KENNETH J. LINDSLEY v. LINDA LEE LINDSLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7110-03T27110-03T2

KENNETH J. LINDSLEY,

Plaintiff-Respondent,

v.

LINDA LEE LINDSLEY,

Defendant-Appellant.

_______________________________

 

Submitted December 19, 2005 - Decided January 23, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No.

FM-071602-03.

Linda Lee Lindsley, appellant pro se.

Sunshine, Atkins, Minassian & Tufari, attorneys

for respondent (Marvin H. Sunshine and Christian L.

Beane, on the brief).

PER CURIAM

Defendant, Linda Lee Lindsley, appeals from a July 2, 2004 dual final judgment of divorce (FJD) entered after settlement on June 9, 2004. We affirm.

We briefly recite the facts and procedural history.

Plaintiff, Kenneth J. Lindsley, and defendant were married on July 22, 1989. A child, Kenneth Christopher, born May 29, 2000, was adopted during the marriage. The marital residence was located in Short Hills, where defendant, a licensed dermatologist, continued to reside after the parties' separation and eventual divorce on July 2, 2004.

Throughout the marriage, defendant was alternatively, and at times simultaneously, employed by Novartis Pharmaceuticals and self-employed in private practice. In 2002, defendant earned $201,247.30 in gross income, and $140,106 net. As of May 2003, she was no longer employed by Novartis. From January 2003, through April 25, 2003, defendant earned a gross income of $104,637, inclusive of a bonus of $46,000, and netted $54,476.

During the marriage, plaintiff was employed by Wyeth, and in 2002, he earned $133,000 gross income, and $87,646 net income. By May 26, 2003, plaintiff was employed by Rienzi & Rienzi Communications, averaging a monthly gross of $8,617.20 and a net of $5,736.44.

The parties acquired numerous assets during the marriage, the most valuable of which included the marital residence valued at an agreed-upon $751,000, and a Vanguard New Jersey Tax Free Money Market account with a balance of $476,728.70 as of December 17, 2002, when plaintiff filed the complaint for divorce. Distribution of these and other assets, as well as issues of child custody and visitation were explored at length during a series of case management and settlement conferences. The issues were also addressed during the taking of limited testimony that eventually resulted in the entry of a FJD on July 2, 2004.

More specifically, following the filing of the divorce complaint, a series of case management conferences were conducted on April 22, 2003, October 23, 2003, and January 29, 2004. A settlement conference was held on April 15, 2004, which formed the basis of the ultimate disposition, and was followed by another on April 24, 2004, and a final settlement conference on June 9, 2004.

Despite their disparate incomes and earning capacities, the parties agreed not to seek spousal support from each other and further agreed to child support in the amount of $200 per week from each. However, the parties disagreed at the outset about child custody and visitation. Consequently, with their consent, the court, during the first settlement session on April 15, 2004, appointed Dr. Mathias Hagovsky as a parenting coordinator and explained his role to both parties:

When you disagree on something, you have to go to the parent coordinator first, before coming to me. The parent coordinator will offer you a recommendation, not a decision. And you can agree with it, resolve it, it's done. Or one of you can say, we didn't like that, we're going to go to Judge . . . And then either of you would file a motion, because I'm not abdicating my decision making authority to that person, but I'm giving him an opportunity to funnel through your dispute as parents without involving me, who wears this black dress. Do we understand that?

As noted, both parties agreed to this appointment. Based in part on Dr. Hagovsky's final report, and despite defendant's request for sole legal custody, the judge ultimately granted joint legal custody and designated defendant primary residential custodian. The parties were further instructed to consult each other regarding child-rearing matters; prohibited from making disparaging comments about the other parent; required to notify the other party in cases of illness, accident and emergencies involving hospitalization; and instructed to provide free access and contact with the other parent.

Plaintiff's parenting time included: every other weekend from Friday through Sunday; every Tuesday evening, overnight; Thursday evening dinner-time; plaintiff's birthday; part of the child's birthday if it falls during the week, however, when it falls on a weekend, the child remains with the parent that has visitation on that weekend; a three day weekend, when it falls on the weekend the parent has visitation; two weeks of uninterrupted time during the summer, which is distributed over two one-week periods; every other school vacation; Father's day (defendant received Mother's day); and, alternate Thanksgivings, Easters, New Year's Eves, New Year's Days, Halloweens, July 4ths, Veteran's Days, Christmas Eves and Christmas Days.

The settlement conferences also facilitated agreement over the equitable distribution of the parties' assets. As noted, the parties agreed that the value of the marital residence was $751,000. They also agreed that defendant would remain in the home and buy-out plaintiff's interest; that defendant would accept transfer of the property subject to the existing first mortgage of $230,000; that the $521,000 in remaining equity would be evenly split; and that plaintiff would therefore receive $260,500 in exchange for his interest.

The parties further agreed on the following distributions. Plaintiff received a TD Waterhouse account worth $210,000; another TD Waterhouse account valued at $52,000; his Wyeth 401K plan worth $280,000; Wyeth stock worth $44,000; a Bank of New York account worth $16,000; and a Benchmark Federal Credit Union account worth $4,500. As to other TD Waterhouse accounts, plaintiff retained account No. 301-00139-1-4, and defendant retained 348-0255-1-6, both of which were of unspecified amounts. The parties evenly split: the Janus Fund stocks worth approximately $4,500; defendant's Johnson and Johnson 401K ($75,324); defendant's Roche 401K ($73,678); defendant's Fidelity Keoghs; and Novartis 401K (defendant has $2,500 credit). The parties retained their own pension.

Defendant retained the account with Hoboken Federal Credit Union because it was funded by her father. Moreover, as to the $125,000 worth of savings bonds, she purchased $90,000 of these bonds pre-marital, which she was allowed to retain. The parties split the remaining $35,000.

Moreover, plaintiff retained the leased 2002 Ford Explorer, and defendant kept the 2002 Audi A6. Because she purchased this vehicle with joint marital funds, plaintiff received an additional $8,540, which is half of the depreciated value of the Audi.

The last remaining item involved one of the parties' major assets, the Vanguard account, over which there was some initial disagreement. Originally valued at $477,000, it was depleted to about $78,000 at the time of divorce. Of the $300,000 expended by defendant in the interim, plaintiff did not contest the $59,810.30 used to establish a 529B account for their child, or the $80,000 in litigation expenses. However, he initially insisted on a credit of $150,000, while defendant offered $70,000. At the April 26, 2004 settlement conference, the judge, indicating that a figure between $80,000 and $90,000 may be more appropriate, allowed the parties time to reach a compromise. The parties eventually agreed upon a credit to plaintiff of $91,500:

MS. LINDSLEY: Judge, is there any way we could try to move a little bit more towards settlement before I make this decision?

THE COURT: No. No.

MS. LINDSLEY: I mean, we came very close in numbers --

THE COURT: Here we are. No.

. . . .

MS. LINDSLEY: Okay. Can I have two minutes?

THE COURT: Yeah. You'll have two. I'll come back at 20 after, but that's the last one I give you. All right. For the record, it's 12 minutes, actually.

. . . .

[PLAINTIFF'S ATTORNEY]: We have reached a resolution of this number, Judge, so I don't know if my client and I have misunderstood you in that if we were able to resolve this, we still have to make up our mind whether or not we submit and try --

THE COURT: No.

[PLAINTIFF'S ATTORNEY]: We've resolved this. They even shook hands on it, Judge.

THE COURT: All right. Let's hear this result.

[PLAINTIFF'S ATTORNEY]: $91,500.

THE COURT: Okay.

[PLAINTIFF'S ATTORNEY]: That will be a credit to [plaintiff].

THE COURT: Okay. Everybody have a seat. Okay.

After the settlement conference on April 26th, the judge directed plaintiff's attorney to prepare an equitable distribution agreement consistent with the terms of the negotiated settlement. The judge then determined that the parties would share in the attorney fees incurred by plaintiff. Defendant also indicated that she wanted the opportunity, before the June 9th proceeding, "to work this out behind the scenes".

At the final settlement conference on June 9, 2004, the judge reviewed the proposed equitable distribution agreement and resolved residual issues between the parties. At the conclusion of the session, the judge directed plaintiff's counsel to prepare the FJD, incorporating the agreement, and submit the document to the court and to defendant under the five day rule, which counsel did. On June 26, 2004, defendant submitted a general objection. On July 2, 2004, the judge granted the dual judgment of divorce.

On appeal, defendant raises the following issues:

I. JUDGE WORKED TO COERCE AND COMPELLED DEFENDANT TO MAKE A SETTLEMENT AGAINST HER WILL. HE EXERTED UNDUE PRESSURE ON DEFENDANT, STATING THAT THE DEFENDANT WOULD NOT NEED TO SIGN THE DOCUMENT (DIVORCE DECREE); DEFENDANT'S OBJECTION UNDER 5 DAY RULE IGNORED.

II. JUDGE EXERCISED IMPERMISSIBLE AND POTENTIALLY DANGEROUS DELEGATION OF JUDICIAL AUTHORITY IN RESPECT TO THE PSYCHOLOGY EXPERT HE MANDATED.

III. THE DIVORCE DECREE SIGNED BY THE JUDGE WAS NOT AN ACCURATE RELATION OF WHAT WAS STATED/REVIEWED AT THE JUNE 9, 2004 SETTLEMENT PROCEEDING.

IV. A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.

V. ERROR IN FACTFINDINGS OF JUDGE SITTING WITHOUT A JURY OR ADMINISTRATIVE AGENCY.

VI. THERE WAS NO HEARING OR TRIAL IN THIS CASE, PLACING THE DEFENDANT AT A CLEAR UNFAIR DISADVANTAGE. DEFENDANT WAS DENIED HER RIGHT TO A TRIAL.

VII. IF ANY ISSUE IS REMANDED, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add, however, the following comments.

It is clear that the settlement of litigation is an important public policy in New Jersey. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Judson v. Peoples Bank & Trust Co., 25 N.J. 17, 35 (1957); Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983); Davidson v. Davidson, 194 N.J. Super. 547, 550 (Ch. Div. 1984) (settlements should be encouraged especially in family law actions). The policy encouraging settlements, however,

is not the salutary effect of settlements on our overtaxed judicial and administrative calendars (although this is an undeniable benefit), but the notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone.

[Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 528 (App. Div. 1985).]

It is also well-settled that while "[c]ourts play an important role in effecting settlement . . . . that role must always be exercised appropriately and with full recognition that the court must remain fair and impartial . . . ." This is necessary "to ensure that the 'settlement [is] wrought by the parties, not by [the court].'" Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.) (quoting 75 Am. Jur. 2d Trial 287 at 505 (1991)) (alterations in original), certif. denied, 137 N.J. 165 (1994). The settlement agreement, like a contract, Nolan, supra, 120 N.J. at 472, must be made voluntarily and "freely entered into." Pascarella, supra, 190 N.J. Super. at 124. As a result "courts should never work to coerce or compel a litigant to make a settlement." Peskin, supra, 271 N.J. Super. at 275 (citing In re NLO, Inc., 5 F.3d 154, 157 (6th Cir. 1993)); see also Schunk v. Schunk, 446 N.Y.S.2d 672, 673 (N.Y. App. Div. 1981) (explaining that courts should not exert undue pressure on litigants to settle, especially in the context of a divorce settlement). Moreover, "[c]ourts should not use the threat of sanctions to force the settlement of a case." Peskin, supra, 271 N.J. Super. at 276. See Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir.), cert. denied sub nom., Farm Fresh, Inc. v. Shaffer, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992). "In sum, the law simply 'does not countenance attempts by courts to coerce settlements' and, therefore, courts must 'avoid the appearance (as well as the reality) of coercion' of settlements from 'unwilling litigants.'" Peskin, supra, 271 N.J. Super. at 276 (quoting In re Ashcroft, 888 F.2d 546, 547 (8th Cir. 1989)).

Moreover, "[i]f a settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside." Ibid. For example, in Kothe v. Smith, 771 F.2d 667 (2d Cir. 1985), the District Court judge not only recommended that the case be settled for between $20,000 and $30,000, but he also warned the parties that they would be subject to sanctions if they settled for a similar figure after trial commenced. Id. at 669. There, the defendant offered $5000 on the day before trial, and plaintiff rejected the settlement offer, and demanded at least $50,000. Ibid. The case settled for $20,000 after one day of trial, and the judge penalized defendant. Ibid. The Second Circuit Court of Appeals vacated, explaining: "'We view with disfavor all pressure tactics whether directly or obliquely, to coerce settlement by litigants and their counsel' . . . In short, pressure tactics to coerce settlement simply are not permissible." Ibid. (quoting Wolff v. Laverne, Inc., 17 A.D.2d 213, 215 (N.Y. App. Div. 1962)). Moreover, "'[t]he judge must not compel agreement by arbitrary use of his power.'" Ibid. (quoting Brooks v. Great Atl. & Pac. Tea Co., 92 F.2d 794, 796 (9th Cir. 1937). While it is commendable that a trial judge "encourage settlement negotiations, . . . excessive zeal leaves . . . no recourse but to remand the matter with instructions to vacate the judgment." Id. at 670. Thus, "[a]lthough the facilitation of settlements is a laudable goal, 'pressure tactics to coerce settlement simply are not permissible.'" Peskin, supra, 271 N.J. Super. at 277 (quoting Kothe, supra, 771 F. 2d at 669). "'[T]he court should never work to coerce or compel a litigant to make a settlement.'" Ibid. (quoting Del Rio v. N. Blower Co., 574 F.2d 23, 26 (1st Cir. 1978)) (alteration in original).

Similarly, in Continental Ins. Co. v. First Wyo. Bank, N.A.-Jackson Hole, 771 P.2d 374, 376 (Wyo. 1989), vacated in part on other grounds, 860 P.2d 1094 (Wyo. 1993), the trial judge stated that if the parties did not "make an effort to take care of this case" and settle, "[he could] guarantee [the parties] much pain." Ibid. The Wyoming Supreme Court vacated the judgment on the merits, and it reassigned the case to a different trial judge. Ibid.

Here, defendant makes no claim of fraud, deception or mistake. Neither does she claim that she was without understanding of the terms of the agreement or otherwise unable to appreciate the nature of the business she was transacting. Nor would any such claim be credible in light of the court's frequent inquiries to assure the parties' understanding of the proceedings, of which the following colloquy is illustrative:

THE COURT: All right . . . I want everybody to understand that I intend to move forward with the discussion. If there are items that we can't resolve, the resolved items stay resolved, not to reopen as part of a full package . . . . Do we all understand that?

MR. LINDSLEY: Yes, I do.

MS. LINDSLEY: Yes, Your Honor.

Moreover, defendant points to no specific provision of the agreement that is inherently unfair or unjust. Nor does she posit any principled objection to any settlement term that either fails to conform to the agreement ultimately struck or, more importantly, fails to accord her the benefit of her bargain.

Rather, defendant's claim of coercion appears to be bottomed on occasional expressions of frustration by the judge instead of on any threat, unseemly conduct, or pronounced bias emanating from the court. In any event, defendant offers no competent proof that any perceived pressure subverted her free will or coerced her into an agreement that she otherwise would not have entered. Thus, absent any such evidence, defendant may not now avoid the settlement agreement knowingly and voluntarily reached.

We also find no merit in defendant's argument that the judge impermissibly delegated his judicial authority to the expert Hagovsky. See, e.g., Maragliano v. Maragliano, 321 N.J. Super. 78, 82 (App. Div. 1999) (explaining that while "the Divorce Act does not authorize a court to delegate judicial powers to a receiver," there are in limited situations the court can "delegat[e]. . . judicial authority . . . [and] appoint[]

. . . masters").
It is well-settled that in matrimonial proceedings the court has the discretion to hire an expert and rely on the expert's report.

Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it.

[R. 5:3-3(a).]

See Prol v. Prol, 226 N.J. Super. 394, 395 (Ch. Div. 1988) ("Rule 5:3-3 provides the court with the discretionary power to appoint an expert to render an opinion, which will assist the court in arriving at a proper conclusion of the matter before it."). In equitable distribution cases, the court has the power to appoint its own experts. See Levy v. Levy, 164 N.J. Super. 542, 545 (Ch. Div. 1978); Mayer v. Mayer, 180 N.J. Super. 164, 169 (App. Div.), certif. denied, 88 N.J. 494 (1981). Moreover, the court has the power to independently appoint the expert. R. 5:3-3(d).

To be sure, "[t]he court must not abdicate its decision-making role to an expert." P.T. v. M.S., 325 N.J. Super. 193, 216 (App. Div. 1999) (citing In re Guardianship of J.C., 129 N.J. 1, 22 (1992) (noting that expert opinion is part of a "complete and balanced presentation of all relevant and material evidence sufficient to enable [the court] to make a sound determination consistent with the child's best interest.") (alteration in original). In other words, "we cannot allow experts to shoulder excess responsibility or authority, nor trial judges to cede their responsibility and authority." P.T., supra, 325 N.J. Super. at 216.

Of course, the parties are also permitted to engage an expert of their choice, but here, neither party exercised this option in the two years since the divorce complaint was filed. Instead, the parties agreed to the court's retention of Dr. Hagovsky. It is equally clear that the judge did not cede his authority to the expert. Although he relied on the expert's report in part, the judge carefully defined Hagovsky's role as a parental coordinator and explicitly preserved the court's role as ultimate arbiter of custody and visitation issues. Under the circumstances, we find no error in the court's initial appointment of or eventual reliance on Dr. Hagovsky.

 
The remaining issues, as noted, are without merit.

Affirmed.

(continued)

(continued)

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A-7110-03T2

January 23, 2006