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Brawer v. Brawer

March 24, 2000


Before Judges Baime, Brochin and Bilder.

The opinion of the court was delivered by: Brochin, J.A.D.


Argued January 26, 2000

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.

The opinion of the court was delivered by

Plaintiff Jodi Kohl Brawer and defendant William A. Brawer were married June 23, 1983. They have two children, Rebecca, born August 15, 1984, and Molly, born March 18, 1990. Mr. and Ms. Brawer were divorced by a judgment entered April 29, 1998. A supplemental judgment entered September 14, 1998 determined financial arrangements, custody and visitation.

Before trial, Ms. Brawer moved to enforce a settlement which she contended the parties had agreed to at the end of a ten-hour settlement conference on November 27, 1995. The motion was denied, and an eight-day bench trial was held to determine whether the parties had reached an enforceable settlement. Following the conclusion of that trial, the court ruled that there was no settlement. A subsequent thirteen-day trial on economic issues resulted in the entry of the September 14, 1998 supplemental judgment.

Mr. Brawer has appealed from that judgment. He contends that an excessive amount of alimony was awarded and that he should not have been assessed the entire fee of Seymour Rubin, C.P.A., the accountant whom both parties selected as an independent expert. Ms. Brawer has cross-appealed. She contends that the court erred by holding that the parties' settlement agreement was unenforceable and that Mr. Brawer should have been required to pay her attorneys' fees for the services which they performed for her during the period from the conclusion of the November 27, 1995 settlement conference through the end of the second trial. Alternatively, she argues that if the settlement agreement is not enforced, she should have been given a larger award of alimony, child support, equitable distribution, and attorneys' fees.

For reasons which we shall explain, we hold that the parties did reach an enforceable settlement of the economic issues ancillary to their divorce. Because of that holding, the parties' other contentions, except for Ms. Brawer's claim to additional attorneys' fees, are moot and therefore do not require discussion.

The November 27, 1995 settlement conference, which was held at Seymour Rubin's office, was the culmination of several meetings to discuss possible settlement. The conference began at approximately 10:00 a.m. and ended at approximately 8:00 p.m. For the most part, Mr. Brawer and his advisers remained together in one room and Ms. Brawer and her advisers were in another room. Mr. Rubin shuttled between the two "camps" with his own suggestions and with the parties' proposals and counter proposals. At least twice during the ten-hour conference, the Brawers, their advisers, and Mr. Rubin met together in Mr. Rubin's conference room.

Mr. Brawer's advisers at the conference were Lynne Strober, Esq., who was his attorney until she was replaced by his current counsel, and William Morrison, C.P.A., his accounting expert. Ms. Brawer's advisers at the conference were Barry Kaufman, Esq., her attorney, and Stuart Meyers, C.P.A., her accounting expert. Seymour Rubin was present with Dawn Lykins, his assistant. Mr. and Ms. Brawer, Mr. Rubin, Ms. Strober, and Mr. Kaufman were present from the beginning to the end of the conference. Mr. Meyers left at approximately 2:00 p.m. and Mr. Morrison and Ms. Lykins at approximately 6:00 p.m.

Ms. Brawer testified herself and called Mr. Rubin, Mr. Kaufman and Mr. Morrison as witnesses at the trial of the settlement agreement. Mr. Brawer presented only his own testimony. Ms. Strober was not called to testify.

Mr. Rubin's, Mr. Kaufman's and Ms. Brawer's descriptions of what occurred at the conference were substantially the same. Mr. Morrison's testimony was less forthcoming, but it was not materially inconsistent with theirs. Mr. Brawer's testimony was at odds with that of the other witnesses. We will first summarize the testimony provided by Mr. Rubin, Mr. Kaufman and Ms. Brawer.

The two "camps" that were gathered at Mr. Rubin's office exchanged proposals and counter proposals throughout the day. By talking to Mr. Brawer in the presence of his attorney and to Ms. Brawer in the presence of her attorney, Mr. Rubin obtained each party's tentative agreement to various terms of a proposed settlement. As Mr. Rubin conveyed the various proposals to Mr. Brawer, Mr. Morrison would remind Mr. ...

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