                     NOT FOR PUBLICATION WITHOUT THE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-2686-16T3


IN THE MATTER OF THE ESTATE
OF CAROL A. LEE RANKINS,

     Deceased.
________________________________

           Argued February 6, 2018 – Decided June 25, 2018

           Before Judges Sumners and Moynihan.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Probate Part, Middlesex
           County, Docket No. 250686.

           Kenneth W. Thomas argued the cause for
           appellant Ursula T. Jones (Lanza Law Firm,
           LLP, attorneys; Kenneth W. Thomas, of counsel
           and on the brief).

           Dawn Marie Farinella argued the cause for
           respondent Clyde Rankins (Santoro and Santoro,
           attorneys; Dawn Marie Farinella, of counsel
           and on the brief).


PER CURIAM

      In this Chancery Division dispute, respondent Clyde Rankins,

the   surviving   spouse    of   Carol   A.   Lee   Rankins,    claimed    full

entitlement to the proceeds from the sale of the home they owned

and lived in through tenancy by the entirety.               Appellant Ursula
T. Jones, Carol's1 daughter from a different relationship and

executrix of Carol's estate, argued that Clyde has no rights to

her mother's one-half share of the proceeds because Carol and

Clyde's twenty-seven year marriage is invalid based upon her

discovery after her mother's death that her signature as a witness

on   their   marriage   certificate    was    forged.    Ursula    therefore

asserted     that   Carol's   last   will    and   testament   controls   the

disposition of her one-half share of the sales proceeds, which

should be placed in a constructive trust for the beneficiaries –

she and her two sisters are the sole beneficiaries – due to Clyde's

misdeeds.2

      After the parties filed summary judgment motions, the trial

court granted Clyde's motion and denied Ursula's motion.             In its

oral decision, the court determined that there was no basis to

nullify his marriage with Carol under either our annulment statute,

N.J.S.A. 2A:34-1, or due to Ursula's alleged forged signature on

the marriage certificate, and thus he was entitled to all of the

sale proceeds as a surviving tenant by the entirety.              We reverse

because we conclude Ursula's contention that her signature was


1
   We use the parties' first names because some of them share a
surname and for ease of reference, and in doing so we mean no
disrespect.
2
   The youngest sister is a minor who was adopted by Carol and
Clyde, but whose legal guardian is Ursula.

                                      2                              A-2686-16T3
forged creates a factual dispute as to the consummation of their

marriage under N.J.S.A. 37:1-17, which thereby prevents summary

judgment in favor of Clyde to the sales proceeds under tenancy by

the entirety.   There is also a factual dispute concerning Clyde's

misdeeds, which warrants a reversal of the court's decision not

to consider whether a constructive trust should be imposed.

     When reviewing an order granting summary judgment, we apply

"the same standard governing the trial court."         Oyola v. Xing Lan

Liu, 431 N.J. Super. 493, 497 (App. Div. 2013).            A court should

grant summary judgment when the record reveals "no genuine issue

as to any material fact" and "the moving party is entitled to a

judgment or order as a matter of law."          R. 4:46-2(c).     We accord

no deference to the trial judge's legal conclusions.            Nicholas v.

Mynster, 213 N.J. 463, 478 (2013) (citations omitted).              Summary

judgment should be denied when determination of material disputed

facts depends primarily on credibility evaluations.             Petersen v.

Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011).

Although both parties moved for summary judgment, but because the

court granted judgment in favor of Clyde, we consider the facts

in a light most favorable to Ursula.       Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 523 (1995).

     Mindful    of   these   principles,   we    briefly   summarize     the

relevant facts and assertions from the record.        Eight months after

                                    3                               A-2686-16T3
Carol's death in 2015, Ursula, the executrix of Carol's estate

under a last will and testament executed on April 1, 2013, filed

a verified complaint and order to show cause to probate the estate

and vacate the letters of administration previously given to Clyde.

In   pertinent   part,   she   specifically     requested     to    enjoin   and

restrain Clyde, who married Carol in a civil ceremony on June 10,

1988, "from dissipating any portion of the [estate] until further

notice   of   the   court."    Clyde       responded   with   an    answer   and

counterclaim; seeking all rights to title and interest in the

marital home,3 which was jointly purchased a year before their

marriage and deeded to Carol, but she later deeded the property

to herself and Clyde, her husband, that was recorded in the

Middlesex County Clerk's Office on July 1, 1998.4                  Carol claims

she assisted her mother in the purchase, which was made solely

with her mother's funds.       Clyde also claimed no knowledge of his

wife's will nor the bequests therein.

      In Ursula's answer to the counterclaim, she questioned her

mother's marriage to Clyde because she did not witness the marriage


3
  Although Ursula contends Carol and Clyde were not legally
married, for ease of reference we refer to the property as their
marital home.
4
   A mortgage on the property was recorded on June 1, 2007, with
"Clyde S. Rankins and Carol A. Rankins, Husband and Wife" as the
borrowers.


                                       4                                A-2686-16T3
and her signature on the marriage certificate was forged.               The

court in turn executed an order admitting the will to probate;

enjoining Clyde from dissipating any portion of the estate until

further court order; appointing Ursula as executrix of the estate;

vacating the letters of administration granted to Clyde; allowing

Clyde to sell the marital home with the net proceeds to be held

in the trust account of Clyde's attorney; setting out a discovery

period;    requiring   parties   to   participate    in    mediation;   and

scheduling a trial date.

     After mediation was unsuccessful, Ursula filed a motion to

amend her complaint to allege unjust enrichment and seek imposition

of a constructive trust on one-half of the proceeds of the marital

home.     Clyde filed no opposition.      However, the record does not

indicate the disposition of the motion.             Ursula then filed a

summary judgment motion to impose a constructive trust on one-half

of the proceeds of the marital home on behalf of her and her

sisters as beneficiates of Carol's estate.          In the application,

she certified that her sister, Catherine, signed her name on the

marriage certification as she was not at the wedding and was

against her mother's decision to marry Clyde.             Ursula also made

various allegations concerning Clyde's emotional control over her

mother by forcing her to add his name to the deed of the marital

home; his physical and sexual abuse towards her mother; his sexual

                                      5                            A-2686-16T3
abuse of her female cousin, her adopted sister's mother; his lack

of concern and financial support for her adopted sister, his

adopted daughter; and his mismanagement of her mother's finances

that led her mother to file for bankruptcy and suffer stress that

caused   health   issues.     Ursula     further   contended   that     these

circumstances attributed to her mother's decision not to leave

anything to Clyde in her last will and testament.           Clyde filed a

cross-motion for summary judgment supported by his certification

that he and Carol were legally married, and that he had no

knowledge of Ursula's sister signing her signature on the marriage

certificate.

     The court rejected Ursula's claim that the marriage was not

valid, finding there was no basis to annul the marriage under

N.J.S.A. 2A:34-1, which allows marriages to be nullified on a

variety of grounds, including bigamy, incest, impotence, infancy,

and incapacity to marry.      We agree with this finding.

     We, however, differ with the court's rejection of Ursula's

contention that the marriage was not legally valid because it

failed   to   satisfy   the   marriage    certificate    requirements        of

N.J.S.A. 37:1-17. In pertinent part, the statute provides, "[e]ach

certificate of marriage or civil union shall also contain the

signature and residence of at least two witnesses who were present

at the marriage or civil union ceremony."          N.J.S.A. 37:1-17.       The

                                    6                                 A-2686-16T3
court determined there was no legal basis to invalidate Carol and

Clyde's marriage due to a lack of two bona fide witnesses on the

marriage certificate as required by N.J.S.A. 37:1-17.         Even though

the statute does not specifically declare that failure to adhere

to its requirements invalidates a purported marriage, there is a

legal basis to support Ursula's contention.

     In N.J.S.A. 37:1-10, our legislature declared that effective

December 1, 1939:

           [N]o marriage . . . shall be valid unless the
           contracting parties shall have obtained a
           marriage license as required by [N.J.S.A.]
           37:1-2 . . ., and unless, also, the marriage,
           after license duly issued therefor, shall have
           been performed by or before any person,
           religious     society,      institution     or
           organization authorized by [N.J.S.A.] 37:1-13
           . . . to solemnize marriages; and failure in
           any case to comply with both prerequisites
           aforesaid, which shall always be construed as
           mandatory and not merely directory, shall
           render the purported marriage absolutely void.

           [(Emphasis added).]

Thus, as we recognized in Yaghoubinejad v. Haghighi, 384 N.J.

Super. 339, 341 (App. Div. 2006), N.J.S.A. 37:1-10, among other

things, "requires that a license to marry be procured before the

ceremony."   Significantly, in Lee v. Gen. Accident Ins. Co., 337

N.J. Super. 509, 514-16 (App. Div. 2001), we held that because a

couple never obtained a marriage license as required by N.J.S.A.

37:1-10,   they   were   not   legally   married   and,   therefore,   the

                                    7                             A-2686-16T3
plaintiff was not eligible for coverage as a "family member" under

her spouse's automobile policy.               In commenting upon the couple's

participation in a ceremonial wedding, we noted the event "add[ed]

nothing to the case [because] [u]nder our statutes, the wedding

was   meaningless[,]       [and]    [t]he      marriage      was   void     from   its

inception."      Id. at 516 (citing N.J.S.A. 37:1-10).

      Applying     these    principles         to   this     appeal,    a   marriage

certificate that contains a forged signature of one of its two

purported witnesses does not satisfy N.J.S.A. 37:1-10, and is

thus, invalid.     In turn, the marriage license cannot be lawful and

the marriage is not legally consummated. Hence, we are constrained

to reverse the court's legal conclusion that Ursula's contention

that her forged signature on Carol and Clyde's marriage certificate

did not invalidate their marriage.              Since Clyde disputes Ursula's

forgery assertion, the court should not have granted summary

judgment   to    either    party.     A       remand   for   trial     is   therefore

necessary to enable Ursula to prove the veracity of her allegations

and its impact on Clyde's interest in the marital home.

      In addition, we find fault with the court's dismissal of

Ursula's equitable argument that a constructive trust should be

imposed on her mother's one-half share of the sales proceeds

because under the operation of law – tenancy by the entirety – her

mother's joint interest in the property went to Clyde. In reaching

                                          8                                   A-2686-16T3
that decision, the court explained there was no property to place

a constructive trust upon due to its finding that Carol and Clyde

were in fact married, giving Clyde the sole right to the sales

proceeds of the marital home as a tenant by the entirety. However,

as noted, we conclude there is a legitimate question as to whether

they were legally married.      Moreover, even if the marriage was

legally consummated, the court failed to adequately address if

there were sufficient grounds to impose a constructive trust due

to Clyde's alleged misdeeds.

     A constructive trust on property is appropriate in order to

"prevent unjust enrichment and force a restitution to the plaintiff

of something that in equity and good conscience [does] not belong

to the defendant."    Flanigan v. Munson, 175 N.J. 597, 608 (2003)

(alteration in original) (citation omitted).       A two-prong test,

however, must be satisfied to impose a constructive trust.        Ibid.

A court must first find one of the parties has committed a

"wrongful act."   Ibid. (citation omitted).     Second, the "wrongful

act must result in a transfer or diversion of property that

unjustly enriches the recipient."     Ibid.

     After stating that the sales proceeds go to Clyde under

tenancy by the entirety, the court simply states: "The other

arguments that are set forth do not form a basis under the law to

impose   a   constructive   trust."   Because    the   court   did   not

                                  9                             A-2686-16T3
specifically address how it considered Ursula's allegations of

Clyde's misdeeds, it is unclear whether the court made credibility

determinations   and   found   them   unconvincing,   or   if   the   court

accepted them as true, they did not warrant an imposition of a

constructive trust.    And of course, if the court took the former

route by deciding a factual dispute, it should not have done so.

See Petersen, 418 N.J. Super. at 132.       On remand, the court must

clearly set forth it findings of law and facts to determine whether

imposition of a constructive trust is warranted.           See R. 1:7-4;

Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div. 2015).

     Finally, the record indicates that the respective summary

judgment motions were filed and decided before any discovery

commenced.   Thus, on remand, we leave it to the court's discretion

to determine if discovery should be permitted.

     Reversed and remanded.     We do not retain jurisdiction.




                                  10                              A-2686-16T3
