RONNI H. STEIN v. MARK H. STEIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2825-04T52825-04T5

RONNI H. STEIN,

Plaintiff-Respondent,

v.

MARK H. STEIN,

Defendant-Appellant.

_________________________________

 

Submitted September 27, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-223-01.

Burns, LeBrocq & Wolfe, attorneys for appellant (Keith J. Burns, on the brief).

Goldstein Isaacson, attorneys for respondent (Andrew J. Goldstein, of counsel and on the brief; Mary Jean Pizza, on the brief).

PER CURIAM

This is a matrimonial case in which the parties resolved all issues concerning their divorce and consented to an Amended Final Judgment of Divorce, dated January 6, 2005. Both the parties and their attorneys signed their consent "to the form and substance" of the Amended Judgment. The Amended Judgment by its terms incorporated a written agreement of the parties, denominated J-1, which was also signed by both parties and their attorneys. Paragraph 12 of the parties' agreement resolved the issue of counsel fees. Paragraphs 18, 19 and 20 resolved the issue of child support, including the parties' agreement that they would not follow the recommendations rendered by an arbitrator concerning child support and college expenses, but instead would abide by the terms set forth in J-1.

Notwithstanding the settlement, defendant, Mark H. Stein, filed a notice of appeal purporting to challenge "Paragraph 12, Page 5" of J-1. That paragraph set forth the parties' agreement concerning the payment of counsel fees. Further, without filing an amended notice of appeal, counsel filed a brief that addressed both the issue of counsel fees and his objections to the arbitrator's decision concerning child support. See R. 2:5-1(f)(3)(i). After all parties had filed their briefs, defendant's counsel sent the Clerk's Office a letter on August 24, 2005, advising that he had filed "an appeal on behalf of Mark H. Stein . . . regarding counsel fees and child support." The letter advised that the parties had settled the issue of counsel fees and "we are proceeding with our appeal on the issue of child support."

Since respondent briefed the child support issue, we will overlook the procedural deficiency in defendant's briefing an issue that was not the subject of his notice of appeal. But we nevertheless dismiss the appeal for two reasons. First, the parties agreed not to follow the arbitrator's decision on child support and instead substituted their own agreement on that issue. That agreement (J-1) was incorporated in the court's Amended Judgment, to which both parties consented. Therefore, defendant's objections to the arbitrator's decision are moot. Second, under principles of judicial estoppel, defendant cannot appeal from a settlement to which he agreed and which was incorporated in an Amended Judgment to which he consented. See Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005). See also DeAngelis v. Rose, 320 N.J. Super. 263, 281 (App. Div. 1999).

 
Appeal dismissed.

(continued)

(continued)

3

A-2825-04T5

October 7, 2005