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July 15, 2015


Submitted February 24, 2015 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-0986-11.

Alexis A. Fitzgerald, appellant pro se.

Patrice Davis Fitzgerald, respondent pro se.


Plaintiff Alexis Fitzgerald appeals the Dual Judgment of Divorce entered on July 31, 2013, by Judge Donald A. Kessler, after a protracted divorce trial. Plaintiff's sole argument on appeal is that the judgment should be vacated because Judge Kessler erred in failing to enforce a settlement agreement the parties entered into prior to the divorce trial. We affirm Judge Kessler's decision that the parties did not enter into an enforceable agreement.

The pertinent facts are as follows. The parties were married in 2002 and have two children. Approximately eight years later, in 2010, the parties filed for divorce. Initially represented by counsel, the parties failed at several mediation attempts as there were many contentious disputes about financial matters.

On April 4, 2012, the parties and their counsel were sent to a conference room in the courthouse, where they drafted a settlement agreement. The agreement was handwritten, and signed by the parties and counsel. Later that day, the parties appeared before Judge Kessler, who expressed that he would "indicate this is a settled case." Judge Kessler then asked the parties to affirm that they understood and agreed to the terms of the settlement, but did not have them place any of the details of the document on the record. Instead, Judge Kessler scheduled a future date to conclude the divorce proceedings and put everything on the record.

During colloquy between the parties, counsel, and the court, however, various statements were made that would support Judge Kessler's eventual decision to find the agreement non-binding. For example, when the document was initially marked for identification at the April 4, 2012 hearing, plaintiff's counsel stated that, "we're not prepared we would like to make sure we clean it up and do it as a regular property settlement agreement and come back."

Plaintiff's counsel also stated the following regarding a pending motion to be relieved as counsel

I would be unfair if I said this wasn't a rocky morning. So, we're going to try and do this before the 27th of April, when the Family Part made my motion returnable. If we can't get it all done, and Mr. Fitzgerald and I cannot come to an understanding, I'd like to proceed at that time.

Judge Kessler responded that he might let counsel be relieved, but would "probably" still enforce the settlement.

Regarding the actual language of the April 4, 2012 agreement, the document stated that child support would be paid according to the child support guidelines. However, there was no agreement on the income figures that would determine the outcome of that calculation. It later became clear to Judge Kessler that the parties had very different expectations as to the amount of child support plaintiff would pay.1

Also pertaining to the language of the actual document, the only copies of the agreement have the title "Partial Agreement" written on them. Plaintiff claims that these words were added after he signed the agreement. However, when the handwritten document was copied by court staff and given to the court and counsel after the April 4, 2012 hearing, the words "Partial Agreement" did in fact appear on the document.

In June 2012, plaintiff made a motion to enforce the agreement. Plaintiff's motion was denied by Judge Kessler. In the meantime, there were additional mediation sessions held between the parties.

The divorce trial began in January 2013. Plaintiff appeared pro se at the trial. During his opening statement, plaintiff again argued there was a partial settlement on April 4, 2012, and that the terms of it should be enforced. With an abundance of caution, plaintiff was allowed to testify, and explain why he believed the agreement was binding, even though counsel for defendant contended that the issue had already been argued and decided. At one point during plaintiff's testimony, he acknowledged the lack of an agreement to settle. He testified: "the defendant has lied so much that it affected every mediation we ever had. So between her attorney not correctly recording the issues agreed upon in the settlement and fabricating financial figures, this case never settled."

Judge Kessler again held that the parties never reached a "meeting of the minds" on April 4, 2012, and therefore the document was not a binding agreement. Specifically, he found that the parties had completely different understandings of the amount of child support that would be paid, and that there were other unresolved financial issues. Judge Kessler continued that the unresolved portions of the agreement affected the overall financial picture to such an extent that he could not enforce the document as a partial agreement. On July 31, 2013, at the conclusion of the protracted trial, Judge Kessler rendered a comprehensive and well-reasoned oral decision, which was incorporated into the final judgment entered on that date.

A matrimonial "settlement is subject to the same rules of enforceability as the settlement of a non-matrimonial matter[.]" Brawer v. Brawer, 329 N.J. Super. 273, 282 (App. Div. 2000). After reviewing the record including Judge Kessler's decision, we find that he correctly determined that there had been no "meeting of the minds" between the parties about the settlement, and thus, there was no resulting enforceable agreement. "In order for a contract to form . . . there must be a 'meeting of the minds,' as evidenced by each side's express agreement to every term of the contract." State v. Ernst & Young, L.L.P.,386 N.J. Super.600, 612 (App. Div. 2006) (quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538 (1953)). "A meeting of the minds occurs when there has been a common understanding and mutual assent of all the terms of a contract." Knight v. New England Mut. Life Ins. Co., 220 N.J. Super.560, 565 (App. Div. 1987)(citation omitted), certif. denied,110 N.J.184 (1988).

There are substantial grounds here to support the trial judge's finding that no such mutual assent was achieved by the incomplete agreement.


1 Anticipating a waiver of alimony as part of the agreement, plaintiff expected to pay child support of $226 per week, although defendant expected to receive $398 per week.