Opinion
DOCKET NO. A-4341-12T3
09-05-2014
IN THE MATTER OF ESTATE OF HAROLD J. SOBEL, Deceased.
Robert A. Vort argued the cause for appellant Vesna Ferluga Sobel (Ms. Sobel, pro se, on the briefs). David M. Paris argued the cause for respondent Holly Sobel Armitage (Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys; Mr. Paris, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. P198206. Robert A. Vort argued the cause for appellant Vesna Ferluga Sobel (Ms. Sobel, pro se, on the briefs). David M. Paris argued the cause for respondent Holly Sobel Armitage (Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys; Mr. Paris, on the brief). PER CURIAM
This case originated in the Chancery Division, Probate Part, as an action brought by Vesna Ferluga Sobel, the widow of Harold John Sobel, against Holly Sobel Armitage, the executrix of the estate, who is also decedent's daughter from another relationship. In this suit, Mrs. Sobel challenged the distribution of the assets of her late husband's estate. The case was settled after joinder of issue, which also included a counterclaim against Mrs. Sobel to enforce a post-nuptial agreement requiring her to vacate the residence she shared with the decedent. The settlement was facilitated by a mediator whose name was first suggested by Mrs. Sobel's attorney.
Nearly two weeks after the settlement was negotiated and finalized, Mrs. Sobel repudiated the agreement. As executrix of her late father's estate, Ms. Sobel Armitage moved before the Chancery Division to enforce the settlement. After considering the arguments presented, Judge Margaret Mary McVeigh entered an order enforcing the settlement. Judge McVeigh explained her reasons in a memorandum of opinion attached to the order.
Mrs. Sobel filed this appeal pro se arguing that her native language is Slovenian, and her command of the English language is limited. She claims she did not understand the oral explanation of the terms of the agreement. When she was handed the document she signed memorializing the terms of the settlement, she claims she stated: "I cannot read it," but did not receive any response from her attorney. We reject these arguments and affirm substantially for the reasons expressed by Judge McVeigh in her memorandum of opinion.
I
Harold John Sobel met appellant Vesna Ferluga Sobel in 1984, while appellant was residing in Slovenia. Appellant is a Croatian national and an architect by profession. The two were married in Passaic County, New Jersey in 1987. Harold John Sobel died testate on June 19, 2009. It is undisputed that decedent did not speak nor understood Slovenian as a language, and that he and appellant communicated only in English during the time they shared as husband and wife.
On July 21, 2009, the Surrogate of Passaic County admitted decedent's Last Will and Testament (dated January 14, 2003) to probate and issued Letters Testamentary naming Holly Sobel Armitage, decedent's daughter from a previous relationship, as Executrix. Appellant was decedent's spouse at the time of his death. On September 11, 2011, appellant filed a complaint in the Passaic County Superior Court Chancery Division, Probate Part, seeking an accounting of all estate property and a turnover of all funds and property allegedly owed to her.
Appellant alleged that in her capacity as Executrix, her stepdaughter had failed to account for estate property and assets; had converted and misappropriated property that should have gone to her as decedent's spouse by exercising undue influence, coercion, and duress over decedent; and intentionally interfered with the contractual relationship between her and decedent, by inducing decedent to name Ms. Sobel Armitage, the Executrix, as co-beneficiary of his retirement account.
On October 24, 2011, Ms. Sobel Armitage, as Executrix, filed an answer and counterclaim alleging appellant was in violation of a post-nuptial agreement signed by appellant in 1994, through which appellant agreed to vacate the residence in Wayne Township she occupied with decedent during their marriage, within one year after decedent's death.
The case was assigned to Judge McVeigh for case management, and if necessary trial. Both parties were represented by independent counsel of their choice. With the parties' consent, Judge McVeigh entered an order referring the case to mediation. Appellant's then counsel suggested a former Superior Court Judge, who had retired from the bench in 2009, to mediate the dispute. Counsel for Ms. Sobel Armitage agreed.
On December 3, 2012, the parties and their attorneys reported to appellant's attorney's office for a full day of mediation before the retired Superior Court Judge. The parties and their respective counsel were kept isolated in separate rooms to ensure their discussions would remain private and confidential. At this point, we pause to emphasize that appellant was represented by two attorneys. No Slovenian interpreter was present at the time and appellant did not request that an interpreter be provided to her. Appellant's attorneys spoke to her only in English.
The mediator moved between the two rooms occupied by the parties and their counsel, gathering information about the case and assessing each party's legal position. Facilitated by the mediator's efforts, the parties reached an agreement by the end of the day. The mediator handwrote the details of the settlement agreement, and each party signed acknowledging their understanding of the terms of the settlement, and affirmatively indicated their willingness to be bound by them. The parties' respective attorneys and the mediator also signed.
On December 6, 2012, the Executrix's attorney forwarded to appellant's then attorney a printed Consent Order restating in more formal language the terms of the handwritten agreement. The Executrix's attorney's two subsequent requests seeking an explanation for appellant's failure to return the executed Consent Order were not answered. Finally, by email dated December 27, 2012, appellant's counsel responded, stating that appellant "will not accept the confidentiality provision of the proposed agreement" and that she wanted compensation for counsel fees. The following day, the Executrix's attorney advised appellant's attorney that his client would not agree to the modifications because the terms requested by appellant were not part of the settlement agreement reached during mediation.
II
On January 11, 2013, the Executrix moved to enforce the settlement agreement and for an award of counsel fees. In a three-page printed letter dated January 23, 2013, appellant informed the court that she would be proceeding pro se because "[m]y counsel did not understand what I needed in my settlement agreement in part because of my difficulties in expressing myself fully in English, which is my second language." In this letter, appellant also expressed her dissatisfaction with the way the mediator conducted the negotiation sessions:
I feel even more aggrieved by the fact that the proceeding was cloaked in secrecy without official records of the proceedings and prohibited my sharing what transpired with my family, colleagues, and friends who have been pursuing this case with me since the beginning. The agreement was not read or explained to me by my attorneys before I signed it. I felt rushed and hurried by the mediator and the attorneys to sign the agreement without fully understanding as to what I was agreeing to. I was not aware of the exact content of the agreement until I received a copy of the signed agreement in the mediator's handwriting. I had to ask my attorney's secretary to transcribe it so that I could actually read the agreement.
Appellant appeared pro se at oral argument. This was the first time appellant requested that the court provide her with a Slovenian interpreter for the hearing. Unfortunately, the court was only able to provide her with a Croatian interpreter. However, appellant did not use the interpreter. She addressed the court directly in English, responding to Judge McVeigh's questions before the interpreter finished translating what was said. Judge McVeigh gave both parties the opportunity to supplement their submissions before making her final decision on the motion.
The arguments appellant makes before us were directly addressed and rejected by Judge McVeigh in her memorandum of opinion, which we incorporate by reference here. The following excerpt from Judge McVeigh's opinion encapsulates the essence of her findings, which are amply supported by the record before her.
It is clear, even from [appellant's] Certifications, that she actively participated in the Mediation proceeding before the Mediator. She had capable counsel representing her during that Mediation. She was fully familiar with the facts and circumstances of her position as this case has been pending for some period of time. This Court does not find as credible her argument that she did not understand the proceedings as a result of a language barrier. This Court finds [respondent's position] compelling: [appellant] fully understood everything that went on during the Mediation. It is equally apparent that [appellant] clearly understood what was happening in Court. Adding to those positions is this Court[']s own observations of [appellant's] demeanor and response to the Court during the proceeding on February 1, 2013. . . . [Appellant] often replied in English without waiting for the
interpreter to even attempt to begin an interpretation. She completely ignored the interpreter except when she felt it would appear to add drama to her argument that she did not understand what was happening. She followed quite clearly this Court['s] attempt to create an architectural analogy for her and responded appropriately to the Court[']s analogy. Her demeanor became defensive and dismissive when she felt the Court was not accepting her position entirely.
The initial objections to the Settlement Agreement submitted by counsel for [appellant] to counsel for [respondent] focused on the confidentiality issues and attorney[']s fees. Both of those objections have a monetary ring to them.
. . . .
Further, the Settlement agreement document prepared and executed at the Mediation is clear, it is concise, it demonstrates it was negotiated and it is fully executed by all parties and counsel as well as the Mediator. . . . [Appellant's] refusal to execute a Consent Judgment to terminate this matter in Court is an attempt at a second bite at negotiation.
This State has a strong public policy favoring the enforcement of settlement agreements. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). This policy acknowledges that "'the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone.'" Jennings v. Reed, 381 N.J. Super. 217, 226-27 (App. Div. 2005) (quoting Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994)). Consequently, "courts 'strain to give effect to the terms of a settlement wherever possible.'" Id. at 227 (quoting Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super 523, 528 (App. Div. 1985)).
We discern no basis to disagree with Judge McVeigh's decision enforcing the settlement.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION