NOT FOR PUBLICATION WITHOUT THE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-1779-15T4
NANCY L. THOMPSON,
Plaintiff-Respondent,
v.
JOHN P. THOMPSON,
Defendant-Appellant.
_______________________________
Submitted May 15, 2017 – Decided June 1, 2017
Before Judges Haas and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-450-12.
Lombardo Law Offices, LLC, attorneys for
appellant (Bart W. Lombardo, on the briefs).
Celli & Schlossberg, LLC, attorneys for
respondent (Vincent P. Celli, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant appeals
from paragraph eleven of the September 29, 2015 order of the Family
Part, granting plaintiff's motion to require defendant to pay her
"one ha[lf] of the proceeds of the liquidation of . . .
[d]efendant's annuity with Local 197." Defendant also appeals
from the trial court's November 30, 2015 order denying his motion
for reconsideration and ordering him to pay plaintiff $1050 in
attorney's fees and costs. We are constrained to reverse and
remand because the trial court did not conduct a plenary hearing
to resolve the parties' sharply conflicting factual assertions
regarding the equitable distribution of defendant's annuity.
The parties were married in May 1987 and divorced in June
2013. However, they did not finalize their property settlement
agreement ("PSA") until January 16, 2014.
Paragraph 3.6 of the PSA stated that the parties were to
"equally split their retirement assets[,]" including defendant's
"two Union pensions, Local 197 and Local 11," and defendant's
annuity. Although not specified in the PSA, the parties agree
that the annuity referred to in paragraph 3.6 was one that
defendant held through Local 197 at some point during the parties'
marriage.
In July 2014, defendant filed a motion seeking to enforce
various provisions of the PSA. Among other things, defendant
alleged that plaintiff had failed to turn over a number of his
personal items to him, including tools, a patio set, and a toy
truck collection. Defendant also sought an order requiring an
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escrow agent to distribute the proceeds from the sale of the
marital home to the parties.
In response, plaintiff filed a cross-motion responding to
defendant's contentions, and seeking relief of her own concerning
the enforcement of the PSA. With reference to the present appeal,
plaintiff asked that the trial court award her a $26,277 credit
from defendant's share of the proceeds of the sale of the marital
home representing what she believed was her 50% share of
defendant's Local 197 annuity that had not yet been paid to her.
In her accompanying certification, plaintiff alleged that in
May 2014, she learned for the first time that defendant had cashed
out the Local 197 annuity in May 2010, over three years before the
parties divorced. Plaintiff asserted that there was $52,805.81
in the annuity when defendant withdrew these funds.1 She also
argued that her signature on a form defendant submitted to obtain
the money had been forged.
In his reply certification, defendant stated that plaintiff
was aware of the withdrawal of the annuity funds during the
marriage and knew they were used to pay marital bills. He also
1
According to plaintiff, defendant paid $10,561.16 in taxes on
the money in the annuity fund and a $250 administration fee. Thus,
she asserted that defendant received $41,994.65 in net proceeds.
3 A-1779-15T4
asserted that plaintiff had "emptied [$50,000 from] a joint bank
account" during the marriage, and "put it into her own name[.]"
On October 30, 2014, the parties agreed to the entry of a
consent order. The consent order listed several different payments
and credits that each party was to pay the other from the share
of the sale proceeds from the marital home and other sources. The
order also required plaintiff to give defendant a chainsaw, two
leaf blowers, a bench grinder, and his aunt's green patio set.
The consent order does not specifically mention plaintiff's
claim for a $26,277 credit from defendant's share of the escrow
funds as her share of the Local 197 annuity, or defendant's
allegation that plaintiff had improperly taken $50,000 of joint
marital funds prior to the parties' divorce. However, paragraph
nine of the consent order contained a catch-all provision that
specifically stated:
Both parties hereby agree that neither
has a claim against the other for any
personalty and further agree that any
financial credits outstanding due one to the
other have been resolved to their satisfaction
as set forth herein.
Eight months later, defendant filed a motion on June 22,
2015, seeking to reduce his alimony and child support obligations.
In response, plaintiff filed a cross-motion. In the cross-motion,
plaintiff asked for an order "[c]ompelling [d]efendant to pay over
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to [p]laintiff one-half of the proceeds of liquidation of
defendant's annuity with Local 197." In her certification in
support of her motion, plaintiff again asserted that defendant had
cashed out the annuity in May 2010 while the parties were still
married and that she had not been paid her share.
Plaintiff did not mention the parties' October 30, 2014
consent order in her certification. However, in defendant's reply
certification, he asserted that this marital asset was disposed
of by paragraph nine of the consent order. He also explained that
plaintiff agreed to give up her claim to a share of the Local 197
annuity in return for his agreement not to pursue his claim that
"she absconded with tens of thousands of dollars in marital funds
immediately before she filed for divorce." Defendant also stated
that the parties' "attorneys recommended that those claims be
offset against one another and closed. Which they were."
Following oral argument, the trial judge entered an order on
September 29, 2015 that, in paragraph eleven, required defendant
to pay plaintiff "one ha[lf] of the proceeds of the liquidation
of . . . [d]efendant's annuity with Local 197." In briefly
explaining this ruling in his written statement of reasons, the
judge merely noted that plaintiff's request for relief was "within
the provisions of the parties' PSA[.]" The judge did not refer
to the parties' October 30, 2014 consent order or defendant's
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contention that the parties amicably resolved the issue concerning
the annuity at that time.
On October 20, 2015, defendant filed a motion for
reconsideration. Once again, defendant asserted that plaintiff's
claim for a share of the Local 197 annuity was embodied in the
catch-all provision of paragraph nine of the October 30, 2014
consent order, together with his own demand for the return of
marital funds from plaintiff. Defendant also pointed out that if
plaintiff truly believed that her request for a share of the
annuity had not been addressed in the consent order, she would
have immediately brought it to the court's attention at that time.
Instead, defendant noted that plaintiff did not raise the issue
until she filed her cross-motion many months later.
In her responsive certification, plaintiff alleged that
defendant was more concerned at the time of the October 30, 2014
consent order with getting his personal property back and,
therefore, her claim for a share of the annuity "kept being pushed
aside to discuss the other issues in the motion and we never went
back to resolve the annuity issue." Thus, plaintiff argued that
the annuity "issue was never addressed or resolved" in the consent
order.
In his reply certification, defendant stated that it was
"simply not plausible to believe that . . . plaintiff . . . would
6 A-1779-15T4
have let the issue sit for over one full year before raising it
again. The matter [of the Local 197 annuity] was resolved by way
of a consent order." Defendant also contended that the amounts
each party sought concerning the annuity and the marital bank
accounts "were very close and we simply credited them against one
another as set forth in paragraph 9 of the consent order."
At oral argument, defendant's attorney reiterated defendant's
position that the parties' attorneys resolved the distribution of
the annuity, and the issues concerning the money plaintiff
allegedly took during the marriage, in the October 30, 2014 consent
order. However, the trial judge did not conduct a plenary hearing
to take testimony from the parties or their respective attorneys
to determine the credibility of either parties' claims or the
intent underlying the catch-all provision of the consent order.
Instead, the trial judge issued an order on November 30,
2015, denying defendant's motion for reconsideration and again
ordering him to pay plaintiff one-half of the proceeds of the
liquidation of the Local 197 annuity.2 In his accompanying
statement of reasons, the judge failed to explain why he did not
hold a plenary hearing concerning the parties' widely divergent
factual contentions. Instead, the judge stated that he did "not
2
The order did not specify the amount defendant was to pay
plaintiff.
7 A-1779-15T4
find it plausible that an item worth $41,994.55 would have been
left to what . . . [d]efendant argues is a sort of catch-all
paragraph in a consent order. Such an argument is even less
tenable when one considers that the parties referred to several
other valuable items specifically." The judge also ordered
defendant to pay plaintiff $1050 in attorney's fees and costs.
This appeal followed.
On appeal, defendant argues that the trial judge erred by
granting plaintiff's request for half of the Local 197 annuity.
For the reasons that follow, we reverse and remand for a plenary
hearing.
We normally owe substantial deference to the Family Part's
findings of fact because of that court's special expertise in
family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Thus, "[a] reviewing court should uphold the factual findings
undergirding the trial court's decision if they are supported by
adequate, substantial and credible evidence on the record."
MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration
in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007)). However, we owe no special deference
to the judge's legal conclusions. Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995). Interpretation and
construction of a contract, such as the consent order in this
8 A-1779-15T4
case, is a matter of law for the trial court, subject to de novo
review on appeal. Fastenberg v. Prudential Ins. Co. of Am., 309
N.J. Super. 415, 420 (App. Div. 1998); Kaur v. Assured Lending
Corp., 405 N.J. Super. 468, 474 (App. Div. 2009) (reviewing the
enforcement of a settlement agreement de novo).
Further, we review the denial of a motion for reconsideration
to determine whether the trial court abused its discretion.
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
Reconsideration should be granted in "those cases which fall into
that narrow corridor in which either 1) the [c]ourt has expressed
its decision based upon a palpably incorrect or irrational basis,
or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent
evidence." Id. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401-02 (Ch. Div. 1990)).
After reviewing the record in light of these principles, we
are constrained to reverse and remand the trial judge's decision
ordering defendant to pay plaintiff half of the Local 197 annuity
because the judge did not conduct a plenary hearing concerning the
proper interpretation of the October 30, 2014 consent order.
When determining the meaning of a matrimonial agreement, such
as a consent order, courts apply the "basic rule of contractual
interpretation that a court must discern and implement the common
9 A-1779-15T4
intention of the parties." Pacifico v. Pacifico, 190 N.J. 258,
266 (2007). Courts usually enforce contracts as written. Kampf
v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960).
However, when a contract is ambiguous in a material respect,
the parties must be given the opportunity to illuminate the
contract's meaning through the submission of extrinsic evidence.
Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268-70 (2006).
A contract is ambiguous if its terms are "susceptible to at least
two reasonable alternative interpretations." Nester v. O'Donnell,
301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v.
Provident Life & Cas. Ins. Co., 828 F. Supp. 275, 283 (D.N.J.
1992), aff'd, 993 F.2d 877 (3d Cir. 1993)).
In attempting to resolve ambiguities in a document, courts
may consider extrinsic evidence. While such evidence should never
be permitted to modify or curtail the terms of an agreement, a
court may "consider all of the relevant evidence that will assist
in determining the intent and meaning of the contract." Conway,
supra, 187 N.J. at 269. As the Court explained in Conway,
[e]vidence of the circumstances is always
admissible in aid of the interpretation of an
integrated agreement. This is so even when
the contract on its face is free from
ambiguity. The polestar of construction is
the intention of the parties to the contract
as revealed by the language used, taken as an
entirety; and, in the quest for the intention,
the situation of the parties, the attendant
10 A-1779-15T4
circumstances, and the objects they were
thereby striving to attain are necessarily to
be regarded. The admission of evidence of
extrinsic facts is not for the purpose of
changing the writing, but to secure light by
which to measure its actual significance.
[Ibid. (quoting Atl. N. Airlines, Inc. v.
Schwimmer, 12 N.J. 293, 301-02 (1953)).]
Here, the parties disputed the meaning of the catch-all
provision of paragraph nine of the October 30, 2014 consent order.
The key provision in this paragraph is the parties' statement that
they "agree that any financial credits outstanding due one to the
other have been resolved to their satisfaction as set forth
herein."
On the one hand, defendant certified that he and his attorney
negotiated with plaintiff and her attorney concerning their
respective claims that each party took marital funds during the
marriage. Defendant further certified that at the conclusion of
these negotiations, the parties specifically agreed that plaintiff
would give up her claim for a share of the Local 197 annuity if
he relinquished any claim to a share of the marital funds plaintiff
allegedly took for herself during the marriage.
On the other hand, plaintiff certified that the issue of the
annuity kept getting pushed aside as the parties battled over
other items, such as tools and lawn furniture. She noted that the
11 A-1779-15T4
annuity was not specifically mentioned in the consent order and,
therefore, alleged that it was not addressed in that document.
Rather than conducting a plenary hearing to resolve the
parties' competing factual assertions concerning their intent in
including paragraph nine in the consent order, the trial judge
simply stated that he believed it was implausible that the parties
would have included a large amount of money like the annuity in a
catch-all provision, rather than in a separate paragraph
specifically referring to it. On this record, however, defendant's
competing contention that if the annuity had really not been
addressed in the consent order, plaintiff surely would have
immediately brought it to the court's attention, was equally
plausible. In addition, there was a clear factual dispute between
the parties as to whether plaintiff signed the document permitting
defendant to remove funds from the Local 197 annuity in the
presence of a notary or whether, as plaintiff alleged, her
signature on that document was a forgery.
Under these circumstances, the trial judge should have
conducted a plenary hearing. "[I]n a variety of contexts, courts
have opined on the impermissibility of deciding contested issues
of fact on the basis of conflicting affidavits and certifications
alone." State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998)
(citations omitted), certif. denied, 158 N.J. 72 (1999). In
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particular, where the parties' pleadings raise issues of fact or
require credibility determinations, relief cannot be denied absent
a plenary hearing. Whitfield v. Whitfield, 315 N.J. Super. 1, 12
(App. Div. 1998). Here, the parties filed conflicting
certifications concerning the intent of paragraph nine of the
October 30, 2014 consent order, which required a plenary hearing
to resolve.
Therefore, we reverse the portions of the September 29, 2015
and November 30, 2015 orders that required defendant to pay
plaintiff half of his Local 197 annuity, and remand for a plenary
hearing as set forth in this opinion. In light of this
determination, we also reverse the portion of the November 30,
2015 order requiring defendant to pay plaintiff $1050 in attorney's
fees and costs, without prejudice to the ability of either party
to seek such fees as part of the remand. The remand proceedings
should be completed within 120 days.
Reversed and remanded for a plenary hearing. We do not retain
jurisdiction.
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