                                NOT FOR PUBLICATION WITHOUT THE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-1942-18T2

MARIE ANDRADE,

          Plaintiff-Appellant,

v.

GUSTAVO ANDRADE,

     Defendant-Respondent.
________________________

                   Submitted March 10, 2020 – Decided April 30, 2020

                   Before Judges Messano and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Hudson County, Docket No. C-
                   000189-17.

                   Celentano Stadtmauer & Walentowicz LLP, attorneys
                   for appellant (Henry C. Walentowicz, on the brief).

                   Gustavo Andrade, respondent pro se.

PER CURIAM

          In 2012, plaintiff Maria Andrade, then seventy-three-years old, executed

a deed transferring her home in Jersey City to her son, defendant Gustavo
Andrade, for a nominal fee, and reserving a life estate in her favor. In December

2017, plaintiff filed a verified complaint and order to show cause seeking to set

aside the deed, claiming defendant unduly influenced her into transferring the

property to him. The General Equity judge conducted a bench trial at which

plaintiff, defendant, and the attorney who prepared and filed the deed, testified.

The judge concluded that plaintiff failed to prove she and defendant "shared a

confidential relationship and that there were suspicious circumstances

surrounding the transfer of the premises[.]" Alternatively, the judge found that

defendant had rebutted any presumption of "undue influence" by clear and

convincing evidence. He entered an order dismissing the complaint, and this

appeal followed.

      Before us, plaintiff contends the judge's findings are not supported by the

credible evidence at trial. She also argues that she lacked any donative intent

when she transferred title to defendant.

      We have considered these arguments in light of the record and applicable

legal standards. Although the judge failed to specifically address the issue of

donative intent, we conclude his detailed findings of fact and conclusions of law

implicitly provide support for the conclusion that plaintiff intended to make an




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                                        2
inter vivos gift to her son. The trial judge's other findings and conclusions are

supported by substantial credible evidence in the record, and we affirm.

                                         I.

      We begin by acknowledging the standards that guide our review and by

setting the intertwined framework of critical legal determinations that control

resolution of any challenge to the validity of an inter vivos gift.

      "We review the trial court's determinations, premised on the testimony of

witnesses and written evidence at a bench trial, in accordance with a deferential

standard." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013).

            Final determinations made by the trial court sitting in a
            non-jury case are subject to a limited and well-
            established scope of review: "we do not disturb the
            factual findings and legal conclusions of the trial judge
            unless we are 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[.]"

            [Ibid. (quoting Seidman v. Clifton Sav. Bank, S.L.A.,
            205 N.J. 150, 169 (2011)).]

"To the extent that the trial court interprets the law and the legal consequences

that flow from established facts, we review its conclusions de novo."

Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 329 (2017) (citing D'Agostino,

216 N.J. at 182). These standards of review apply in circumstances like those


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                                         3
presented here where a purported inter vivos gift is challenged. Pascale v.

Pascale, 113 N.J. 20, 33 (1988).

      "There are three elements of a valid and irrevocable gift." Bhagat v.

Bhagat, 217 N.J. 22, 40 (2014).

             First, there must be actual or constructive delivery; that
             is, "the donor must perform some act constituting the
             actual or symbolic delivery of the subject matter of the
             gift." Second, there must be donative intent; that is,
             "the donor must possess the intent to give." Third, there
             must be acceptance.

             [Ibid. (quoting Pascale, 113 N.J. at 29).]

Although the party asserting the transfer was a gift has the burden of proof as to

these elements, when "the transfer is from a parent to a child . . . a presumption

arises that the transfer is a gift. The presumption does not apply if the parent is

a dependent of the child." Id. at 41–42. Additionally, the putative donor may

overcome the presumption through clear and convincing evidence "limited to

evidence antecedent to, contemporaneous with, or immediately following the

transfer." Id. at 47.

      "An adult donor is generally presumed to be competent to make a gift."

Pascale, 113 N.J. at 29. However, plaintiff here alleged the deed transfer was

not the product of her free will, but, rather, the result of undue influence.

"Undue influence has been described as 'that sort of influence that prevents the

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                                         4
person over whom it is exerted "from following the dictates of his own mind and

will and accepting instead the domination and influence of another."'" In re

Estate of DeFrank, 433 N.J. Super. 258, 269 (App. Div. 2013) (quoting Pascale,

113 N.J. at 30). "In respect of an inter vivos gift, a presumption of undue

influence arises when the contestant proves that the donee dominated the will of

the donor, or when a confidential relationship exists between donor and

donee[.]" Pascale, 113 N.J. at 30 (citations omitted).1



1
   Although the trial judge analyzed whether there were "suspicious
circumstances" surrounding the transfer in addition to the existence of a
"confidential relationship," and although plaintiff on appeal addresses the trial
evidence as to both findings, the Court has said:

            [w]ith respect to a will, to create a presumption of
            undue influence[,] the contestant . . . must show the
            existence not only of a confidential relationship, but
            also "suspicious circumstances," however "slight."
            Without proof of suspicious circumstances, a
            confidential relationship will not give rise to the
            presumption in the testamentary context. Underlying
            the absence of a requirement of showing suspicious
            circumstances with an inter vivos gift is the belief that
            a living donor is not likely to give to another something
            that he or she can still enjoy.

            [Id. at 30–31 (emphasis added) (citations omitted)
            (quoting Haynes v. First Nat'l Bank, 87 N.J. 163, 176
            (1981)).]



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                                       5
      "Among the most natural of confidential relationships is that of parent and

child." Id. at 34 (citing In re Fulper, 99 N.J. Eq. 293, 314 (Prerog. Ct. 1926)).

However, "the mere existence of family ties does not create . . . a confidential

relationship." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401–02 (App.

Div. 2007) (quoting Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div.

1952)). Simply put,

            the test for measuring the existence of a confidential
            relationship is "whether the relations between the
            parties are of such a character of trust and confidence
            as to render it reasonably certain that one party
            occupied a dominant position over the other and that
            consequently they did not deal on terms and conditions
            of equality."

            [Id. at 402 (quoting Blake v. Brennan, 1 N.J. Super.
            446, 453 (Ch. Div. 1948)).]

      To determine "whether a confidential relationship is present[,]" the

following factors must be considered:

            [(1)] whether trust and confidence between the parties
            actually exist[; (2)] whether they are dealing on terms
            of equality[; (3)] whether one side has superior
            knowledge of the details and effect of a proposed
            transaction based on a fiduciary relationship[; and (4)]
            whether one side has exerted over-mastering influence

In other words, if plaintiff demonstrated she shared a "confidential relationship"
with her son, she did not need to prove the deed transfer occurred under
"suspicious circumstances" in order to benefit from the presumption that
defendant exerted undue influence.
                                                                          A-1942-18T2
                                        6
            over the other or whether one side is weak or
            dependent.

            [Id. at 402.]

      "When the presumption of undue influence arises from an inter vivos gift,

the donee has the burden of showing by clear and convincing evidence no t only

that 'no deception was practiced therein, no undue influence used, and that all

was fair, open and voluntary, but that it was well understood.'" Pascale, 113

N.J. at 31 (quoting In re Dodge, 50 N.J. 192, 227 (1967)). The donee's burden

becomes particularly onerous if the donor is dependent upon the donee, and the

gift leaves the donor without any assets or unable to support herself. Ibid.

      We consider the judge's factual findings and conclusions given this

intertwined legal framework.

                                        II.

      Our summary of the trial testimony relies on the judge's expressed factual

findings and gives due consideration to the judge's detailed credibility

determinations based, in part, on his observations of the witnesses' demeanor.

The judge found plaintiff's testimony lacked credibility, and defendant's

testimony was highly credible.

      The property consisted of three floors, with plaintiff, a widow, occupying

the first, and tenants occupying the second and third. Plaintiff had four children,

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                                        7
two sons and two daughters, who are estranged from each other. Defendant

lived in the basement, performed substantial repairs on the property without

compensation and paid $100 per week to plaintiff in rent. Plaintiff and her

husband, who died in 1993, deeded the property to one daughter in 1991; the

daughter transferred the property back four years later. Yet again, in 2010,

plaintiff consulted an attorney who, at her request, drew up a deed to convey the

property to the same daughter for nominal consideration; however, plaintiff

requested the lawyer not record the deed and it was never recorded.

      The same attorney, who testified at trial, drew up the 2012 deed conveying

the property to defendant and reserving a life estate for plaintiff's benefit.

Further, the attorney testified that plaintiff was completely lucid and controlled

the meeting, with defendant saying little. The attorney testified that plaintiff

consulted him six months later, asking to have the house returned because she

was "having difficulty with" her son.

      The judge found that defendant reported the rental income from the

tenants on his tax returns and claimed plaintiff as a dependent. Although

defendant has a daughter himself, he named plaintiff as the sole beneficiary

under his will, and a sister as alternate beneficiary.




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                                         8
      The judge concluded that other than proving the indisputable — that

defendant was her son — plaintiff failed to prove a "confidential relationship"

existed between the two. He found that plaintiff was "a shrewd person who was

aware of the nature and objects of her bounty[] and made deliberate decisions

about the disposition of her real property for calculated purposes. " The judge

noted plaintiff's testimony that she transferred the property to her daughter

earlier "to protect that asset from any loss 'to the government.'" The judge found

that when plaintiff made her later decision to transfer the property to defendant,

"she was certainly aware (if not ultimately misinformed) about the reasons why

she was taking the action that she did."

      The judge noted that defendant asked his mother to transfer the property

to him, but the requests were not "made in such a way as to force the asset's

transfer." The judge specifically found that plaintiff and defendant "were a ble

to, and did, live independently from each other and there was no proof . . . that

[plaintiff] was so dependent upon the presence and involvement of her son for

her own livelihood." The judge concluded plaintiff "stood in a more dominant

position over her son."

      Plaintiff contends the evidence of domination was to the contrary, noting

that defendant accompanied her to the attorney's office, prepared her tax returns


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                                           9
and declared plaintiff as a dependent on his own returns, and received the only

sizeable asset of plaintiff's estate, to the detriment of her other children.

However, we defer to the trial judge's ability to observe the witnesses, in

particular their demeanor and the manner in which they answered questions.

Plaintiff bore the burden of proving "the existence of a confidential relationship,

[was] more probable than not." Ostlund, 391 N.J. Super. at 403 (citing Biunno,

Current N.J. Rules of Evidence, cmt. 5 on N.J.R.E. 101(b)(1) (2007)). The

judge's conclusion that she failed to meet this burden is supported by "the

competent, relevant and reasonably credible evidence" and does not "offend the

interests of justice[.]" D'Agostino, 216 N.J. at 182 (alteration in original).

      As already noted, the judge failed to explicitly find that plaintiff intended

to make a gift to her son by transferring the property while retaining a life estate.

Plaintiff contends the evidence demonstrates a lack of "donative intent" on her

part, because she continued to collect the tenants' rents and pay for expenses

associated with the property, and her will left the property to her four children. 2

      Although the judge failed to make explicit findings on this point, we

conclude the finding of donative intent is implicit when one considers the


2
   We note that plaintiff's testimony about her last will was quite sketchy and
lacking in any detail. The will was not produced at trial, and plaintiff had no
idea where it was.
                                                                             A-1942-18T2
                                        10
entirety of the judge's written decision. For example, the judge noted that

"[plaintiff] was in complete control of the disposition of her property from [its]

initial transfer in 1991, to the retransfer in 1995, to the requested transfer in

2010, and to the subject transfer in 2012." The judge found that plaintiff made

the transfer

               to compensate [defendant] for the work [he] performed
               on the premises and for the benefit of his mother. . . .
               That work was substantial and involved almost a
               complete renovation of the premises.        It was a
               reasonable (and uncontroverted) position that
               [plaintiff] would seek to reward her son for the work
               that he contributed to this asset, particularly since
               [plaintiff] provided similar assistance to her other
               children.

      There is no reason to disturb these findings, which amply support a

presumption that the transfer was an inter vivos gift from plaintiff to defendant,

her son. See Bhagat, 217 N.J. at 41. As the Court made clear

               a person who has transferred property to another, which
               raises a presumption that the transferred property was a
               gift, must meet the clear and convincing evidence
               standard of proof to rebut the presumption. We also
               hold that the person seeking to rebut the presumption is
               limited to evidence antecedent to, contemporaneous
               with, or immediately following the transfer.

               [Id. at 47 (emphasis added).]




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                                         11
There was no credible evidence to rebut the presumption, other than plaintiff's

admitted consultation with the attorney to undo the transfer six months later

because of unspecified difficulty with defendant. We reject plaintiff's argument

that the evidence failed to demonstrate that when the transfer was made, it lacked

a donative intent.

      Affirmed.




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                                       12
