraldine Parks died on February 12, 2008. She had six children: Georgia, Heather, Russell, Patricia, Phillip, and

Glenn.1 Decedent's Will named two of them -- Glenn and Russell -- as co-executors. Difficulties with the administration of the estate surfaced, resulting in an application brought by Glenn for: the removal of both he and Russell as executors; the appointment of an attorney to act as administrator; and reimbursement for certain expenses he claimed to have incurred.

Heather, Russell, Georgia, Phillip, and Glenn's attorney appeared in court on December 7, 2009, the return date of the order to show cause. Although the moving and opposing papers were not included in the record on appeal, we assume from the transcript of the proceedings on that date that Glenn had moved to be discharged because of his own illness and the fact that he resides in North Carolina, circumstances that rendered difficult his ability to administer the estate; Russell's removal was sought on the claim that he had misappropriated or mismanaged estate property. The judge did not conduct an evidentiary hearing but instead permitted Heather, Russell, Georgia, and Phillip, all of whom were unrepresented, to express their positions. Russell opposed his own removal; Heather questioned the veracity of Glenn's contentions as to his performance in managing the estate and his alleged inability to continue in that role; Georgia expressed concern about Glenn's removal

1We refer to them by their first names to avoid confusion.



before providing an accounting; and Phillip also argued Glenn should not be removed until he provided an accounting. Citing Glenn's "purported health condition and the fact that he's out of state," the judge concluded that he would "permit [Glenn] to resign as executor," but directed that he provide an informal accounting within sixty days. As for Russell, the judge concluded that he was "satisfied that there is a sufficient issue here warranting his removal as executor based upon the allegations of misappropriation here that have been referred to the prosecutor's office." The judge appointed an attorney to administer the estate.

The informal accounting was timely provided, and the matter back before the judge on February 9, 2010. At that time, the administrator appeared, as well as Heather, Georgia, and Phillip; Glenn appeared by telephone. At that time, Heather provided specifics as to why she believed Glenn's performance as co-executor was inadequate; the record on appeal does not contain any written exceptions that she filed nor does it reveal whether she even filed written exceptions. When the parties completed their arguments, the judge reserved decision.

On March 11, 2010, the judge entered an order that approved the informal accounting with the exception that he found Glenn was not entitled to reimbursement for legal fees expended in



seeking to be relieved as co-executor but was permitted reimbursement of $525, which was paid to the attorney "in connection with the appointment of the Administrator following removal of the Executors." The judge attached to the order a


of reasons, the entirety of which is as follows:

The co-executors were removed for cause and any commissions ordinarily payable to them are forfeited under N.J.S.A. § 3B:18-5. Equity dictates that the harm to other beneficiaries based upon time delay warrants a finding that a portion of the counsel fees sought as reimbursement by [Glenn] be forfeited. A portion, however, benefited the entire Estate and should be paid as an expense of administration.

The Administrator is entitled to legal fees under N.J.S.A. § 3B:18-6 and commissions under N.J.S.A. § 3B:18-4 and N.J.S.A. § 3B:18-16.

The order also contained a provision that reduced the proposed distribution to Russell by what he owed the estate; this provision declared that the balance of the distribution to Russell "shall be held until all outstanding matters are resolved."

Glenn later moved for reconsideration of that part of the March 11, 2010 order that limited the reimbursement of attorneys' fees expended in the initial application and that barred his recovery of a commission. He argued, among other things, that he had sought his own discharge as co-executor



"[n]ot because he had done anything wrong, but because for medical reasons and personal reasons, he no longer wished to continue in his role" and that the judge must have mistakenly "lumped together" Glenn and Russell when he ruled on the informal accounting. In the colloquy between the judge and Glenn's attorney, the judge seemed to agree that he "may have juxtaposed" Glenn and Russell, and that he would have to "take a look at that" before ruling on the motion.

Heather opposed reconsideration, criticizing Glenn's performance as co-executor to the extent that would justify the terms of the judge's March 11, 2010 order. Heather also argued the motion was filed beyond the time frame set forth in Rule 4:49-2, to which the judge responded that he could "always correct a mistake" and that, after listening to the parties' arguments, he felt "about 99 percent sure I made a mistake when I entered this order the way I did." The judge, however, reserved decision in order "to go back over everything that was presented at that time and make sure that . . . this is what I intended."

On June 24, 2010, the judge entered an order that granted reconsideration and directed that Glenn be reimbursed $2620 in legal fees and $280.41 in costs, which were incurred when he sought to be relieved as co-executor. The order also permitted



compensation to Glenn, pursuant to N.J.S.A. 3B:18-13, in the amount of $2500. The record does not reveal that the judge provided any oral or written decision to explain the reasons for entry of this order.

Heather filed a timely appeal from the June 24, 2010 order. We glean from her pro se brief that she argues, among other things: that Glenn was removed as co-executor for cause; that the March 11, 2010 order was correct and appropriate; and that the motion for reconsideration was untimely, thereby depriving the judge of jurisdiction to enter the June 24, 2010 order. We cannot presently reach these issues on their merits because of the judge's failure to express the reasons for the June 24, 2010 order, pursuant to Rule 1:7-4(a).

Litigants and appellate courts are entitled to a trial judge's rationale when reviewing his actions. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). For that reason alone, we remand this matter to the trial court. In addition, it is not clear to us whether the March 11, 2010 order was a final order; that question is critical to determining whether the trial court had jurisdiction to enter the June 24, 2010 order. If the March 11, 2010 order was final -- that is, if it disposed of all issues as to all parties -- then the motion for reconsideration



was untimely because it was filed more than twenty days from service of the order in question. See R. 4:49-2. And, if the motion for reconsideration was untimely, the judge did not have jurisdiction to rule on it.2 If, however, the March 11, 2010 order was not a final order, then the judge was authorized to reconsider it at any time prior to the entry of a final judgment. See R. 4:42-2.

We, thus, remand for the judge's analysis of the circumstances relevant to whether the March 11, 2010 order was a final order. As observed earlier, that order directed that the distribution to Russell was to "be held until all outstanding matters are resolved." In this setting, and in light of the limited record on appeal, that direction may or may not suggest there were issues remaining to be resolved in this action. For example, because the record does not include the complaint or any responsive pleadings filed in this action, we cannot determine whether there were claims asserted in this action that relate to the judge's reference to "outstanding matters"; that phrase, however, could also be a reference to the additional work yet to be accomplished by the administrator with regard to

2The twenty-day time limit contained in Rule 4:49-2 may not be enlarged. See R. 1:3-4(c); Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).



this estate. If the former, then it would seem the March 11, 2010 order was not a final order; if the latter, it may be. See Higgins v. Thurber, 413 N.J. Super. 1, 12-13 (App. Div. 2010), aff'd o.b., 205 N.J. 227 (2011). The judge should identify for us the circumstances relevant in determining whether the March 11, 2010 order is final.

The judge is also to provide a statement of reasons for granting the June 24, 2010 order as required by Rule 1:7-4(a).

Remanded. We do not retain jurisdiction.



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