                                NOT FOR PUBLICATION WITHOUT THE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-5317-18T1

PHILIP EMANUELE,

          Plaintiff-Respondent,

v.

PATRICIA EMANUELE,

     Defendant-Appellant.
_______________________

                    Submitted March 11, 2020 – Decided April 3, 2020

                    Before Judges Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Ocean County, Docket
                    No. FM-15-1071-18.

                    Bathgate Wegener & Wolf, PC, attorneys for appellant
                    (Ryan S. Malc, on the briefs).

                    Ansell, Grimm & Aaron PC, attorneys for respondent
                    (Alfred Michael Caso, on the brief).

PER CURIAM
      Defendant Patricia Emanuele appeals from a July 12, 2019 order granting

plaintiff Philip Emanuele's post-judgment motion to correct a provision of the

parties' matrimonial settlement agreement (MSA), pursuant to Rule 4:50-1(a).

We affirm in part and reverse and remand in part.

      The parties were married for nearly forty-three years, their children were

emancipated, and each party was collecting comparable social security income

while residing in separate residences at the time they entered into the MSA. As

a result, the MSA contained a mutual waiver of alimony and primarily addressed

equitable distribution.

      Paragraph 3.1(2) of the MSA stated:

            As of April 2, 2018, [t]he marital residence was
            encumbered by a [h]ome [e]quity [l]ine [o]f [c]redit
            (HELOC) [with] a balance of $190,763.44. The
            [plaintiff] borrowed $168,000.00 against the HELOC
            for moving expenses and the [defendant] borrowed
            $22,763.44 for moving expenses. The [plaintiff] also
            borrowed $55,200.00 ($27,600.00 of which belonged to
            [defendant]) from the joint Imn. Bank account for a
            down payment of home expenses. The [defendant] has
            liquidated an additional $191,871.00 ($95,935.50
            belonged to [plaintiff]) in joint bonds to purchase her
            residence. Thus the [plaintiff] has liquidated $195,600
            ($168,000 + $27,600) of joint assets to purchase his
            residence and the [defendant] has liquidated
            $118,698.50 ($22,763 + $95,935.50) of joint assets to
            purchase her residence. This results in the [plaintiff]
            owing [defendant] $76,901.00 so they may equalize the
            advances on equitable distribution.

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The parties also agreed to equally divide their retirement accounts, an annuity,

two bank accounts, the cash surrender value of a life insurance policy insuring

defendant, and refunds on any jointly filed tax returns.

      Plaintiff filed a post-judgment motion alleging a mutual mistake in

paragraph 3.1(2) of the MSA. He certified as follows:

            The sentence that says "[defendant] has liquidated
            $118,698.50 ($22,763 + $95,935.50)" should state
            "[defendant] has liquidated $214,634.44 ($22,763.44 +
            $191,871).["]

                  ....

            The MSA math calculation then continues incorrectly
            to state[:] "This results in [plaintiff] owing [defendant]
            $76,901.00 so they may equalize the advances on
            equitable distribution."          Clearly, neither the
            [d]efendant, [nor] myself realized that the math was
            wrong.

Plaintiff claimed he did not owe defendant $76,901, and instead owed $4391.99,

to equalize the advances on equitable distribution.

      The motion judge agreed. Regarding paragraph 3.1(2), he stated:

                  This paragraph as written evinces a clear mistake
            of math which is clearly evident without having to refer
            to any extrinsic evidence. The amounts sought to be
            divided and equalized were the HELOC of
            $190,763.44; the joint Imn. Bank account of
            $55,200.00 and joint bonds of $191,871.00 for a total
            of $432,834.44. Assuming an equal division, each
            should have received $219,417.22. The [plaintiff]

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                                        3
            received $168,000.00 and $55,200.00 for a total of
            $223,200.00 or $3[]782.78 more than he should
            have. . . . Consequently [p]aragraph 3.1(2) of the
            parties['] [M]SA shall be modified to reflect that the
            [plaintiff] owes the [defendant] $3[]782.78 as opposed
            to $76,901.00.

      On appeal, defendant argues the judge's finding of a mutual mistake was

erroneous because the parties disputed whether the responsibility for the sums

taken on the HELOC should be divided equally during settlement negotiations.

Defendant asserts the MSA identified all advances against equitable distribution

including the HELOC, which therefore evidences the parties' intent to exclude

the HELOC from being divided equally as their other assets and liabilities. She

asserts a plenary hearing is necessary to resolve the parties' conflicting

understanding of the MSA.

      Rule 4:50-1 "is designed to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case." Manning Eng'g, Inc.

v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977) (citing Hodgson v.

Applegate, 31 N.J. 29, 43 (1959)). Therefore,

            [a] motion under Rule 4:50-1 is addressed to the sound
            discretion of the trial court, which should be guided by
            equitable principles in determining whether relief
            should be granted or denied. The decision granting or
            denying an application to open a judgment will be left

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                                       4
            undisturbed unless it represents a clear abuse of
            discretion.

            [Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283
            (1994) (internal citations omitted).]

In pertinent part, Rule 4:50-1 states "[o]n motion, with briefs, and upon such

terms as are just, the court may relieve a party or the party's legal representative

from a final judgment or order for the following reasons: (a) mistake,

inadvertence, surprise, or excusable neglect." (emphasis added.)

      The judge did not err in correcting the mathematics in paragraph 3.1(2).

The MSA clearly evinces the parties' intent for an equal equitable distribution.

Defendant's assertion the parties intended to divide the sums taken on the

HELOC differently is unsupported.

      The judge was not required to consider extrinsic evidence or have a

plenary hearing to resolve this dispute. We previously stated:

            "A basic principle of contract interpretation is to read
            the document as a whole in a fair and common sense
            manner." Hardy ex. rel. Dowdell v. Abdul-Matin, 198
            N.J. 95, 103 (2009). . . .

            [I]n interpreting an agreement, we "must try to
            ascertain the intention of the parties as revealed by the
            language used, the situation of the parties, the attendant
            circumstances, and the objects the parties were striving
            to attain." Celanese Ltd. v. Essex Cty. Imp. Auth., 404
            N.J. Super. 514, 528 (App. Div. 2009) (citing


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                                         5
            Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171,
            183-84 (1981)).

            . . . However, "[i]f the terms of the contract are
            susceptible to at least two reasonable alternative
            interpretations, an ambiguity exists. In that case, a
            court may look to extrinsic evidence as an aid to
            interpretation." Chubb Custom Ins. Co. v. Prudential
            Ins. Co. of Am., 195 N.J. 231, 238 (2008) (internal
            citations omitted).

            [Barr v. Barr, 418 N.J. Super. 18, 31-32 (App. Div.
            2011) (second alteration in original).]

      Paragraph 3.1(2) was not susceptible to two different interpretations and

instead contained a clear mathematical error. For these reasons, we affirm the

judge's decision to grant relief pursuant to Rule 4:50-1(a) without a plenary

hearing.

      Notwithstanding, our review of the judge's findings reveals a

mathematical error.    The judge determined the HELOC, joint Imn. Bank

account, and joint bonds totaled to $432,834.44 and equally divided to

$218,917.22. He concluded because plaintiff received $223,200, he received an

excess of $3782.78. However, the HELOC, Imn. Bank account, and joint bonds

totaled to $437,834.44. Therefore, because plaintiff received $223,200, he

received an excess of $4282.78. For these reasons, we reverse and direct the

motion judge to enter an order reflecting the corrected amounts.


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                                       6
      Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.




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