On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FM-01-798-00C.
Before Judges Petrella, Kestin, and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 22, 2002
Defendant Elizabeth Kingsdorf appeals from an order enforcing a property settlement agreement which she had allegedly reached with plaintiff Charles Kingsdorf in his capacity as guardian for his father, her now deceased husband, Jerome J. Kingsdorf (Jerome), shortly before Jerome's death. We reverse and remand.
Jerome and defendant were married in January 1984 and had no children together. Each had been previously married. At the time of the marriage, Jerome owned real property located in Mays Landing, New Jersey, and defendant owned real property in Cologne, New Jersey. Subsequent to the marriage, defendant and Jerome executed deeds transferring title of their respective premarital property into joint names as tenants by the entirety. According to defendant, while she was hospitalized after sustaining serious injuries in an automobile accident, Jerome came to the hospital and asked that she execute a mortgage on the Cologne property in order to obtain a $47,000 home equity loan, the proceeds of which were given to plaintiff to allow him to start a new business venture.
The parties separated in 1997. Defendant returned to her home state of Maine, while Jerome resided in the Mays Landing property and also managed the Cologne property. In September 1999, Jerome suffered a stroke which rendered him completely incapacitated. In January 2000, he was placed in a nursing home for long-term residential care. On February 4, 2000, an order was entered declaring Jerome "incapacitated as a result of unsoundness of mind," rendering him incapable of governing himself and managing his affairs. Plaintiff was appointed as guardian of Jerome's person and property.
On March 1, 2000, plaintiff filed a complaint, on Jerome's behalf, for divorce. Defendant, through counsel, filed an answer and counterclaim on May 25, 2000. By letter dated March 15, 2000, plaintiff's attorney, on Jerome's behalf, proposed a settlement whereby Jerome would retain the Mays Landing property and defendant would retain the Cologne property. By letter dated May 22, 2000, defendant's attorney responded, setting forth her belief that the Mays Landing property was substantially more valuable than the Cologne property. In addition, she asserted that the Mays Landing property was unencumbered, whereas the Cologne property was encumbered by the mortgage that was executed for the benefit of plaintiff. Nevertheless, defendant's attorney said that she had advised defendant to "cut her losses" and accept the Cologne property as long as the agreement also provided that each party would keep "any and all assets of any other nature in his or her respective name." After the exchange of further correspondence, by letter dated June 12, 2000, plaintiff's attorney forwarded a copy of a proposed consent final judgment of divorce for defendant's review and signature.
Jerome died on June 23, 2000. The death certificate lists plaintiff as the "informant," Jerome's marital status as "divorced," and designates "not applicable" under the category for "surviving spouse." According to plaintiff, he informed his attorney of Jerome's death on June 27, 2000. However, neither plaintiff nor his attorney informed defendant, her attorney, or the court of Jerome's death.
By letters dated June 27, 2000, and June 29, 2000, defendant's attorney represented that the terms of the consent final judgment of divorce were "acceptable" to her client, indicating that defendant had signed "the copy" and would sign the original at the time of the entry of the final judgment of divorce.
On July 5, 2000, plaintiff, on behalf of the since deceased Jerome, signed the consent final judgment of divorce, which provided for the transfer of the Mays Landing property to Jerome, transfer of the Cologne property to defendant, and waiver by both parties of any claim to alimony or contribution toward support and maintenance from the other. In addition, the consent judgment provided that each party would retain any and all assets in their names or possession.
On July 12, 2000, the return date of the uncontested divorce hearing, defendant signed the consent final judgment of divorce and a quitclaim deed transferring her interest in the Mays Landing property to Jerome. Immediately prior to the hearing, on that same date, plaintiff's attorney informed the court that plaintiff, on Jerome's behalf, had withdrawn his complaint for divorce, thereby allowing defendant to proceed on her counterclaim. Counsel also asked for "permission to leave . . . so that [defendant] may proceed on her counterclaim." Counsel failed to reveal that Jerome had died. The following colloquy occurred between the judge and Jerome's attorney:
THE COURT: Okay. At . . . this has been signed and negotiated by Charles Kingsdorf?
COUNSEL: Yes, it has been.
THE COURT: Okay. And you represented Charles Kingsdorf throughout this matter?
COUNSEL: Yes, Your Honor, I have.
THE COURT: Okay. Is Mr. Kingsdorf satisfied that the agreement is fair?
COUNSEL: Yes, he is. And he's satisfied that it's in the best interests of his father.
THE COURT: And that it protects his father to the extent possible?
THE COURT: Okay. You don't want to stick ...