                       NOT FOR PUBLICATION WITHOUT THE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-5383-16T2

MATTHEW W. CROSSKEN,

              Plaintiff-Respondent,

v.

JULI R. CROSSKEN,

          Defendant-Appellant.
__________________________________

              Submitted July 9, 2018 – Decided July 30, 2018

              Before Judges Yannotti and Haas.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Ocean County,
              Docket No. FM-15-0827-15.

              Gary L. Goldberg, attorney for appellant.

              Law Office of Timothy F. McGoughran, attorney
              for respondent (Timothy F. McGoughran and
              Sarah Martynowski, on the brief).

PER CURIAM

        In this post-judgment matrimonial matter, defendant appeals

from the Family Part's June 23, 2017 order, which denied her motion

to enforce two equitable distribution provisions contained in the

parties' property settlement agreement (PSA).                We are constrained
to reverse and remand because the trial judge did not conduct a

plenary    hearing   to   resolve     the   parties'   sharply   conflicting

factual    assertions     regarding     these   two    provisions   and   the

representations each made to the other during the negotiation of

the PSA.

     The parties were married in November 2002 and divorced in

September 2016.      They incorporated their PSA into their final

judgment of divorce.

     Paragraph 11.4 of the PSA stated that the parties would

distribute plaintiff's IRA in the following manner:

            [Plaintiff] maintains an interest in an IRA
            in   the   amount   of    $77,000   of   which
            approximately $40,000 is premarital.     Based
            upon the overall terms of this agreement[,]
            the parties shall divide this asset equally
            by a roll over of 50% of the account as of the
            date of distribution to [defendant] via a QDRO
            or other mechanism to insure this is a tax
            free transfer. From [plaintiff's] 50%[,] he
            agrees to pay [defendant] $11,000[] as and for
            the QDRO and E.D. via tax free roll over.

     At the time of their divorce, plaintiff also owned a 50%

interest in two properties in the Poconos.             Both properties had

been listed for sale.      Paragraph 11.5 of the PSA stated that when

the properties were sold, defendant would receive 100% of the net

proceeds received by plaintiff.

     In May 2017, defendant filed a motion to enforce both of

these provisions, together with a supporting certification.               With

                                       2                             A-5383-16T2
regard to plaintiff's IRA, defendant stated that Paragraph 11.4

of the PSA required plaintiff to pay her 50% of the value of the

account as of the date of its distribution.     Defendant asserted

that plaintiff had refused to obtain a valuation of the IRA or

roll over her half of the asset.

     In response, plaintiff filed a competing certification.      He

asserted that he was entitled to receive $40,000 from the monies

in the IRA before any distribution occurred because the PSA

identified that amount as a "premarital."   Thus, plaintiff argued

that defendant should only receive half of whatever remained,

rather than half of the value of the account as of the date of its

distribution.

     Turning to the two properties in the Poconos, defendant

certified that plaintiff misrepresented the value of these assets

to her during the parties' negotiation of the PSA.     She claimed

that both properties were listed for sale for $50,000 each.

However, the day before the parties divorced, and without notice

to her, plaintiff reduced the asking price for each lot to $15,000.

He later sold the properties for a total of $28,000, which meant

that defendant's 50% share would be $14,000 before maintenance and




                                3                           A-5383-16T2
closing costs were subtracted,1 rather than the $50,000 she stated

she had expected based upon plaintiff's representations leading

up to the execution of the PSA.

        Plaintiff took a contradictory position in his certification

in opposition to defendant's motion.      While acknowledging that the

asking price for each lot had been set at $50,000 throughout the

parties' negotiation of the PSA, he bluntly stated "that was a

pipe dream."       Plaintiff asserted he never told defendant that she

would    receive    that   amount.   Plaintiff   further   alleged     that

defendant should have known the listing price for the lots was

overstated because, in his Case Information Statement, he had

earlier stated that the value of his share of the lots was only

$3005.    Plaintiff claimed he followed the realtor's advice and got

the most he could for the properties.

        The trial judge did not conduct a plenary hearing in order

to evaluate the parties' competing factual allegations or to

evaluate    their    credibility.    Instead,    he   denied   defendant's

enforcement motion after oral argument, and issued a brief written

statement of reasons.




1
   Plaintiff estimated these costs to be $6,000 and, therefore,
defendant would receive approximately $8,000 from the sale of the
two properties.


                                     4                             A-5383-16T2
     Addressing the distribution of plaintiff's IRA, the judge

acknowledged that Paragraph 11.4 of the PSA "lack[ed] a certain

degree of express clarity[.]"     However, the judge determined that

because this provision mentioned that "approximately $40,000" of

this asset "is premarital[,]" the parties must have intended to

exclude    this   imprecise   amount   from   equitable   distribution.

However, the judge did not explain why Paragraph 11.4 went on to

state that "[b]ased on the overall terms of this agreement[,]"

defendant was entitled to "50% as of the date of distribution[,]"

which could plausibly encompass all of the monies in the IRA on

that date, including the $40,000 plaintiff sought to keep for

himself.

     The judge also rejected defendant's claim that plaintiff

misrepresented the value of the two lots in the Poconos during the

parties' negotiation of the PSA.       In so ruling, the judge noted

that the PSA did not specify "a minimum amount or any anticipated

value for which the property would be sold[,]" and then merely

stated that he found no "misrepresentation or fraud by" plaintiff.

This appeal followed.

     On appeal, defendant argues that the judge erred by denying

her request to enforce Paragraphs 11.4 and 11.5 of the PSA.          For

the reasons that follow, we reverse and remand for a plenary

hearing.

                                   5                            A-5383-16T2
        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, LP v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).            Interpretation and construction of a

contract, such as the PSA in this case, is a question 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).

        After reviewing the record in light of these principles, we

reverse and remand the trial judge's decision because he did not

conduct a plenary hearing concerning the proper interpretation of

the two disputed paragraphs of the PSA.



                                        6                              A-5383-16T2
     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

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)).

     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,

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

                                   7                            A-5383-16T2
           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
           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   both   of   the

contested provisions of the PSA, as well as the nature of their

pre-divorce negotiations.       On the one hand, defendant certified

that she understood Paragraph 11.4 to mean that she would receive

half of the entire amount in plaintiff's IRA as of the date of

distribution.      She also asserted that plaintiff misled her as to

the value of the two properties in the Poconos, and then improperly

sold them for a reduced price without her knowledge or consent.

     On the other hand, plaintiff certified that the parties noted

that approximately $40,000 of the $77,000 in the IRA was premarital

because they recognized he was entitled to retain those funds for

himself.   Plaintiff also claimed defendant knew all along that the

properties were not worth a total of $50,000 and, during the

parties' negotiation of Paragraph 11.5, he did not guarantee she



                                    8                                A-5383-16T2
would receive that amount, or any other, when the properties were

sold.

        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).       In 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    their    intent,   and    the

appropriate interpretation of Paragraphs 11.4 and 11.5 of the PSA,

which required a plenary hearing to resolve. Therefore, we reverse

the June 23, 2017 order, and remand for a plenary hearing.

        Reversed and remanded for a plenary hearing. We do not retain

jurisdiction.




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