NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3224-17T2
JEAN MATHURIN,
Plaintiff-Respondent,
v.
LUCY MATHURIN,
Defendant-Appellant.
________________________________
Submitted December 19, 2018 – Decided January 9, 2019
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0457-15.
George J. Cotz, attorney for appellant.
Theresa Richardson, attorney for respondent.
PER CURIAM
Defendant Lucy Mathurin appeals from a March 16, 2018 order denying
her motion to enforce a settlement she and plaintiff Jean Mathurin allegedly
reached in mediation. We affirm.
The dispute involved the parties' former marital residence. The parties
were divorced in October 2015, following a twenty-nine year marriage. They
entered into a Matrimonial Settlement Agreement (MSA), which in pertinent
part provided as follows:
A. The . . . residence will be listed for sale
immediately. The parties will jointly establish an
asking price and will jointly choose a realtor to market
the home. They agree, however, that they will not sign
an exclusive listing but will have the home listed
immediately on the multiple listing boards. If the
parties cannot agree upon an asking price, the realtor
will set the price. If the parties cannot agree upon a
realtor, each will suggest three realtors with the other
party having the right to strike two of the other party's
proposed realtors. The parties will then put the
remaining names in a hat and pick a realtor from the
remaining names.
B. The parties will mutually agree upon a reasonable
purchase offer, provided, however, that the offer is
based upon prevailing market rates. Upon the sale of
the marital home, the parties will share the [n]et
[p]roceeds, as defined herein, with the [defendant] to
receive [sixty-five percent] of same and the [plaintiff]
to receive [thirty-five percent] of same and each will
claim the same proportionate share of the basis of the
home and be responsible for his/her own tax liability, if
any, on the receipt of his/her share of the sale proceeds.
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The residence was listed for sale and the parties received a purchase offer.
Plaintiff was willing to accept the offer, however, defendant sought to buy him
out for the same amount as the pending offer. Plaintiff declined and filed a
motion to enforce the MSA.
In June 2016, a motion judge entered an order granting plaintiff's motion
to compel the listing of the residence. Plaintiff filed two subsequent motions
for enforcement. The first motion was denied without prejudice because it
lacked a copy of the MSA as required by Rule 5:5-4(a). The second motion
resulted in a February 2017 order, which denied the relief requested without
prejudice and cited a provision in the MSA that required the parties to first
negotiate between themselves to resolve any dispute arising from their
agreement, and then seek mediation "before using the [c]ourts for any dispute
resolution."
After direct negotiations failed, the parties attended mediation, which
resulted in a memorandum of understanding (MOU) prepared and signed only
by the mediator. According to defendant, the parties had reached a settlement
following the first mediation session, which enabled her to retain the residence
by means of a buyout subject to certain conditions. However, when plaintiff's
counsel contacted plaintiff after the mediation to discuss the specific terms of
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3
the settlement, plaintiff objected to credits allotted to defendant under the
agreement for a hypothetical brokerage commission and closing costs. Plaintiff
refused to sign a proposed agreement presented by his attorney, which
memorialized the MOU and purported to modify the MSA provisions relating to
the residence.
Plaintiff jettisoned his attorney, hired new counsel, and filed a fourth
motion to enforce the MSA.1 Defendant cross-moved for enforcement of the
MOU. In support of her motion, defendant attached certifications from herself,
her attorney, and, remarkably, plaintiff's attorney, all of which discussed the
negotiations during the mediation.
A different judge considered the motions and entered the March 16, 2018
order granting plaintiff's motion and denying defendant's cross-motion. The
judge noted it was improper for her to consider the MOU because the document
was a product of a mediation and therefore privileged. The judge found the
MOU was not a binding settlement agreement, but an attempt at mediation. This
appeal followed.
1
Plaintiff's motion also sought to enforce the June 2016 order, which had also
enforced the MSA's requirement the residence be sold.
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4
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,
412 (1998)). "We do 'not disturb the "factual findings and legal conclusions of
the trial judge unless . . . convinced that they are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(alterations in original) (quoting Cesare, 154 N.J. at 412 (quoting Rova Farms
Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974))). Therefore,
"'[o]nly when the trial court's conclusions are so "clearly mistaken" or "wide of
the mark" should we interfere[.]'" Gnall, 224 N.J. at 428 (quoting N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007))). However, "all legal
issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App.
Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
Relying on our Supreme Court's decision in GMAC Mortg., LLC v.
Willoughby, 230 N.J. 172, 183 (2017), defendant urges us to apply a de novo
standard of review because she claims the MOU was a contract. She asserts the
motion judge ignored the plain language of the MOU, which stated: "This letter
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[MOU] reflects the [s]ettlement [a]greement between the parties. The parties
agree that it represents an enforceable settlement agreement by and between the
parties."
Defendant argues the MOU contained no language indicating plaintiff was
granted more time to contemplate whether to accept its terms. She asserts "in
the mind of [the mediator] it was clearly a fait accompli." Defendant argues the
motion judge should not have relied upon plaintiff's representations that there
was no agreement because plaintiff lacked credibility. According to defendant,
"[n]ot only did [p]laintiff make no reference whatsoever to the . . . mediation in
his initial motion; but [defendant's] counsel's reply [c]ertification pointed out
several instances where his supporting [c]ertification was demonstrably untrue."
The motion judge did not err by refusing to enforce the MOU. Willoughby
is inapposite, because there the parties’ attorneys had signed the settlement
agreement. Willoughby, 230 N.J. at 177. This was consistent with the Supreme
Court's holding in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215
N.J. 242, 245 (2013), where the Court unequivocally stated "[t]o be clear, . . .
parties that intend to enforce a settlement reached at mediation must execute a
signed written agreement."
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Similar to the parties' actions here, the parties in Willingboro had attended
mediation and Franklin sought to enforce an oral agreement it believed had been
reached in mediation. Ibid. Franklin submitted certifications by its attorney and
the mediator disclosing privileged mediation discussions in order to prove a
settlement had been reached. Ibid. Plaintiff also litigated the validity of the
alleged settlement by disclosing settlement communications. Ibid.
The Supreme Court held that absent a waiver of the mediation privilege,
the parties could not rely upon the mediation discussions to prove a settlement
existed. Id. at 259. The Court noted:
First, had the parties reduced to writing the terms of the
agreement and affixed their signatures to the document
at the conclusion of the mediation, Franklin would have
been able to seek enforcement of the settlement with
evidence that fell within an exception to the mediation-
communication privilege. N.J.S.A. 2A:23C-6(a)(1);
N.J.R.E. 519 (noting that "an agreement evidenced by
a record signed by all parties to the agreement" is an
exception to the mediation-communication
privilege). . . .
Second, we conclude that the certifications filed
by Franklin's attorney and the mediator in support of
Franklin's motion to enforce the oral agreement
disclosed privileged mediation communications. The
certifications refer to statements made during the
mediation and therefore fall squarely within the
definition of a "mediation communication" contained in
N.J.S.A. 2A:23C-2.
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....
The terms of the settlement rested on privileged
communications between the parties and mediator.
However, Willingboro did not consent in advance to the
disclosure of mediation communications to the court.
In the absence of a signed settlement agreement
or waiver, it is difficult to imagine any scenario in
which a party would be able to prove a settlement was
reached during the mediation without running afoul of
the mediation-communication privilege. . . .
....
Third, without the use of communications made
during the mediation, Franklin likely could not have
proved the existence of a settlement.
[Id. at 258-60.]
The Court concluded as follows:
In summary, if the parties to mediation reach an
agreement to resolve their dispute, the terms of that
settlement must be reduced to writing and signed by the
parties before the mediation comes to a close. In those
cases in which the complexity of the settlement terms
cannot be drafted by the time the mediation session was
expected to have ended, the mediation session should
be continued for a brief but reasonable period of time
to allow for the signing of the settlement. We also see
no reason why an audio- or video-recorded agreement
would not meet the test of "an agreement evidenced by
a record signed by all parties to the agreement" under
N.J.S.A. 2A:23C-6(a)(1) and N.J.R.E. 519(c)(a)(1).
[Id. at 262-63.]
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The same principles apply here. Since neither the parties nor their
attorneys had signed an agreement, the only means to establish the existence of
a settlement was through disclosing the MOU itself, which was a privileged
communication from the mediator, or by certifying to the mediation discussions.
Both methods would violate the mediation privilege absent an advance waiver.
For these reasons, the motion judge was correct to decline enforcement of the
MOU as a binding contract between the parties.
Affirmed.
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