JAMES BRIAN SWEENEY v. CLAUDINE L. SWEENEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2603-08T12603-08T1

JAMES BRIAN SWEENEY,

Plaintiff-Appellant,

v.

CLAUDINE L. SWEENEY,

Defendant-Respondent.

_________________________________

Submitted March 2, 2010 - Decided April 13, 2010

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Cape May County,

Docket No. FM-05-28-08.

James Brian Sweeney, appellant pro se.

Marcus H. Karavan, P.C., attorneys for respondent

(Dorothy Incarvito-Garrabrant, on the brief).

PER CURIAM

Plaintiff James B. Sweeney appeals from the order of the Family Part enforcing a matrimonial settlement agreement (MSA) allegedly entered into by the parties the day before the court issued a judgment of divorce dissolving his marriage to defendant Claudine Sweeney. Plaintiff argues that he refused to sign the agreement because: (1) his former wife did not produce in discovery certain information concerning her personal finances; (2) the proposed MSA included a reciprocal release of claims provision he found unacceptable; (3) the agreement failed to adequately address the equitable distribution of the marital estate; and (4) the agreement did not properly provide for counseling for his minor son. Defendant argues that the MSA was negotiated and agreed to by the parties through their respective counsel. Thus, according to defendant, plaintiff's refusal to sign the agreement does not preclude its enforcement because plaintiff gave his attorney the authority to bind him to the terms of the document.

Based on the record before us, we are compelled to reverse the trial court's order enforcing the MSA and remand this matter for the court to conduct a plenary hearing to determine whether plaintiff's counsel had the legal authority to bind his client to this agreement. In making this determination, the trial court must also address plaintiff's argument that the agreement contained a provision defendant knew plaintiff had expressly rejected.

These are the facts. On September 12, 2008, the court entered a final judgment of divorce dissolving the marriage between the parties. Although plaintiff had been represented by counsel up to that point, he appeared pro se on that day. Plaintiff advised the court that he had discharged his attorney over a disagreement about certain financial information he believed defendant was wrongly withholding from him and because he could no longer afford to pay for his services.

When defendant's counsel sought to incorporate the MSA as part of the final judgment of divorce, plaintiff specifically informed the trial judge that he objected to language in the agreement dealing with equitable distribution, counseling for the couple's minor son, and a section denoted "General Mutual Releases."

Although defense counsel disputed these assertions, he advised the court that he was willing to proceed with dissolution of the marriage, with the expectation of filing a post-judgment motion to enforce the settlement. After noting plaintiff's objections for the record, the trial judge proceeded with the dissolution of the marriage, preserving plaintiff's right to contest the enforceability of the MSA in the context of defendant's anticipated post-judgment motion.

In her motion to enforce settlement, defendant certified that on the night before the case was scheduled for trial, attorneys for both sides engaged in intense negotiations that led to a comprehensive agreement addressing all of the issues related to the dissolution of the marriage. Defendant acknowledged in her certification, however, that the parties were unable to reach a final agreement on the section denoted "General Mutual Releases." Defendant discounted the importance of this disagreement though, characterizing the release provision as standard "boiler plate" language inserted in all settlement agreements to provide a measure of finality to the parties' ongoing disputes. Plaintiff refuted defendant's characterization of the release provision and remained adamant that he would not sign a document containing such language.

Thus, as the record shows, at the time defendant's enforcement motion came before the trial court, the parties had not reached a complete and final agreement as to all of the provisions in the MSA. More importantly, there was also no competent evidence showing that plaintiff had delegated to his then counsel the binding authority to not only negotiate the terms of the agreement, but to agree to be bound by the attorney's assent to its final version.

Notwithstanding these deficiencies, the motion judge entered an order granting defendant's motion to enforce settlement. The court concluded, without the benefit of an evidentiary hearing, that "[plaintiff's] position is akin to agreeing to all of the terms but refusing to sign the agreement none the less."

Against this record, we now review plaintiff's arguments. It is well-settled that where the parties do not agree to one or more essential terms of a contract, the agreement is unenforceable. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). The importance of this "meeting of the minds" requirement is not lessened merely because one party characterizes an issue in dispute as immaterial.

Here, defendant's argument in favor of denoting the "General Mutual Releases" provision as legally insignificant boiler-plate is undermined by her own conduct. If defendant truly thought this provision was mere surplusage, she should have been willing to mollify plaintiff's position and agree to its deletion. The fact that she sought to enforce the MSA containing this provision is more indicative of the provision's materiality than of its insignificance.

Equally problematic is the motion judge's willingness to accept defendant's position that plaintiff vested his previous attorney with the authority to bind him to the MSA without any evidence to support such an assertion. In Amatuzzo v. Kozmiuk, 305 N.J. Super. 469 (App. Div. 1997), we articulated the rule governing the scope of an attorney's authority to bind his or her client to a settlement agreement:

The general rule is that unless an attorney is specifically authorized by the client to settle a case, the consent of the client is necessary. Negotiations of an attorney are not binding on the client unless the client has expressly authorized the settlement or the client's voluntary act has placed the attorney in a situation wherein a person of ordinary prudence would be justified in presuming that the attorney had authority to enter into a settlement, not just negotiations, on behalf of the client.

Thus, in private litigation, where the client by words or conduct communicated to the adverse attorney, engenders a reasonable belief that the attorney possesses authority to conclude a settlement, the settlement may be enforced. However, the attorney's words or acts alone are insufficient to cloak the attorney with apparent authority.

[Id. at 475.]

Here, the motion judge did not have any competent evidence showing the existence of either an expressed or implied agency relationship between plaintiff and his then counsel. Under these circumstances, the motion judge was required to conduct a plenary hearing to determine the nature and scope of counsel's authority. See Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div.), certif. denied, 177 N.J. 224 (2003). The parties' warring certifications are not a basis to resolve these disputes.

We thus remand this matter for the trial court to make specific findings as to the materiality of the "General Releases" provisions. R. 1:7-4. If the court finds this provision to be immaterial, it must then determine whether plaintiff vested his former counsel with the actual or apparent authority to bind him to the version of the MSA defendant seeks to enforce. If the court concludes that counsel lacked such binding authority, absent agreement by the parties, the issues previously encompassed by the MSA must then be adjudicated by the Family Part in the context of a trial.

Reversed and remanded. We do not retain jurisdiction.

 

The court actually wrote "Defendant." We deemed this to be an unintended inversion of the parties' position due to a clerical error.

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A-2603-08T1