Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If You Enter Into A Consent Order Amending Your Divorce Settlement Agreement, You Cannot Appeal It

Mediation and settlement agreements have slowly become more and more popular in the world of New Jersey family law.  In fact, something that I have watched transpire throughout my two decades as a divorce lawyer is that many folks being ordered by a judge of the Family Part, Superior Court of New Jersey, to attend mediation for issues that arise after the divorce has already ben finalized. The mediation typically occurs with your attorney present.

I stress to all my clients the importance of being absolutely certain that they wish to be bound by the terms of these agreements for the foreseeable future. Many people do not understand that the provisions of a settlement agreement or consent order are binding by law, and the court will enforce them accordingly. Only in the case of changed circumstances will a Family Part court modify or vacate a voluntary agreement. A judge will dismiss an appeal of an order that is voluntarily consented to.  In Brokaw v. Fedirko, husband, Kenneth Fedirko, appealed from a Family Part consent order entered on February 28, 2014, and an order compelling him to pay attorney’s fees entered on March 25, 2014. The New Jersey Appellate Division dismissed the appeal of the consent order, and affirmed the second order.

Kenneth Fedirko and Marilynn Brokaw were divorced in July 2000. The judgment of divorce incorporated a property settlement agreement which provided that Kenneth would pay child support for their three children until each child became emancipated. Emancipation is the conclusion of the dependent relationship between a parent and child. A parent is legally obligated to provide support for his or her child until that child reaches the age of eighteen. While couples cannot legally agree to set the age of emancipation to anything lower than eighteen, they can voluntarily agree to a settlement agreement setting the emancipation age beyond that of eighteen years. This type of agreement is enforceable by the courts as long as it is deemed to be fair and just. To be considered fair and just the terms of the child support obligation must be plain and explicit, set forth in clear and unambiguous language with no possible room for interpretation

The property settlement agreement defined emancipation to happen upon graduation of high school. However if any child chose to go to an undergraduate university that child would not become emancipated until she or she finished his or her undergraduate education. Further, the property settlement agreement also required both Kenneth and Marilynn to contribute towards post-secondary higher educational expenses as long as they have the present financial ability at the time.

While both parties lived in New Jersey at the time of the divorce, shortly after the divorce was finalized Kenneth moved to Illinois. Marilyn moved to Pennsylvania with their youngest son in October 2013. Kenneth filed a motion to emancipate his son with the Family Part on November 6, 2013. He certified that his son graduated from school. The motion was granted unopposed after the Family Part Judge heard limited testimony from Kenneth. According to Kenneth’s testimony, he did not know Marilyn’s current address and was not able to obtain it. Therefore he served his ex-wife at her last known address.

On January 22, 2014 Marilyn filed a motion to reinstate child support and vacate the emancipation order. She certified that the child had indeed graduated from high school and was enrolled as a full time student in Pennsylvania. In addition, she requested the court to fix Kenneth’s responsibility for payment of college expenses, compel him to provide life insurance, and the payment of counsel fees. Conversely, Kenneth opposed the motion and, he sought enforcement of the emancipation order. A month later the parents entered into a consent order. A consent order is generally a voluntary agreement worked out between two or more parties involved in a dispute. It usually has the same effect as a court order and can be enforced by the court if anyone does not comply with the orders.

The order provided that Kenneth would pay $ 198 every week in child support, and in exchange Marilyn would withdraw her motion for college cost, and also agree not to seek more college costs and expenses before January 2016. Kenneth also agreed to pay in excess of $ 250 a month for his child’s health insurance premium and provide evidence of his life insurance policy with named the child as his beneficiary. The only issue that remained unresolved by the consent order was attorney’s fees. The Family Part judge heard oral argument on the issue of counsel fees on March 18, 2014. The Family Part judge entered an order that compelled Kenneth to pay Marilyn $4,000 in counsel fees. This amount would be spread out in monthly installments of $ 200 until the balance was fully paid. Kenneth immediately appealed both orders. On appeal he claimed that the consent order should be vacated because he was coerced into signing it. The Appellate Division disagreed with Kenneth and was not persuaded by his argument.

The Appellate Panel held that a litigant cannot consent to a judgment and then appeal it. According to the paramount case of  Winberry v. Salisbury, there is a rule that allows an appeal as a right from a final judgment. However, this rule contemplates a judgment entered involuntarily against a loser. Kenneth argued that he signed the consent order under duress because he was self-represented and the trial judge showed an alleged lack of impartiality. The appeals court was not persuaded by his argument.

A voluntary and consensual agreement can bind parents to support a child beyond the age of eighteen. Of course any such agreement would only be enforceable if fair and equitable. The court remains free to alter a parental settlement agreement if circumstances change in a way that the provision would not be equitable and fair. When parents voluntarily agree to set an emancipation age that is beyond the minimum requirement of eighteen years, courts strongly adhere to the public policy favoring the stability of consensual agreements. Because matrimonial settlement agreements are fundamentally consensual and voluntary in nature, they are considered valid and enforceable as long they are fair and just. Courts favor these types of agreements as they are a relatively peaceful means of terminating marital strife and disagreement. Rather than being governed by contract law, these terms are valid if found to be fair and just.

The New Jersey Appellate Division reasoned that the judge heard sworn testimony from Kenneth in which he stated that he voluntarily signed the consent order, and indicated that he fully read and understood the terms and conditions of the agreement. Furthermore, he testified that he considered the agreement to be fair, reasonable and equitable under the circumstances and that he would abide by it in the future. Moreover, the appeal was inappropriate because according to Court Rule 4:50-1 if a litigant questions the voluntariness of a property settlement agreement he or she must first seek relief from the Family Part courts. A court of appellate review was an inappropriate venue at this point and time. Thus, the New Jersey Appellate Division dismissed the appeal of the February 28, 2014 consent order.

In regards to the appeal of the March 25, 2014 order granting counsel fees to Marilyn, the court found that Kenneth’s brief did not address or even mention the issue of attorney’s fees in any meaningful way. The New Jersey Appellate Division found the argument without sufficient merit to even warrant discussion in a written opinion.

If you or a loved one faces issues after a divorce has been finalized, please contact my office to discuss how we may be of help.