Marshall Williams v. Estate of Evelyn L. Williams

NOT FOR PUBLICATION WITHOUT THE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.

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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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