LAWRENCE MEISTRICH v. SHIREEN MEISTRICH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1259-05T31259-05T3

LAWRENCE MEISTRICH,

Plaintiff-Appellant,

vs.

SHIREEN MEISTRICH,

Defendant-Respondent.

__________________________________

 

Argued: September 20, 2006 - Decided November 1, 2006

Before Judges Cuff and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Bergen County, Docket No. FM-02-1113-04.

Lawrence D. Weinberg argued the cause for appellant (The Margolis Law Firm, attorneys; Mr. Weinberg, of counsel and on the brief; Bonnie J. Mota, on the brief).

David Torchin argued the cause for respondent (Shapiro & Croland, attorneys; Mr. Torchin, of counsel and on the brief).

PER CURIAM

Plaintiff Lawrence Meistrich and defendant Shireen Meistrich negotiated a property settlement agreement that resolved all but six issues. In an effort to conclude the matrimonial litigation, the parties agreed to submit the remaining issues to a judge for resolution. This appeal concerns the disposition of three of the six issues. We affirm.

The threshold issue for our consideration is whether the parties waived the right to appeal. When the parties and their attorneys appeared before the trial judge to announce that they had successfully negotiated all but six issues, the trial judge inquired whether the parties intended his ruling to be binding. The following exchange occurred:

[THE COURT:] Now as part of the settlement, I also understand that there are some issues that are going to be presented to me to determine. Are those going to be binding upon the parties? Is that what the language of the agreement is?

[DEFENDANT'S COUNSEL]: It doesn't say binding. It's your decision --

[PLAINTIFF'S COUNSEL]: Yes, Your Honor.

[DEFENDANT'S COUNSEL]: It's a judicial decision.

THE COURT: Well, see that's --

[DEFENDANT'S COUNSEL]: You mean, is it appealable?

THE COURT: Yes.

[DEFENDANT'S COUNSEL]: It's fine with us, Your Honor. It will be binding on our --

[PLAINTIFF'S COUNSEL]: Your Honor, that was our intention to submit it to Your Honor.

[DEFENDANT'S COUNSEL]: Okay.

THE COURT: Okay . . . [s]o, even if you disagree with it, you're not -- it's not appealable.

[PLAINTIFF'S COUNSEL]: Correct, Your Honor.

* * *

THE COURT: Well, it will be treated as a post-judgment application then, I guess. And I agreed to retain [] jurisdiction on post-judgment matters.

* * *

THE COURT: Okay. And are there any -- is there any argument or is it just going to be on the papers?

[PLAINTIFF'S COUNSEL]: Our intention was . . . it wasn't going to be an argument unless Your Honor felt compelled to grant it.

* * *

THE COURT: . . . All right. So, the agreement covers all issues including the submission of open issues.

The judge then proceeded to determine that the parties reviewed and understood the terms of the property settlement agreement, had ample opportunity to ask their attorney questions about the agreement, had sufficient time to review and reflect about the terms of the agreement, and were not under the influence of drugs, alcohol or any mental condition that impaired their opportunity to make an informed decision. Neither the judge nor the attorneys informed the parties that they had a right to appeal and that it was their intention to surrender that right. The property settlement agreement does not contain any reference to the waiver of the right to appeal the determination of the issues submitted to the judge.

A judgment entered with the parties consent is "ordinarily not appealable for the purpose of challenging its substantive provision." Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 2d 638 (1950); Pressler, Current N.J. Court Rules, comments on R. 2:2-3 (2007). In this case the bulk of the provisions governing the dissolution of the marital relationship was the subject of a negotiated agreement from which an appeal is not permitted. Here, however, six issues were presented to the court for review.

In the ordinary course, a party has a right to seek review by an appellate panel of a matter submitted to a trial judge for decision. R. 2:2-3(a)(i); Moon v. Warren Haven Nursing Home, 182 N.J. 507, 511 (2005). We have long recognized, however, that the parties may waive the right to appeal. Harmina v. Shay, 101 N.J. Eq. 273, 274 (E. & A. 1927). The Court has also held that a waiver of appeal by the parties in the civil or criminal context cannot be considered per se against public interest. State v. Gibson, 68 N.J. 499, 511 (1975). On the other hand, the agreement to waive an appeal should be by express agreement or stipulation.

Here, the issue of waiver was raised by the judge. It was a reasonable inquiry because the parties had resolved the vast majority of issues and had evidenced a determination to avoid a trial and terminate the litigation. On the other hand, we do not discern from this record an express and unequivocal waiver by the parties. Neither party was asked directly or indirectly about a waiver of their right to appeal from the determination of the issues submitted to the judge. Moreover, plaintiff's attorney's response, "that was our intention to submit it to Your Honor," is equivocal. Following this comment, the judge discussed with counsel whether the parties contemplated any testimony or whether the issues would be resolved on the basis of certifications and exhibits. The equivocal nature of the record on the issue of waiver informs our hesitation to hold that plaintiff waived his right to proceed with this appeal, and we proceed to address the merits of this appeal.

The parties submitted six issues for resolution by the trial judge. Plaintiff seeks review of the rulings in three of those issues: whether plaintiff is obliged to repay defendant $80,000 in accordance with a note signed by plaintiff; whether the parties should share the costs of the children's out-of-network mental health professionals; and whether plaintiff is entitled to receive artwork from the former marital home. Judge Martinotti ruled that the note executed by plaintiff is valid and he is required to pay $80,000 to defendant. The judge also ruled that plaintiff is not entitled to any artwork from the marital home other than the pieces he previously removed and that the parties should share the costs of the children's out-of-network mental health expenses.

A. The note and obligation to pay $80,000 to defendant.

The trial judge provided the following explanation in support of his determination that plaintiff is obliged to pay $80,000 in accordance with the terms of a note executed by plaintiff during the course of his bankruptcy proceeding:

The Court finds that this Note, dated January 15, 2003, was a consequence of the trustee and bankruptcy not recognizing the parties' Agreement, which transferred the house to the defendant. As a result, the defendant paid $80,000 to the bankruptcy estate. Clearly, it was the parties' intention for the defendant to receive the house free and clear of any encumbrances. During plaintiff's bankruptcy proceeding, plaintiff, through his attorney, represented that said Agreement was valid and binding on him. In spite of the aforementioned representation, this was rejected by the third party trustee, as indicated above. Said rejection should not exonerate the plaintiff from satisfying the debt owed to the defendant. The fact that plaintiff contends that the transaction may have been usurious is of no importance since it is improvident not to take inconsistent positions in the bankruptcy and matrimonial litigation.

Defendant contends that the note was unenforceable because it was unconscionable and the debt had been satisfied.

The trial judge disposed of this issue by invoking the doctrine of judicial estoppel. We conclude that the doctrine was improperly applied in this situation because defendant did not convince the bankruptcy court that the 2000 agreement transferring the house to defendant was a valid and enforceable agreement. See State v. Jenkins, 178 N.J. 347, 359 (2004) (in order for a party to be judicially estopped, that party must convince a court to accept its position in earlier litigation). On the other hand, plaintiff is equitably estopped from assuming the position that he is not required to pay defendant the $80,000 required by the note. Defendant relied on the promise to repay the funds advanced by her to effectuate their earlier agreement. Miller v. Miller, 97 N.J. 154, 163 (1984). Repayment also effectuates the long-standing agreement of the parties that the former marital home should be preserved for the benefit of the children and that it should be free and clear of encumbrances. We, therefore, affirm the order requiring defendant to enforce plaintiff's obligation to pay the note.

B. The children's mental health expenses.

The specific issue submitted to the trial judge was phrased as follows:

The husband claims that the children's therapists are not in his medical plan and therefore objects to contributing to the cost of same. The wife claims that the therapy is partially necessary due to the acts of the husband and that the husband should contribute to the cost of same. The Court will determine whether said therapists are within the husband's medical plan and to what extent each will be responsible for the costs of said therapy.

This is a curious request for two reasons. First, an insurance plan designates which providers are in and out-of-network and this can be changed only by the insurance plan. Second, Article 2, paragraph 11 of the property settlement agreement addresses unreimbursed medical expenses and the use of out-of-network providers. Paragraph 11 provides in relevant part:

The parties will equally share any and all uncovered and/or unreimbursed medical, dental, optical, psychological, therapeutic, surgical, ambulatory, hospitalization, pharmaceutical or other such health related expenses for the minor children. . . . Except with respect to those medical providers already in existence (i.e. . . . the children's mental health therapist . . .) and except in the instance of an emergency, both parties shall utilize in-plan providers for the children.

In other words, the property settlement agreement seems to address the very issue that was submitted to the court for resolution.

The trial judge interpreted the issue as the course to be followed in the future if there is a change of therapists and the consequences of that choice. He held that "[p]roceeding from this [September 29, 2005] forward, in the event the Court determines that the parties cannot agree upon a therapist for the defendant, the defendant shall use a therapist in the plaintiff's health insurance network. If parties do not use a therapist within the plaintiff's network, the defendant will be responsible for fifty (50%) of the therapist's charges, which otherwise would have been covered." This ruling reflects the agreement of the parties concerning existing out-of-network therapists and addresses simply the issue of a future change of therapists. The distribution of expenses is entirely consistent with the parties' agreement. Therefore, paragraph 3 of the September 29, 2005 order is affirmed.

C. The artwork.

Plaintiff requested as part of equitable distribution the remaining artwork in the former marital home. The judge denied this request reasoning that plaintiff had removed some artwork and did not disclose the remaining artwork as an asset in a bankruptcy filing. The judge precluded plaintiff from taking inconsistent positions. We agree and affirm.

Affirmed.

 

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A-1259-05T3

November 1, 2006