MATTHEW W. CROSSKEN VS. JULI R. CROSSKEN (FM-15-0827-15, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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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.
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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.
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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
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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
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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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