Opinion
DOCKET NO. A-2584-14T3
01-18-2017
MARGARET McDERMOTT (f/k/a MARGARET McCAFFERTY), Plaintiff-Respondent, v. BRIAN J. McCAFFERTY, Defendant-Appellant.
Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Ms. Pallonetti and Mr. Monaghan, on the briefs). Siobhan Beere argued the cause for respondent (Post, Polak, Goodsell & Strauchler, P.A., attorneys; John N. Post, of counsel and on the brief; Ms. Beere, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1224-10. Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Ms. Pallonetti and Mr. Monaghan, on the briefs). Siobhan Beere argued the cause for respondent (Post, Polak, Goodsell & Strauchler, P.A., attorneys; John N. Post, of counsel and on the brief; Ms. Beere, on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant Brian McCafferty entered into a property settlement agreement incorporated in a May 30, 2013 final judgment of divorce, after twenty-six years of marriage to plaintiff Margaret McDermott. McCafferty settled in the midst of a default hearing, after his answer was stricken for discovery violations. Almost a year later, McCafferty unsuccessfully sought relief from the judgment pursuant to Rule 4:50-1(c) and (f). He contended he entered the settlement agreement under duress, because the answer was stricken in error, the court had threatened him with incarceration, and his lawyer was unprepared. On appeal, defendant renews these arguments and also contends the agreement should be set aside because it is unconscionable. Having considered defendant's arguments in light of the record and applicable principles of law, we affirm.
We need not review in detail the extensive motion practice and interlocutory orders that ultimately resulted in the court's November 13, 2012 order striking McCafferty's answer with prejudice. It suffices to note that two different judges in the Family Part entered multiple orders in 2011 and 2012, finding that defendant had failed to fully comply with discovery and pendente lite support obligations. His answer was first stricken without prejudice in January 2012. The court denied a motion to strike with prejudice in July 2012, notwithstanding defendant's non-compliance, but entered such an order in November 2012.
On the eve of the May 23, 2013 default hearing, McCafferty sought leave to substitute a new attorney, who was present in court but unfamiliar with the file. The court denied the application, but adjourned the hearing to May 29, 2013. In its oral decision, the court noted the case was over three years old, and "long beyond the point at which a substitution of attorney can be filed . . . ." After itemizing McCafferty's history of non-compliance with discovery and support orders, the judge stated, "Frankly, I should have him incarcerated . . . ."
At the default hearing, McCafferty's counsel complained he was unprepared, as McCafferty had discharged him, and he had just returned from vacation. He unsuccessfully sought reconsideration of the court's orders striking the answer with prejudice and denying substitution of counsel. After a day of testimony by McDermott, and before cross-examination commenced the next morning, the parties engaged in day-long settlement discussions. The result was a comprehensive written agreement. The parties accepted the agreement on the record. In particular, McCafferty recited that he entered the agreement freely and voluntarily, without anyone coercing or forcing him, and he was satisfied with his attorney's services.
McCafferty filed a timely appeal from the final judgment, which was ultimately dismissed for failure to prosecute in April 2014. The following month, McCafferty filed his motion in the trial court for relief from the judgment under Rule 4:50-1. McCafferty challenged the November 13, 2012 order striking his answer. He insisted he had complied with discovery by providing all documents in his possession, McDermott made fraudulent statements to the court by understating his pendente lite payments, and the court and his prior counsel did not comply with the procedural requirements of Rule 4:23-5 before striking his answer. He also sought relief from the judgment on the grounds that a medical condition impeded his ability to litigate the case. Notwithstanding his statement on the record, when he entered the settlement agreement, he contended he was "forced and coerced" into settling because the court "intimated that [he] should be immediately incarcerated[,]" and any incarceration would threaten his employment as a licensed securities broker. McCafferty also sought relief on the ground that his attorney was ineffective. McDermott opposed the motion, and filed a cross-motion seeking enforcement of various provisions of the divorce judgment.
After oral argument, a judge new to the case denied McCafferty's motion by order entered July 29, 2014. The judge opined that McCafferty had failed to demonstrate extraordinary circumstances justifying relief from the November 2012 order. In particular, he noted that McCafferty's claim that he gave McDermott $6600 in September 2012 was belied by the evidence. As his new counsel conceded, McCafferty paid the check to himself and erred in his certification. The judge also relied on McCafferty's statements, from the May 30, 2013 transcript, that he entered the settlement freely and voluntarily and was satisfied with his attorney.
Decision on the cross-motion was withheld pending further disclosures and actions by the parties. The cross-motion was ultimately resolved by orders entered November 19 and December 23, 2014.
On appeal, McCafferty raises the following points for our consideration.
POINT I:
THE SCOPE OF THE APPELLATE REVIEW IS BROAD AS THE LOWER COURT FINDINGS ARE ERRONEOUS AND CONSTITUTE AN ABUSE OF DISCRETION FOR WHICH THE INTERESTS OF JUSTICE REQUIRE INTERVENTION AND CORRECTION.
POINT II:
THE LOWER COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT THE APPELLANT'S [RULE] 4:50-1(C) APPLICATION.
POINT III:
THE LOWER COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT THE APPELLANT'S [RULE] 4:50-1(f) APPLICATION.
POINT IV:
THE LOWER COURT ERRED BY FAILING TO VACATE THE NOVEMBER 13, 2012 ORDER WHICH DISMISSED THE APPELLANT'S PLEADINGS WITH PREJUDICE PURSUANT TO [RULE] 4:23-5(a)(2).
POINT V:
APPELLANT'S COUNSEL FAILED TO ADEQUATELY REPRESENT HIM DURING THE DIVORCE PROCEEDINGS.
POINT VI:
THIS MATTER SHOULD BE VACATED AS THE LOWER COURT REQUIRED THE APPELLANT TO UTILIZE THE SERVICES OF AN ATTORNEY HE NO LONGER WISHED TO REPRESENT HIM (Not Argued Below).
POINT VII:
ALL ORDERS SUBSEQUENT TO THE COURT'S NOVEMBER 13, 2012 ORDER, INCLUDING THE COURT'S MAY 30, 2013 FINAL JUDGMENT OF DIVORCE, THE JULY 29, 2014 AND DECEMBER 23, 2014 SHOULD BE VACATED.
POINT VIII:
THIS MATTER SHOULD BE ASSIGNED TO A DIFFERENT JUDGE IN THE EVENT OF A REMAND (Not raised below).
We review a court's determination of a Rule 4:50-1 motion under an abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). There is "an abuse of discretion when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Ibid. (internal quotation marks and citation omitted). The Rule "'requires proof of exceptional and compelling circumstances' as it is '[d]esigned to balance the interests of finality of judgments and judicial efficiency against the interest of equity and fairness.'" Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (quoting Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995)). Relief is granted sparingly. See Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994).
We are also mindful of the high value our courts place on the settlement of disputes, particularly those involving family matters. Slawinski v. Nicholas, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 5). We apply contract principles to a settlement agreement, even in the family area, and shall not make a better agreement than the parties made for themselves. See Quinn v. Quinn, 225 N.J. 34, 45-47 (2016). One "narrow exception" to our enforcement of settlement agreements exists when we "need to reform a settlement agreement due to 'unconscionability, fraud, or overreaching in the negotiations of the settlement.'" Id. at 47 (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
Our task is not to review the correctness of the trial court's November 2012 order striking McCafferty's answer or its compliance with the procedural prerequisites set forth in Rule 4:23-5. Consent judgments are not appealable. See Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877 , 71 S. Ct. 123, 95 L. Ed. 638 (1950). Nor are interlocutory orders, which are entered prior to a consent judgment, unless "parties . . . reserve the right to appeal . . . by providing that the judgment would be vacated if the interlocutory order were reversed[.]" N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 309 (App. Div. 2010) (internal quotation marks and citations omitted). As McCafferty entered into the consent judgment without reservation, he waived his right to appeal the November 2012 order. The same may be said of the court's May 2013 order denying McCafferty substitution of counsel.
Thus, the alleged trial court errors in entering the interlocutory orders are relevant only to determine whether McCafferty entered into the settlement agreement under duress. Viewed in that light, McCafferty has not demonstrated that the trial court abused its discretion in denying his Rule 4:50-1 motion. McCafferty chose to settle his case, rather than (1) participate in the default hearing to which he objected, and (2) preserve his right to appeal from the interlocutory orders. While the choice may have been difficult and unpleasant, it does not rise to the level of duress that would compel relief from a consent judgment. Even if erroneous — and we decline to address their merits — the interlocutory orders were not "wrongful." See Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 213 (App. Div. 1987) (stating that "acts or threats cannot constitute duress unless they are wrongful." (internal quotation marks and citation omitted)). Nor has defendant demonstrated that his free will was overborne. See id. at 212.
McCafferty also seeks relief from the judgment because his attorney's alleged lack of preparation compelled him to settle. However, we are unpersuaded, on this record, that counsel's alleged failings compel relief. In Baumann v. Marinaro, 95 N.J. 380, 394-95 (1984), the defendants sought to vacate a jury verdict because their attorney failed to call witnesses, object to a directed verdict, inform defendants of a hearing, and file timely motions. Yet, the Court concluded that the attorney's lack of proper diligence did not present truly exceptional circumstances to justify vacating a jury verdict, where defendants had counsel for their trial and were free to move within the time limitations of Rule 4:49-1 for a new trial. See id. at 396-97. "Mere carelessness or lack of proper diligence on the part of an attorney is ordinarily not sufficient to entitle his clients to relief from an adverse judgment in a civil action." Id. at 394 (internal quotation marks and citation omitted); see also Posta v. Chung-Loy, 306 N.J. Super. 182, 205-06 (App. Div. 1997) (denying relief from involuntary dismissal despite attorney's failure to present expert opinion), certif. denied, 154 N.J. 609 (1998); cf. Hendricks v. A.J. Ross Co., 232 N.J. Super. 243, 248-49 (App. Div. 1989) (finding that defense counsel's failure to submit a timely claim did not warrant relief under Rule 4:50-1(a)).
The Court did not decide "whether there may be cases in which an attorney's gross neglect constitutes such an exceptional circumstance as to invoke R. 4:50-1(f)[,]" finding that it was not presented with such a case. See id. at 398. We reach the same conclusion here.
McCafferty misplaces reliance on the standard for post-conviction relief based on ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and State v. Fritz, 105 N.J. 42 (1987). The doctrine arises from the Sixth Amendment right to counsel, which does not apply to matrimonial actions. As there is no right to counsel, there is no constitutional or statutory right to effective assistance of counsel. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988) (citing Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980)); cf. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007) (recognizing a right to effective assistance of counsel in termination of parental rights cases).
Nor does the court's reference to incarceration on May 23, 2013 compel us to disturb the trial court's exercise of discretion. We shall make no effort to justify the court's sua sponte statement. We nonetheless view it as an expression of the court's frustration, and not as a genuine statement of intent. There was no subsequent reference to the matter at the default hearing on May 29 or the settlement-related proceedings on May 30. More importantly, McCafferty stated on the record that he freely and voluntarily entered the agreement.
Although McDermott may have sought coercive incarceration to compel McCafferty's compliance with his pendente lite obligations, no such order may be issued without affording the obligor procedural safeguards and a finding that the obligor was able to pay and willfully failed to pay. See Pasqua v. Council, 186 N.J. 127, 140-41 (2006). --------
Lastly, McCafferty contends for the first time on appeal that the judgment should be set aside because its terms are unconscionable and inequitable. We need not reach this issue as it was not presented to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, McCafferty has failed to support his argument with reference to detailed financial information, to establish that the alimony, child support, and equitable distribution provisions were so one-sided that relief under Rule 4:50-1(f) was mandated.
To the extent not addressed, McCafferty's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION