                                  NOT FOR PUBLICATION WITHOUT THE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-0551-18T2

THE PROVIDENT SAVINGS BANK,

          Plaintiff-Appellant,

v.

AMY S. POULIOT,

     Defendant-Respondent.
__________________________________

                    Argued September 12, 2019 – Decided July 21, 2020

                    Before Judges Alvarez, Nugent and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-10197-94.

                    Nicholas Morgan Gaunce argued the cause for
                    appellant (Eckert Seamans Cherin & Mellott, LLC,
                    attorneys; Nicholas Morgan Gaunce, of counsel and on
                    the briefs).

                    Bradley L. Rice argued the cause for respondent (Nagel
                    Rice LLP, attorneys; Jay J. Rice and Bradley L. Rice,
                    of counsel and on the brief).

PER CURIAM
      This appeal involves plaintiff Provident Savings Bank's attempt to execute

on a twenty-four-year-old, narrowly framed consent judgment against

defendant, Amy S. Pouliot, who three decades ago provided a carefully

restricted guaranty of loans Provident made to her ex-husband.          Provident

appeals an order that denied its motion seeking a writ of execution, a prohibition

against further transfer of trust assets from the Amy Sagner Pouliot Management

Trust (the "ASP Management Trust"), and leave to levy on trust assets. The

same order granted, with the sole exception of assets contributed by Gregory C.

Pouliot, Amy's ex-husband, Amy's cross-motion for a declaration the assets of

the ASP Trust were immune from execution. We affirm.

      The material facts the parties presented on the motion record provide the

following background information. Amy has suffered since childhood from a

debilitating disease that, among other impairments, makes it impossible for her

to hold a job or drive a car. The daughter of wealthy grandparents and parents,

Amy has maintained herself and her lifestyle from funds from trusts created by

her grandparents and parents.

      Amy married in 1977. She and her husband, Gregory, divorced in 2005.

Provident's consent judgment against Amy stems from loans Provident made to

Gregory's real estate business.


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      Beginning in 1988, Provident and other banks began loaning money to

Gregory's real estate company, Pouliot, Inc. Three such loans from Provident

totaled $1,790,000. The loans were secured by real property owned by the

business and by Gregory's personal guaranty. In 1990, Pouliot, Inc. defaulted

on the loans. Provident agreed to modify and consolidate the loans in the

principal amount of $1,875,000, provided both Gregory and Amy personally

guaranteed repayment.

      Amy's father, who had prior business relationships with some of the banks

that had loaned money to Pouliot, Inc., would not allow Amy to execute a

guaranty that would jeopardize funds Amy would receive directly or indirectly

from any trust set up for her benefit. Yet, Amy's father understood the bank's

concern that if Pouliot, Inc. defaulted, Gregory might attempt to transfer assets

to Amy to avoid Provident's collection efforts. For that reason, Amy's father

agreed to allow Amy to sign the loan documents as a guarantor but required the

banks to agree that collection efforts would be limited to only monies Amy

received from Gregory.

      The guaranty Amy executed stated in pertinent part:

            The Bank shall not seek payment from any principal or
            income derived from any trust funds established for
            Amy Pouliot by parties other than Gregory C. Pouliot


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                                        3
            or from any future inheritance received by Amy Pouliot
            from parties other than Gregory C. Pouliot.

      Later that decade, Pouliot, Inc. and Gregory declared bankruptcy.

Provident filed two actions: a foreclosure action against the three properties that

secured the loan, and an action on the promissory note that Amy had guaranteed,

though Provident sued on the basis of a commitment letter rather than the

guaranty itself, which Provident had apparently lost or misplaced. The parties

negotiated a settlement and entered into a consent judgment that provided:

                  This matter having been [sic] come on for Trial
            before the Court on December 18, 1995, and the parties
            having advised the Court that the matters between them
            had been settled and would be the subject of a Consent
            Judgment, the terms of which were to be arrived at by
            the parties, and the parties having reviewed the
            proposed Form of Judgment and consented to the Form
            and Entry thereof, and for good cause appearing;

                   IT IS ON THIS 28th day of March, 1996,

                  ORDERED that Judgment is hereby entered in
            favor of the plaintiff Provident Savings Bank and
            against the defendant Amy S. Pouliot in the amount of
            $1,503,384.07 as of February 13, 1996; and it is further

                   ORDERED that the plaintiff shall not exercise
            any remedy arising under this judgment against any
            principal or income of defendant Amy S. Pouliot, which
            had been derived from Trusts set up for her benefit by
            parties other than Gregory C. Pouliot, nor may the
            plaintiff exercise any remedy arising under this
            judgment on any future inheritance received by Amy S.

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                                         4
            Pouliot from parties other than Gregory C. Pouliot; and
            it is further

                  ORDERED that the defendant Amy S. Pouliot.
            shall be given a credit against the amount due on this
            judgment for all monies, net of expenses, collected after
            November, 1995 by the plaintiff from the sale of
            properties, which were collateral for the loan
            guaranteed by defendant, Amy S. Pouliot.

      For several years following the entry of the consent judgment, Provident

periodically undertook discovery to determine whether Amy possessed any

assets subject to execution, but found none. Provident did nothing about the

judgment from 2000 through 2016. In 2016, Provident renewed the judgment.

Thereafter, the bank undertook collection efforts and filed the motion that

culminated with the order from which this appeal is taken.

      Following renewal of its judgment, for more than a year, Provident issued

subpoenas and obtained documents from Amy, her banks, her credit card issuers,

and her investment managers.      Provident also subpoenaed documents from

fiduciaries of the trusts, title agents, and attorneys. During the time Provident

was aggressively pursuing discovery of Amy's assets, Amy deposed Provident's

corporate designee, a person who was not involved in negotiating the loan Amy

guaranteed, Amy's guaranty, or the consent judgment.




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                                        5
      In 1998, the structure of the trusts changed. Based on the advice of his

financial advisors, lawyers, and trustees, Amy's father decided the trust he had

set up for Amy as part of his estate planning strategy was unnecessarily complex.

Amy's father was advised that, to the extent possible, all trusts should be

"decanted" to make administration easier and more cost effective. Following

that advice, Amy's father and his advisors began a process to "decant" the trust

assets into a single "management trust" that would serve as Amy's primary

source of income.

      Based on additional advice from numerous professional consultants, the

process of "decanting" required transferring assets from trusts in which Amy

was named a beneficiary to Amy herself to permit her to serve as the settlor of

the ASP Management Trust. Thus, the assets in the ASP Management Trust

were derived from other trusts and assets that Amy's father and other family

members had established for Amy's benefit. Funds in the ASP Management

Trust included money from Amy's father used by the trust to purchase a New

York City apartment in which Amy resides.

      Under the ASP Management Trust Agreement, determinations regarding

the management of trust assets and payments of trust principal and income to




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                                        6
Amy are made by the trustees. Amy has no authority to appoint or remove

trustees by herself.

      Against this backdrop, the parties filed the motion and cross-motion which

are the subject of this appeal. Denying Provident's motion seeking a writ of

execution, a prohibition against further transfer of trust assets, and leave to levy

on trust assets, the trial court determined the consent judgment was negotiated

between "sophisticated parties and sophisticated attorneys" and the terms

"couldn't be any clearer."     The court interpreted the consent judgment as

subjecting assets in the ASP Management Trust to execution only when they

were contributed by Amy's ex-husband, Gregory. The court also determined the

consent judgment did not "exclude her doing something with a trust, [or] a sister,

[or] a father." It further found there was no proof the "funds [plaintiff was]

seeking to levy on . . . are in any way shape or form related to monies that

Gregory, her . . . ex-husband, was involved with."

      The court directed the parties to submit a proposed order. Provident

objected to Amy's proposed order, arguing the order would be "premature"

because "[p]rior to August 21, 2018, [defendant] never indicated that Gregory

C. Pouliot was the center of her exemption defense." Consequently, it would be

wrong to immunize assets currently held in the ASP Management Trust because


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                                         7
Provident had not been afforded the opportunity to procure trust records

concerning possible assets contributed by Gregory.            The court rejected

Provident's argument and granted Amy's cross-motion except for assets

contributed by Gregory. This appeal followed.

      On appeal, Provident first argues the trial court applied the wrong standard

of review and improperly placed on Provident the burden of proof concerning

affirmative defenses Amy asserted. Next, Provident argues the trial court failed

to interpret the terms of the consent judgment according to their plain me aning.

Provident contends the court compounded this error by failing to consider

extrinsic evidence to illustrate the judgment's terms. Provident adds that, at best,

the language in the consent judgment is ambiguous, and thus extrinsic evidence

should have been considered to resolve the ambiguity. Last, Provident contends

the trial court erred by entering the order without first affording Provident the

opportunity to take discovery from Gregory.

      Our analysis of Provident's arguments is guided by settled legal principles.

Rule 4:40-1(d) authorizes consent judgments. A consent judgment has been

characterized as "both a contract and a judgment[;] it is not strictly a judicial

decree, but rather in the nature of a contract entered into with the solemn

sanction of the court." Midland Funding, LLC v. Giambanco, 422 N.J. Super.


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                                         8
301, 310 (App. Div. 2011) (alteration in original) (quoting Stonehurst at

Freehold v. Twp. Comm., 139 N.J. Super. 311, 313 (Law Div. 1976)).

      Because the construction of a contract generally presents a question of

law, the interpretation of a contract's terms "is subject to de novo review by an

appellate court." Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011) (citing

Jennings v. Pinto, 5 N.J. 562, 569-70 (1950)). The terms in a contract must be

given their "plain and ordinary meaning." Id. at 223. Whether a term is clear

or ambiguous is a question of law. Nester v. O'Donnell, 301 N.J. Super. 198,

210 (App. Div. 1997). When the terms of a contract are clear, the court must

enforce them as written. E. Brunswick Sewerage Auth. v. E. Mill Assocs. Inc.,

365 N.J. Super. 120, 125 (App. Div. 2004). "The court will not make a different

or a better contract than the parties themselves have seen fit to enter into."

Wash. Constr. Co. v. Spinella, 8 N.J. 212, 217 (1951).

      However, evidence of the circumstances is always admissible in aid of the

interpretation of an integrated agreement even when the contract is free from

ambiguity. Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269 (2006). "Such

evidence is adducible only for the purpose of interpreting the writing —not for

the purpose of modifying or enlarging or curtailing its terms, but to aid in

determining the meaning of what has been said." Ibid. Thus, "[t]he judicial


                                                                          A-0551-18T2
                                        9
interpretative function is to consider what was written in the context of the

circumstances under which it was written, and accord to the language a rational

meaning in keeping with the expressed general purpose." Ibid. (quoting Atl. N.

Airlines v. Schwimmer, 12 N.J. 293, 301-02 (1953)).

      We have considered Provident's arguments in light of these legal

principles and the motion record and we find them unpersuasive. In its first

argument, Provident's point of departure is that assets in self-settled trusts are

subject to execution by general judgment creditors. Provident reasons from this

proposition that a party attempting to shield assets from execution must carry

the burden of proving an exemption. Characterizing Amy's argument as an

"exemption defense," Provident argues the trial court improperly placed the

burden on Provident to show an asset was exempt. Provident contends that

because Amy failed to establish the trust funds used to purchase the New York

City apartment were exempt assets, that money should be subject to execution.

      We begin our analysis with the following preliminary observations. First,

Provident's assertion the trial court "clearly applied the wrong burden of proof"

is unsupported by any reference to the record or to the words the judge used

when purportedly placing the burden on Provident.




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                                       10
      Next, we note Provident's first argument is made with virtually no

reference to the lengthy history of Amy's interaction with Providen t, which

began decades earlier when she provided a carefully circumscribed guaranty of

Gregory's debt, and which later resulted in the consent judgment at issue here.

Consequently, the analytical point of departure was that identified by the trial

court, namely, the parties' consent judgment.

      Last, we note Amy presented on the motion record voluminous documents

and certifications which demonstrated the source of trust funding as well as

substantial unrefuted evidence that Gregory contributed nothing toward the trust

funds.

      In view of these observations, we reject Provident's argument that the trial

court somehow shifted the burden of proof to Provident. Rather, the trial court

properly undertook the task of determining whether the terms of the consent

judgment were ambiguous and what the parties intended by these terms.

      Moreover, because our standard of review is de novo, even if the trial

court had applied the wrong standard of review, that error would have little or

no relevance to the issues the parties raise on this appeal. Accordingly, we turn

to Provident's second argument, that the trial court misinterpreted the language

in the consent judgment. We disagree.


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                                       11
      Provident argues the court misconstrued the following underscored

language in the consent judgment:

            [Provident] shall not exercise any remedy arising under
            this judgment against any principal or income of
            defendant Amy S. Pouliot, which had been derived
            from Trusts set up for her benefit by parties other than
            Gregory C. Pouliot, nor may [Provident] exercise any
            remedy arising under this judgment on any future
            inheritance received by Amy S. Pouliot from parties
            other than Gregory C. Pouliot.

Provident emphasizes the key word is "derived." Provident asserts the term

"means that assets in the [ASP] Management Trust are immune from execution

so long as the source of the assets within the trust derive from trusts or

inheritance for Amy's benefit." We agree with the trial court that this argument

is creative but unpersuasive. Nothing in the consent judgment restricts the

source of trust principal. Nor does the consent judgment limit the trusts solely

to the ASP Management Trust.        As the trial court explained, the consent

judgment's language does not "exclude [Amy] doing something with a trust, a

sister, a father, it seems to narrow it down to Gregory, her husband." The court

added that no language in the consent judgment barred or restricted Amy's

family members from contributing additional principal to the Management

Trust. Further, as Amy points out, Provident's creative interpretation of the



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                                      12
consent judgment's language would nullify the limitations. Trusts must be

funded from external sources when they are created.

      Provident argues the trial court compounded its error by failing to consider

extrinsic evidence. Amy contends resort to extrinsic evidence is unnecessary

when the terms of a document are unambiguous and the meaning of those terms

are clear, as is the case with the consent judgment.

      It bears repeating that even when the terms of a contract are not

ambiguous, "[e]vidence of the circumstances is always admissible in aid of the

interpretation of an integrated agreement." Conway, 187 N.J. at 269 (quoting

Schwimmer, 12 N.J. at 301-02). The extrinsic evidence presented on the trial

record, however, overwhelmingly supports Amy's argument concerning the

scope of assets exempted by the consent judgment.

      Extrinsic evidence may "include consideration of the particular

contractual provision, an overview of all the terms, the circumstances leading

up to the formation of the contract, custom, usage, and the interpretation placed

on the disputed provision by the parties' conduct." Ibid. (quoting Kearny PBA

Local #21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Significantly, "[s]uch

evidence is adducible only for the purpose of interpreting the writing —not for

the purpose of modifying or enlarging or curtailing its terms, but to aid in


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                                       13
determining the meaning of what has been said." Ibid. (citing Schwimmer, 12

N.J. at 301-02). "The judicial interpretive function is to consider what was

written in the context of the circumstances under which it was written, and

according to the language or rational meaning in keeping with the expressed

general purpose." Ibid. (citing Schwimmer, 12 N.J. at 301-02).

      In applying these principles, we note the corporate representative

produced by Provident for a deposition had nothing to do with, and no

knowledge of, the intent of Amy, her father, and Provident when Amy provided

a narrowly circumscribed guaranty of Gregory's loan decades ago. Nor did

Provident's corporate representative participate in or have any personal

knowledge of either the litigation that resulted in the consent judgment or the

consent judgment itself. In short, Provident's representatives are advocating a

position without support from the extrinsic evidence             that   provides

contemporaneous context for the decades-old transaction.

      In contrast, Amy has produced the deposition of her father, albeit in a

lawsuit involving another bank, taken in October 1991. Significantly, Amy has

also produced the certification of the attorney who began representing Amy 's

father and his affiliated entities in the 1980s. The attorney represented Amy in

Provident's 1995 lawsuit that culminated in the consent judgment.            The


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                                      14
attorney's certification, which provided evidence of the context in which the

consent judgment was signed and of the parties' intent at that time, is refuted by

no direct evidence submitted by Provident. Rather, Provident's arguments are

based on the belief of a corporate representative with no knowledge of either the

context of relevant transactions or the intent of the parties who participated in

those transactions.

      In short, extrinsic evidence refutes Provident's arguments and establishes,

as the trial court found, the consent judgment exempts trust assets and

inheritances except those contributed by Gregory.

      Except for the following brief comments, Provident's remaining

arguments are without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E). Provident argues the trial court abused its discretion by not

affording Provident the opportunity to take discovery from Gregory. Provident

did not seek discovery from or concerning Gregory until it lodged an objection

to Amy's proposed consent order following oral argument on the motion and

cross-motion. Specifically, in its letter objecting to Amy's proposed order,

Provident believed it was entitled "to explore the relationship of Gregory . . . to

[Amy's] management trust . . . from the time period of January 1, 1999 through

December 31, 2009 and transactions related to their divorce."


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                                       15
      Provident's "belief" it was entitled to "explore" a relationship that existed

for a period that ended more than ten years ago demonstrates an attempt to

embark on what is commonly characterized as a fishing expedition. We note

that Rule 4:59-1(f) allows a judgment creditor to examine any person "[i]n aid

of the judgment or execution."       Provident has had years to explore any

relationship Gregory had with Amy and any of the trusts in which she has

benefited over the years. The trial court certainly did not abuse its discretion in

denying Provident's informal application, made in the context of an objection to

an order, by persons who had no firsthand knowledge of either the context in

which the consent judgment arose or the intentions of the parties who agreed to

is terms. The trial court acted well within its discretion by prohibiting further

discovery.

      Affirmed.




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                                       16
