NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 4562
- 13T1

IN THE MATTER OF THE ESTATE OF BYUNG - TAE OH, DECEASED.

______________________________________________________

Argued April 26, 2016
– Decided Before Judges Fisher, Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P
- 018
- 13. William D. Grand argued the cause for appellant Hyung Kee Oh (Greenbau m, Rowe, Smith & Davis LLP, attorneys; Mr. Grand, of counsel; Mr. Grand and Olivier Salvagno, on the brief). Evelyn R. Storch argue d the cause for respondent Won Ki Oh (Har wood Lloyd, LLC, attorneys; David M. Repetto, of counsel; Ms . Storch and Minjung Su h, on the brief). The opinion of the court was delivered by FISHER, P.J.A.D. In this appeal, we consider the propriety of a summ ary judgment that determined whether a money transfer
— made by a

now - deceased Korean citizen to a New Jersey limited liabil ity
company — constituted an investment and, thus, an asset of the decedent at the time of his death, or a gift to his son, the APPROVED FOR PUBLICATION May 13, 2016
APPELLATE DIVISION

May 13, 2016A - 4562
- 13T1 2 general partner of the limited liability company. We also consider whether the court had jurisdiction to make that determi nation , even though this argument was not asserted in the trial court . The following facts are un disputed. Byung - Tae Oh, a citizen and resident of the Republic of Korea, died in Seoul on February 6, 2012. Because he died intestate , it appears that, pursuan t to Korean law, his two sons and one daughter
— Won Ki Oh, Hyung Kee Oh, and Hyun joo Oh

— inherit equal shares of the estate and the surviving spouse, Hy esung Lee, inherits one
- and
- one - half times the share inherited by each child. 1 It is also undisputed that, in 2001, Byung
- Tae Oh (hereafter "decedent") wire transferred $900,000 from his personal bank account at Standard Chartered Bank, Seoul Nonheyon Branch, in to the New Jersey business account of B&H Consulting and Development Company, LLC, a New Jersey limited liability company formed by decedent's youngest son, Hyung Kee Oh, and his son's wife , Sung Hee Park . In a complaint filed in the Probate Part on January 18, 2013 , plaintiff Won Ki Oh (hereafter "plaintiff") , dec edent's eldest son and a resident o f the R epublic of Korea, alleged that

1 General information about Korean intestacy law s was included in a certificatio n filed in the trial court by a Korean attorney. The parties do not appear to di spute how Korean law requires the division of decedent's estate .A - 4562
- 13T1 3 decedent owned at the time of his death various interest s i n property in New Jersey, including a 40.8% interest in B&H. The action sought the appointment of an administrator for the
purpose of marshal ing decedent's New Jersey assets. 2 Decedent's other son, Hyung Kee Oh (hereafter "defendant"), a New Jersey resi dent and general partner of B&H, moved to dismiss this action based on his contention, among others, that decedent owned no assets in New Jersey at the time of his death . Contrary to plaintiff's claims, defendant assert ed that in 2001 decedent gave him $900,000, which he used "as part of the start[ - ] up money for B&H ," and that "[a]t no time did [decedent] treat that payment as entitling him to a legal ownership interest in B&H." The motion to dismiss was denied without prejudice. Thereafter, the parties pressed their positions as to how the $900,000 transfer by dece dent to B&H should be characterized

— defendant arguing it w as a gift and plaintiff arguing it was an investment in B&H and, therefore, part of the estate
— by

cross - moving for summary judgment . Chancery J udge Robert P. Contillo granted plaintiff's and den ied defendant's motion.
D efendant appeals, arguing the judge erred in granting summary

2 Plaintiff alleged in his complaint that an estate tax return filed by decedent's widow valued the gross estate at more than 33,0 00,000,000 South Korean Won ( approximately $31,000,000 ) .A - 4562
- 13T1 4 judgment because, in his view: (1) the court lacked jurisdiction over the dispute; (2) the c hancery judge mistakenly applied New Jersey law instead of Korean law; (3) ev en if New Jersey law applies, the chancery judge erred "by refusing to apply the presumption that a transfer from a parent to child is a gi ft"; (4) the chan cery judge should have conducted an evidentiary hearing to develop and resolve the parties' factual dispute ; and (5) the chancery judge erroneously provided the administrator with greater aut hority than necessary in the circumstances. Despite defendant's failure to present his first argument

— lack of jurisdiction

— to the trial court, 3 we consider and reject it on its merits . 4
Defendant's jurisdictiona l argument presents a classic chicken
- and
- egg prob lem. Our probate courts may exert ancillary jurisdiction over property within the State when possessed by an intestate nonresident at the time of d eat h. N.J.S.A. 3B:10
- 7. In determining whether it has jurisdiction pursuant to this
statute , a court must necessarily determine whether the property

3 Defendant did not signal , as he should have, that th is argument was not asserted in the trial court as required by Rule 2:6
- 2(a)(1).

4 A lack of subject matter jurisdiction may be asserted for the first time on appeal. See Nieder v. Royal Indem. Ins. Co. , 62 N.J. 229, 234 (1973); Macysyn v. Hensler , 329 N.J. Super. 476, 481 (App. Div. 2000).A - 4562
- 13T1 5 within the State was possessed by an intestate nonresident . There being no dispute that decedent was a nonres ident and intestate, and that B&H is a New Jersey limited liability company, the only question about the exercise of jurisdiction over the property is whether it was owned by decedent at the time of his death. That remaining question, however, constitutes the primary dispute between the parties. Consequently , to determine w hether the court possessed ancillary jurisdiction pursuant to N.J.S.A. 3B:10
- 7 , the judge was required to resolve the merits of the parties' dispute about the nature of the $900,000 trans fer . As perplexing as this may initially sound, the situation is not uncommon; our Supreme Court has recognized that a jurisdictional question may ofte n be intertwined with the underlying dispute and, in that instance , "the jurisdictional determination sho uld await a determination of the relevant facts on either a motion going to the merits or at trial." Blakey v. Continental Airlines , 164 N.J. 38, 71 (2000) (quoting Augustine v. United States , 704 F. 2d 1074, 1077 (9th Cir. 1983)) ; see also Plume v. Howard Sav. Inst. , 46 N.J.L. 211, 228 (Sup. Ct. 1884) (observing, in a similar setting, that an error in a determination that the decedent was a resident of the state might warrant reversal of the judgment "but it can have noA - 4562
- 13T1 6 bearing against the right of the cour t to adjudicate upon the facts before it"); In re Russell's Estate , 64 N.J. Eq. 313, 317
- 18 (Prerog. Ct. 1902) (recognizing the court's authority to resolve a dispute about the decedent's residency before d etermining whether the court possessed jurisdictio n over a nonresident deceden t's New Jersey property ) . H ad defendant

ra ised this jurisdictional issue when he either opposed or moved for summary judgment , 5 the chancery judge would have been in no different position than he was when he ruled on the cross
m otions. That is, the judge would have recognized he would have to first resolv e the dispute about the nature of the $900,000 transfer before determining whether the court possessed ancillary jurisdiction over the property . In correctly ascertaining the mo netary transfer constituted an inves tment and not a gift, Chancery Judge Contillo implicitly and correctly conclud ed the court possessed jurisdiction over the parties' dispute. 6

5 Defendant's argument that he asserted lac k of jurisdiction as an affirmative defense in his respo nsive pleading does not mean that he raised the issue in the trial court . A litigant must do more and cannot expect that a judge who has been asked to rule on a dispositive motion will scour the plea dings for other arguments or defenses a party might have once contemplated but chose not to assert in the motion.

6 It app ears that to some extent defendant argues in this same context that the Republic of Korea offers a more convenient or (continued)A - 4562
- 13T1 7 Our rejection of defendan t's conflict
- of
- law argument
— by which he claims the judge should have applied Korean rather than New Jersey law
— rests on different grounds. First, unlike the jurisdictional issue, the conflict
- of
- law issue was not raised in the trial court and, therefore, we need not consider defe ndant's belated argument that the chancery judge should have applied Kore an law . See US Bank Nat'l Ass'n v. Guillaume , 209
N.J. 449, 483 (2012). Second, when posing a c onflict
- of
- law issue, a party is required to demonstrate a difference between the competing bodies of law . DeMarco v. Stoddard , 223 N.J. 363, 383 (2015); Cornett v. Johnson & Johnson , 211 N.J. 3 62, 374 (2012); P.V . ex rel . T.V. v. Camp Jaycee , 197 N.J. 132, 143 (2008) . Defendant did not argue to the chancery judge , and has not argued to us , that Korean law compels a di fferent result than that reached through a proper application of New Jersey

(continued) better forum for resolut ion of the issues presented ; plaintiff, in fact, commenced an action there a few weeks after the matter at hand wa s commenced . We find insufficient merit in defendant's argument in this regard to warrant discussion in a written opinion. R. 2:11
- 3(e)(1)(E). We do not mean to be flippant in suggesting that the best source of information for deciding this issue would be the decedent, but he is not available regardless of which forum adjudicates the issue. The point is this action was filed fi rst , and defendant has not demon strated how Korea provid es a better forum for a fair and complete resolution of the issues that might warrant a disregard of the presumption in favor of the first
- filed action . See Sensient Colors, Inc. v. Allstate Ins. Co. , 193 N.J. 373, 386 (2008).A - 4562
- 13T1 8 law ; indeed, he has cited only New Jersey authoritie s in his written submissions. Consequently, w e find insufficient merit in this argument to war rant further discussion. R. 2:11
- 3(e)(1)(E). In his third and fourth argument s , defendant contends the chancery judge, in granting summary judgment in plaintiff's favor, failed to apply the presumption described in Bhagat v. Bhagat , 217 N.J. 22, 41
- 42 (2014), and mistakenly declined to conduct an evidentiary hearing or otherwise recognize there were disputed questions of material fact that required a denial of summary judgment . T he judge' s rejection of the presumption and his grant of summary judgment are not entitled to deference . In reviewing the summary judgment entered in plaintiff's favor , we apply the same standard that bound the chancery judge, see , e.g. , Townsend v. Pierre , 221 N.J. 36, 59 (2015), and we are required to reverse when "the compete nt evidential materials presented, . . . viewed in the light most favorable to the non
- moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non
- moving party," Brill v. Guardian Life Ins. Co. of Am. , 14 2 N.J. 520 (1995) . The import of this standard is that courts "should not hesitate to grant summary judgment"

— and appellate courts should not hesitate toA - 4562
- 13T1 9 affirm those summary judgments

— "when the evidence 'is so one
sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106
S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). We turn first to the burden of persuasion when determining whether a transfer constitutes a gift. As the Supreme Court has recognized, "[t]he burden of proving an inter vivos gift is on the party who asserts the claim." Bhagat , supra , 217 N.J. at 41 (citing Sadofski v. Williams , 60 N.J. 385, 395 n.3 (1972)). As a general matter, "the recipient [of the alleged gift] must show by 'clear, cogent and persuasive' evidence that the donor intended to make a gift." Ibid. (quoting Farris v. Farris Eng'g Corp. , 7 N.J. 487, 501 ( 1951)). The Supreme Court has also described the degree of proof necessary as "clear and convincing" where the claim of a gift is first asserted after the alleged donor's death , as here . Sadofski , supra , 60 N.J. at 395 n.3. The Court has held, however, th at when "the transfer is from a parent to a child, the initial burden of proof on the party claiming a gift is slight." Bhagat , supra , 217 N.J. at 41 (citing Metropolitan Life Ins. Co. v. Woolf , 136 N.J. Eq. 588, 592 (Ch. 1945), aff’d , 138 N.J. Eq. 450 (E. & A. 19 46)). In
essence, it is said that "a presumption arises that the transferA - 4562
- 13T1 10 is a gift," ibid. (citing numerous cases, including, Peppler v. Roffe , 122 N.J. Eq. 510, 515 (E. & A. 1937)), because " a child is considered a natural object of the bounty of the donor," id. at 42 (citing Weisberg v. Koprowski , 17 N.J. 362, 373 (1955)). We agree with Chancery J udge Contillo that defendant was not entitled to the presumption that might normally attach to a transfer from a parent to a child becaus e decedent did not transfer $900,000 to defendant; he transferred th os e funds to
B&H. 7 Without this presumption, defendant was obligated to show by clear, cogent and persuasive evidence that decedent intended that the transfer to B&H was a gift to him . W e agree as well with the judge that defendant 's factual presentation fell woefully short and its inadequacy justified the entry of summary judgment . Defendant offered no documentation that would suggest de cedent intended to make a gift; instead he largely al luded to the absence of documentation , poin ting out that plaintiff was

un able to produce either a certificate of decedent's membership in B&H or a loan agreem ent between B&H and decedent. That is all true, but plaintiff did provide documentation that sh owed decedent annually confirmed the existence of this investment in

7 It is noteworthy that defendant and his wife maintained a personal bank account in New Jersey into which any monetary gift could have been conveyed had that been decedent's intention.A - 4562
- 13T1 11 B&H by submitting

— every year from 2001 until his death

— investment status sheets to the Export
- Import Bank of Korea, a quasi
- governmental entity, reflecting that he made a direct

overs eas investment of $900,000 in B&H and that he held a 40.8% interest in B&H. Even if any substance could be found in the only direct evidence provided by defendant

— his self
- serving accounts of discussions with the decedent 8

— it was incapable of sustain ing defendant's burden of proving a gift and paled in comparison to the contrary, written representations made by decedent to the Export
- Import Bank of Korea . We agree with the chancery judge that, as a matter of law, if the matter went to trial, defendan t would have be en unable to sustain his burden of showing by clear and convincing evidence that decedent intended the $900,000 he wired to B&H to be a gift to defendant; t he proofs were so one
- sided that plaintiff was entitled to summary judgment. In his l ast argument, defendant c ontends that the judge's grant of auth ority to the administrator exceeded what was

8 See Metropolitan Life Ins. Co. , supra , 136 N.J. Eq. at 592 (recognizing that "uncorroborated testimony of the donee claiming a gift must be carefully scrutinized"). W e are cognizant that decedent's widow testified at her deposition that decedent said the $900,000 transfer was a gift, but we a re also mindful that she filed an estate tax return that represented decedent owned, at the time of his death, a 40.8% interest in B&H.A - 4562
- 13T1 12 necessary under the circumstances. The judge's May 8, 2014 order specifically authorized the administrator:

to perform all acts of estate administr a tion, including but not limited to: marshal
ing the assets located in New Jersey; obtaining from [defendant] an accounting of the Estate's New Jersey assets and his management of B&H and its related entities; obtaining from [defendant and his wife] an ac counting of all gifts they received from [d]ecedent; obtaining information from [defendant] concerning the nature and extent of the Estate's interest in Tazz Mall, LLC, B&H Design and Construction Co., LLC [,] and any other entities; filing a lawsuit, if ne cessary . . . to compel such accountings and related discovery and filing all necessary tax returns as required by law and arrange for payment of any gift taxes, New Jersey and federal estate taxes that may be due with respect to the Estate's New Jersey as sets or any gifts or loans made by [d]ecedent.
T he scope of the authority grante d the administrator was not rai sed until defendant moved for a stay pending appeal. The issue was discussed, but t he judge chose not to make any al teration in the earlier ord er. In denying the motion for a stay, however, t he judge did not preclude a future application from defendant to modify the order . T h is i nvitation was not accepted; defendant i nstead presses the point here.
Because the chancery judge was not given the opportunity to reconsider the scope of the authority granted the admin istrator, we choose not to consider the issue in the first instance . SeeA - 4562
- 13T1 13 State v. Robinson , 200 N.J. 1, 19 (2009) (observing that "[t]he jurisdiction of appellate courts rightly is bound ed by the proofs and objections critically explored on the record before the trial court by the parties themselves"). In declining to consider the issue , we do not mean to suggest d efendant may not seek or , for that matter, may not be entitled to relief fr om the chancery judge following ou r disposition of this appeal; w e hold only that our consideration of the scope of the May 8, 2014 order is premature . 9 Affirmed.

9 We also denied defendant's motion for a stay except that we restrain ed the administrator from "disseminat[ing] any inf ormation" obtained from the parties pending further order. Despite this appeal's disposition , which would ordinarily terminate the partial stay, we nevertheless will permit the limitations we placed on the administrator to remain in effect for thirty days from today's date , after which it shall automatically expire unless extended by the chancery judge . We do this solely to allow for a prompt but unhurried motion regarding the scope of the May 8, 2014 o rder that defendant may now choose to file in the tria l court.