Thursday, March 29, 2012

A change of heart is not grounds to set aside a settlement agreement

Courts everywhere, especially in family law matters, encourage settlement.  Courts statistics demonstrate that the majority of family law issues are ultimately resolved via some type of settlement agreement.  Accordingly, courts take agreements very seriously and are loathe to overturn full and final settlements reached by parties.  Recently, the Superior Court of New Jersey, Appellate Division affirmed a trial court’s enforcement of a settlement agreement in an unpublished opinion.  (In New Jersey, an unpublished opinion means that the case cannot be cited for its precedential value.  However, unpublished opinions guide litigants and attorneys as to the court’s thought processes).  In the case of Joseph Beim and Jetty Sawyer (f/k/a Jetty Beim), docket #A-2816-10T1 (February 29, 2012), the parties reached a comprehensive settlement agreement through economic mediation.  

The Husband in this case is in his 80's and the Wife is in her 70's.  They had been married for almost 25 years, but unfortunately they stopped short of “until death do us part.”  No children were born of the marriage and the opinion notes that Husband, the plaintiff, was involved in a serious automobile accident that resulted in him being unconscious for several months prior to his filing of the Complaint in Divorce.  Additionally, for approximately 15 years, Wife had held a Power of Attorney for Husband and handled all of the parties’ financial dealings.

As is common in New Jersey, the parties were referred to mandatory economic mediation, a settlement conference and a second economic mediation session, after attending an Early Settlement Panel.  As anyone who has been involved in a divorce in New Jersey knows, settlement conferences and mediation are commonly used tools of the court and most cases end up settling at one of these proceedings.

For the economic mediation session, Husband was represented by an attorney.  Wife was also represented by an attorney, an associate attorney at her primary attorney’s law firm.  Apparently, her primary attorney could not attend.  According to the opinion, after hours of mediation, both sides drafted a four page agreement.  Two of the pages were typed, one page was photocopied from one of Wife’s documents and another page was written by Husband’s counsel.  The parties then added handwritten paragraphs and deleted certain sections.  Overall, the product of this mediation session illustrated that there was a great deal of back and forth negotiation.  

The opinion indicates that the settlement agreement was comprehensive and addressed real property, Wife’s business, various accounts, their portfolios, including bank, retirement and investment accounts, insurance settlement funds, payments from the government and premarital property.  The parties even agreed that Wife would keep seven particular lighting fixtures, which were described in specific detail.

The agreement included a section, underlined, that stated “Both parties further agree that this document constitutes a binding settlement agreement.”  The parties signed each page of the agreement and initialed changes.

Subsequently, Husband went to court to enforce the settlement agreement because Wife asserted that it was not binding and final.  The trial court eventually granted Husband’s request and the parties were divorced.  

Wife claimed that because her primary attorney was not present at the mediation session, she did not believe she was resolving the case.  In addition, she had signed a Mediation Agreement indicating that when the mediator prepared a Memorandum, it would not be binding.  Wife also complained that the settlement was not voluntary.  The trial court disagreed and the Appellate Court confirmed Wife was held to the comprehensive agreement set out in mediation.  

The Court found Wife’s complaint that she did not understand the agreement to be unpersuasive, especially considering the specificity with which the agreement was drawn, down to a division of lighting fixtures.  In addition, Wife claimed that she was forced or coerced, but she failed to produce any evidence.  Significantly, the Appellate Court noted that “a change of heart after accepting a settlement is not a basis to set aside the agreement.”

Courts enforce settlement agreements.  When fraud, coercion or duress are discovered, an agreement can be overturned, but those instances are few and far between, and the burden of proof is high.  If Courts failed to enforce settlement agreements, the parties and lawyers would be unable to trust the process and substantially fewer agreements would be reached.  

Anyone entering into any type of family law litigation should understand from the start that, at some point, they will be faced with an opportunity to settle.  Family law cases are emotional, and often deal with intimate and personal issues; thus, the stakes are high.  During any case, litigants should understand their bottom line and have an idea as to what they would accept.  That way, when discussing settlement and contemplating signing an enforceable agreement, parties will be much more ready and comfortable with the process.

Tuesday, March 27, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Need to order a transcript of your IRS account? You can do so by filling out a simple form and sending it to the IRS. Get the form here:

Tuesday, March 20, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Get organized! Your monthly income and expenses often become important factors in divorce, support and alimony cases. Create a chart to keep track of the amounts that you pay each month for each of your obligations. Your chart should reflect all of your expenses, including: mortgage/rent, each separate utility, insurance payments, loan payments, credit card payment, cable and cell phone costs, tuition and school fees, along with any other expenses you regularly incur.

Monday, March 19, 2012

Spend $70,000 arguing over $15,000

If you have a dispute with your spouse or ex-spouse over $15,000, how much should you spend in counsel fees and costs to resolve the issue?  In the case of Kenneth Schaefer v. Theresa Kamery fka Shaefer, the parties fees and costs exceeded $70,000, before the case even reached the appellate court.

According to the opinion, this couple's dispute got down to the nitty gritty, with Theresa alleging that Kenneth owed her $30 for one of the children's school trips and Kenneth claimed that Theresa owed him $10 to fix a tire on their son's truck.  Besides the financial squabbling, it turned out the one of the parties' sons had deceived both parents into thinking that he was attending college, when he had in fact dropped out.

In the opinion, the trial court found that both parties took unreasonable positions in the case and although each asked that the other party pay their fees and costs, the trial court ordered that each party was responsible for his or her own fees.

During the trial, Theresa attempted to introduce a document that she prepared which summarized her claims for child related expenses.  Kenneth's attorney objected to this self-serving and self-prepared document. The judge allowed it into evidence but appears to have denied any listed expenses without back-up documentation.

Clients often attempt to prepare charts, graphs and spreadsheets in support of their position.  However, receipts for the actual expenses are much more persuasive than a document prepared by the client.  If you want to prepare a summary chart or graph, just make sure you have a document to back up each line item.

To read the court's opinion in this case, click here.

Tuesday, March 13, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

We all rely on friends and family for support during difficult times, and conversations with them can relieve stress and frustrations, especially during a pending divorce or custody case. But try not to become a "Debbie Downer" or "Negative Nancy." Even during rough times in your life, there are happy and funny things to discuss. Also, remember to discuss your loved ones' lives as well. They too have struggles, even if they are not as pronounced as your pending litigation.

Friday, March 09, 2012

Aggressive, vindictive blatant untruths hurled during a custody fight end with a father being limited to supervised visitation

Last week, the Superior Court of Pennsylvania addressed a sad case on appeal from the Bucks County trial court, M.O. v. F.W., 2012 Pa.Super 49.  The parents, who did not marry, had been involved in protracted litigation over their daughter.  The fighting started even before the child was born.  Notably, during the litigation, the parties engaged in a comprehensive custody evaluation with a private evaluator.  According to the Opinion of the Court, the parties agreed to share legal custody and Mother would have primary physical custody.  Unfortunately, the parents continued to battle and before the child’s fourth birthday, Father filed a Protection from Abuse Petition against Mother and her boyfriend.  He accused them of physically, emotionally, psychologically and sexually abusing the young girl.  Father also filed an Emergency Petition to Modify Custody.  A great deal of rancorous litigation ensued.  Mother responded that Father’s allegations were patently false and that Father had been continually having the child evaluated and examined by experts without her knowledge or agreement, which violated their joint legal custody arrangement.  

After hearing, the trial court entered a Temporary Order, which provided Mother with sole legal and physical custody and granted Father only supervised visits.  That Order eventually became a final order, and Father appealed.  

The Opinion indicates that not only did the Court not find evidence of abuse when the child was in Mother’s custody, but also that Father had actually manufactured the evidence and allegations as a custody strategy.  During the testimony, it came to light that Father routinely had the toddler strip-searched when returning from Mother’s for an intrusive and comprehensive examination by Father, as well as numerous emergency trips to the doctor and the police station.  The court noted that none of the investigations by either the police department or Children & Youth Services substantiated any of Father’s allegations and Father’s witnesses did not corroborate his stories.  Father also attacked the judge and the court by attempting to have the judge recused.  Additionally, Father made arguments on appeal regarding evidentiary issues.  

After a thorough review, the Superior Court affirmed the trial court’s detailed Opinion so that Father is now restricted to limited supervised visitation, which consists of only a few hours per week.  Obviously, this arrangement departs drastically from the substantial custody time he previously enjoyed.  

High conflict custody disputes often result in the devastation of the relationship between the parents, but also irrevocable harm to the child and other friends and family members in the path of the fighting.  Moreover, sometimes parties begin to spiral out of control in other areas of their lives as well, which can cause other financial and legal problems.   How do you avoid this scorched earth result?  

1. Put the interests of your child above your rancor and ill-will towards the other parent.

2. Be realistic and reasonable in your demands and positions.

3. Take this opportunity to be a role model for your child, demonstrating how a mature, reasonable adult deals with an adverse situation.

4. Do not let jealousy and rage color your emotions.  If the other parent becomes involved with a new paramour, then that person will be around your child.  Therefore, having a cordial relationship will benefit everyone.

This case involved unsubstantiated allegations, but abuse does happen and parents should not be swayed or deterred from vigorously safeguarding their children.  This Father’s methods including strip-searching the child and incessant visits to the police and doctor, along with his overall belligerent attitude, only added to the trauma.  Even if, heaven forbid, this child had been a victim of abuse, Father’s tactics would have only added to the tragedy.  

Tuesday, March 06, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Health insurance ---- what will you do after a divorce if you are currently covered under your spouse's plan?  You may be eligible for COBRA -- which means you can continue to purchase health insurance through your spouse's employer for a limited time. (By the way -- COBRA stands for Consolidated Omnibus Budget Reconciliation Act.)   You should gather all of the facts because, in some cases, it may also be more economical to purchase your own plan.  Additionally, not every employer must provide COBRA benefits.

For FAQs on COBRA - how it works, who is entitled to benefits, and other details, click here.

Monday, March 05, 2012

Four mistakes that litigants make that still befuddle and surprise me.

1. Mumble or speak so softly that everyone is straining to hear them.  Courtrooms can be loud places with lots of background noises.  Court staff usually mill around the room, conducting the business of the court.  If there is a court reporter, his or her fingers are clackity-clack-clacking on the machine.  Some older courtrooms have HVAC systems that produce more noise than a rock concert.  When you have something to say, make sure people can hear it.  Speak slowly and clearly, and direct your comments to the judge who is listening to the case.  You will automatically sound more credible if you speak with an authoritative, clear voice.  

2. Arguing with their own attorney, the opposing side’s attorney or the judge.  Arguing with your own attorney is simply poor form and shows the judge that you and your own attorney are not in control or in agreement.  At least a client and lawyer should show a unified front in the courtroom.  Arguing with the other attorney or the judge can demonstrate that you do not have the ability to hold your temper or that you are a generally unreasonable and belligerent person.  Remember, the judge is evaluating you for credibility, demeanor and an overall impression in order to make a decision.  As a client, you are there to provide evidence by way of testimony, not argument.  Allow your attorney to argue for you.

3. Inappropriate dress.  You are asking the court to rule on very specific and personal issues involving you, your family, your children and your money.  Come dressed neatly and professionally.  However, this does not always mean wearing a stiff suit or fancy dress.  It is also important to at least be comfortable because court can be such a nerve-wracking experience.  Sometimes, a tie is not necessary for a gentleman as long as he is wearing a nice shirt, slacks and shoes.  You should talk with your counsel about how to dress for court.

4. Inappropriate reactions.  I will never forget my very first job out of law school, clerking for a judge in Family Court.  We often spoke about the cases in chambers and the judge would comment about the litigants and their reactions in court.  Judges are human beings, just like the rest of us, and their observations influence their thoughts.  Think very carefully about the impression that you are making.  Additionally, lawyers are trained, and often very good at, using examination questions to elicit a specific result.  If opposing counsel knows that it is easy to get a reaction out of you, she will use it to her advantage.