                        NOT FOR PUBLICATION WITHOUT THE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-4292-15T1


TIMOTHY R. KELLERS,

        Plaintiff-Appellant,

v.

KATHLEEN M. KELLERS,

        Defendant-Respondent.

______________________________________________

              Argued telephonically May 24, 2017 –
              Decided September 18, 2017

              Before Judges O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FM-13-0196-14.

              Robert A. Abrams argued the cause for
              appellant.

              Brian D. Winters argued the cause for
              respondent (Keith, Winters & Wenning, LLC,
              attorneys; Mr. Winters, on the brief).

PER CURIAM

        In this post-judgment matrimonial matter, plaintiff Timothy

R. Kellers appeals from a May 5, 2016 Family Part court order
denying his motion to compel defendant Kathleen M. Kellers to

contribute toward certain debts incurred during the marriage.

We affirm in part and remand for further proceedings.

                                 I

    In June 2014, the parties divorced after thirty-two years

of marriage.    A matrimonial settlement agreement (MSA),

incorporated into the parties' dual final judgment of divorce,

includes provisions allocating marital debt.    Various provisions

address how the parties are to handle an Internal Revenue

Service (IRS) tax lien that attached to the marital home during

the marriage.

    Specifically, from 1999 to 2004, the parties failed to file

federal income tax returns and to pay any federal income taxes,

and eventually the IRS placed a lien against the marital home.

In the MSA, the parties agreed to pay such debt from the net

sale proceeds of their home, which ultimately sold in December

2015.   At the time of the sale, the parties owed the IRS

$102,590.88 in back taxes, including interest and penalties.

However, from December 2011 to the time the marital home was

sold, the IRS also garnished $41,580 from plaintiff's wages.

    Paragraph 2.1(d) of the MSA addresses the IRS debt, stating

in relevant part:


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                                                            A-4292-15T1
         The parties shall evenly split the net
         proceeds from the sale of the Marital home
         after paying the 1999-2004 tax liens set
         forth in this Paragraph . . . . The parties
         acknowledge that there were tax liens on the
         Marital home as a result of the parties' not
         filing their 1999-2004 income taxes. The
         liens are being paid prior to the sale of
         the home, via wage garnishment against
         Husband's wages at the rate of $1,153.00 a
         month. The parties shall continue to work
         with accountant Joe Gunteshi in an attempt
         to reduce the tax liens. The parties shall
         use the proceeds from the sale of the
         Marital home, after paying realty
         commissions and other costs, if any, to pay
         all of the 1999-2004 tax liens on the
         Marital home.

    As for other debt, paragraph 2.1(d) provides:

         Any liens or judgments, if any, other than
         the tax liens for failure to file and pay
         the 1999-2004 taxes, shall be the
         responsibility of the party whose name the
         lien or judgment is in.

    Paragraphs 2.7(a), (b), and (c) of the MSA similarly

address the IRS tax lien and how other debt is to be handled:

         a. The 1999-2004 Tax liens that are on the
         marital home shall be paid out of the net
         proceeds from the sale of the Marital Home.

         b. Other than as set forth in Paragraph
         2.7(a) above, any and all debt in the name
         of the Husband shall be the sole
         responsibility of the Husband, and the
         Husband shall hold the Wife harmless and
         indemnify her for any and all liability for
         any such debt. . . .

         c. Other than as set forth in Paragraph
         2.7(a) above, any and all debt in the name
                               3
                                                        A-4292-15T1
         of the Wife shall be the sole responsibility
         of the Wife, and the Wife shall hold the
         husband harmless and indemnify her for any
         and all liability for any such debt. . . .

    In addition, paragraph 3.2 states:

         The parties acknowledge there are tax liens
         on the marital property for the years of
         1999-2004 for which they had not filed their
         tax returns. They agree to pay off the tax
         liens out of the net proceeds from the sale
         of the marital home.

    Finally, paragraph 3.3 provides:

         The parties agree that all tax liabilities
         pursuant to this Agreement, and other than
         for the tax years 1999-2004, shall be the
         sole responsibility of the respective
         parties and each agrees to hold the other
         harmless for any past, present, or future,
         tax liabilities assessed against either one
         of the [parties] for state or federal income
         taxes.

    During the marriage, plaintiff and his mother co-owned a

business known as Kellers Auto Electric.   They failed to pay

taxes to the State of New Jersey due in 1996 and 1997.    By the

time the house sold in 2015, these taxes were, in the aggregate,

$130,175.62, including interest and penalties.     These particular

taxes were not specifically addressed in the MSA.

    At the time of the closing, the parties did not appear, but

their real estate attorney did and signed documents on the

parties' behalf pursuant to a power of attorney.    Out of the net

sale proceeds, various sums were allocated between the parties
                                4
                                                           A-4292-15T1
to pay certain debts in accordance with the MSA.   The parties'

attorney also signed an addendum on behalf of plaintiff that

made him entirely responsible for the tax debt owed to the

State.

    After the closing, defendant filed a motion to enforce

certain provisions of the MSA, and plaintiff filed a cross-

motion seeking, among other things, the following relief.

First, plaintiff sought to have defendant contribute toward the

tax payments he made through the garnishment of his wages.      He

contended the MSA makes clear the parties were to contribute

equally toward all of the taxes owed to the IRS, not just the

balance owed to the IRS at the time of the closing.

    Plaintiff also sought to vacate the MSA, maintaining he had

not been aware of the tax debt owed to the State before entering

into the MSA.   He claimed had he known of such debt, he would

have not have agreed to the terms of the MSA unless it provided

defendant was also responsible for these taxes.

    The court rejected plaintiff's arguments and denied both

requests for relief.   The court reasoned because the MSA did not

expressly state defendant was responsible for the IRS debt

garnished from plaintiff's wages, it could not compel her to

contribute toward these taxes.   As for the taxes paid to the

State, the court's principal finding was plaintiff was aware of
                                5
                                                         A-4292-15T1
this debt before he entered into the MSA; thus, he had no

grounds to complain the MSA did not compel defendant to pay

toward this debt.

                                  II

    On appeal, plaintiff contends the court erred when it

denied his requests for relief.    Plaintiff essentially reprises

the arguments made before the Family Part court, though added

some additional arguments.

    Addressing plaintiff's request to vacate the MSA, we

disagree the court erred.    The record is clear plaintiff knew of

the taxes owed to the State before he entered into the MSA, as

demonstrated by the letters exchanged between counsel well

before plaintiff signed the agreement.    We affirm the court's

decision denying this relief for essentially the same reasons it

expressed in its written decision accompanying the May 5, 2016

order.

    We further observe paragraph 3.3 of the MSA clearly states

all tax debt, other than that incurred from 1999 to 2004, shall

be "the sole responsibility of the respective parties and each

agrees to hold the other harmless for any past, present, or

future, tax liabilities assessed against either one of the

[parties] for state or federal income taxes."    We are satisfied

the parties agreed defendant is not responsible for any of the
                                6
                                                          A-4292-15T1
tax debt owed to the State.    However, we disagree with the

Family Part court's decision to reject, without an evidential

hearing, plaintiff's request to compel defendant to contribute

toward those tax payments he made through the garnishment of his

wages.

    Review of a trial court's interpretation of an agreement is

de novo.   Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone

Research, Inc., 427 N.J. Super. 45, 57 (App. Div.), certif.

denied, 212 N.J. 460 (2012).   The reviewing court must evaluate

the common intention of the parties and the purpose they tried

to achieve.   Tessmar v. Grosner, 23 N.J. 193, 201 (1957).     The

"court's role is to consider what is 'written in the context of

the circumstances' at the time of drafting and to apply 'a

rational meaning in keeping with the expressed general

purpose.'"    Sachau v. Sachau, 206 N.J. 1, 5-6 (2011).   "To the

extent that there is any ambiguity in the expression of the

terms of a settlement agreement, a hearing may be necessary to

discern the intent of the parties at the time the agreement was

entered and to implement that intent."    Quinn v. Quinn, 225 N.J.

34, 45 (2016) (citing Pacifico v. Pacifico, 190 N.J. 258, 267

(2007)).

     Here, the MSA contains language that can be understood to

mean only the existing debt at the time of the house sale should
                                7
                                                           A-4292-15T1
be paid out of the proceeds.     On the other hand, there is also

language that can be construed to mean the parties were to share

equally all of this debt.1   In our view, the ambiguity in the

agreement requires a plenary hearing so the court may properly

discern parties' intentions and whether they agreed defendant is

to contribute toward the debt garnished by the IRS.

Accordingly, we remand this matter so the court may conduct a

plenary hearing on this issue.

     To the extent we have not addressed a particular argument,

it is because either our disposition makes it unnecessary or the

argument was without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

     Affirmed in part and remanded for further proceedings

consistent with this opinion.    We do not retain jurisdiction.




1
     We question, without deciding, whether plaintiff would be
entitled to any reimbursement of those wages paid to the IRS
before the complaint was filed, but leave such consideration to
the Family Part court.
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                                                           A-4292-15T1
