In In re Tomei Trust, in connection with a family dispute regarding ownership of a business, plaintiff sought to terminate a trust he established, in which his father was the trustee. Plaintiff claimed that his father misappropriated trust funds, and asserted that the trust termination date was August 18, 2003. Plaintiff claimed that, despite the 2003 trust termination date, the family hadn’t effectuated the termination until a family dispute arose.

At the initial hearing, the defendant-father agreed to turn over the trust assets, but asserted that the termination date was actually August 18, 2013. The court indicated that it would sign the plaintiff’s proposed order, but the parties agreed to confer regarding the form of the order.

Defendant submitted a proposed form of order later that day, and plaintiff did so the following day. The next day, the trial court signed the plaintiff’s proposed order, although it included a determination that the trust had terminated on August 18, 2003.

On appeal, the reviewing court reversed. It noted that the trial court had not reached a determination at the hearing regarding the trust termination date. The appellate court found that the termination date might be relevant to the plaintiff’s claims of misappropriation, and its inclusion in the order was erroneous because the termination date of the trust was an issue that was “genuinely disputed.”

The Appellate Division found “more important” the fact that the trial court had failed to give opposing counsel the opportunity to object to the proposed order within five days of its service, in accordance with R. 4:42-1(c) (the “Five Day Rule”).

A copy of In re Tomei Trust can be found here –  In the Matter of the Thomas R. Tomei Trust

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