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Newell v. Hudson3/16/2005
r attorney's advice was arguably erroneous and the settlement inadequate. In contrast, according to Hudson's deposition testimony, she knew at the time she entered into the inter-spousal agreement that it was unfair, she was forced to enter into it, she was dissatisfied with her attorney, he did not answer her questions or properly explain the law, and she knew the settlement would not permit her to maintain her marital standard of living. Hudson chose, however, to testify under oath, in open court, in elaborate detail to the contrary.
Newell, the adversarial party and his counsel and, most significantly, Judge Locascio relied on Hudson's sworn statements regarding settlement of her matrimonial action. Following hours of negotiations on the trial date, Newell relied on his client's representations to him prior to signing the agreement that she understood her legal rights, particularly with regard to alimony; that he had fully explained all of the provisions to her satisfaction; and that she was voluntarily accepting the terms as an alternative to trial. Accordingly, he permitted her to sign the agreement and proceeded with the settlement in open court. By signing the agreement, Hudson again affirmed the truth of her representations. Hudson's then husband and his attorney also relied on the truthfulness of her answers that an agreement had been voluntarily reached between the parties which, absent husband having withheld information (of which there was no evidence), would withstand challenge.
Judge Locascio then conducted an exhaustive question and answer session of the parties under oath on the record, in accordance with the directives of Stout, Crews, and Ziegelheim. Counsel and the court elicited specific testimony from Hudson regarding the base points, term and amount of alimony, Crews prerequisites, and her voluntary understanding and assent to all of the terms of the agreement. In reliance upon Hudson's representations, the Family Part judge approved the parties' settlement and entered a final judgment of divorce incorporating its terms. See Cummings v. Bahr, 295 N.J. Super. 374, 375-376 (App. Div. 1996) (concluding that a position has been"successfully asserted" in the context of applying judicial estoppel it if has helped form the basis of a judicial determination).
This is not a case where the litigant was misinformed of the criteria to be employed or was without full knowledge of the attendant facts prior to adopting her initial position. Contrary to Hudson's assertion, her profession was a relevant consideration by Judge Quinn in invoking the principle of judicial estoppel. Hudson is an accountant by education who performs internal auditing for a corporation; she was not an unsophisticated individual or a vulnerable litigant. It is clear from the record of the divorce proceeding that Hudson was fully familiar with the financial circumstances of the parties, and the regularity of her husband's bonuses and total income, and waived her right to further discovery. Hudson was unable to point to any income or assets that had not been disclosed at the time of the divorce. Moreover, the agreement was presumptively fair; as Judge Locascio noted, Hudson's alimony settlement was more than the pendente lite award and more than her expenses reflected in her case information statement.
In order for Hudson to subsequently pursue this malpractice action, she had to disavow her prior contradictory sworn testimony before Judge Locascio. She now claims she testified falsely in the prior action in order to mislead both the court and her counsel, neither of whom would have permitted the settlement agreement to be accepted had she offered the contradictory testimony set forth in her
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