There are many cases that say that the settlement of litigation ranks high in the public policy of this state, As such, there are many cases that say that an agreement can be enforced, even if it is not reduced to a writing, if the major terms have been agreed to. As my client learned in Brawer v. Brawer, the unexpressed intention not to be bound is irrelevant. There is no place in the law for second thoughts where the parties have expressed there agreement. In fact, in a case called Bistricer, the judge said:
... the proposition that a case is not settled until the last "i" is dotted and the last "t" is crossed on a written settlement agreement carries the germ of much mischief. A party could, in bad faith, waste the time of the court and the other litigant in protracted settlement negotiations, and then, after a "framework" has been established, wiggle out of that framework by creating a flood of new issues and questions.
Just as you can't wiggle out of a settlement, similarly, you cannot appeal a settlement. This issue reared its head in the case of Courboin v. Courboin, an unreported (non-precedential) opinion decided on February 21, 2013. In this case, after two days of trial, the parties settled and put their settlement on the record. The husband testified that he agreed to be bound. As part of that settlement, the home was to be sold.
However, when it came time to sell, he would not cooperate and litigation ensued wherein the agreement was enforced. The husband appealed and the wife correctly pointed out that he could not appeal from the Judgment of Divorce consensually entered into which provided for the sale.
The Appellate Division agreed, noting the general policy that:
"A judgment or order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3 (2013). Moreover, defendant cannot take a different position on appeal regarding the provisions he agreed to on the record before the trial court. See River Vale Planning Bd. v. E & R Office Interiors, Inc., 241 N.J. Super. 391, 402 (App. Div. 1990); Pressler & Verniero supra, comment 4 on R. 2:6-2.
The take away from this case is this. No one can force you to settle. However, once you do, there are no do-overs because you changed your mind and you cannot appeal once the agreement has the effect of an order or judgment.
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