OLGA ZAITSEV v. MIKHAIL ZAITSEV

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4960-05T14960-05T1

OLGA ZAITSEV,

Plaintiff-Appellant,

v.

MIKHAIL ZAITSEV,

Defendant-Respondent.

________________________________________________________________

 

Argued March 21, 2007 - Decided April 24, 2007

Before Judges C.S. Fisher, Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-0235-00.

Donald M. Onorato argued the cause for appellant.

John E. Finnerty argued the cause for respondent (Finnerty, Canda & Drisgula, attorneys; Paul J. Concannon and Mr. Finnerty, on the brief).

PER CURIAM

In this post-judgment matrimonial action, plaintiff, Olga Zaitsev, appeals from three orders entered by the motion judge. The first, dated March 15, 2006, required plaintiff to sign a document that effectively resolved certain ongoing litigation between herself and her husband, defendant, Mikhail Zaitsev, in Russia. The second, dated April 26, ordered plaintiff to pay $24,316 in counsel fees to defendant. The last, dated May 12, denied plaintiff's application to compel the release of an executed deed in her favor conveying defendant's interest in property the couple owned in Englewood Cliffs.

Plaintiff raises four arguments on appeal. First, she contends the motion judge erred in forcing her to execute the settlement agreement in the Russian litigation (the "Russian agreement") under the threat of civil arrest. Second, plaintiff argues the motion judge lacked the jurisdiction to determine issues pending in the litigation in the Russian courts and, hence, lacked jurisdiction to order her execution of the Russian agreement. Third, she argues the judge abused his discretion in awarding defendant counsel fees. And, fourth, plaintiff contends the judge effectively rewrote the couple's consent agreement by denying her motion to compel the transfer of the Englewood Cliffs property. We have carefully considered these arguments in light of the record and appropriate legal standards. We affirm.

The appeal has its genesis in a consent agreement entered into by the parties on November 16, 2005, which resolved outstanding issues of child support, equitable distribution, and pending litigation between them in the United States, France, and Russia. Both parties, represented by counsel, were questioned extensively about their understanding and voluntary acceptance of the terms of the agreement during a court proceeding held on the same day. On December 19, the terms of the agreement were incorporated into a consent judgment whose pertinent provisions are as follows:

7. Plaintiff and defendant's equitable distribution claims for property located outside of Russia are resolved by defendant's relinquishment of his equitable distribution interest in real estate located in Englewood Cliffs, New Jersey . . . . Except as otherwise set forth herein, the plaintiff relinquishes any claims she may have to property owned by defendant, except that property owned by the parties in France and that property owned in Russia, her rights to which are more precisely defined in paragraphs 7 (sic) and 9, infra.

8. Defendant must acquire by partition and plaintiff must convey by partition, her interest in French real estate property owned by Platypuz, Inc., located in France at market price within eighteen (18) months of December 1, 2005 . . . . Plaintiff shall immediately dismiss the French litigation she has filed with prejudice.

9. The parties agree to recognize as valid the divorce decree that was entered in Russia and agree further to dismiss with prejudice all litigation and their respective claims against each other in Russia . . . .

. . . .

12. Both parties agree to perform the obligations of this Agreement and direct their representatives in both Russia and France to do all that is necessary to enforce this agreement in those jurisdictions and to have same accepted by the Court. Each party agrees to be bound by same in America, Russia, France, and any other jurisdiction and to perform whatever acts are necessary in each country to assure compliance with and performance of the obligations of the Agreement.

In February, 2006, intending to settle the litigation in Russia, defendant served plaintiff with the Russian agreement. Defense counsel advised that failure on plaintiff's part to execute the document would result in the filing of an appropriate motion to compel her signature.

Plaintiff refused to execute the document claiming defendant's new wife had lodged criminal complaints against plaintiff in Russia, and since defendant had not dismissed those charges, plaintiff would not sign the Russian agreement. Plaintiff's counsel urged defense counsel to leave these matters to "Russian counsel which each of our clients has retained."

Defendant filed an order to show cause seeking to compel plaintiff's execution of the Russian agreement. In support of the application, defendant supplied the certification of a Russian attorney, Andrey Yakovlev, who represented defendant in Russia. He explained that the Russian litigation could not be settled without the executed document and, if it was not executed, the Russian court might independently hear the case and decide, on its own and without regard to the parties' American consent judgment, the appropriate disposition of property in Russia.

Plaintiff opposed the application asserting the grounds previously offered by her counsel. In reply, defendant again offered a certification from Yakovlev in which he noted that the criminal prosecution in Russia was a public matter and could not be dismissed by defendant or his new wife. On March 8, the motion judge entered an order compelling plaintiff to execute the Russian agreement within seven days, finding specifically that it "contain[ed] the same terms as the document [plaintiff] voluntarily accepted on the record . . . and [in] the Consent Judgment she executed." The order imposed a penalty upon plaintiff of $500 per day. Additionally, the order provided that "on satisfactory submission to this Court of proof that the Russian and French litigation has been concluded . . . Defendant shall release to Plaintiff's counsel . . . the Deed conveying his interests in the Englewood Cliffs premises . . . ."

On March 15, the parties were again before the court because plaintiff still had not executed the Russian agreement. The judge ordered plaintiff to sign the document by March 17 or face incarceration for "violating [defendant's] litigant's rights." At a further proceeding on March 17, plaintiff signed the Russian agreement "under protest and based upon the threat of incarceration."

Defense counsel sought counsel fees. In a written opinion filed April 26, the judge considered the request in light of R. 5:3-5(c) and R. 4:42-9 and concluded that defendant incurred counsel fees because of the "unreasonable position of the plaintiff," and her "refusal to cooperate and recognize her obligation." He entered an order directing plaintiff to pay $24,316 in counsel fees to defendant.

Plaintiff, in the interim, moved to compel defendant to convey his interests in the Englewood Cliffs property pursuant to section seven of the consent judgment. Plaintiff argued that defendant's obligation to convey the property was not contingent upon the occurrence of any event. Defendant argued that given the prior court order of March 8, plaintiff had yet to settle the Russian and French litigation and therefore he was under no obligation to release the deed to plaintiff. He contended that given the immediate past history, including plaintiff's apparent claim in Russia that she executed the Russian agreement under duress, and her filing of a notice of appeal regarding the March 15 order, it was inequitable to compel the release of the deed to plaintiff. In essence, defendant argued plaintiff was still not cooperating under section twelve of the consent judgment.

Interpreting the consent judgment as a whole, and finding bad faith in plaintiff's failure to execute the Russian agreement, the judge denied plaintiff's request to compel the release of the Englewood Cliffs deed. He also denied both parties' request for counsel fees with respect to the motion.

On appeal, plaintiff argues the judge compelled her to execute the Russian agreement under threat of civil arrest, and, thus, coerced her consent. Plaintiff misapprehends the nature of the proceeding. Plaintiff had already consented to the terms of the consent judgment twice before. The March 15 order was the court's response to defendant's request that the court enforce the terms of it own judgment.

Initially, the judge needed to decide whether plaintiff was in fact violating the terms of the consent judgment. Since he determined the Russian agreement "contain[ed] the same terms" as the consent judgment, he concluded plaintiff was not performing her obligations under section twelve. The scope of our review requires that the findings and conclusions of the trial judge not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Based upon the certifications in support of the order to show cause, the motion judge properly determined that the Russian agreement was the alter ego of the consent judgment. Furthermore, the judge determined that the language of the consent judgment did not encompass the criminal proceedings lodged against plaintiff in Russia. Based upon the unrebutted certification of defendant's Russian attorney, the judge's conclusion was entirely justified.

Absent fraud, coercion, deception, undue pressure, or incompetency, "[a] settlement between parties to a lawsuit is a contract like any other contract . . . which a court . . . should honor and enforce as it does other contracts." Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (citations omitted). Plaintiff has never raised any challenge to the proceedings in November and December 2005 during which the settlement contract with defendant was forged and memorialized.

"Relief by way of motion to enforce litigants' rights under R. 1:10-3 is 'not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of [a] court order.'" P.T. v. M.S., 325 N.J. Super. 193, 220 (App. Div. 1999) (quoting Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997)). Whether incarceration of plaintiff for her repeated failure to sign the Russian agreement was appropriate or even permissible under the rule, is an issue we need not confront. In the end, other alternatives might have been used to enforce the court's order. See Roselin v. Roselin, 208 N.J. Super. 612 (App. Div.) (holding appointment of a receiver or entry of recordable judgment were appropriate alternative mechanisms to compel recalcitrant party's conveyance of marital property), certif. denied, 105 N.J. 550 (1986). That was unnecessary, however, because plaintiff executed the document on March 17; the possibility that she would be exposed to all the potential remedies available to the judge under R. 1:10-3 if she refused to do so does not provide any basis to overturn the judge's order or set aside the execution of the Russian agreement.

Plaintiff's next argument -- that the motion judge lacked jurisdiction over the Russian litigation and, hence, the power to compel plaintiff's execution of the Russian agreement -- also misapprehends the nature of the court's actions. Plaintiff has never contested the court's jurisdiction over the parties for purposes of the matrimonial action. Indeed, plaintiff resides in New Jersey and initiated the action in New Jersey. Once the consent judgment was entered, the court retains the inherent "ability and responsibility . . . to enforce its own orders . . . ." Irish Pub v. Stover, 364 N.J. Super. 351, 356 (App. Div. 2003). Plaintiff's voluntary execution of the December 2005 consent order "vested the court with continuing jurisdiction to enforce [its] orders." Ibid. In forcing plaintiff's execution of the Russian agreement that contained the same terms as the consent judgment, the court was not extending its jurisdiction to determine a dispute in Russia; it was simply enforcing its own order.

Plaintiff's challenge to the judge's award of counsel fees to defendant is likewise unavailing. The award of counsel fees rests with the sound discretion of the judge and we will not set such an award aside unless there was a clear abuse of that discretion. Loro v. Colliano, 354 N.J. Super. 212, 227 (App. Div.), certif. denied, 174 N.J. 544 (2002). Here, the motion judge properly considered the factors contained in R. 5:3-5(c). We find no abuse of discretion.

Lastly, plaintiff argues the judge erred in denying her motion to compel the release of a deed to the couple's Englewood Cliffs property, previously executed by defendant and held by defense counsel in escrow. Plaintiff contends that since section seven of the consent judgment contains no express predicate condition for defendant's conveyance of his interest in the Englewood Cliffs property, she is entitled to the immediate release of the deed.

This is unpersuasive. Section twelve places an overriding obligation upon both parties to fully cooperate with each other and perform the obligations in all jurisdiction that were necessary to effectuate the judgment. The judge found plaintiff had acted in bad faith by refusing to sign the Russian agreement; he also noted that plaintiff was contesting the voluntariness of her settlement of the Russian litigation in Russia, and was pressing the appeal of his March 15 order.

In Glass v. Glass, 366 N.J. Super. 357, 373-74 (App. Div.), certif. denied, 180 N.J. 354 (2004), we held that when interpreting a comprehensive property settlement agreement, "[n]o one element stands alone and can be read without reference or consideration of the others." The motion judge properly interpreted the consent judgment as an integrated document. He determined plaintiff had not complied with section twelve's obligations. As a result, based upon equitable concerns, the judge denied plaintiff's application. We find no error and no abuse of discretion in the judge's delaying of the transfer of the Englewood Cliffs property to plaintiff pending the completion of further aspects of the property settlement agreement.

Affirmed.

 

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A-4960-05T1

April 24, 2007