On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-793-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Simonelli and Fasciale.
In this post-judgment matrimonial matter, plaintiff Francis Galdo claims error in the trial judge's refusal to enforce an agreement settling the parties' disputes about the payment of a child's college expenses. We find the trial judge should have conducted an evidentiary hearing into the circumstances surrounding the formation of the settlement agreement and remand for that purpose.
The parties were married and had five children. They were divorced by way of a judgment entered in this action in 1997. At the time of the divorce, the parties' four sons resided with Francis and their daughter resided with Sally. When, in February 2007, their son Eric moved in with Sally, she moved for and obtained an order requiring Francis to pay child support at the rate of $92 per week and 68% of Eric's college expenses.
Francis filed an appeal seeking review of the college expense aspect of the order, and Sally moved for enforcement. The parties thereafter agreed to explore settlement, and over the next few months, counsel wrote, emailed and exchanged written proposals; they also agreed to numerous adjournments of Sally's motion and consented to an extension of time to file briefs regarding Francis's appeal. The record demonstrates that Sally received copies of many of those communications.
On March 17, 2009, because their discussions over the previous few months had not borne fruit, Francis's attorney advised Sally's attorney that he intended to initiate proceedings against a trust established by Sally's late father.*fn1
The next day, Sally's attorney faxed another proposed settlement agreement. Francis's attorney emailed a revised copy at 1:48 p.m., on March 19, 2009. Sally's attorney responded by email twelve minutes later, stating: "Agreed . . . please confirm that we have a settlement." At 3:15 p.m., Francis's counsel emailed this response: "This confirms we have a settlement . . . . Please confirm that you will be withdrawing your motion . . . ." Someone at the office of Sally's attorney confirmed with Francis's attorney that the enforcement motion would be withdrawn.*fn2 Later that day, Francis's attorney faxed to Sally's attorney a copy of the settlement agreement executed by Francis.
The record further reveals that Francis took no further action with regard to his appeal, which was dismissed for lack of prosecution on April 30, 2009. Francis also refrained from filing the threatened probate action.
On or about March 19, 2009, Francis moved to terminate his child support obligations for Eric. Sally filed no opposition, and on May 28, 2009, the trial judge entered an order terminating Francis's child support obligation.
On September 29, 2009, Sally -- represented by a new attorney -- moved to vacate the May 28, 2009 order, claiming excusable neglect or mistake in her failure to file opposition; she also sought enforcement of the college-expense portion of an earlier order, which was the subject of the parties' earlier settlement discussions and Francis's abandoned appeal. Francis cross-moved for an order enforcing the March 19, 2009 settlement agreement. On the return date, Sally argued no enforceable settlement agreement had been formed, claiming she did not authorize her attorney to bind her. In response, Francis relied on, among other things, the clear communications between counsel, which revealed a meeting of their minds, as well as the conduct of the parties in the wake of the agreement. By way of his October 30, 2009 order, the judge denied Francis's cross-motion for enforcement of the settlement agreement, denied Sally's motion to vacate the May 28, 2009 order, enforced that part of the September 21, 2007 order that compelled Francis to pay 68% of Eric's college expenses, and denied Sally's request for counsel fees.
Francis quickly moved for reconsideration, and Sally cross-moved for an order compelling Francis to reimburse her $12,000 in tuition payments and for an award of counsel fees. By way of an order entered on January 8, 2010, the judge denied Francis's motion and denied Sally's motion for counsel fees, but granted Sally's motion for an order compelling reimbursement.
Francis filed this appeal, seeking our review of the orders entered on October 30, 2009, and January 8, 2010. Sally cross-appealed, seeking review of that part of the January 8, 2010 ...