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Khalaifeh v. Mohammed

March 30, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-000671-08.

Per curiam.


Submitted March 17, 2009

Before Judges Graves and Espinosa.

The parties were lawfully married in Jordan on August 26, 2006. On or about November 8, 2007, plaintiff wife, Reem Khalaifeh, filed a complaint for divorce on the grounds of extreme cruelty and irreconcilable differences. No children were born of the marriage, and it is undisputed that the marriage was never consummated. Defendant, Murad Muhammed, filed an answer and counterclaim seeking an annulment.

The matter was scheduled for a case management conference on February 29, 2008. Each of the parties was represented by counsel. The attorney representing defendant was Arabic-speaking. The parties resolved their issues, documenting their agreement in a handwritten property settlement agreement that provided, in part, that defendant would pay plaintiff the sum of $9000. The property settlement agreement included an exhibit written entirely in Arabic that listed relevant property. Immediately above the signatures of the parties and their counsel, the last paragraph of the agreement stated, "Any and all issues not raised herein are hereby deemed waived and abandoned."

The parties were fully and appropriately questioned under oath by the trial court regarding the property settlement agreement. An Arabic speaking interpreter was sworn in to assist defendant at the outset of the hearing. After hearing the plaintiff's testimony, the court asked defendant's attorney: "Are you proceeding on your counterclaim or do you want me to withdraw the annulment?" His attorney replied, "No, we're withdrawing the annulment Your Honor."

Defendant then testified that he entered into the agreement "voluntarily of [his] own free will"; that he understood that he had a right to a trial and was not obligated to enter into an agreement; that he had no questions and would be satisfied if he went "home today divorced subject to the terms of this agreement." Accordingly, a judgment of divorce was entered that incorporated the terms of the property settlement agreement.

Thereafter, defendant filed a motion to set aside the judgment of divorce "because it is illegal" to have "an annulment be the basis for divorce." This motion was denied by order dated May 9, 2008. A motion for reconsideration was denied on July 30, 2008.

Defendant does not dispute that he entered into the property settlement agreement freely, knowingly, and voluntarily. Rather, he contends that the marriage itself was not valid because it was never consummated and, therefore, cannot be the basis for a valid judgment of divorce or for the imposition of an obligation to pay alimony.

"[W]hile settlement is an encouraged mode of resolving cases generally, 'the use of consensual agreements to resolve marital controversies' is particularly favored in divorce matters." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). New Jersey has long recognized the "basic contractual nature" of matrimonial agreements. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007); Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995); Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div.), certif. denied, 142 N.J. 455 (1995). As a result, fair and equitable agreements will not be disturbed if arrived at by mutual consent. Konzelman, supra, 158 N.J. at 193-94; Faherty v. Faherty, 97 N.J. 99, 105 (1984); Petersen v. Petersen, 85 N.J. 638, 642 (1981).

The standard for vacating a settlement is not easily met. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Our courts have refused to vacate final settlements "absent a demonstration of 'fraud or other compelling circumstances.'" Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130 (App. Div. 1974), certif. denied, 94 N.J. 600 (1983); see also Miller v. Miller, 160 N.J. 408, 419 (1999) (settlement agreement will be reformed where a party demonstrates that the agreement is plagued by "unconscionability, fraud, or overreaching in the negotiations of the settlement").

Defendant has not alleged any such "compelling circumstance" here. Essentially, he hopes to litigate his counterclaim seeking an annulment and, coincidentally, be relieved of the monetary obligation he assumed in the property settlement agreement. Defendant's argument fails because the counterclaim was explicitly withdrawn on the record and was also "deemed waived and abandoned" pursuant to the terms of the property settlement ...

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