SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4800-17T3

IN THE MATTER OF THE

ESTATE OF DOROTHY DREHER,

Deceased.

________________________________

Submitted March 11, 2019 – Decided April 8, 2019

Before Judges Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey,

Chancery Division, Burlington County, Docket No. 

2016-1203.

Mark J. Molz, attorney for appellant Rebecca DreherPalombi.

Marc A. Lario & Associates, attorneys for respondent 

David Dreher (Marc A. Lario, on the brief).

PER CURIAM

Plaintiff Rebecca Dreher-Palombi appeals from the trial court's May 11, 

2018 order denying her motion to enforce litigant's rights and awarding

attorney's fees to defendant David Dreher, her brother. We affirm. 

NOT FOR PUBLICATION WITHOUT THE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.
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This case arises from a dispute involving the estate of decedent Dorothy 

Dreher, the mother of the parties. After the decedent's death, defendant probated 

the decedent's will. Plaintiff thereafter filed a verified complaint objecting to 

the probated will, claiming that it was not representative of the decedent's 

wishes, was the result of undue influence by defendant, and was executed at a

time when the decedent lacked testamentary capacity. Defendant filed an 

answer and counterclaim.

After four intermittent trial days between January and March 2018 before 

Judge Paula T. Dow, the parties reached a settlement agreement. The settlement 

was placed on the record on March 8, 2018. Among other things, the settlement 

provided that the net estate would be split equally between plaintiff and 

defendant and that each party would bear his or her own legal fees. 

Relevant to this appeal, a settlement provision called for plaintiff to 

receive an immediate advance on her distribution in the amount of $100,000. 

On March 20, 2018, defendant's attorney sent a refunding bond and release to 

plaintiff's attorney, requesting that plaintiff execute the document to receive the 

$100,000 distribution. On March 27, plaintiff's attorney returned an executed 

refunding bond and release, with alterations. Among other things, plaintiff 

removed language requiring plaintiff to refund any part of her distribution 
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should the estate owe any debts or taxes that would not be satisfied with the 

remaining funds in the estate account. On March 29, 2018, defendant's counsel 

wrote back to plaintiff's counsel, objecting to the deletion of the refund 

requirement. 

On April 18, 2018, plaintiff moved to enforce litigant's right and receive 

the $100,000 advance distribution without being subject to the refund provision 

of the refund bond. Defendant cross-moved to enforce a prior November 16, 

2017 order, which required plaintiff to pay defendant's attorney's fees incurred 

in connection with defendant's motion to dismiss plaintiff's complaint. 

Defendant filed this motion after plaintiff's counsel failed to appear at scheduled 

case management conferences or respond to requests to schedule the deposition

of plaintiff. Although the trial court declined to dismiss the complaint on this 

basis, it ordered that plaintiff was responsible for defendant's attorney's fees and 

costs incurred in filing and arguing the motion to dismiss.1

After hearing oral argument on May 4, 2018, Judge Dow entered an order

and written statement of reasons, denying plaintiff's motion and granting 

 

1

 The November 16, 2017 order directed defendant's counsel to submit a 

certification of services. On December 5, 2017, counsel submitted a 

certification of services, to which plaintiff did not object. The trial court did not 

enter an order granting attorney's fees in the requested amount at that time.
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defendant's cross-motion on May 11, 2018. In denying plaintiff's request to 

receive the $100,000 advance without executing a refund bond, the judge

reasoned: 

Plaintiff requests an Order enforcing the terms of 

the Settlement Agreement because the Settlement 

Agreement did not include the terms encompassed in a 

Release and Refunding Bond. Despite Plaintiff's 

assertion that the settlement "was for real money," it 

appears the parties agreed that each sibling will receive 

50% of Decedent's net estate. The $100,000 requested 

by Plaintiff is not a cash gift, but rather is an early 

distribution made of her 50% share of Decedent's 

estate. Due to the nature of the distributions, as 

opposed to cash settlement payments, the refunding 

bond requirement of N.J.S.A. 3B:23-24, et seq., 

applies. It also appears the parties agree the $100,000 

was intended to be a distribution from the Estate. The 

New Jersey statutes governing estate distributions must 

apply.

The court denies Plaintiff's request to enforce the 

settlement because it appears all parties are acting in 

accord with the Settlement Agreement. Defendant, 

through [his attorney], is requesting a Refunding Bond 

and Release consistent with the requirements of 

N.J.S.A. 3B:23-24. This language allows the advance 

distribution to be given to Plaintiff, in accordance with 

the settlement agreement. In short, there is nothing the 

court can enforce as it is Plaintiff's own actions 

preventing the early distribution from the Estate. If 

Plaintiff is alleging the $100,000 remittance is a 

payment, and not a distribution, it is unclear why she 

did not take issues with the language of "cash bequest" 

in the Refunding Bond and Release. Further, the 

$100,000 payment was framed as a distribution when 

the parties placed the settlement on the record. The 
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language to which Plaintiff objects is not the language 

making the $100,000 an estate distribution, but rather 

that of the releasing the Executor and agreeing to 

refund. Essentially, Plaintiff is asking the court to order 

an Estate distribution as if it were a cash payment. This 

is unsupported by the statutory law and the Settlement 

Agreement on the record. 

With respect to defendant's cross-motion to enforce the November 16, 

2017 order granting attorney's fees, the judge found that the order was entered 

prior to the parties agreeing to pay their own attorney's fees and was therefore 

still effective. Additionally, the judge found that the certification of services for

the amounts of $1,785 in fees and $36.60 in costs was reasonable under RPC 

1.5(a) and had not been objected to by plaintiff.

On appeal, plaintiff argues that the trial court erred by: (1) violating the 

parties' settlement agreement and imposing pre-settlement attorney's fees; (2) 

refusing to enforce litigant's rights; and (3) issuing an order without making 

supporting finding of facts and conclusions of law. Having reviewed the record 

and governing legal principles, we affirm for substantially the sound reasons 

expressed in Judge Dow's thorough statement of reasons. We add only the 

following brief comments. 

N.J.S.A. 3B:23-24 requires the personal representative of an estate to 

obtain a refunding bond in order to make any distribution prior to the closing of 
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the estate, and N.J.S.A. 3B:23-26 requires the bond to be conditioned on the 

devisee returning any portion of the distribution if later needed to discharge any 

debt. Because the terms of the settlement provided that the $100,000 advance 

would be a distribution from the estate, these statutory requirements plainly 

apply. The judge, therefore, correctly concluded that defendant was statutorily 

obligated to have plaintiff execute a refunding bond to receive her advance 

distribution from the estate. Thus, the judge properly denied plaintiff's motion 

to enforce litigant's rights.2

The judge also properly enforced the November 16, 2017 order granting 

attorney's fees to defendant. Prior to the parties reaching the settlement 

agreement, the judge had already shifted these fees to plaintiff due to her 

attorney's failure to appear at scheduled case management conferences and to 

respond to requests to schedule the deposition of plaintiff. The settlement 

agreement's terms did not alter the responsibility for these fees. Moreover, the 

judge determined that the amount of fees requested was reasonable, and plaintiff 

has not objected to the reasonableness of the amount of fees. 

 

2

 While this appeal was pending, plaintiff executed a refunding bond and release 

on May 18, 2018.
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To the extent we have not specifically addressed any issues raised by 

plaintiff, we find they lack sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

Affirmed.