Marshall Williams v. Estate of Evelyn L. Williams ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2061-21
MARSHALL WILLIAMS,
Plaintiff-Appellant,
v.
ESTATE OF EVELYN
L. WILLIAMS,1
Defendant-Respondent.
__________________________
Submitted June 4, 2024 – Decided July 31, 2024
Before Judges Natali and Puglisi.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FM-04-0886-20.
Frank H. Rose, attorney for appellant.
Stephen W. Guice, attorney for respondent.
1
On our order for temporary remand, defendant Estate of Evelyn L. Williams
was substituted for defendant Evelyn L. Williams by post-judgment order dated
September 9, 2022.
PER CURIAM
Plaintiff Marshall Williams appeals from the Family Part's December 10,
2021 Final Judgment of Divorce (FJOD) and the February 4, 2022 order denying
his application for an order to show cause seeking to rescind the FJOD. We
affirm both orders.
The parties were married in 1985. Plaintiff filed a complaint for divorce
from defendant on February 11, 2020. After default was entered and vacated,
defendant filed an answer and counterclaim for divorce on or about October 12,
2020. Both parties were represented by counsel throughout the proceedings.
Although the parties participated in a matrimonial early settlement panel
and several settlement conferences, they were unable to reach an agreement that
resolved all their issues. An initial trial date of July 14, 2021 was adjourned at
defendant's request because she was undergoing brain surgery that day, having
been diagnosed with cancer in 2018. Another settlement conference was held
by Judge Sherri Schweitzer on September 15, 2021, after which the parties,
through counsel, continued their attempts to resolve the matter. According to
defendant's attorney, throughout the conferences and discussions, plaintiff was
intractable in his settlement position.
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In the morning of December 10, 2021, defendant's attorney contacted
plaintiff's attorney and advised him defendant was on hospice and wanted to
move forward with the divorce before she died. He then contacted Judge
Schweitzer's chambers to request an expedited conference, given the urgency of
the situation. The judge's chambers advised counsel to appear for a virtual
conference at 4:00 p.m. that day.
According to plaintiff's attorney, the judge conducted an initial conference
with counsel off the record, at which time she advised him defendant's health
was failing, defendant had accepted plaintiff's settlement offer, and counsel had
fifteen minutes to join plaintiff on the virtual conference to put through the
divorce. The judge also informed counsel that defendant's sister, Anita Spady,
who had power-of-attorney for defendant, would appear virtually as well.
Plaintiff's counsel advised the judge that the previous day, plaintiff told him
defendant had revoked Spady's power-of-attorney because Spady had stolen
from her, and defendant had granted power-of-attorney to the parties' son. The
judge said she would address the issue during the hearing.
Once on the record, plaintiff said he was "a little confused about . . .
whether the person that's speaking on behalf of [defendant] qualifies to speak."
Judge Schweitzer questioned defendant's counsel:
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THE COURT: So [plaintiff] posed the question that I want
to make sure we address clearly for the
record.
I received a phone call to schedule a
conference. I understand, [defendant's
counsel], that your client's health is failing,
is failing rapidly. Is that correct?
[D COUNSEL]: That's correct, [Y]our Honor. My client is
on hospice at home. She is conscious, but
she's heavily medicated with pain
medication.
THE COURT: Okay. And my understanding is that when
she took a turn for the worse, the parties
engaged in—were engaged in settlement
communications and discussions; is that
correct?
[D COUNSEL]: Yes, [Y]our Honor. We've been engaged
in settlement discussions for almost a year
now.
THE COURT: Okay. And as—before your client became,
let's just—I would say unable to make
decisions for herself, you had been in
communications with her?
[D COUNSEL]: Yes, [Y]our Honor. I had spoken to her
extensively about [plaintiff's counsel]'s
November 29[], 2021 correspondence and
proposal that he has set forth on behalf of
his client contained in that five-page letter,
and I did speak to my client at length about
that.
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THE COURT: Okay. And do you have—at that point,
were you authorized to accept the
settlement? Is that what—
[D COUNSEL]: I was—I was authorized, yes. And I—she
told me to (indiscernible) the response on
her behalf to that, but subsequently
about—I . . . wrote a response on December
3[], and I did have discussions with my
client that if we could not get a more fair
proposal, to accept the proposal that
[plaintiff's counsel] had proposed in his
November 29[], 2021 letter he wrote to me
and move (indiscernible).
Defendant's counsel further advised the judge he did not know who had
power-of-attorney for her because he did not have a copy of the document.
Plaintiff's counsel reiterated plaintiff told him he had been advised by his son
that defendant signed a new power-of-attorney appointing the son in place of
Spady, but acknowledged he did not have any documentation of the alleged
change. Spady testified under oath she had written power-of-attorney signed by
defendant on October 15, 2021, prior to defendant's brain surgery, and she
brought defendant home after surgery and "settled with hospice and everyone
on her behalf."
The judge found defense counsel's representations and Spady's sworn
testimony sufficient to proceed with the uncontested divorce:
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All right. So as long as you have a written power-of-
attorney that has not been revoked, then I am—I am
also comfortable proceeding on the fact that
[defendant's counsel] had settlement authority, and . . .
I'm just going to need testimony from [plaintiff]
regarding the cause of action, and we can place the
terms of the settlement on the record.
Plaintiff's counsel set forth the terms of the parties' settlement agreement,
which included sale of the marital home and distribution of the proceeds that
would buy out plaintiff's alimony obligation to defendant, equalization of the
parties' retirement accounts, distribution of personalty, and attorneys' fees.
Plaintiff's counsel then questioned plaintiff about the settlement.
Although plaintiff commented "[e]verything's happened so quickly" and the
proceeding was "moving real fast," he acknowledged that he understood the
terms of the agreement, he was not forced or coerced into entering into the
agreement, and he did not have any "side deals." He also understood his right
to trial of the matter and asked the court to waive that right and accept the
settlement agreement. Plaintiff confirmed he was not under the influence of any
alcohol, narcotics or other substances that would affect his ability to think
clearly, and again reiterated he was proceeding "freely and voluntarily." He
further stated his counsel had answered all his questions and he was satisfied
with counsel's services.
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In response to plaintiff's comments about the pace of the proceedings, the
judge questioned him directly:
THE COURT: All right.
Now, sir, you—sir, you understand that
this is it. This is the hearing. I know that
you keep saying it's going to be happening
fast, and I understand that this is an
unfortunate situation.
....
So you keep saying that this is going fast.
This is actually—this is one of the oldest
cases in the courthouse. Okay? So this has
been going on for years. Over the course
of the past years, you've had opportunity to
speak with [counsel]; is that correct?
[PLAINTIFF]: Pardon me?
THE COURT: You've had an opportunity to speak to your
attorney?
[PLAINTIFF]: Yes, we've spoken multiple times, yes.
THE COURT: Great, and he's answered any and all
questions that you have regarding the terms
of this settlement agreement?
[PLAINTIFF]: Yes, I believe that. I wanted—
THE COURT: So if you have a question you want to ask
him, I will pause, and you can—do you
need to speak with your attorney?
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[PLAINTIFF]: I'd like to find out when—
THE COURT: Or you could just ask him.
[PLAINTIFF]: I would like to find out when I would get a
copy of the agreement.
The judge advised plaintiff she would enter the FJOD that day and give
counsel ten days to submit an amended FJOD incorporating the terms of the
parties' agreement. Plaintiff's only questions concerned the status of the
restraining order defendant had obtained against him and how he would retrieve
his property from the marital home, which counsel addressed. The judge then
continued her colloquy:
THE COURT: All right.
And, [plaintiff], do you believe that you
have sufficient information regarding all of
the assets, the debts and the liabilities to
enter into this agreement?
[PLAINTIFF]: I have faith in my attorney. Like I said, and
I'll say it again, is everything happened so
quickly, I wasn't expecting a call today.
THE COURT: Well, I know that.
[PLAINTIFF]: (Indiscernible)
THE COURT: But this is not a new subject. You knew
this was coming.
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[PLAINTIFF]: Right, but I thought it was coming in a few
months. I didn't think I'd get a call today
to discuss settlement. But, you know, I
believe my attorney and all. It's just that,
like I said, everything happened so quickly.
I wasn't expecting a call today.
And the other thing is my sister-in-law
having power-of-attorney, a police officer
came over the house today and showed the
document that she's no longer power-of-
attorney.
So I'm just wondering whether this is, you
know—
[P COUNSEL]: Well, . . . , that's what you were told. You
weren't there; correct?
[PLAINTIFF]: No. He said that the police officer came
over the house—
[P COUNSEL]: Again, you can't—you can't just repeat
what other people told you.
[PLAINTIFF]: Okay. Okay. All right. Fair enough. All
right.
THE COURT: And here's the other thing, [defendant's
counsel], we're going to go on the record—
you've already placed on the record that
you were authorized by your client, and
when you spoke with her, she was clear and
concise with you; correct?
[D COUNSEL]: Yes, [Y]our Honor. And she was not under
heavy medication at that time.
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Defendant's counsel then questioned Spady, who stated she had durable
power-of-attorney and had spoken to defendant about the divorce "many times."
She confirmed she had discussed the settlement agreement with defendant's
counsel, and she believed the agreement was as fair as it could be under the
circumstances because defendant "want[ed] this over." Spady had no doubt
defendant wanted to accept the agreement and be divorced and, after further
explanation, confirmed defendant wanted to withdraw her counterclaim for
divorce in order to accomplish that.
Plaintiff's counsel, through colloquy with plaintiff, established
jurisdiction of the court, proper venue and the cause of action for divorce based
on irreconcilable differences. The judge then found:
All right. The [c]ourt has had opportunity to
conference this case for many months now, and today
was the—we scheduled this very conference because
the matter needed to resolve today due to the health
issues of [defendant].
I've taken the testimony of [plaintiff]. It's clear
to me he understands what's going on here. He keeps
saying to me that this is happening so fast, and I believe
that it happened faster than you thought it would.
However, the parties everybody engaged in
negotiations for many months.
You've answered all of the questions of the
settlement agreement, sir, consistently. You
understood what was being agreed to. The parties
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negotiated arduously for a long period of time, and the
terms that you've proposed have been accepted. You've
told me that.
You understand what's happening here. You've
been listening to the questions, and I know that, because
you've answered—asked questions. It tells me you're
paying attention, you're listening, you're being truthful.
Ms. Spady, I am so sorry for your loss—that your
sister is so gravely ill, but you have been a composed
person, direct. You answered every question directed
immediately. You know exactly what's been going on
here.
You have provided the information that this has
been a constant conversation. You're aware that your
sister authorized [counsel] to settle this matter, and you
have the durable power-of-attorney which authorizes
you to act on her behalf. But be that as it may, [counsel]
likewise [wa]s authorized to accept the settlement
before she got sicker.
After making findings of jurisdiction and venue, the judge granted
plaintiff the divorce and incorporated the settlement agreement into the FJOD.
Defendant died on December 22, 2021.
On January 4, 2022, plaintiff filed an emergent application for an order to
show cause alleging Spady was not authorized to act on defendant's behalf and
seeking to rescind the FJOD. On that date, the judge entered a temporary order
to show cause restraining dissipation or encumbrance of marital assets and
setting a return date for the application.
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On February 4, 2022, counsel for both parties appeared along with
plaintiff. Plaintiff's counsel again alleged that at the time of the divorce, Spady
knew she did not have power-of-attorney because she had been served that
morning with the superseding power-of-attorney naming the parties' son in her
stead. Counsel subpoenaed a police officer who appeared for the hearing
purportedly to testify about a complaint defendant made against Spady for theft.
Neither the parties' son nor Spady appeared.
The judge asked counsel what defendant's loss was, since he obtained the
divorce he sought, and how defendant had standing to raise these issues.
Counsel did not provide any substantive response to these inquiries and instead
repeatedly reiterated Spady did not have the authority to act on defendant's
behalf and they "d[id] not know [defendant]'s true intentions."
The judge noted plaintiff knowingly and voluntarily wanted to proceed
with the settlement and divorce and, Spady's testimony aside, defendant's
counsel represented to the court defendant accepted the agreement and wanted
to withdraw her counterclaim and proceed with the divorce. Accordingly, the
judge entered an order denying the application. This appeal follows. 2
2
During the pendency of this appeal, plaintiff filed a motion to supplement the
record with two certifications, one from another sister of defendant and one from
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Plaintiff first argues the trial judge erred by failing to provide plaintiff and
counsel timely notice of the divorce proceeding, in violation of his due process
rights. Plaintiff did not raise this issue before the trial court and we ordinarily
do not consider an argument raised in the first instance unless the issue goes to
the jurisdiction of the trial court or concerns matters of substantial public
interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even if we
consider this substantive claim, we defer to the trial court in matters concerning
adjournment requests and scheduling, State ex rel. Comm'r of Transp., 432 N.J.
Super. 1, 7 (App. Div. 2013), and will not intervene absent an abuse of
discretion.
An abuse of discretion occurs when a trial court makes "findings
inconsistent with or unsupported by competent evidence," utilizes "irrelevant or
inappropriate factors," or "fail[s] to consider controlling legal principles."
Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015) (first quoting Storey
defendant's caretaker. We ordered a limited remand for the trial judge to
consider the statements and determine whether the record should be
supplemented with them. On August 28, 2023, the judge submitted a letter to
us reflecting her opinion the certifications were largely based on hearsay and
were therefore not competent evidence. In addition, based on her review of the
record, the certifications were not relevant because defendant's counsel
withdrew the counterclaim on the record and the matter proceeded as an
uncontested divorce based on plaintiff's testimony. After considering the judge's
assessment, we denied the motion as moot.
A-2061-21
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v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004); then quoting Flagg v.
Essex Cnty. Prosecutor, 171 N.J. 561, 571, (2002); then quoting Storey, 464 N.J.
Super. at 479)). An abuse of discretion can also be found if the court "fails to
take into consideration all relevant factors[,] and when its decision reflects a
clear error in judgment." State v. C.W., 449 N.J. Super. 231, 255 (App. Div.
2017).
After reviewing the record, we discern no abuse of discretion in the judge's
scheduling a same-day hearing. Defendant's health was in decline, the parties
had reached an agreement, and the matter had been pending for over a year.
Despite plaintiff's commentary about the suddenness of the hearing, he did not
request an adjournment nor did he accept the judge's offer for additional time to
speak with his attorney. Both his own counsel and the court painstakingly
questioned him to ensure he understood his rights and waived them voluntarily,
and the matter proceeded as an uncontested divorce at his request. While we
recognize the hearing was not noticed or conducted in the way a divorce
typically proceeds, the scheduling of it was within the judge's discretion given
the attendant circumstances.
As to plaintiff's appeal of the order to show cause, a Family Part judge's
decision not to conduct a plenary hearing is also reviewed on an abuse of
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discretion standard. Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div.
2007). Having reviewed the record in light of this deferential standard of
review, we are unpersuaded by plaintiff's arguments. We agree with the trial
judge's assessment that a hearing was unnecessary because, even if Spady did
not have power-of-attorney and knowingly misrepresented that fact, defendant's
counsel represented to the court that defendant agreed to the settlement,
withdrew her counterclaim and consented to proceeding with the uncontested
divorce hearing. 3 Nothing in the certifications annexed to the application
created any issue of material fact that would have warranted a hearing.
To the extent we have not expressly addressed any issues raised by
plaintiff, it is because they lack sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
3
We further note plaintiff's application for an order to show cause failed to
address any of the factors necessary to establish entitlement to injunctive relief.
See Garden State Equal. v. Dow, 216 N.J. 314, 320 (2013) (reiterating the four
factors outlined in Crowe v. DeGoia, 90 N.J. 126, 132-34 (1982)).
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