On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
Michels, Skillman and Kestin.
Defendant Roger Peskin appeals from three post-judgment orders of the Chancery Division, Family Part, entered in this protracted matrimonial action involving his former wife, Robin Peskin, a/k/a Robin Shulman. The orders denied defendant's motion to vacate a final judgment of divorce and the settlement upon which it was based, denied his supplemental motion for an evidential hearing on the issues of duress and his capacity to enter into the settlement, enforced various provisions of the judgment, and awarded counsel fees to plaintiff's attorney, James P. Yudes, Esq. and to plaintiff's court-appointed guardian ad litem, David M. Paris, Esq.
The pivotal issue raised by this appeal is whether the trial court coerced the settlement, thereby rendering it a nullity and requiring that the final judgment of divorce and the settlement incorporated therein be vacated and set aside, and the matter remanded to the trial court for completion of the trial. Defendant contends essentially that he was suffering from severe clinical depression, he was taking powerful anti-depression medication at the time the settlement was negotiated, and he "was forced by way of a withering cross-examination conducted by the [trial court] to
submit to [an] extraordinary 'settlement' which required him after a nine-year marriage, among other things, to pay equitable distribution in the amount of $525,000 in cash plus other assets, including his marital home in Short Hills, New Jersey; to purchase term [life] insurance policies totaling $500,000 on his own life payable to plaintiff at a progressively escalating cost; to pay attorney's fees and expert's fees in the amount of $250,000; and finally to pay permanent alimony of $120,000 per year to plaintiff."
This divorce action commenced in August 1988. After extensive pretrial discovery and the appointment of Mr. Paris as guardian ad litem for plaintiff, the trial commenced on October 17, 1991 and ended four months later on February 25, 1992, when the matter was settled in open court. The trial extended over a four-month period because it was not conducted on a continuous, day-to-day basis. In fact, the trial took place over a total of only sixteen days. The many interruptions were caused, in part, by the financially complex nature of this matter. On February 25, 1992, after the proofs dealing with the financial aspects of the divorce had been completed and the presentation of evidence with respect to plaintiff's tort claim under Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979), had begun, the parties settled the matter in open court. Defendant, who had been involved in extensive settlement Discussions during the course of trial, later contended that the settlement was not voluntary but was the product of coercion by the trial court.
To put this issue in proper perspective, it is necessary to review in some detail the events and colloquies that took place in open court on February 24 and 25, 1992, prior to defendant's in-court agreement to settle. On February 24, 1992, after settlement Discussions and immediately before plaintiff was to call her first witness with respect to the Tevis claim, defendant announced to the trial court that "I'd like to settle the case, but I'm concerned about my ability to meet the obligations here." After further Discussion, the trial court informed defendant that "[t]here is no forced settlement in my courtroom, ever in any case" and further
explained to defendant that "[t]here's no penalty for not settling" and that his failure to settle "will not affect one aspect of my decision." Defendant immediately apologized saying, "I'm sorry, I, I, I, -- it's so hard for me to make a decision like this because --" The trial court interrupted defendant, advised him that he did not have to make a decision, and directed the witness to take the stand. Defendant again repeated that "I'd like to settle and I'd like to settle as long as there's some --" At this point, defendant's trial attorney, James Sharp, Esq., interrupted and stated, "There's no qualification, Roger. You either settle the case or you don't settle the case . . . . Do you agree to settle this case. Yes or no?" Defendant again tried to express his concern, but again was interrupted by his attorney who stated, "Roger, enough. Yes or no?" Defendant responded, "It's hard for me to do this because I'm not sure. I don't think I can make these -- I can -- I don't know if I can meet these obligations." Without responding, the trial court then swore the witness and the trial continued.
On February 25, 1992, after completion of another witness' testimony but before plaintiff took the stand, further settlement Discussions ensued in open court. At the Conclusion of these Discussions, the trial court asked defendant if he wanted to settle, or if another witness should be called. Defendant responded, "Okay, I'll settle the case." The trial court thereupon asked Mr. Yudes to place the settlement on the record. While the terms of the settlement were being placed on the record and discussed by all parties, including defendant, defendant indicated that he was "having a problem" and commented, "I'm just kind of overwhelmed, that's all." The trial court asked defendant if defendant had a question or if he wanted a drink of water. Defendant replied, "Can I just calm down because I, I, I don't feel -- I'll tell you . . . I haven't been able to think about all the ramifications --" Further Discussion again ensued between the trial court and defendant concerning the latter's ability to obtain a mortgage to satisfy the financial obligations imposed upon him by the settlement. Finally, Mr. Sharp asked the trial court for permission to confer with Edward Snyder, Esq., defendant's lead attorney,
because Mr. Sharp "would be a little bit more comfortable as I think Mr. Peskin would be if we could just . . . reach out for [Mr. Snyder] . . . to clarify the terms." The trial court agreed and recessed the trial to enable defendant and Mr. Sharp to meet with Mr. Snyder, who was on trial in another courtroom in the building.
Defendant, Mr. Snyder and Mr. Sharp subsequently returned to the courtroom. Defendant advised the trial court that he "didn't finish talking . . . with Mr. Snyder." Mr. Sharp immediately informed the trial court that the only aspect of the Discussion that had not been completed had nothing to do with the explanation of the terms, but concerned Mr. Snyder's apprehension about defendant's ability to answer questions that were going to be posed by the trial court regarding defendant's knowledge of the terms of the settlement and his acceptance of those terms. Mr. Sharp asked for more time to explain to defendant "what questions will be posed in that regard and why the answers must be as they should be." The trial court gave defendant and his attorneys more time and asked them to step outside the courtroom. Shortly thereafter, defendant and his attorneys returned. Mr. Snyder then informed the trial court:
Mr. Sharp and I have both recommended to Mr. Peskin that he accept the settlement. We're putting that on the record for obvious reasons. Mr. Peskin at this point and, and I'm just throwing, I'm honestly throwing this in the Court's lap because I don't know what else to do, is unable to make a decision. He will not tell us yes, and he will not say reject it and go to trial. That's all I have to say to, to Your Honor. I have nothing more -- there's not, I don't know what more time I can spend to attempt to convince Mr. Peskin. [Emphasis added].
The trial court addressed defendant, noting that it had been led to believe that the case was being settled that morning "from words from your own mouth", that the terms of the settlement were placed on the record, that defendant had asked to clarify certain points, and that defendant then asked to have the opportunity to talk to counsel, which opportunity was given to him. Then the following colloquy took place between the trial court and defendant:
THE COURT: I will ask you and if you answer a word other than what I tell you to answer, I'm going to hold you in contempt. Do we understand that?
You will just tell me very simply. If you agree to the settlement, I will then ask you a series of questions. And you will answer either yes or no. And if it's a no, then I will just consider this portion when I do a fee application because I consider this to be waste of time, quite frankly, and I would rather just conclude with the witnesses that I had expected to be here today. But I've given everybody at every juncture in this case the opportunity to settle.
So all I want to know from you is a yes or a no, not a question, not a qualification, not a clarification, as to whether or not you agreed to the settlement, yes or no? That word, if any other word comes out of your mouth, I'm going to hold you in contempt. Do you understand? Yes or no? [Emphasis added].
THE COURT: I could ask some humor and say I'll play the jeopardy song and we can figure we have thirty seconds to write it down. But you say yes or no and then we'll go into some other questions, or we'll proceed with a witness. Yes or no and you now have thirty seconds to give that word. A word. And you have the choice of the word. Which is it?
Yes or no, Mr. Peskin? I'm done with the dancing now. Yes or no. Nothing else.
No, no more questions. Yes or no, Mr. Peskin? You have the freedom to say no. Which one is it?
Yes, or no. Don't give me anything else at this posture.
MR. SNYDER: Is there anything that we can do to help, Judge?
THE COURT: No, we'll, we'll just give him his time for that word to come out. A word has to come out. There's a question asked, I want an answer.
MR. SNYDER: And I feel --
MR. SHARP: Maybe you should cut to a ...