STACEY GLOWZENSKI VS. STEPHEN GLOWZENSKI (FM-15-0305-17, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3034-19
STACEY GLOWZENSKI,
Plaintiff-Appellant,
v.
STEPHEN GLOWZENSKI,
Defendant-Respondent.
_________________________
Submitted April 20, 2021 – Decided May 7, 2021
Before Judges Fisher and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-0305-17.
Louis S. Scalzo, attorney for appellant.
Keith, Winters, Wenning & Harris, LLC, attorneys for
respondent (Brian D. Winters, on the brief).
PER CURIAM
In this matrimonial appeal, plaintiff Stacey Glowzenski argues that the
trial judge erred in determining – after a four-day hearing – that, during a
mediation session, the parties settled their remaining economic issues. Because
we must defer to the trial judge's factual findings, we conclude that Stacey's
arguments have no merit and affirm.
The parties were married in 1993; they have two children. Stacey filed
this divorce action in 2016, and defendant Stephen Glowzenski filed an answer
and counterclaim, also seeking a divorce. After a number of court appearances
over the course of a few years, the trial judge entered an order on February 19,
2019, that: scheduled the case for a June 2019 trial; ordered the parties to
exchange updated case information statements as well as provide other
information; and directed them to attend economic mediation.
The parties and their then attorneys attended mediation on May 15, 2019,
at the conclusion of which they both initialed a term sheet. Soon after, Stephen
moved for an order declaring that a settlement had been reached. Stacey, who
had retained new counsel, cross-moved and argued that a settlement had not
been reached. The judge denied Stephen's motion without prejudice, finding a
genuine factual dispute about whether the parties' negotiations led to an
enforceable settlement agreement. The judge scheduled a hearing to resolve the
factual disputes.
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During a plenary hearing on nonconsecutive days that started on August
26, 2019, and ended on December 10, 2019, the judge heard the testimony of
the parties as well as the mediator. By way of an order and opinion entered on
February 5, 2020, the judge found that the parties had entered into a settlement
agreement during mediation and that the agreement was not – as Stacey alleged
– unconscionable. A judgment of divorce, which incorporated the terms of the
settlement agreement, was entered on March 3, 2020.
Stacey appeals, arguing:
I. THE TRIAL COURT ERRED BY FINDING THE
MEDIATOR'S NOTES GENERATED ON MAY 15,
2019 CONSTITUTED A FAIR AND DEFINITIVE
SETTLEMENT AGREEMENT.
A. The Mediator's Notes Are Not Titled
and Not Signed by Counsel.
B. The Mediator's Notes Expressly
Indicate Conditions Precedent to
Settlement of Material Terms, Are Vague,
and Otherwise Fail for Indefiniteness,
Lacking the Essential "Meeting of the
Minds" Component.
II. THE MEDIATOR'S NOTES ARE NOT
ENFORCEABLE AS A SETTLEMENT
AGREEMENT DUE TO FRAUD AND
UNCONSCIONABILITY.
A. Evidence of Fraud by Defendant.
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B. Unconscionability.
III. THE TRIAL COURT ERRED BY PERMITTING
THE MEDIATOR TO TESTIFY AT THE PLENARY
HEARING.
We find no merit in these arguments and affirm.
We reject Stacey's first point and affirm the order enforcing the settlement
agreement substantially for the reasons set forth in the judge's written opinion.
We add only the following few comments.
We start with the premise that agreements between divorcing parties that
are fair and just may be enforced. Petersen v. Petersen, 85 N.J. 638, 642 (1981);
see also Sachau v. Sachau, 206 N.J. 1, 5 (2011) (recognizing the basic
contractual nature of matrimonial agreements); Pacifico v. Pacifico, 190 N.J.
258, 265 (2007) (same). Matrimonial settlement agreements "need not
necessarily be reduced to writing or placed on the record." Harrington v.
Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995). Indeed, "[w]here the
parties agree upon the essential terms of a settlement, so that the mechanics can
be 'fleshed out' in a writing to be thereafter executed, the settlement will be
enforced notwithstanding the fact that the writing does not materialize because
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a party later reneges." Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.
1983).1
The judge made extensive findings, concluding Stacey's depiction of the
negotiations during mediation was not credible. Stacey claimed, for example,
that no negotiations actually took place, the mediator had animus toward her,
"every time she opened her mouth" things "g[ot] worse for her," and the
mediator merely decided the outstanding issues. The judge found Stacey's
testimony on these matters was not "forthright" or credible. Instead, in relying
on the credible testimony of Stephen and the mediator, the judge found the
mediator did not make a "decision" but simply memorialized the parties'
negotiated agreement on the term sheet. The judge also found from her view of
the testimony that the parties both signified their consent by initialing the term
sheet and that Stacey's later renouncement of the agreement was simply a case
of "buyer's remorse." The judge's findings of fact are deserving of our
1
We might add the familiar rubric that "settlement of litigation ranks high in
our public policy," Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.
1961); see also Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), but it does not follow
that courts will enforce any alleged settlement on the basis of this policy. The
court must first find the parties intended to resolve the litigation, i.e., that there
was a meeting of the minds on essential terms, and that it is fair and just to
enforce their agreement. In short, it does not "rank high in our public policy" to
terminate litigation when it cannot be said that the matrimonial litigants reached
a fair and just agreement.
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deference, Cesare v. Cesare, 154 N.J. 329, 411 (1998); Rova Farms Resort, Inc.
v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and the conclusions drawn from
those findings are well-grounded in the legal principles described earlier.
In her first point, Stacey additionally argues that the term sheet's lack of
a title and the absence of the parties' attorneys' signature on the term sheet plays
a significant role in determining whether an agreement was reached. We
disagree. A contract does not need to be labeled a contract to be a contract.
Although perhaps relevant to an understanding of a layperson's intent in signing,
the absence of a label or even the use of a wrong label has little relevance in
determining a writing's meaning. See, e.g., Applestein v. United Bd. & Carton
Corp., 60 N.J. Super. 333, 348 (Ch. Div.) (recognizing that equity looks "to the
substance rather than the form" and "never pays homage to the mere form of an
instrument or transaction, if to do so would frustrate the law or place justice in
chains"), aff’d o.b., 33 N.J. 72 (1960); see also Liberty Mut. Ins. Co. v. Garden
State Surgical Ctr., L.L.C., 413 N.J. Super. 513, 523-24 (App. Div. 2010). The
judge found there was no confusion and Stacey understood she had – by
initialing – freely and voluntarily consented to entering into a binding agreement
with Stephen on the issues described in the term sheet.
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We also reject Stacey's contention that there is relevance to the fact that
the parties' attorneys did not sign the term sheet. The mediator explained in her
credible testimony that she never, in these situations, seeks the signature of
counsel. We agree this fact has no impact; it is the client's assent that is relevant.
We also reject the argument in Stacey's second point that the settlement
agreement is either unconscionable or the product of fraud substantially for the
reasons set forth by the trial judge.
And we reject Stacey's third point, in which she argues that the judge erred
by allowing the mediator to testify. To be sure, the scope of testimony in such
a situation may be limited by the mediator privilege, N.J.R.E. 519, and the
Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13. But the judge carefully
limited the scope of the testimony to non-privileged events. For example, the
mediator was properly allowed to identify the term sheet and to testify about its
execution, the time spent in mediation, the atmosphere of the negotiations, and
other similar matters that did not call for a revelation of privileged
communications though Stacey's testimony as to what was said during mediation
could fairly be understood as opening the door to similar revelations from the
mediator.
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To summarize, we affirm the judge's determination that the parties had
freely and voluntarily entered into a settlement agreement – as embodied by the
term sheet – that was fair and just and was not unconscionable or the product of
fraud. We add one further comment about the scope of the settlement agreement
that has no bearing on its enforcement.
One of the provisions of the term sheet states: "No C.S. until parties
examine benefits of G.I. bill." It appears there may have been benefits available
to Stephen that would inure to one of the children who apparently was then
college bound, but, during mediation, the parties were unsure about the precise
extent of those benefits. Because of that doubt, the parties agreed – as the term
sheet reveals – that Stephen would not be obligated to pay "C.S." (child support)
to Stacey until those rights were ascertained. While that expression certainly
constituted a binding agreement, it memorialized only an understanding that
their child support issues would remain unresolved until they knew more about
any available G.I. bill benefits, and until then, Stephen would not be required to
pay child support. The lack of a final resolution of their child support dispute,
however, did not render unenforceable the other aspects of the term sheet.
Affirmed.
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