SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3758-16T4

M.M.,

Plaintiff-Respondent,

v.

J.M.,

Defendant-Appellant.

_______________________________

Submitted August 21, 2018 – Decided

Before Judges Messano and Geiger.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Sussex County, 

Docket No. FM-19-0181-11.

J.M., appellant pro se.

M.M., respondent pro se.

PER CURIAM

Defendant J.M. appeals from that portion of a March 31, 2017 

order denying his post-judgment motion to terminate alimony 

without prejudice. For the following reasons, we vacate and 

remand. 

NOT FOR PUBLICATION WITHOUT THE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.

August 24, 2018
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Plaintiff M.M. and defendant were married on June 18, 1983. 

Three children were born of the marriage. After experiencing 

marital difficulties, the parties participated in mediation. On 

September 8, 2010, an unsigned written Memorandum of Understanding 

(MOU) reflecting certain agreements reached by them during 

mediation was prepared. The following month, the parties entered 

into a written Property Settlement Agreement (PSA) which appended 

the MOU as Exhibit A. Two days later, plaintiff filed for divorce. 

The parties were not represented by counsel in the divorce action. 

A final judgment of divorce (FJOD) was entered on January 3, 2011. 

The FJOD incorporated the terms of the PSA.

Pertinent to this appeal, the MOU states: "This document 

reflects certain agreements reached by the parties during 

mediation. The terms described in this memorandum shall not be 

binding until they are incorporated into a Settlement Agreement 

prepared by the parties' attorneys and signed by the parties." As 

to alimony, the MOU states:

19. Alimony:

A. Beginning upon the closing of title 

on the marital home, [J.M.] will pay [M.M.]

permanent alimony in the amount of $100 per 

week. Alimony shall be payable through Family 

Support Services. The alimony and child 

support agreements set forth herein are based 

on [J.M.'s] current income of approximately 

$72,000 per annum and [M.M.'s] income of 

$57,000 per annum. 
3 A-3758-16T4

B. Alimony shall be taxable to [M.M.]

and tax deductible by [J.M.]. Alimony shall 

terminate upon either party's death or 

[M.M.'s] remarriage. [M.M.'s] cohabitation 

with an unrelated adult in a relationship 

tantamount to marriage shall be a reevaluation event allowing [J.M.] the right to 

seek a review of alimony. 

[(emphasis added).]

In turn, the PSA states:

WHEREAS, the Husband and Wife are desirous of 

settling the questions of custody, visitation, 

alimony, child support, equitable 

distribution, sale of the marital residence 

and costs if any, and all other matters 

arising out of the marital relationship; the 

intention being that their future relations 

shall be governed and fully prescribed by the 

terms of this Settlement Agreement and 

Memorandum of Understanding prepared by 

Divorce Mediator, Amy Z. Shimalla, Esq.; 

attached hereto as Exhibit A . . . [.] 

[(emphasis added).]

The PSA also contains the following specific language regarding 

alimony: 

8.1 Pursuant to N.J.S.A. 2A:34-23, the 

parties have considered the factors with 

respect to spousal maintenance ("alimony"), 

including the standard of living during the 

marriage. The Husband shall pay the Wife as 

unallocated, tax-free alimony, the total 

monthly sum of $100 per week pursuant to the 

Memorandum of Understanding dated September 8, 

2010 commencing upon the sale of the marital 

residence. A copy of the Memorandum of 

Understanding is attached hereto as Exhibit 

A. Said alimony amount shall be adjusted 
4 A-3758-16T4

every two (2) years to reflect the cost of 

living. The alimony shall be paid directly 

to the Family Support Services until the 

happening of the first of the following:

(a) death of Husband;

(b) death of Wife;

(c) the child attaining the age of 18, 

unless the child is still enrolled 

in an undergraduate program of 

higher education or vocational 

school after attaining the age of 

18, in which event the child shall 

be deemed emancipated upon the 

earlier of (A) attaining age 23, or 

(B) graduation from such program, if 

continued without unreasonable 

interruption. 

[(emphasis added).]

On February 6, 2016, defendant moved to emancipate the 

parties' youngest daughter, effective October 21, 2016; require 

plaintiff to repay any child support overpayments made by defendant 

after October 21, 2016; terminate alimony; and award him counsel 

fees and costs for the motion. Plaintiff opposed the motion. The 

motion judge granted defendant's application to emancipate their 

youngest daughter effective October 21, 2016, but denied the 

remaining aspects of his motion without prejudice. This appeal 

is limited to the denial of defendant's application to terminate 

alimony. Plaintiff did not file a cross-appeal.
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In his oral decision, the motion judge stated the following 

basis for denying defendant's motion to terminate alimony without 

prejudice:

Defendant further requests termination 

of alimony. But he cites no basis for his 

requests. While he attached the PSA, the 

plaintiff properly notes that he failed to 

attach the entire PSA including specifically 

the memorandum of understanding that is 

incorporated therein by reference within 

Section 8 of the PSA. Section 8 of the PSA 

and memorandum of understanding clearly 

indicate that the parties agree that alimony 

was intended to be permanent. And that the 

Court will not disturb that agreement between 

the parties. 

Curiously, within his reply 

certification the defendant fails to address 

his request for termination of alimony or his 

omission of the memorandum of understanding 

from his motion. Defendant[']s omission and 

failure to explain or justify his request 

clearly makes the Court question whether the 

defendant's request was brought in good faith. 

In a supplemental written statement of reasons, the motion judge 

reiterated the same reasoning. This appeal followed. 

Defendant contends the trial court erred in not terminating 

his alimony obligation. He argues that Paragraph 8.1 of the PSA 

expressly provides for the termination of alimony upon their 

youngest child attaining the age of eighteen, or if enrolled in 

higher education or vocational school, upon the earlier of the 

child attaining age 23 or graduating from such program. He notes 
6 A-3758-16T4

this language is identical to the child support termination 

language contained in Paragraph 9.1 of the PSA. Although 

recognizing the MOU states that alimony is permanent, he asserts 

"the PSA, a subsequent and more comprehensive document than the

MOU does NOT state that alimony is permanent and added alimony 

termination language, that alimony would terminate upon 

emancipation of the child." Defendant argues "[t]he additional 

alimony termination language of the PSA takes precedence over the 

MOU."

Plaintiff argues the terms and provisions of the MOU were 

incorporated into the PSA and, consequently, "[t]he MOU is not a 

stand-alone, separate document that should be superseded as 

[defendant] alleges." Plaintiff notes that in her divorce 

complaint, she demanded an award of permanent alimony pursuant to 

the PSA and the MOU attached thereto as Exhibit A.

Plaintiff notes defendant did not allege any reduction in 

income or change in circumstances other than the age and 

emancipation of their youngest daughter. She also notes defendant 

filed a procedurally and substantively deficient Case Information 

Statement (CIS).

Neither party indicated whether any additional negotiations 

regarding alimony took place between the mediation and the 

preparation of the PSA. Nor does the record reflect who prepared 
7 A-3758-16T4

the PSA, much less contain an affidavit or certification of the 

preparer. 

Our review of a Family Part's order is limited. Cesare v. 

Cesare, 154 N.J. 394, 411 (1998). We review decisions granting 

or denying applications to modify or terminate alimony for an 

abuse of discretion. Storey v. Storey, 373 N.J. Super. 464, 479 

(App. Div. 2004). "[W]e do not overturn those determinations 

unless the court abused its discretion, failed to consider 

controlling legal principles or made findings inconsistent with 

or unsupported by competent evidence. Ibid. (citing Tash v. Tash, 

353 N.J. Super. 94, 99 (App. Div. 2002); Rolnick v. Rolnick, 262 

N.J. Super. 343, 359-60 (App. Div. 1993)). However, construction 

of the terms of a contract is a question of law "subject to de 

novo review by an appellate court. "Accordingly, we pay no special 

deference to the trial court's interpretation and look at the 

contract with fresh eyes." Kieffer v. Best Buy, 205 N.J. 213, 

222-23 (2011) (citations omitted). 

The "polestar" of contract interpretation is "the intention 

of the parties . . . as revealed by the language used, taken as 

an entirety." Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 

301 (1953). See also Jacobs v. Great Pac. Century Corp, 104 N.J. 

580, 582 (1986). To discover the intention of the parties, and 

to determine whether a contract is ambiguous, courts may consider 
8 A-3758-16T4

extrinsic evidence offered in support of conflicting 

interpretations. Conway v. 287 Corporate Ctr. Ass'n, 187 N.J. 

259, 268-69 (2006). "Extrinsic evidence may include the structure 

of the contract, the bargaining history, and the conduct of the 

parties that reflects their understanding of the contract's 

meaning." Teamsters Indus. Emp. Welfare Fund v. Rolls-Royce Motor 

Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993). See also Restatement 

(Second) of Contracts § 214(c) (Am. Law Inst. 1981) ("Negotiations 

prior to . . . adoption of a writing are admissible in evidence 

to establish . . . the meaning of the writing, whether or not 

integrated").

A contract is ambiguous if it is susceptible to two reasonable 

alternative interpretations. Chubb Custom Ins. Co. v. Prudential 

Ins. Co. of Am., 195 N.J. 231, 238 (2008). Resolution of 

ambiguity, if found, is a fact issue. Michaels v. Brookchester, 

Inc., 26 N.J. 379, 388 (1958). As we have repeatedly emphasized, 

motion judges must not "resolve material factual disputes upon 

conflicting affidavits and certifications." Harrington v. 

Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995) (citations 

omitted). However, a plenary hearing is required to resolve an 

ambiguous contract only if, after considering all relevant 

materials, a genuine issue of fact remains. See Teamsters Indus. 

Emp. Welfare Fund, 989 F.2d at 135-137. 
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The motion judge concluded the MOU and PSA "clearly indicate 

that the parties agree that alimony was intended to be permanent." 

We disagree. The conflicting language of the MOU and PSA created 

an ambiguity which required the court to determine the parties' 

intent regarding whether the alimony was permanent or could be 

terminated upon the occurrence of specified events. Resolution 

of that issue could not be accomplished by merely examining the 

conflicting language of the documents. Instead, determination of 

whether additional negotiations after the mediation lead to an 

agreement for the termination as set forth in paragraph 8.1(c) is 

critical to resolving the ambiguity.

Based on this record, we are unable to determine the intent 

of the parties regarding the permanency or termination of alimony. 

We vacate the denial of defendant's motion to terminate alimony 

and remand for further proceedings consistent with this opinion. 

Those proceedings should focus on whether the parties engaged in 

additional alimony negotiations after the mediation, and if so, 

the results of that negotiation, and if not, whether the inclusion 

of paragraph 8.1(c) was a mere scrivener's error.1 We leave it to 

the sound discretion of the remand court to determine if discovery 

 

1 We note paragraph 8.1(c) is identical to the language of 

paragraph 9.1(j) regarding termination of child support due to 

emancipation.
10 A-3758-16T4

should be permitted and whether a plenary hearing is necessary. 

See Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012)

(citations omitted). 

We recognize defendant did not provide evidence regarding the 

intention of the parties in agreeing to the conflicting alimony 

provisions in the MOU and PSA. Nor did he make a prima facie 

showing of changed financial circumstances. Nonetheless, the 

emancipation triggers termination of alimony if paragraph 8.1(c) 

is enforceable. Thus, the ambiguity of the contractual terms 

presents a factual issue warranting further proceedings to 

determine the parties' intent.

Vacated and remanded. We do not retain jurisdiction.