MARINA DEVERMAN v. DOV DEVERMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5305-07T25305-07T2

MARINA DEVERMAN,

Plaintiff-Appellant,

v.

DOV DEVERMAN,

Defendant-Respondent.

________________________________________________________________

 

Argued June 2, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-386-02.

Valerie Steiner argued the cause for appellant.

Joshua D. Levine argued the cause for respondent (The Levine Law Firm, attorneys; Mr. Levine, of counsel and on the brief).

PER CURIAM

Plaintiff Marina Deverman appeals from an order entered on June 5, 2008, amending a judgment of divorce entered on September 18, 2002, in accordance with an agreement placed on the record by the parties on January 17, 2008. We affirm.

The background facts are as follows. Plaintiff gave birth to the parties' child in January 1990. They were married three months later on April 30, 1990. The parties separated on July 4, 2001 and after a domestic violence order and permanent restraints were entered, a judgment of divorce was granted on September 18, 2002. At that time, defendant was directed to pay child support in the amount of $133 for their then twelve-year-old child until he was emancipated. The child support was based upon defendant's imputed income.

Plaintiff filed a number of post-judgment applications to increase support but defendant consistently claimed that he was unable to earn income because he was disabled.

Notwithstanding his representations regarding unemployment and inability to pay child support, in 2006, defendant purchased a condominium in Florida for $685,000. Plaintiff brought another application in July 2007 to increase child support and obtain financial records from defendant. After argument was heard, an order was entered on October 17, 2007 directing defendant to produce his financial information, including state and federal tax returns for the last four years, and deeds and mortgage applications regarding any property owned by him directly or indirectly. The order further directed defendant to produce all bank statements for the past four years and various other financial information. The order provided for plaintiff to depose defendant after receipt of the discovery. Defendant did not produce the discovery as ordered, but finally made himself available for deposition in January 2008.

During his deposition, defendant evaded questions at every turn. The attorneys had a discussion off the record, during which they attempted to resolve the issues. They agreed to place a settlement on the record, but plaintiff claims it "fell apart."

Plaintiff's counsel indicated on the record that plaintiff did not agree to the terms of the settlement as stated by defendant's counsel. Counsel then had another discussion off the record and they attempted to resume placing a settlement on the record. That was apparently unsuccessful as well. After a lunch recess, the parties eventually reached an agreement which was placed on the record.

Thereafter, plaintiff's counsel drafted a consent order to memorialize the settlement agreement. Plaintiff, however, directed him not to proceed because it was her belief that the matter was not fully resolved.

In March 2008, defendant moved to amend the judgment to incorporate the settlement agreement and to terminate child support in accordance with the agreement. Plaintiff cross-moved to continue defendant's deposition and to set the matter down for a plenary hearing. Defendant's motion to enforce the settlement was granted and plaintiff's cross-motion was denied. Plaintiff appeals from that order.

Plaintiff argues that the trial court erred in entering the order enforcing the agreement because (1) specific performance of the agreement was inappropriate under the facts of the case; (2) there was no meeting of the minds; (3) equity should not have enforced the agreement; (4) plaintiff lacked capacity to enter an agreement; and (5) a plenary hearing was required.

We have carefully considered plaintiff's arguments in light of the record and the applicable law. We are satisfied that plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Our scope of review in this instance is limited to a determination of whether the trial court abused its discretion in enforcing the parties' settlement agreement. Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006). In reviewing the record, we give substantial deference to the trial court's findings of fact and conclusions of law. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Plaintiff has the burden of demonstrating "[a] sharp departure from reasonableness." Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978). In reviewing the deposition transcript, it is apparent that the parties did a great deal of bickering about the terms of the settlement agreement but they ultimately reached an agreement.

With respect to plaintiff's claim that she lacked the capacity to enter the agreement, plaintiff maintains that she had taken three Oxycodone pills before arriving at the deposition because of certain physical problems. She contends that she became increasingly aggravated and more confused about what was going on and that as discussions continued she began to yell and could not agree with defendant's proposals. The following day, when she was "no longer clouded with confusion, she contacted her counsel and advised that she did not want to proceed with the tentative settlement, as it was unfair."

A party seeking to set aside a settlement agreement for lack of capacity has the burden of proving her incompetence to form an agreement. Jennings v. Reed, 381 N.J. Super. 217, 228 (App. Div. 2005). The test for capacity to enter an agreement is whether the individual has the ability to understand the nature and effect of the agreement. Ibid. We note initially, that plaintiff has presented no evidence to support her claim that she took three Oxycodone pills shortly before the deposition. She presented a doctor's note to the trial court, but the trial court noted that "[i]n no way, shape or form does it say that [on] such and such a date [plaintiff] was suffering from this, she was suffering from that." The trial court concluded that plaintiff failed to present "a prima facie case that she was suffering from something which would prevent her from understanding and comprehending that agreement."

In our review of the transcript setting forth the settlement negotiations and the ultimate agreement, plaintiff's answers to questions were responsive and appropriate. Her own attorney questioned her with respect to the voluntariness of her entering the agreement:

[Plaintiff's Attorney]: Mrs. Deverman, you've heard me put a settlement on the record, have you not?

[Plaintiff]: Yes, I have.

Q. Okay. You understand all of the terms and conditions?

A. Yes.

Q. Do you have any questions concerning the terms and conditions of the settlement?

A. No.

Q. Has anybody forced you or coerced you to enter into this agreement?

A. No.

Q. Are you under any disability that would prevent you from understanding the terms and conditions of this agreement?

A. No.

Q. Do you believe that under all of the circumstances and I know that there are a lot of circumstances, but do you believe that under all of the circumstances that the agreement is [a] fair and equitable one?

A. Yes.

Q. Okay. And subject to full compliance . . . with the terms and conditions of this agreement, you're satisfied with how this matter has been resolved?

A. Yes.

Q. Okay. You've been represented by me up to this point in this matter?

A. Yes.

Q. And we've had a number of discussions regarding this matter and the pros and cons relating to it and you believe under -

A. Yes.

Q. Yes. Okay. And are you satisfied with my representations?

A. Yes.

Plaintiff was clear, articulate and responsive in her answers to counsel's inquiries as to her understanding of the agreement, her ability to comprehend its terms and her voluntariness in entering it.

In its decision on the motion, the trial court indicated that it had read the papers and the transcript and that the court was

satisfied by a totality of the circumstances that an agreement was placed on the record. The parties understood that, and I will, based upon the totality of the circumstances, enforce the agreement, and I do not believe that the moving party on a cross-motion, Marina Deverman, has convinced me with a prima facie case that she was suffering from something which would prevent her from understanding and comprehending that agreement.

We agree and affirm substantially for the reasons stated by Judge Kenneth J. Slomienski on the record of April 25, 2008.

Affirmed.

(continued)

(continued)

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A-5305-07T2

September 9, 2009