IN THE MATTER OF THE FRED POLIZZI, SR., EDUCATION TRUST PAMELA ARTEAGA VS. ROBYN SALLUSTRO (P-1974-2002, MORRIS COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2089-16T4
IN THE MATTER OF THE FRED
POLIZZI, SR., EDUCATION TRUST
__________________________________
PAMELA ARTEAGA,
Plaintiff-Appellant,
v.
ROBYN SALLUSTRO, FRED
POLIZZI, Jr., MARYANN ABOYOUN
f/k/a MARYANN MEYER,
Defendants-Respondents.
____________________________________
Submitted September 17, 2018 – Decided September 21, 2018
Before Judges Haas and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Morris County, Docket No. P-
1974-2002.
Pamela Arteaga, appellant pro se.
Sunshine, Atkins, Minassian, Tafuri, D'Amato &
Beane, PA, attorneys for respondent Robyn Sallustro
(Kenneth F. D'Amato, of counsel and on the brief).
Vivino & Vivino, attorneys for respondent MaryAnn
Aboyoun (Raymond S. Vivino, on the brief).
PER CURIAM
Plaintiff Pamela Arteaga appeals from an October 25, 2016 Chancery
Division order approving the terms of a settlement agreement plaintiff entered
into with her three siblings concerning the disposition of a trust created by their
late father. We affirm.
The parties are fully familiar with the procedural history and factual
background of this case. The parties' father, Fred Polizzi, Sr. (Polizzi),
established an Irrevocable Life Insurance Agreement (the trust), which named
his four children, Fred Polizzi, Jr. (Fred), 1 MaryAnn Aboyoun, Robyn Sallustro
(collectively defendants), and plaintiff as trustees. In broad terms, the trust
provided that the life insurance proceeds would be held in trust for the benefit
of Polizzi's grandchildren, and used to pay for their educational expenses. In
addition, certain one-time payments of trust funds were to be made to the
grandchildren when they each reached the age of twenty-five.
1
Because Fred Polizzi, Jr. shares the same surname with his father, we refer to
him as Fred to avoid confusion. In doing so, we intend no disrespect.
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Polizzi passed away in 2002. During the next twelve years, the parties
made disbursements from the trust as their children began their post-secondary
educations. The parties voted on each request for a disbursement, with three
affirmative votes needed for approval. Plaintiff and her two sisters were usually
the only parties who considered each request because Fred rarely participated in
the voting.
In December 2014, plaintiff filed a complaint against defendants, alleging
that they had refused to approve distributions for her children's educational
expenses, and that some funds had been distributed in violation of the purposes
of the trust. By that time, defendants' children were all adults and were not in
school. Plaintiff's two children, who were ages twelve and thirteen, were
attending a private parochial elementary school.
The litigation continued over the next eighteen months. During this
period, plaintiff incurred approximately $160,000 in legal fees.
On July 6, 2016, the parties participated in mediation and agreed to settle
all of plaintiff's claims. Under the pertinent terms of the settlement, the parties
agreed to set aside $300,000 of the $492,000 remaining in the trust for plaintiff's
two children. In addition, plaintiff and her siblings agreed that plaintiff's
attorney would be paid $75,000 from the trust in full settlement of his claim
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against her for legal fees. 2 The parties also consented to the payment of the
remaining amounts due to the grandchildren when they reached age twenty-five.
Upon distribution of these funds, the trust would terminate and all of the parties
and beneficiaries would be released from any further liability. Finally, the
parties agreed to have the settlement embodied in a court order approved by
Judge Stephan Hansbury, who had managed the case during most of the prior
proceedings.
After the agreement was reached on July 6, the parties placed it on the
record before Judge Robert Hanna, because Judge Hansbury was not available
that day. Judge Hanna conducted a hearing and took testimony from each party,
including plaintiff, concerning their understanding of, and informed consent to,
all of the terms of the settlement.
Like each of her three siblings, plaintiff testified she understood the terms
of the agreement and that they had been accurately set forth in the record. She
stated she was comfortable with her decision to accept the settlement, and
understood she was waiving her right to a trial on all of her claims. Plaintiff
2
Several weeks before the settlement was reached, the court granted the
attorney's motion to withdraw as plaintiff's counsel. However, the attorney
participated in the July 6 proceeding by telephone.
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also confirmed that she had made this decision voluntarily, of her own free will,
and without any duress or coercion from any party.
At the end of the hearing, Judge Hanna found there was "a meeting of the
minds on the terms of the settlement." He further found "that all of the parties
who've participated in today's hearing are making an informed decision, they
know what they're doing, what the consequences are, and [they are] making [a]
voluntary decision, a product of their own free will."
Thereafter, the settlement terms were reduced to writing, but plaintiff
refused to sign the written agreement. In accordance with the parties' settlement,
Aboyoun and Sallustro filed an application to Judge Hansbury for an order
approving the settlement. On October 25, 2016, Judge Hansbury rendered a
thorough written decision approving the settlement, and incorporated it into his
order.
In rendering his decision, Judge Hansbury accurately stated and reviewed
the governing law concerning court review and approval of settlements, and we
briefly reiterate these principles here. Because "[t]he settlement of litigation
ranks high in our public policy," Jannarone v. W.T. Co., 65 N.J. Super. 472, 476
(App. Div. 1961), "settlement agreements will be honored 'absent a
demonstration of fraud or other compelling circumstances.'" Nolan v. Lee Ho,
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120 N.J. 465, 472 (1990) (internal quotation mark omitted) (quoting Pascarella
v. Bruck, 190 N.J. Super. 118, 125 (App. Div. 1983)). A settlement agreement
need not be in writing to be enforceable. Pascarella, 190 N.J. Super. at 125. The
burden of proving that the parties entered into a settlement agreement is upon
the party seeking to enforce the settlement. Amatuzzo v. Kozmiuk, 305 N.J.
Super. 469, 475 (App. Div. 1997).
Applying these well-established principles, Judge Hansbury approved the
parties' settlement. The judge found that "[t]he record is clear that [plaintiff]
consented to the agreement after very extensive questioning by Judge Hanna."
Because she failed to demonstrate any fraud or any other compelling
circumstance warranting a different result, Judge Hansbury concluded that the
agreement was "binding[] and enforceable."
Plaintiff subsequently filed a motion for reconsideration, which was
denied by Judge Robert Brennan on January 3, 2017. In his written statement
of reasons, Judge Brennan, like Judges Hansbury and Hanna before him, found
that "plaintiff fail[ed] to show that the settlement agreement was procured by
fraud, duress, or falsehood, that its terms were unconscionable, or that [she]
lacked capacity to enter it." In addition, plaintiff "swore under oath that she
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entered into the agreement under her free will and not under duress." This
appeal followed.
On appeal, plaintiff raises the following contentions:
I. [THE] TRIAL COURT ERRED IN
ENFORCING THE SETTLEMENT BECAUSE
IT IGNORED CONDITIONS THAT MAKE
THE SETTLEMENT AGREEMENT
VOIDABLE INCLUDING, DURESS, FRAUD
OF DECEPTION, AN AGREEMENT NOT
ALLOWED BY N.J.S.A. [SIC], AND NEW
INFORMATION THAT SHOULD HAVE
REMANDED IT FOR RECONSIDERATION.
A. THE AGREEMENT WAS COMPELLED
THROUGH THE FRAUD OF DURESS,
ECONOMIC AND MORAL, AND THE
FRAUD OF DECEPTION.
[1.] THE AGREEMENT WAS
COMPELLED THROUGH
ECONOMIC AND MORAL
DURESS SO THAT THE
PLAINTIFF HAD NOT [SIC]
ALTERNATIVE TO THE
AGREEMENT OR PUTTING IT
ON THE RECORD.
[2.] THE AGREEMENT WAS
COMPELLED THROUGH A
FRAUD OF DECEPTION
THROUGH CONCEALMENT OF
MATERIAL FACTS THAT
CONTINUED TO EXIST[] AT THE
TIME OF SETTLEMENT
AGREEMENT MEETING AND
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WELL AFTER THE HEARING TO
PUT IT ON RECORD.
B. THE PROVISIONS THAT PROVIDE
DEFENDANT [SIC] EXCULPABILITY
AND THAT VIOLATE THE INTENT OF
THE TESTATOR AND MATERIAL
PURPOSE OF THE TRUST VIOLATES
[SIC] THE NJ STATUES [SIC], WITH
RESPECT TO THE TERMINATION OR
MODIFICATION OF A TRUST.
[1.] THE EXCULPATORY TERMS OF
THE SETTLEMENT AGREEMENT
ARE A BREACH AND MAKE IT
VOIDABLE.
[2.] THE SETTLEMENT AGREEMENT
VIOLATES THE INTENT OF THE
TESTATOR AND THE MATERIAL
PURPOSE OF THE TRUST AND
LACKS PROPER CONSENT.
C. ACCORDINGLY, THE
CONSIDERATION REMAINING UPON
EXECUTION OF THE SETTLEMENT
AGREEMENT, IN ADDITION TO THE
INEQUITY OF EXCULPABILITY, IS
GROSSLY INADEQUATE AND
GROSSLY SHOCKING.
D. THE NEW INFORMATION IS
PROBATIVE AND SUFFICIENT
CREDIBLE EVIDENCE OF A FRAUD
THAT COULD NOT HAVE BEEN
PREVIOUSLY PROVED OR
ASSERTED.
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II. [THE] TRIAL COURT ERRED IN IGNORING
SUFFICIENT CREDIBLE EVIDENCE OF
BREACH OF FIDUCIARY DUTY WITH
INTENT TO HARM THE TRUST.
A. NEW JERSEY LAW DEFINES THE
OBLIGATIONS OF A TRUSTEE.
B. NEW JERSEY LAW PROVIDES THE
REMEDIES FOR BREACH OF A
TRUSTEE'S FIDUCIARY OBLIGATION.
III. [THE] TRIAL COURT ERRED IN ALLOWING
A GROSS MISCARRIAGE OF JUSTICE THAT
NEEDS APPELLATE INTERVENTION "DE
NUOVO" [SIC] TO ARRIVE AT EQUITY.
Having reviewed plaintiff's arguments in light of the record and applicable
law, we conclude they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). We affirm the October 25, 2016 order
approving the parties' settlement substantially for the reasons set forth by Judge
Hansbury in his comprehensive written opinion.
Affirmed.
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