M.M. VS. J.M. (FM-19-0181-11, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3758-16T4

M.M.,

Plaintiff-Respondent,

v.

J.M.,

Defendant-Appellant.
_______________________________

Submitted August 21, 2018 – Decided August 24, 2018

Before Judges Messano and Geiger.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0181-11.

J.M., appellant pro se.

M.M., respondent pro se.

PER CURIAM

Defendant J.M. appeals from that portion of a March 31, 2017

order denying his post-judgment motion to terminate alimony

without prejudice. For the following reasons, we vacate and

remand.
 Plaintiff M.M. and defendant were married on June 18, 1983.

Three children were born of the marriage. After experiencing

marital difficulties, the parties participated in mediation. On

September 8, 2010, an unsigned written Memorandum of Understanding

(MOU) reflecting certain agreements reached by them during

mediation was prepared. The following month, the parties entered

into a written Property Settlement Agreement (PSA) which appended

the MOU as Exhibit A. Two days later, plaintiff filed for divorce.

The parties were not represented by counsel in the divorce action.

A final judgment of divorce (FJOD) was entered on January 3, 2011.

The FJOD incorporated the terms of the PSA.

Pertinent to this appeal, the MOU states: "This document

reflects certain agreements reached by the parties during

mediation. The terms described in this memorandum shall not be

binding until they are incorporated into a Settlement Agreement

prepared by the parties' attorneys and signed by the parties." As

to alimony, the MOU states:

19. Alimony:

A. Beginning upon the closing of title
on the marital home, [J.M.] will pay [M.M.]
permanent alimony in the amount of $100 per
week. Alimony shall be payable through Family
Support Services. The alimony and child
support agreements set forth herein are based
on [J.M.'s] current income of approximately
$72,000 per annum and [M.M.'s] income of
$57,000 per annum.

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 B. Alimony shall be taxable to [M.M.]
and tax deductible by [J.M.]. Alimony shall
terminate upon either party's death or
[M.M.'s] remarriage. [M.M.'s] cohabitation
with an unrelated adult in a relationship
tantamount to marriage shall be a re-
evaluation event allowing [J.M.] the right to
seek a review of alimony.

[(emphasis added).]

In turn, the PSA states:

WHEREAS, the Husband and Wife are desirous of
settling the questions of custody, visitation,
alimony, child support, equitable
distribution, sale of the marital residence
and costs if any, and all other matters
arising out of the marital relationship; the
intention being that their future relations
shall be governed and fully prescribed by the
terms of this Settlement Agreement and
Memorandum of Understanding prepared by
Divorce Mediator, Amy Z. Shimalla, Esq.;
attached hereto as Exhibit A . . . [.]

[(emphasis added).]

The PSA also contains the following specific language regarding

alimony:

8.1 Pursuant to N.J.S.A. 2A:34-23, the
parties have considered the factors with
respect to spousal maintenance ("alimony"),
including the standard of living during the
marriage. The Husband shall pay the Wife as
unallocated, tax-free alimony, the total
monthly sum of $100 per week pursuant to the
Memorandum of Understanding dated September 8,
2010 commencing upon the sale of the marital
residence. A copy of the Memorandum of
Understanding is attached hereto as Exhibit
A. Said alimony amount shall be adjusted

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 every two (2) years to reflect the cost of
living. The alimony shall be paid directly
to the Family Support Services until the
happening of the first of the following:

(a) death of Husband;

(b) death of Wife;

(c) the child attaining the age of 18,
unless the child is still enrolled
in an undergraduate program of
higher education or vocational
school after attaining the age of
18, in which event the child shall
be deemed emancipated upon the
earlier of (A) attaining age 23, or
(B) graduation from such program, if
continued without unreasonable
interruption.

[(emphasis added).]

On February 6, 2016, defendant moved to emancipate the

parties' youngest daughter, effective October 21, 2016; require

plaintiff to repay any child support overpayments made by defendant

after October 21, 2016; terminate alimony; and award him counsel

fees and costs for the motion. Plaintiff opposed the motion. The

motion judge granted defendant's application to emancipate their

youngest daughter effective October 21, 2016, but denied the

remaining aspects of his motion without prejudice. This appeal

is limited to the denial of defendant's application to terminate

alimony. Plaintiff did not file a cross-appeal.

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 In his oral decision, the motion judge stated the following

basis for denying defendant's motion to terminate alimony without

prejudice:

Defendant further requests termination
of alimony. But he cites no basis for his
requests. While he attached the PSA, the
plaintiff properly notes that he failed to
attach the entire PSA including specifically
the memorandum of understanding that is
incorporated therein by reference within
Section 8 of the PSA. Section 8 of the PSA
and memorandum of understanding clearly
indicate that the parties agree that alimony
was intended to be permanent. And that the
Court will not disturb that agreement between
the parties.

Curiously, within his reply
certification the defendant fails to address
his request for termination of alimony or his
omission of the memorandum of understanding
from his motion. Defendant[']s omission and
failure to explain or justify his request
clearly makes the Court question whether the
defendant's request was brought in good faith.

In a supplemental written statement of reasons, the motion judge

reiterated the same reasoning. This appeal followed.

Defendant contends the trial court erred in not terminating

his alimony obligation. He argues that Paragraph 8.1 of the PSA

expressly provides for the termination of alimony upon their

youngest child attaining the age of eighteen, or if enrolled in

higher education or vocational school, upon the earlier of the

child attaining age 23 or graduating from such program. He notes

5 A-3758-16T4
this language is identical to the child support termination

language contained in Paragraph 9.1 of the PSA. Although

recognizing the MOU states that alimony is permanent, he asserts

"the PSA, a subsequent and more comprehensive document than the

MOU does NOT state that alimony is permanent and added alimony

termination language, that alimony would terminate upon

emancipation of the child." Defendant argues "[t]he additional

alimony termination language of the PSA takes precedence over the

MOU."

Plaintiff argues the terms and provisions of the MOU were

incorporated into the PSA and, consequently, "[t]he MOU is not a

stand-alone, separate document that should be superseded as

[defendant] alleges." Plaintiff notes that in her divorce

complaint, she demanded an award of permanent alimony pursuant to

the PSA and the MOU attached thereto as Exhibit A.

Plaintiff notes defendant did not allege any reduction in

income or change in circumstances other than the age and

emancipation of their youngest daughter. She also notes defendant

filed a procedurally and substantively deficient Case Information

Statement (CIS).

Neither party indicated whether any additional negotiations

regarding alimony took place between the mediation and the

preparation of the PSA. Nor does the record reflect who prepared

6 A-3758-16T4
the PSA, much less contain an affidavit or certification of the

preparer.

Our review of a Family Part's order is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). We review decisions granting

or denying applications to modify or terminate alimony for an

abuse of discretion. Storey v. Storey, 373 N.J. Super. 464, 479

(App. Div. 2004). "[W]e do not overturn those determinations

unless the court abused its discretion, failed to consider

controlling legal principles or made findings inconsistent with

or unsupported by competent evidence. Ibid. (citing Tash v. Tash,

353 N.J. Super. 94, 99 (App. Div. 2002); Rolnick v. Rolnick, 262

N.J. Super. 343, 359-60 (App. Div. 1993)). However, construction

of the terms of a contract is a question of law "subject to de

novo review by an appellate court. "Accordingly, we pay no special

deference to the trial court's interpretation and look at the

contract with fresh eyes." Kieffer v. Best Buy, 205 N.J. 213,

222-23 (2011) (citations omitted).

The "polestar" of contract interpretation is "the intention

of the parties . . . as revealed by the language used, taken as

an entirety." Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293,

301 (1953). See also Jacobs v. Great Pac. Century Corp, 104 N.J.

580, 582 (1986). To discover the intention of the parties, and

to determine whether a contract is ambiguous, courts may consider

7 A-3758-16T4
extrinsic evidence offered in support of conflicting

interpretations. Conway v. 287 Corporate Ctr. Ass'n, 187 N.J.

259, 268-69 (2006). "Extrinsic evidence may include the structure

of the contract, the bargaining history, and the conduct of the

parties that reflects their understanding of the contract's

meaning." Teamsters Indus. Emp. Welfare Fund v. Rolls-Royce Motor

Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993). See also Restatement

(Second) of Contracts § 214(c) (Am. Law Inst. 1981) ("Negotiations

prior to . . . adoption of a writing are admissible in evidence

to establish . . . the meaning of the writing, whether or not

integrated").

A contract is ambiguous if it is susceptible to two reasonable

alternative interpretations. Chubb Custom Ins. Co. v. Prudential

Ins. Co. of Am., 195 N.J. 231, 238 (2008). Resolution of

ambiguity, if found, is a fact issue. Michaels v. Brookchester,

Inc., 26 N.J. 379, 388 (1958). As we have repeatedly emphasized,

motion judges must not "resolve material factual disputes upon

conflicting affidavits and certifications." Harrington v.

Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995) (citations

omitted). However, a plenary hearing is required to resolve an

ambiguous contract only if, after considering all relevant

materials, a genuine issue of fact remains. See Teamsters Indus.

Emp. Welfare Fund, 989 F.2d at 135-137.

8 A-3758-16T4
 The motion judge concluded the MOU and PSA "clearly indicate

that the parties agree that alimony was intended to be permanent."

We disagree. The conflicting language of the MOU and PSA created

an ambiguity which required the court to determine the parties'

intent regarding whether the alimony was permanent or could be

terminated upon the occurrence of specified events. Resolution

of that issue could not be accomplished by merely examining the

conflicting language of the documents. Instead, determination of

whether additional negotiations after the mediation lead to an

agreement for the termination as set forth in paragraph 8.1(c) is

critical to resolving the ambiguity.

Based on this record, we are unable to determine the intent

of the parties regarding the permanency or termination of alimony.

We vacate the denial of defendant's motion to terminate alimony

and remand for further proceedings consistent with this opinion.

Those proceedings should focus on whether the parties engaged in

additional alimony negotiations after the mediation, and if so,

the results of that negotiation, and if not, whether the inclusion

of paragraph 8.1(c) was a mere scrivener's error.1 We leave it to

the sound discretion of the remand court to determine if discovery

1
We note paragraph 8.1(c) is identical to the language of
paragraph 9.1(j) regarding termination of child support due to
emancipation.

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should be permitted and whether a plenary hearing is necessary.

See Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012)

(citations omitted).

We recognize defendant did not provide evidence regarding the

intention of the parties in agreeing to the conflicting alimony

provisions in the MOU and PSA. Nor did he make a prima facie

showing of changed financial circumstances. Nonetheless, the

emancipation triggers termination of alimony if paragraph 8.1(c)

is enforceable. Thus, the ambiguity of the contractual terms

presents a factual issue warranting further proceedings to

determine the parties' intent.

Vacated and remanded. We do not retain jurisdiction.

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