                             NOT FOR PUBLICATION WITHOUT THE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.
                                                                           A-2089-16T4
                                        2
      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


                                                                           A-2089-16T4
                                        3
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.
                                                                           A-2089-16T4
                                        4
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,


                                                                          A-2089-16T4
                                         5
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




                                                                         A-2089-16T4
                                       6
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

                                                                   A-2089-16T4
                                      7
            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.


                                         A-2089-16T4
                  8
            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.




                                                                          A-2089-16T4
                                        9
