SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1909-17T2

J.H.,

Plaintiff-Respondent,

v.

K.H.,

Defendant-Appellant.

__________________________

Submitted March 28, 2019 – Decided April 29, 2019

Before Judges Whipple and Firko.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex County, 

Docket No. FM-12-2785-16.

LaRocca, Hornik, Rosen, Greenberg & Patti, LLC, 

attorneys for appellant (Gregory L. Grossman, on the 

brief).

Respondent has not filed a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1909-17T2

In this post-judgment matrimonial matter, defendant K.H.1appeals from 

portions of a November 17, 2017 Family Part order denying his motion to vacate 

a September 18, 2017 order obtained by plaintiff J.K. ordering him to pay child 

support as ordered in the parties' property settlement agreement (PSA) 

incorporated into the judgment of divorce and to pay the mortgage on the former 

marital home.

2

 He claims that plaintiff never served him with her motion papers; 

the PSA did not obligate him to pay the mortgage; and that he has a newborn 

child requiring a recalculation of child support. For the reasons that follow, we 

reverse both orders and remand for a plenary hearing to address the 

interpretation of the parties' PSA on the issues of equitable distribution of the 

former marital home, mortgage payments, child support, and for findings of fact 

on the relief granted. 

I.

The parties married in 2004 and divorced in 2016.3 Under the two-page 

PSA prepared by the parties as self-represented litigants, the parties agreed to 

 

1

 We use initials to protect the privacy of the parties. R. 1:38-3(d)(3) and (13).

2

 We entered an order on December 14, 2018 suppressing plaintiff's brief.

3

 A default judgment of divorce (JOD) was granted to plaintiff who appeared 

pro se. The record reflects that defendant did not appear at the final hearing.
3

A-1909-17T2

joint legal custody of their three unemancipated children and plaintiff was 

awarded physical custody. Pertinent to this appeal, the PSA provided for child 

support as follows:

Child [s]upport will be paid by [K.H.] to [J.H.] in the 

amount of $1,250 every two weeks, totaling $2,500 per 

month, and $30,000 annually. Child support will be 

paid on the 15th and last day of the month.

After [C.H.] reaches the ages of [nineteen] or [twentythree] while attending college child support will be 

decreased to: $834 every two weeks totaling $1,667 per 

month, and $20,000 annually.

After [N.H.] reaches the ages of [nineteen] or [twentythree] while attending college child support will be 

decreased to: $417 every two weeks totaling $834 per 

month, and $10,000 annually.

Child support payments will end once [O.H.] reaches 

the ages of [nineteen] or [twenty-three] while attending 

college.

Child support will be setup to be paid through probation 

to [J.H.].

Regarding health insurance, the PSA provided:

Health insurance is covered by [K.H.'s] employer; 

directly deducted from his paycheck in the amounts of 

$618 every [two] weeks totaling $1,236 per month and 

$14,832 annually.

Portions of medical bills not covered by health 

insurance will be split evenly between both parents.
4

A-1909-17T2

Additionally, the parties mutually agreed to waive spousal support. As to 

equitable distribution of the parties' former marital home, the PSA states: 

"[K.H.] agrees to give [J.H.] the property at 69 Evergreen [Avenue], Edison,

[N.J.] 08837 free and clear. [J.H.] will get the property at 69 Evergreen 

[Avenue], Edison, [N.J.] full in her ownership by September 1, 2021." Plaintiff 

continued to reside in the former marital residence with the children postdivorce.

The preamble to the PSA states: "Listed below are the conditions which 

both [J.H.] and [K.H.] agree upon." In the JOD, the trial judge, who was also 

the motion judge, "took no testimony as to the merits of the settlement," and 

found that "the parties entered into it freely and voluntarily, and that it is 

therefore binding and enforceable . . . ." A Uniform Summary Support Order 

(USSO) was filed on August 23, 2016 by the judge setting forth defendant's 

child support obligation in conformity with the PSA.4

On August 11, 2017, plaintiff's attorney filed a notice of motion to enforce 

litigant's rights for defendant's failure to make his child support payments,

resulting in her inability to pay the mortgage, and leading to a foreclosure 

complaint being filed. Counsel fees were also requested. Plaintiff's counsel 

 

4

 See R. 5:7-4.
5

A-1909-17T2

certified that the motion "has been served in the time and manner prescribed by 

the [r]ules of [c]ourt," but he did not indicate the method of service or provide 

proof of service to the judge. A proof of mailing dated August 1, 2017, certified 

to by a legal assistant employed by plaintiff's counsel, states that the notice of 

motion to enforce litigant's rights, certification of defendant, proposed order, 

and proof of mailing were mailed to K.H. via the U.S. Post Office in West New 

York by "mail" to his last known address. 

Despite counsel's representation on service, defendant claims he was 

never served with the motion and thereby had no opportunity to oppose it. 

During the time period that plaintiff's motion was purportedly served on him, 

defendant alleges that he was at home caring for his newborn child and therefore, 

he was subject to service of process. Unaware of plaintiff's pending motion, 

defendant called the probation department regarding his past-due child support 

obligation and he was informed by a probation officer that plaintiff's motion was 

pending and he could file opposition papers. In turn, defendant called the 

judge's chambers and was told to contact plaintiff's counsel, who indicated the 

motion papers would be emailed to defendant, but defendant contends he did not 

receive them before the return date. On the September 15, 2017 return date, 

defendant claims he appeared for oral argument but court staff advised him to 
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A-1909-17T2

leave because he did not file opposition and the motion was being decided as 

unopposed.5 The judge prepared and filed an order on September 18, 2017, 

providing as follows:

1. Plaintiff's motion requesting that the [c]ourt 

adjudicate the [d]efendant in violation of litigant's 

rights regarding child support is GRANTED. See 

attached Statement of Reasons.

2. Plaintiff's motion requesting that the [c]ourt 

adjudicate [d]efendant in violation of litigant's rights 

regarding the property at 69 Evergreen [Avenue]. 

Edison, [N.J.] 08837 is GRANTED.

3. [Plaintiff's] motion requesting that the [c]ourt direct 

the [d]efendant to pay counsel fees [in] the amount of 

$2,500[] to [p]laintiff's [attorney] is DENIED 

WITHOUT PREJUDICE.

4. All other aspects of previous [o]rders not altered 

by this [o]rder remain in effect.

5. Any other claims for relief not expressly addressed 

in the [court's] [o]rder are DENIED WITHOUT 

PREJUDICE.

The judge's Statement of Reasons provided:

1. Enforce Litigant's Rights

a. Child Support

 

5

 The record does not reflect if oral argument was conducted and we were not 

provided with a transcript.
7

A-1909-17T2

The Chancery Division, Family Part has the power to 

enforce its own orders. [D'Angelo] v. [D'Angelo], 208 

N.J. Super. 729, 731 (Ch. Div. 1986). In addition, 

[Rule] 1:10-3 provides relief to litigants for failure of a 

party to comply[] with the terms of an order upon 

application.

In this case, [p]laintiff asks the [c]ourt to adjudicate the 

[d]efendant in violation of [p]laintiff's rights for failure 

to comply with the [PSA] entered into by the parties on 

July 21, 2016 by paying $2,500 per month in child 

support. Under the PSA, "Child [s]upport will be paid 

by [K.H.] to [J.H.] in the amount of $1,250 every two 

weeks." Accordingly, [d]efendant shall satisfy his 

child support payments pursuant to the [PSA].

b. Marital Property

In this case, the July 21, 2016 PSA entered into by the 

parties provides [p]laintiff will get the property at 69 

Evergreen [Avenue], Edison, []. Pursuant to the [PSA], 

"[K.H.] agrees to give [J.H.] the property at 69 

Evergreen [Avenue], Edison, [N.J.] free and clear." 

Plaintiff certifies that the home is now in foreclosure 

proceedings because of the [d]efendant's failure to 

make mortgage payments. Accordingly, the [c]ourt 

orders the [d]efendant to bring his mortgage payments 

current.

2. Counsel Fees

The [c]ourt, in its discretion, may make an allowance 

for counsel fees to be paid by any party to the action to 

a party accorded relief under [Rule] 1:10-3, although 

any allowance made based on an enforcement motion is 

still subject to the provisions of [Rule] 4:42-9. Barr v. 

Barr, 418 N.J. Su[p]er. 18, 46-47 (App. Div. 2011).
8

A-1909-17T2

Here, the [c]ourt finds no bad faith on the part of either 

party. Thus, the parties shall be responsible for their 

own counsel fees at this time.

The order does not reflect whether the judge made any findings as to service of 

plaintiff's motion upon defendant pursuant to Rules 1:5-1(a)6and 4:4-

4(b)(1)(C).7

 

6

 Rule 1:5-1(a) provides in pertinent part:

In all civil actions, unless otherwise provided by rule or 

court order, orders, judgments, pleadings subsequent to 

the original complaint, written motions (not made ex 

parte), briefs, appendices, petitions and other papers 

except a judgment signed by the clerk shall be served 

upon all attorneys of record in the action and upon 

parties appearing pro se . . . .

7

 Rule 4:4-4(b)(1)(C) provides:

(b) Obtaining In Personam Jurisdiction by Substituted 

or Constructive Service.

(C) mailing a copy of the summons and complaint by 

registered or certified mail, return receipt requested, 

and, simultaneously, by ordinary mail to: (1) a 

competent individual of the age of [fourteen] or over, 

addressed to the individual's dwelling house or usual 

place of abode; (2) a minor under the age of [fourteen]

or a mentally incapacitated person, addressed to the 

person or persons on whom service is authorized by 

paragraphs (a)(2) and (a)(3) of this rule . . . .
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A-1909-17T2

On October 4, 2017, defendant, through his counsel, filed a motion 

seeking to vacate the September 18, 2017 order; to deny plaintiff's relief sought 

in her motion; or alternatively, accepting his motion as a cross-motion or a 

motion for reconsideration; to address parenting time issues; to clarify the 

"Division of Assets" clause in the PSA and find that he is not responsible for 

mortgage payments; for a finding that the intention of the parties was for 

plaintiff to have five years to refinance the mortgage into her name only or to 

schedule a plenary hearing on this issue; modifying child support based upon a 

substantial change of circumstances and Other Dependent Deduction (ODD);

8

and for counsel fees and costs. Defendant certified that he "was never served 

with a copy of the motion and therefore was deprived of [his] right to due 

process." In her opposing certification, plaintiff stated defendant "certainly did 

know he received it at his last known address; that['s] what caused him to call 

the court."

Defendant's request for oral argument was denied. An order was filed on 

November 17, 2017 denying his requested relief and providing in relevant part 

as follows:

 

8

 Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, 

Appendix 1X-A to R. 5:6A, www.gannlaw.com (2019).
10 A-1909-17T2

4. Defendant's motion reques[ting] that the [c]ourt

memorialize the current [parenting] plan with the 

[d]efendant having overnights with the children every 

other weekend and liberal visitation during the week as 

well as the parties having three weeks of vacation time 

with the children each, implementing the [c]ourt 

holiday schedule for the parties, and modifying all 

weekday pick-ups of the children by the [d]efendant to 

occur at the children's school upon their dismissal from 

school that day is REFERRED to court-sponsored

mediation.

5. Defendant's motion requesting that the [c]ourt 

clarify the Paragraph of the parties' [PSA] titled 

"Division of Assets" specifically pertaining to the 

division of the former marital home in that the 

[d]efendant is not responsible for the payment of the 

mortgage, and finding that the intention [of the] 

Paragraph is for the [p]laintiff to have five (5) years to 

refinance the mortgage into her name is DENIED 

WITHOUT PREJUDICE. Under the "Division of 

Assets" paragraph of the [PSA] dated 7[/]1/2016, 

"[K.H.] agrees to give [J.H.] the property at 69 

Evergreen [Avenue,] Edison, [N.J.] 08837 free and 

clear. [J.H.] will get the property at 69 Evergreen 

[Avenue,] Edison, [N.J.] full in her ownership by 

September 1, 2021." Accordingly, [d]efendant shall 

deliver the property at 69 Evergreen [Avenue,] Edison, 

[N.J.] to [p]laintiff by September 1, 2021 pursuant to 

the PSA dated 7/21/2016.

6. Defendant's motion requesting that the [c]ourt order 

a plenary hearing to determine the intent of the 

Paragraph of the parties' [PSA] titled "Division of 

Assets" specifically pertaining to the division of the 

[former] marital [home] is DENIED WITHOUT 

PREJUDICE. The PSA dated 7/21/2016 

unambiguously requires [d]efendant to deliver the 
11 A-1909-17T2

property at 69 Evergreen [Avenue,] Edison, [N.J.] to 

[p]laintiff by September 1, 2021. Accordingly, a 

plenary hearing will not be ordered at this [time].

7. Defendant's motion requesting that the [c]ourt 

modify child support and set an arrears payback for any 

accrued arrears based upon a substantial change of 

circumstances and an [ODD] is GRANTED IN PART. 

The parties established a child support agreement in the 

PSA dated 7/21/2016. Subsequent to the agreement 

entered into by the parties, [d]efendant had a child, 

[E.M.H.] [in] October [] 2016. The birth of 

[d]efendant's new child constitutes a change in 

circumstances warranting a modification of child 

support under [Lepis] v. [Lepis], 83 N.J. 139 (1980). 

Accordingly, both parties shall submit all relevant 

financial documentation within thirty (30) days of this 

order including their tax returns, three most recent pay 

stubs, and CIS.9 It is noted that [the] [ODD] is applied 

only if the serial parent provides the financial 

[information] of the other parent of the child or children 

for whom the [ODD] is requested. Accordingly, 

[d]efendant shall submit the financial documentation of 

the [partner] with which he shares the new child.

8. Defendant's motion requesting that counsel fees and 

costs for the within application be paid to LaRocca 

Hornik Rosen Greenberg Patti, LLC, within ten (10) 

days is DENIED WITHOUT PREJUDICE. When 

deciding whether to award counsel fees, the trial judge 

must consider the requesting party's need, the 

requesting party's financial ability to pay, and the 

requesting party's good faith in instituting or defending 

the action. Williams v. Williams, 59 N.J. 229, 223 

(1971). The court finds no bad faith on the part of either 

 

9

 Case Information Statement. See R. 5:5-2.
12 A-1909-17T2

party. Accordingly, the [plaintiff] and [d]efendant's 

request for counsel fees is denied.

On appeal, defendant contends the judge's findings are not supported by 

adequate, competent evidence, the September 18, 2017 order must be vacated 

pursuant to Rule 4:50-1 due to excusable neglect and to prevent an unjust, 

oppressive and inequitable outcome, and that a genuine dispute as to material 

facts warrants a plenary hearing as to the parties' intention relative to equitable 

distribution of the former marital home and what was the intention of the parties. 

II.

New Jersey has long espoused a policy favoring the use of consensual 

agreements to resolve controversies, and "[s]ettlement of disputes, including 

matrimonial disputes, is encouraged and highly valued in our system." Quinn 

v. Quinn, 225 N.J. 34, 44 (2016). "An agreement that resolves a matrimonial 

dispute is no less a contract than an agreement to resolve a business dispute[,]" 

and "is governed by basic contract principles." Id. at 45. "Among those 

principles are that courts should discern and implement the intentions of the 

parties[,]" and not "rewrite or revise an agreement when the intent of the parties 

is clear." Ibid. "Thus, when the intent of the parties is plain and the language 

is clear and unambiguous, a court must enforce the agreement as written, unless 

doing so would lead to an absurd result." Ibid. However, "[t]o the extent that 
13 A-1909-17T2

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." Ibid.

Although we are obliged to defer to the factual findings 

and discretionary decisions made by the Family Part 

due to the specialized nature of the court, a question 

regarding the interpretation or construction of a 

contract is a legal one and our review is plenary, with 

no special deference to the trial judge's interpretation of 

the law and the legal consequences that flow from the 

established facts.

[Barr, 418 N.J. Super. at 31 (citation omitted).]

It is well-established that matrimonial agreements, like the PSA in this 

case, are basically contractual in nature. Pacifico v. Pacifico, 190 N.J. 258, 265-

66 (2007). Thus, its interpretation is subject to de novo review on appeal. 

Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); see Kaur v. Assured Lending 

Corp., 405 N.J. Super. 468, 474 (App. Div. 2009) (reviewing the enforcement 

of a settlement agreement de novo).

While we recognize "[t]he basic contractual nature of matrimonial 

agreements[,]" Sachau v. Sachau, 206 N.J. 1, 5 (2011), we grant "particular 

leniency to agreements made in the domestic arena" and allow the Family Part 

"greater discretion when interpreting such agreements." Ibid. (quoting 

Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). 
14 A-1909-17T2

Nonetheless, New Jersey has a strong public policy favoring the enforcement of 

PSAs. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). As a result, 

these agreements are approached with the presumption that they are valid and 

enforceable, and will be enforced "if they are fair and equitable." Ibid. Indeed, 

"fair and definitive arrangements arrived at by mutual consent should not be 

unnecessarily or lightly disturbed[,]" Quinn, 225 N.J. at 44 (quoting Konzelman 

v. Konzelman, 158 N.J. 185, 193-94 (1999)), and "a court should not rewrite a 

contract or grant a better deal than that for which the parties expressly 

bargained." Id. at 45. 

Regarding the former marital home, the judge improvidently found, 

contrary to the PSA terms, that the "home is now in foreclosure proceedings 

because of the [d]efendant's failure to make mortgage payments." No where is 

it specified in the PSA that defendant is supposed to pay the mortgage—he 

agreed to pay child support. In her August 9, 2017 moving certification, plaintiff 

certified that she could afford to pay the $1,750 monthly mortgage based on 

defendant paying $2,500 in monthly child support. She did not certify that 

defendant was responsible to pay the mortgage directly. After a joint petition in 

bankruptcy was filed and dismissed because defendant failed to make approved 

payments of $331 per month, plaintiff argued that the mortgage payments 
15 A-1909-17T2

continued to be in default and defendant failed to pay child support, 

accumulating $8,435.26 in arrearages owed as of August 1, 2017. Plaintiff also 

certified that defendant failed "to pay the health insurance for the children[,]" 

and "[t]he only reason children have insurance now is because they are covered 

by the State." Her certification was deficient for failing to annex any prior or 

current CIS's as required by Rule 5:5-2(a). Nonetheless, the judge's inquiry 

should not have ended on the basis of plaintiff's certification alone. 

"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, 225 N.J. at 45. In making that determination, courts look to the 

"language used, the situation of the parties, the attendant circumstances, and the 

objects the parties were striving to attain." Barr, 418 N.J. Super. at 32 (quoting 

Celanese Ltd. v. Essex Cty. Improvement Auth., 404 N.J. Super. 514, 528 (App. 

Div. 2009)).

Further, nothing in the PSA authorized the judge to order defendant "to 

bring his mortgage payments current," and in essence, he re-wrote the PSA. The 

phrase in the PSA stating K.H. agrees to give J.H. the Edison property "free and 

clear" by September 1, 2021 is ambiguous and warrants discovery and testimony 
16 A-1909-17T2

to ascertain the meaning of their agreement on this issue. We therefore vacate 

the September 18, 2017 order and remand this matter for a plenary hearing on 

the issue of what the intention of the parties was relative to equitable distribution 

of the former marital home.

III.

Defendant further argues that the trial judge failed to comply with Rule

1:7-4(a) which provides:

(a) Required Findings. The court shall, by an opinion 

or memorandum decision, either written or oral, find 

the facts and state its conclusions of law thereon in all 

actions tried without a jury, on every motion decided 

by a written order that is appealable as of right . . . . 

The court shall thereupon enter or direct the entry of the 

appropriate judgment.

"Meaningful appellate review is inhibited unless the judge sets forth the 

reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 

(App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 

1990)). "Naked conclusions do not satisfy the purpose of [Rule] 1:7-4." Curtis 

v. Finneran, 83 N.J. 563, 570 (1980). Here, the trial judge made insufficient 

findings and conclusions of law. The September 18, 2017 order merely states 

each item of relief sought by plaintiff as "granted" or "denied without prejudice," 
17 A-1909-17T2

and a conclusory Statement of Reasons was attached to the order without the 

requisite analysis mandated by the rule.

On a similar note, the judge's November 17, 2017 order, decided on the 

papers, lacks appropriate Rule 1:7-4(c) findings, warranting our vacating of said 

order as well and remanding for a plenary hearing. No meaningful statement of 

reasons were provided with this order, and defendant's potential, meritorious 

defenses were not given due consideration by the judge.

IV.

On appeal, defendant also argues that the judge erred in denying oral 

argument on his motion, which is permitted under Rule 5:5-4(a) when 

significant substantive issues are raised. Defendant argues that the judge 

"interpreted the disposition of the former marital home which was under 

material, genuine, factual dispute by the parties by way of their competing 

certifications . . . ." He further argues that no findings were made as to the 

"legitimacy – or, illegitimacy – of [his] argument[,]" instead of relying upon 

"adequate, substantial, credible evidence[,]" pursuant to Gnall v. Gnall, 222 

N.J. 414, 428 (2015). We agree.

Likewise, courts have noted that litigants should be permitted oral 

argument of motions other than calendar matters and routine discovery 
18 A-1909-17T2

applications when requested "as a matter both of due process and the appearance 

of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997); 

see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 5:5-4 

(2019) ("[T]here is a strong presumption favoring argument of motions other 

than calendar matters and routine discovery applications.").

To that end, Rule 5:5-4(a) expressly provides:

Motions in family actions shall be governed by [Rule] 

1:6-2(b) except that, in exercising its discretion as to 

the mode and scheduling of disposition of motions, the 

court shall ordinarily grant requests for oral argument 

on substantive and non-routine discovery motions and 

ordinarily deny requests for oral argument on calendar 

and routine discovery motions.

Our jurisprudence has held:

The discretion afforded by Rule 5:5-4(a) is designed to 

give the judge "the option of dispensing with oral 

argument . . . when no evidence beyond the motion 

papers themselves and whatever else is already in the 

record is necessary to a decision. In short, it is the sole 

purpose of these rules to dispense with what is regarded 

as unnecessary or unproductive advocacy." 

[Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. 

Div. 2010) (alteration in original) (quoting Fusco v. 

Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982))].
19 A-1909-17T2

However, a judge's "inquiry does not end simply because the nature of an 

issue presented can be labeled as pertaining to a substantive issue" or when the 

parties disagree on all facts. Id. at 286. 

Other circumstances, such as the sufficiency of the 

supporting facts alleged are also relevant to the exercise 

of discretion. This is particularly true in the case of 

motions that seek a modification of financial 

obligations . . . because the movant must satisfy certain 

requirements before these motions are ripe for decision 

by the court.

[Ibid.] 

Because the issues here were significant and involve conflicting 

certifications as to the interpretation of the PSA, oral argument should have been 

afforded to the parties.

V.

The judge correctly found that defendant's request for a recalculation of 

child support based on changed circumstances, taking into account an ODD for 

his new child was warranted and "is applied only if the serial parent provides 

the financial information of the other parent of the child . . . ." Defendant was 

directed to "submit the financial documentation of the partner with which he 

shares the new child." On remand, the judge shall determine if the ODD 

calculation warrants a plenary hearing.
20 A-1909-17T2

In light of our decision, we need not address the other arguments raised 

by defendant in his brief.

In sum, we reverse the trial court's determinations that are the subject of 

this appeal, and remand for a plenary hearing to ascertain the parties' intent at 

the time the PSA was entered; and to address the ODD request by defendant; 

and to make findings of fact in respect of adjudicating defendant in violation of 

litigant's rights. The court shall conduct a case management conference within 

thirty days to review exchange of any appropriate discovery.

Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.