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November 26, 2014


Before Judges Lihotz, Maven and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2373-07.

Philip Oppong-Manu, appellant pro se.

Veronica R. Norgaard, attorney for respondent.

The opinion of the court was delivered by


In this post-judgment matrimonial case, defendant ex-husband appeals from the Family Part orders entered on July 27 and September 14, 2012, enforcing the parties' property settlement agreement (PSA) with respect to plaintiff's right to receive $22,672.50 as her share of the equity in the former marital home, and her right to claim one child as a tax exemption. Defendant also appeals from the court's award of attorney's fees to plaintiff. While we find the judge correctly ruled on the tax exemption issue, in light of the conflicting provisions of the PSA and the parties' conflicting certifications regarding material disputed facts, we conclude the court erred by proceeding summarily on enforcement of equitable distribution requests without oral argument or an evidentiary hearing. We also find no basis for the award of attorney's fees to plaintiff. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

The parties married in 1991 and divorced on January 8, 2008. They had two children, born in 1993 and 1997. Represented by counsel, the parties signed the PSA on the date of their divorce. The PSA designated defendant as the parent of primary residence of the two children. Defendant waived child support in exchange for plaintiff's waiver of alimony.

Article VII of the PSA addressed the disposition of the former marital home. Paragraph 7.1 specifically provided, in pertinent part

Both parties are entitled to [fifty percent] of the equity and the Husband agrees to [buy out] Wife's portion of the residence. If Husband does not get approved for such a loan or cannot buy the Wife out for her portion of the equity, then the house shall be sold and the proceeds [shall] be split [evenly] between the parties.

Following paragraph 7.1, the PSA contained the following three non-numbered paragraphs

The parties agree that the fair market value of the marital home is $435,000.00 with a principal mortgage of $339,655.00 and an equity line of credit of $80,000.00. Therefore, the equity in the home is $15,345.00. Wife shall be entitled to $7,672.50 from the equity of the home.

From the $80,000.00 home equity line of credit the parties used approximately $30,000.00 on home improvements and the Wife received $10,000.00. Therefore, there is approximately $40,000.00 remaining. Wife shall be entitled to 50% less the $10,000.00 advance she already received, therefore she shall receive $15,000.00 additional from the home equity line of credit.

Therefore, wife shall be entitled to a total of $22,672.50 from the home. Wife agrees to sign any necessary documentation to transfer title to the above property. Husband shall have [sixty] days to refinance the property. Payment of these moneys shall be within [seven] days from the refinance of the home or sale of the home if refinance [does not] occur.

In June 2012, plaintiff filed a motion to enforce litigant's rights to compel defendant to pay her $22,672.50, representing her equity in the former marital home, as well as to allow her to claim one of the children as a tax exemption. In response, defendant certified that he was not successful in his attempts to refinance the home, and explained that the value of the home had dropped significantly "due to the collapse of the real estate market," and that the home was "underwater by over $100,000." Defendant did not submit any documentation regarding his unsuccessful attempts to refinance. Defendant did submit an appraisal indicating that the market value of the home was $365,000, as of January 1, 2008, and that, as of July 7, 2012, the value had declined to $325,000. Defendant argued the PSA provided for the possibility he would be unable to refinance and called for the sale of the home and the equal division of any proceeds. Defendant also claimed plaintiff was uncooperative with his efforts to complete a short sale of the home, and filed a cross-motion seeking to compel plaintiff's cooperation with such a sale.

In reply, plaintiff's counsel submitted a certification citing the $40,000 balance on the parties' home equity line of credit (HELOC), and argued it should have been used to pay plaintiff when defendant was unable to refinance the mortgage. Instead, she claimed defendant used the remaining line of credit to install a new bathroom in the home and to pay for "an extravagant wedding" to his new wife.

The judge declined plaintiff's request for oral argument. Despite the arguably conflicting language of the PSA,1 and the disputed claims of the parties, the judge also decided the motions without a plenary hearing.

The motion judge found defendant in violation of litigant's rights and ordered him to pay plaintiff "$22,672.50 plus interest" within thirty days; she also ordered plaintiff to cooperate in a short sale of the home. The judge did not address the contingent provisions in the PSA, but instead focused on the non-numbered paragraphs following paragraph 7.1, concluding that

[T]the parties[] agreed to the fair market value of the property and the amount of equity in the home and the parties['] shares of such equity. Additionally, [p]laintiff certifies that at the time of the divorce the parties had $40,000 remaining on the home equity line of credit from which [d]efendant could have paid plaintiff her share.

No additional explanation or findings supporting this conclusion was provided.

Defendant promptly filed for reconsideration, arguing the language contained in paragraph 7.1 controlled. He further disputed plaintiff's claim that $40,000 remained available on the HELOC at the time of the divorce, and submitted the January 21, 2008 HELOC statement showing an "available credit" of $11,659. The statement also indicated two advances from the credit line after the PSA was signed, one for $310 on January 14, 2008, and one for $10,500 on January 18, 2008, as well as one payment of interest on the line of credit for $332.06 on January 13, 2008.2 Defendant further asserted that he paid plaintiff $10,500 from the credit line, ostensibly from the January 18, 2008 advance.3 Defendant also refuted the claim he used the HELOC to pay for his wedding, explaining that his wife's family largely paid for the wedding, which did not occur until June 2011. Defendant requested oral argument.

Plaintiff filed opposition as well as a cross-motion for counsel fees. Plaintiff reiterated her position that "[d]efendant agreed to pay me $22,672.50 as part of the divorce agreement;" however, her certification did not address defendant's claim that he had paid her $10,500 from the HELOC. Plaintiff further certified that the parties agreed that the fair market value of the home was $435,000.00 based upon a comparative market analysis which defendant obtained in August 2007.

The judge again declined to hear oral argument and denied defendant's motion, citing the language of the PSA stating $40,000 remained on the HELOC. The judge did not address the January 2008 HELOC statement indicating that only $22,136.94 remained available as of the date of the PSA. The judge granted plaintiff's cross-motion for counsel fees, finding defendant filed the motion in bad faith, and ordered him to pay plaintiff $775 in counsel fees. Defendant then filed this appeal.

Defendant contends the requirement that he pay plaintiff $22,672.50 plus interest is inconsistent with the provision of the PSA that addressed his possible inability to refinance the home, namely that the home would be sold and the parties would instead share any net proceeds equally. Defendant maintains that by ordering the sale of the home and the payment of $22,672.60 to plaintiff, the court enforced the PSA in an unfair and inequitable manner by ignoring the specific terms of the PSA, namely paragraph 7.1. Defendant also challenges the award of counsel fees to plaintiff and the judge's enforcement of the PSA provision requiring the sharing of tax exemptions.

In our view, the parties' pleadings presented conflicting evidence, which in part, may have been clarified by oral argument. The Family Part "shall ordinarily grant requests for oral argument on substantive . . . motions[.]" R. 5:5-4(a). To ensure due process, there is a strong presumption favoring oral argument when substantive issues are raised. Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997); Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:5-4 (2015). Denial of a request for oral argument must be carefully considered as it "deprives litigants of an opportunity to present their case fully to a court." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). During argument, the parties would have clarified their respective positions on the substantive issues and identified what other evidence they relied upon to support their requests. That record allows a more thorough understanding of the issues and whether the evidence is sufficient or whether additional proofs are necessary as presented in an evidentiary hearing. In this matter, the judge's exercised discretion resulting in the denial of oral argument even in the face of conflicting factual presentations alone may not be sufficient to warrant reversal. Cf. Palombi v. Palombi, 414 N.J. Super. 274, 286 (App. Div. 2010). However, our review of the record discerns the evidence offered by the parties presented a material dispute of critical facts which could be resolved only by a plenary hearing.

A trial court must hold a plenary hearing when a motion raises a genuine issue of material fact. Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006). See, e.g., Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), (requiring a hearing when the parties filed contradictory certifications disputing whether the parties had reached final agreement), certif. denied, 142 N.J. 455 (1995); Conforti v. Guliadis, 128 N.J. 318, 322-23 (1992) (requiring a hearing when equity may mandate modification or reformation of a marital settlement agreement).

As noted, the dispute here turned on the interpretation of paragraph 7.1 and the three unnumbered paragraphs that followed in the PSA. Although we apply principles of equity to assure that a matrimonial settlement agreement is fair and just, Petersen v. Petersen, 85 N.J. 638, 642 (1981), we apply contract principles to ascertain an agreement's meaning. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). "Voluntary accommodations regarding matrimonial differences are highly desirable and make a major contribution to the fulfillment of 'the strong public policy favoring stability of arrangements.'" Petersen, supra, 85 N.J. at 645 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

"[I]t is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties." Pacifico, supra, 190 N.J. at 266. If the meaning of the agreement is in dispute, "[t]he 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.'" Ibid. (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)). "[I]n 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." Id. at 301. Thus, in the event of an ambiguity, to discover the intention of the parties, and to determine whether a contract is ambiguous, courts may consider extrinsic evidence offered in support of conflicting interpretations. Conway v. 287 Corp. Ctr. Assocs., 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. Id. at 269. Resolution of ambiguity, if found, is a fact issue. Michaels v. Brookchester, Inc., 26 N.J. 379, 388 (1958). A contract is ambiguous if it is susceptible to two reasonable alternative interpretations. M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002).

Applying these principles, we conclude the trial court mistakenly exercised its discretion by finding that plaintiff was entitled to enforcement of the PSA because more than one reasonable interpretation of the PSA provisions was presented, requiring further review in a plenary hearing. Accordingly, we find it necessary to reverse and remand.

The very limited findings by the trial judge fail to address the parties seemingly supported divergent positions. Contrary to what appears to be the judge's finding, the PSA does not clearly state that plaintiff shall unconditionally receive $22,672.50. Instead, it arguably conditions payment on either defendant successfully refinancing the home or the sale of the home resulting in net proceeds. While paragraph 7.1, standing alone, supports defendant's position, the three non-numbered paragraphs following paragraph 7.1 support plaintiff's position, particularly the acknowledgement that $40,000 remained available on the HELOC, an amount sufficient to satisfy the $22,672.50 plaintiff was to receive. We conclude the contract is ambiguous as the parties have presented two plausible interpretations of the critical contract language a circumstance that could not be resolved based upon the motion record before the court.

Additionally, the PSA expressly states that $40,000 remained on the parties HELOC at the time of the agreement, yet defendant submitted evidence that only $22,136.94 remained available on the date the PSA was executed. The record provides no explanation for this large discrepancy, and the judge did not address it. The judge also did not address defendant's claim that he paid plaintiff $10,500 from the HELOC, a claim that plaintiff did not dispute in her opposing certification. The January HELOC statement does reflect that a $10,500 cash advance occurred on January 18, 2008, which would have been ten days after the parties signed the PSA and were divorced. The record remains unclear, however, whether plaintiff received all or any part of this cash advance.

Based on the unclear language of the PSA, the unresolved dispute as to the amount that remained available on the HELOC loan at the time of the divorce, and the disputed claim as to when the dramatic change in the real estate market occurred, a plenary hearing is required to establish the amount plaintiff should receive under the PSA. Lacking the benefit of findings of credibility and fact, we do not suggest any particular outcome.

In light of our determination of this appeal, we discern no basis for the award of counsel fees to plaintiff as the award was based upon the court's finding that the motion was filed in bad faith. As we conclude the reconsideration motion had merit, we find no evidence of bad faith. Consequently, we reverse the orders on appeal, except for the provision related to enforcement of the portion of the PSA allowing each parent to claim one child as a tax exemption. Defendant did not oppose this portion of plaintiff's enforcement motion. The issue, never presented to the trial court for consideration, is, therefore, not before us in this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" (citation omitted)).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Paragraph 7.1 supports defendant's position while the three non-numbered paragraphs following paragraph 7.1 arguably support plaintiff's position.

2 As a result, it appears that the actual amount available on the HELOC, as of the date of the divorce, was $22,136.94.

3 Although the record is far from clear, this claimed $10,500 payment appears to be separate and apart from the "$10,000 advance [plaintiff] already received," as referenced in the second non-numbered paragraph in the PSA. The $10,500 draw on the HELOC did not occur until January 18, 2008, ten days after the signing of the PSA.