                                NOT FOR PUBLICATION WITHOUT THE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-3224-17T2

JEAN MATHURIN,

          Plaintiff-Respondent,

v.

LUCY MATHURIN,

     Defendant-Appellant.
________________________________

                    Submitted December 19, 2018 – Decided January 9, 2019

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FM-02-0457-15.

                    George J. Cotz, attorney for appellant.

                    Theresa Richardson, attorney for respondent.

PER CURIAM
      Defendant Lucy Mathurin appeals from a March 16, 2018 order denying

her motion to enforce a settlement she and plaintiff Jean Mathurin allegedly

reached in mediation. We affirm.

      The dispute involved the parties' former marital residence. The parties

were divorced in October 2015, following a twenty-nine year marriage. They

entered into a Matrimonial Settlement Agreement (MSA), which in pertinent

part provided as follows:

            A. The . . . residence will be listed for sale
            immediately. The parties will jointly establish an
            asking price and will jointly choose a realtor to market
            the home. They agree, however, that they will not sign
            an exclusive listing but will have the home listed
            immediately on the multiple listing boards. If the
            parties cannot agree upon an asking price, the realtor
            will set the price. If the parties cannot agree upon a
            realtor, each will suggest three realtors with the other
            party having the right to strike two of the other party's
            proposed realtors. The parties will then put the
            remaining names in a hat and pick a realtor from the
            remaining names.

            B. The parties will mutually agree upon a reasonable
            purchase offer, provided, however, that the offer is
            based upon prevailing market rates. Upon the sale of
            the marital home, the parties will share the [n]et
            [p]roceeds, as defined herein, with the [defendant] to
            receive [sixty-five percent] of same and the [plaintiff]
            to receive [thirty-five percent] of same and each will
            claim the same proportionate share of the basis of the
            home and be responsible for his/her own tax liability, if
            any, on the receipt of his/her share of the sale proceeds.

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      The residence was listed for sale and the parties received a purchase offer.

Plaintiff was willing to accept the offer, however, defendant sought to buy him

out for the same amount as the pending offer. Plaintiff declined and filed a

motion to enforce the MSA.

      In June 2016, a motion judge entered an order granting plaintiff's motion

to compel the listing of the residence. Plaintiff filed two subsequent motions

for enforcement. The first motion was denied without prejudice because it

lacked a copy of the MSA as required by Rule 5:5-4(a). The second motion

resulted in a February 2017 order, which denied the relief requested without

prejudice and cited a provision in the MSA that required the parties to first

negotiate between themselves to resolve any dispute arising from their

agreement, and then seek mediation "before using the [c]ourts for any dispute

resolution."

      After direct negotiations failed, the parties attended mediation, which

resulted in a memorandum of understanding (MOU) prepared and signed only

by the mediator. According to defendant, the parties had reached a settlement

following the first mediation session, which enabled her to retain the residence

by means of a buyout subject to certain conditions. However, when plaintiff's

counsel contacted plaintiff after the mediation to discuss the specific terms of

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the settlement, plaintiff objected to credits allotted to defendant under the

agreement for a hypothetical brokerage commission and closing costs. Plaintiff

refused to sign a proposed agreement presented by his attorney, which

memorialized the MOU and purported to modify the MSA provisions relating to

the residence.

      Plaintiff jettisoned his attorney, hired new counsel, and filed a fourth

motion to enforce the MSA.1 Defendant cross-moved for enforcement of the

MOU. In support of her motion, defendant attached certifications from herself,

her attorney, and, remarkably, plaintiff's attorney, all of which discussed the

negotiations during the mediation.

      A different judge considered the motions and entered the March 16, 2018

order granting plaintiff's motion and denying defendant's cross-motion. The

judge noted it was improper for her to consider the MOU because the document

was a product of a mediation and therefore privileged. The judge found the

MOU was not a binding settlement agreement, but an attempt at mediation. This

appeal followed.




1
  Plaintiff's motion also sought to enforce the June 2016 order, which had also
enforced the MSA's requirement the residence be sold.
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                                      4
      "Appellate courts accord particular deference to the Family Part because

of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433

N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,

412 (1998)). "We do 'not disturb the "factual findings and legal conclusions of

the trial judge unless . . . convinced that they are so manifestly unsupported by

or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)

(alterations in original) (quoting Cesare, 154 N.J. at 412 (quoting Rova Farms

Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974))). Therefore,

"'[o]nly when the trial court's conclusions are so "clearly mistaken" or "wide of

the mark" should we interfere[.]'" Gnall, 224 N.J. at 428 (quoting N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of

Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007))). However, "all legal

issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App.

Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

      Relying on our Supreme Court's decision in GMAC Mortg., LLC v.

Willoughby, 230 N.J. 172, 183 (2017), defendant urges us to apply a de novo

standard of review because she claims the MOU was a contract. She asserts the

motion judge ignored the plain language of the MOU, which stated: "This letter


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                                        5
[MOU] reflects the [s]ettlement [a]greement between the parties. The parties

agree that it represents an enforceable settlement agreement by and between the

parties."

      Defendant argues the MOU contained no language indicating plaintiff was

granted more time to contemplate whether to accept its terms. She asserts "in

the mind of [the mediator] it was clearly a fait accompli." Defendant argues the

motion judge should not have relied upon plaintiff's representations that there

was no agreement because plaintiff lacked credibility. According to defendant,

"[n]ot only did [p]laintiff make no reference whatsoever to the . . . mediation in

his initial motion; but [defendant's] counsel's reply [c]ertification pointed out

several instances where his supporting [c]ertification was demonstrably untrue."

      The motion judge did not err by refusing to enforce the MOU. Willoughby

is inapposite, because there the parties’ attorneys had signed the settlement

agreement. Willoughby, 230 N.J. at 177. This was consistent with the Supreme

Court's holding in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215

N.J. 242, 245 (2013), where the Court unequivocally stated "[t]o be clear, . . .

parties that intend to enforce a settlement reached at mediation must execute a

signed written agreement."




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      Similar to the parties' actions here, the parties in Willingboro had attended

mediation and Franklin sought to enforce an oral agreement it believed had been

reached in mediation. Ibid. Franklin submitted certifications by its attorney and

the mediator disclosing privileged mediation discussions in order to prove a

settlement had been reached. Ibid. Plaintiff also litigated the validity of the

alleged settlement by disclosing settlement communications. Ibid.

      The Supreme Court held that absent a waiver of the mediation privilege,

the parties could not rely upon the mediation discussions to prove a settlement

existed. Id. at 259. The Court noted:

            First, had the parties reduced to writing the terms of the
            agreement and affixed their signatures to the document
            at the conclusion of the mediation, Franklin would have
            been able to seek enforcement of the settlement with
            evidence that fell within an exception to the mediation-
            communication privilege. N.J.S.A. 2A:23C-6(a)(1);
            N.J.R.E. 519 (noting that "an agreement evidenced by
            a record signed by all parties to the agreement" is an
            exception         to   the    mediation-communication
            privilege). . . .

                   Second, we conclude that the certifications filed
            by Franklin's attorney and the mediator in support of
            Franklin's motion to enforce the oral agreement
            disclosed privileged mediation communications. The
            certifications refer to statements made during the
            mediation and therefore fall squarely within the
            definition of a "mediation communication" contained in
            N.J.S.A. 2A:23C-2.


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                                        7
           ....

           The terms of the settlement rested on privileged
     communications between the parties and mediator.
     However, Willingboro did not consent in advance to the
     disclosure of mediation communications to the court.

           In the absence of a signed settlement agreement
     or waiver, it is difficult to imagine any scenario in
     which a party would be able to prove a settlement was
     reached during the mediation without running afoul of
     the mediation-communication privilege. . . .

           ....

           Third, without the use of communications made
     during the mediation, Franklin likely could not have
     proved the existence of a settlement.

     [Id. at 258-60.]

The Court concluded as follows:

            In summary, if the parties to mediation reach an
     agreement to resolve their dispute, the terms of that
     settlement must be reduced to writing and signed by the
     parties before the mediation comes to a close. In those
     cases in which the complexity of the settlement terms
     cannot be drafted by the time the mediation session was
     expected to have ended, the mediation session should
     be continued for a brief but reasonable period of time
     to allow for the signing of the settlement. We also see
     no reason why an audio- or video-recorded agreement
     would not meet the test of "an agreement evidenced by
     a record signed by all parties to the agreement" under
     N.J.S.A. 2A:23C-6(a)(1) and N.J.R.E. 519(c)(a)(1).

     [Id. at 262-63.]

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                                  8
      The same principles apply here.     Since neither the parties nor their

attorneys had signed an agreement, the only means to establish the existence of

a settlement was through disclosing the MOU itself, which was a privileged

communication from the mediator, or by certifying to the mediation discussions.

Both methods would violate the mediation privilege absent an advance waiver.

For these reasons, the motion judge was correct to decline enforcement of the

MOU as a binding contract between the parties.

      Affirmed.




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