                        NOT FOR PUBLICATION WITHOUT THE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.

                                     2                               A-3758-16T4
                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

                                 3                          A-3758-16T4
            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.




                                       4                             A-3758-16T4
     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.

                                 9                          A-3758-16T4
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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