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 

NOT FOR PUBLICATION WITHOUT THE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-5383-16T2

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 
3 A-5383-16T2

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 
4 A-5383-16T2

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.
5 A-5383-16T2

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.
6 A-5383-16T2

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.
7 A-5383-16T2

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 
8 A-5383-16T2

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 
9 A-5383-16T2

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.