JOSEPH BEIM v. JETTY SAWYER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2816-10T1

JOSEPH BEIM,

Plaintiff-Respondent,

v.

JETTY SAWYER (f/k/a JETTY BEIM),

Defendant-Appellant.

______________________________________________

February 29, 2012

Argued October 5, 2011 - Decided

Before Judges Cuff, Lihotz and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0159-09.

Robert B. Kornitzer argued the cause for appellant (Pashman Stein, attorneys; Mr. Kornitzer, Sean Mack and Elisabeth L. Rowley, on the briefs).

Daniel B. Tune argued the cause for respondent (The Rotolo Law Firm, attorneys; Mr. Tune, of counsel and on the brief; William E. Reutelhuber, on the brief).

PER CURIAM

Defendant Jetty Sawyer (f/k/a Beim) appeals from the October 8, 2010 order of the Family Part, denying her motion to vacate a settlement; the January 11, 2011 amended dual judgment of divorce that incorporated the terms of the settlement and dissolved the marriage between her and plaintiff Joseph Beim; and the award of certain legal fees to Beim, which fees resulted from the court's enforcement of the settlement. We are not persuaded that the Family Part either abused its discretion or misapplied the law. We affirm.

The parties married on June 15, 1985, and no children were born from the marriage. Plaintiff is in his eighties and defendant is in her seventies. From November 1994 until June 2008, defendant held a power of attorney for plaintiff and conducted substantially all of the parties' financial dealings. Plaintiff was also unconscious for several months prior to the filing of the divorce complaint as a result of injuries suffered in an automobile accident.

After the complaint and answer were filed, the parties attended multiple alternative dispute resolution events in an attempt to settle the controversy. They went to an "Early Settlement Panel" on July 13, 2009, and were referred to Donna P. Legband, Esq. for economic mediation. The parties attended a shortened "Mandatory Economic Mediation" session with Legband on October 8, 2009, as well as an "Intensive Settlement Conference" on March 22, 2010, and a second "Economic Mediation" session with Legband on June 10, 2010.1 The second mediation session lasted for several hours and resulted in a settlement agreement, which was signed by defendant, defendant's attorney, plaintiff, and plaintiff's attorney.

Plaintiff attended the June mediation session with his attorney, Daniel B. Tune, Esq. Defendant attended with Adelaide Riggi, Esq., an associate at the Norris, McLaughlin & Marcus law firm. Defendant's primary attorney, Michael Stanton, Esq., from the same firm, did not attend.

During the mediation session, plaintiff produced several documents which defendant's counsel advised her would negatively impact claims to certain assets. In addition, Legband asked defendant to estimate certain property values, which defendant provided.2 After hours of mediation, both sides, with the help of Legband, composed the four-page settlement agreement. Legband typed two pages of the document, the third page was photocopied from one of defendant's prior submissions, and the last page was written by Tune. Handwritten paragraphs were added to the typed document and certain sections were deleted completely.

Of significance to this appeal, the parties made very specific decisions in the settlement agreement. They divided: all real property; ownership of defendant's business; their bank, retirement and investment accounts; plaintiff's insurance settlement funds and payments he received from the German government; and each party's premarital property. The particular specificity was further illustrated by the delineation of defendant's right to seven lighting fixtures, which were described in minute detail.

A handwritten section of the settlement agreement stated:

[t]he undersigned agree that they intend to meet with their attorneys and have a property/martial settlement agreement drafted consistent with the terms of this agreement. Both parties further agree that this document constitutes a binding settlement agreement.

[(Emphasis added).]

The settlement agreement also provided plaintiff's "[p]ending motions [be] withdrawn by Friday, June 11, 2010."3 Defendant, plaintiff, and their respective attorneys signed and dated the settlement agreement. Additionally, plaintiff and defendant signed each page of the settlement agreement and initialed certain handwritten changes.

On June 29, 2010, plaintiff submitted a notice of motion to enter partial judgment enforcing the settlement agreement. On July 22, 2010, defendant filed a cross-motion asserting that the "binding settlement agreement" be deemed unenforceable.

On October 8, 2010, Judge Anthony F. Picheca, Jr. entered an order granting plaintiff's request for the entry of a partial judgment consistent with the settlement agreement. On November 15, 2010, a "short form" final judgment of divorce was entered. On January 11, 2011, an amended dual final judgment of divorce was entered and the judge also awarded counsel fees of $8285.53 to plaintiff. On February 14, 2011, defendant timely filed her notice of appeal.

Defendant now claims she only felt comfortable being represented by Stanton even though Laurie Poppe, Esq., a former associate at Norris, McLaughlin & Marcus, had filed motions, cross-motions, and appeared on behalf of defendant on other occasions during the proceedings. Defendant argues that once she realized her primary attorney would not be attending the mediation session, she agreed to attend, but only because she was not planning on committing herself to a final agreement that day.

Defendant now asserts she relied on Legband's mediation retainer agreement, presented at the session, which stated:

[a]t the conclusion of mediation, I will prepare a memorandum of understanding reflecting the agreements you have reached. This memorandum is not to be signed and is not to be regarded as binding until the agreements therein are incorporated in a Property Settlement Agreement prepared by your attorneys and signed by you.

Defendant contends she contacted Stanton to let him know that she was not comfortable with the terms of the document that Legband had drawn up and, according to defendant, required the parties to sign.4 Stanton thereafter advised plaintiff's attorney of defendant's position, prompting plaintiff's motion to enforce the settlement agreement.

In her appeal, defendant argues the judge erred by finding that a binding settlement agreement was entered into by the parties on October 10, 2010. She contends that Legband exceeded her authority and breached certain standards applicable to her as a mediator, by partially preparing and presenting to the parties the settlement agreement. Defendant also asserts that the agreement should be set aside because she was not represented by Stanton, did not voluntarily enter into it, and there was no mutual intent present to be bound by it, or "meeting of the minds." She further argues that the judge should have conducted a plenary hearing before resolving factual disputes. Finally, defendant disputes the counsel fees award to plaintiff.

"Interpretation and construction of a contract is a matter of law for the court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). In construing a contract, the court should "consider what was written in the context of the circumstances under which it was written, and accord to the language a rational meaning in keeping with the expressed general purpose." Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953).

In analyzing the consequences of a settlement, we recently noted:

A settlement is essentially a contract which is to be enforced, as written, absent a demonstration of fraud or other compelling circumstances. Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974). The favor in which the law holds the settlement of litigation is well-established. See Herrera v. Twp. of S. Orange Vill., 270 N.J. Super. 417, 424 (App. Div. 1993), certif. denied, 136 N.J. 28 (1994); Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983); Warren v. Employers' Fire Ins. Co., 100 N.J. Super. 464, 470 (App. Div. 1968), rev'd on other grounds, 53 N.J. 308 (1969). It is the certitude provided by a settlement which encourages litigants to resolve their dispute amicably.

In recognition of the value placed on the settlement of litigation, the Legislature adopted the Uniform Mediation Act and the Supreme Court adopted Rule 1:40. Each recognizes the role of complementary dispute resolution (CDR) programs to assist parties to a litigated matter to resolve their dispute short of a trial. Indeed, Rule 1:40-1 expressly states the CDR programs, including mediation, "constitute an integral part of the judicial process[.]" The CDR programs recognized by the Court are available in the municipal courts, Rule 1:40-8, in Family Part matters, Rule 1:40-5, in civil, probate, and general equity actions, Rule 1:40-6, and in Special Civil Part matters, Rule 1:40-7.

[Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 421 N.J. Super. 445, 451-52 (App. Div. 2011), certif. granted, ___ N.J. ___ (2012).]

Defendant's arguments concerning the purpose of mediation, and the authority and scope of the mediator's responsibilities ignore the reason for referring her dispute to mediation.

In Willingboro Mall, supra, we also noted the reason for referring a dispute to mediation, stating:

The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. See State v. Williams, 184 N.J. 432, 441 (2005). In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party. Indeed, such a result is the antithesis of the mediation process. Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment. The very purpose of the process is to resolve the dispute.

[421 N.J. Super. at 453-54.]

Judge Picheca, in his comprehensive written statement of reasons, addressed the substance of defendant's arguments, which she again presents before us on appeal, and found them wanting. He found that the parties knowingly and voluntarily entered into settlement negotiations with the purpose of distributing their marital property. The parties were represented by counsel and had ample time to discuss the agreed upon provisions with their lawyers. The judge further noted that, notwithstanding the language in the mediator's retainer agreement, "the parties and their counsel [had] the ability to decide, throughout the course of negotiations, that they would contract to make the agreement binding."

We note family courts have special jurisdiction and expertise in family matters; therefore, appellate courts should accord deference to a family court's fact finding. N.H. v. H.H., 418 N.J. Super. 262, 279 (App. Div. 2011); Cesare v. Cesare, 154 N.J. 394, 413 (1998). A reviewing court "grant[s] substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). On the other hand, we are not obliged to defer to the Family Part's legal analysis because "a trial judge's interpretation of the law and the legal consequences that flow from established facts" are not entitled to any special deference. Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The specific language of the settlement agreement as to its binding nature belies the defendant's assertion that she did not understand its consequences. Moreover, defendant has failed to produce any evidence supporting her claim that she was forced or coerced to sign the settlement agreement. A change of heart after accepting a settlement is not a basis to set aside the agreement. See Zuccarelli v. State Dep't of Envtl. Prot., 326 N.J. Super. 372, 381 (App. Div. 1999) (quoting N.J. Mfrs. v. O'Connell, 300 N.J. Super. 1, 7 (App. Div.), certif. denied, 151 N.J. 75 (1997)) (holding that "'[a] party is bound to the contract it made at the time, even if it turns out to be a poor deal'"), certif. denied, 263 N.J. 394 (2000).

Defendant also argues that it would be unconscionable to enforce the settlement agreement. It is well-settled that "absent 'unconscionability, fraud, or overreaching in the negotiations of the settlement, . . . no legal or equitable basis exists to reform the parties' property settlement agreement.'" N.H., supra, 418 N.J. Super. at 282 (alteration in original) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)). Here, defendant's vague and unsupported allegations of harm caused by the absence of her "principal attorney," as well as alleged overreaching by Legband and plaintiff are insufficient to satisfy the high standard of unconscionability. Defendant has provided no factual support for her proposition that, because she was not prepared for settlement, she has suffered unjustified economic harm by the division of property as set forth in the settlement agreement. Judge Picheca noted that on the date of the settlement, discovery was complete and presumably defendant was sufficiently informed as to the values of the parties' assets, particularly because she had controlled her husband's financial affairs for years.

We discern no facts that would mandate a plenary hearing or dispute the judge's conclusion concerning the binding nature of the settlement agreement. We concur with his determinations, as expressed in his detailed statement of reasons.

Finally, defendant argues that the judge's award of counsel fees in the amount of $8285.53 to plaintiff should be reversed. We disagree.

Our review of a trial court's decision on a motion for an award of counsel fees in a matrimonial action is limited to determining whether the court abused its discretion. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004); Williams v. Williams, 59 N.J. 229, 233 (1971). We are satisfied that the court properly applied the factors set forth in Rule 5:3-5(c), and did not abuse its discretion in awarding counsel fees to plaintiff. Following our review, we affirm based on substantially the same reasons advanced in Judge Picheca's decision, dated January 11, 2011. Additionally, defendant's remaining arguments lack sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Both parties attended an earlier mediation session on October 8, 2009, in accordance with a court order dated August 10, 2009. This mediation session was terminated early because discovery obligations were allegedly still outstanding.

2 Whether the estimates were used in the settlement agreement has not been revealed in the record.

3 Plaintiff had filed motions to compel discovery from defendant. Plaintiff withdrew the motions by the agreed upon date.

4 Defendant states she "immediately" contacted her attorney after the hearing. However, the record does not indicate if she contacted her attorney at the conclusion of the mediation session or on a different day.