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Davidson v. Davidson

Decided: February 7, 1984.


Krafte, J.s.c.


Will a matrimonial oral property settlement and support agreement, entered into by attorneys for their respective clients with their specific knowledge, consent and authorization during a settlement conference in chambers, be formalized by order, in spite of the fact that one party thereafter attempts to repudiate same?

No reported case, whether in New Jersey or any other jurisdiction, has addressed this question. This court now does and answers in the affirmative.

The facts are relatively uncomplicated. On November 7, 1983, this matter was set down for trial before this court. The issues which were to be determined at the trial were defined in an unreported opinion of the Superior Court, Appellate Division, dated March 28, 1983. Prior to commencement of the trial, there were extensive settlement discussions in and out of chambers between plaintiff (present in court), her attorney, defendant's former attorney, defendant (by telephone), the court-appointed accountant and the court. It is not disputed that defendant's former attorney was acting on behalf of defendant and that he consulted with defendant on the telephone several times with respect to all aspects and particularly the proposed terms of the settlement which were being discussed. Defendant chose not to attend, but rather to be available by telephone, although fully aware that this was the trial date.

These negotiations resulted in a settlement of the case, the terms of which were agreed upon by plaintiff and, based upon representations made by defendant's former attorney after a number of telephone conversations with defendant, by defendant.

Defendant does not now dispute this. On November 11, 1983, plaintiff's attorney mailed to defendant's former attorney a consent order embodying the settlement.

On or about November 16, 1983, plaintiff's attorney's office received a telephone communication from defendant's former attorney stating, in effect, that defendant no longer wished to abide by the terms of the settlement and that defendant's attorney and his firm would have to withdraw as counsel. Defendant then retained his present counsel. Because consent order was never signed by defendant or his former attorney, plaintiff brought this order to show cause to specifically enforce the oral settlement entered into under the above circumstances.

The policy of the courts of the State of New Jersey is to encourage settlements. This policy in turn creates an affirmative obligation of counsel to attempt to settle cases. Nowhere is this policy more imperative than in the ever-burgeoning field of family law. There is no force more destructive to the sane resolution of the myriad and complex aspects of family dissolution than a trial whereby inter-personal relationships and all things flowing from them become polarized. There is no area of the law which brings such basic, emotional feelings to the fore. Where once love lived, hate now abounds. Myriad support and expert personnel are called upon, seeking a just and proper resolution to these seemingly impossible conflicts. With more divorces being granted now than in history, and with filings on the rise, fair, reasonable, equitable and, to the extent possible, conclusive settlements must be reached, or the inexorable and inordinate passage of time from initiation of suit to final trial will be absolutely devastating to the parties and their children in particular, and to society in general which must ultimately bear the burdens, both financially and sociologically.

Based upon these principles and concepts, this remand was settled after an extensive amount of time expended and effort exerted by the parties, the attorneys, the accountant and the

court. On the morning of November 7, 1983, plaintiff and defendant compromised their positions, and approved, and were prepared to live by, their agreement. Both agreed that it was a fair compromise though, as with all compromises, neither party was elated. In addition to the full approval by the parties, the court, based upon its intimate knowledge of the totality of the facts (having been the original trial judge), and the terms and conditions of the settlement, specifically approved the settlement as being fair, reasonable and equitable to all concerned, and advised both attorneys of its position.

It is unquestionable that matrimonial settlement agreements, whether in writing or oral, having been entered upon the record with the consent ...

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