ALISA FORMAN VS. MARK FORMAN (FM-13-0785-11, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2017
• Docket: A-1904-14T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 only binding 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-1904-14T2

ALISA FORMAN,

Plaintiff-Respondent,

v.

MARK FORMAN,

Defendant-Appellant.

________________________________________________________________

Argued September 14, 2016 – Decided July 24, 2017

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0785-11.

Edward P. Fradkin argued the cause for appellant.

Sylvia S. Costantino argued the cause for respondent (Law Offices of Sylvia S. Costantino, attorneys; Ms. Costantino and William G. Blum, on the brief).

PER CURIAM

The parties entered into a marital settlement agreement (MSA)

that provided for limited duration alimony and included waivers

of the right to seek modification or termination but did not state what consequence, if any, the wife's remarriage would have on the

husband's alimony obligation. Defendant Mark Forman appeals from

an order that, in part, denied his cross-motion to terminate

alimony. For the reasons that follow, we reverse.

I.

An amended Dual Final Judgment of Divorce was entered on June

8, 2012, which incorporated the MSA of the parties. Paragraph 4.1

of the MSA provided, "Husband shall pay limited duration alimony

in the amount of $120,000.00 per year for a period of five (5)

years payable at the rate of ten thousand dollars ($10,000.00) per

month."

Plaintiff remarried on August 12, 2013. Defendant admits he

ceased making alimony payments to her in February 2014, after

learning of her remarriage.1

In September 2014, plaintiff filed a motion that sought,

inter alia, to enforce the alimony obligation set forth in

Paragraph 4.1 of the MSA. Defendant filed a cross-motion that

sought to terminate his alimony obligation effective the date of

plaintiff's remarriage and other relief, including compelling

plaintiff to produce a copy of her marriage certificate.

1 Defendant asserts that plaintiff concealed her remarriage from him and from their children, who resided with plaintiff. Plaintiff did not respond to this allegation in her corresponding certification but did acknowledge she was remarried on August 12, 2013. 2 A-1904-14T2 Plaintiff contended defendant's alimony obligation was

unaffected by her remarriage and that, pursuant to the terms of

the MSA, his obligation only terminated upon death or the

expiration of the limited duration alimony term.

Paragraph 4.2 of the MSA describes the alimony obligation as

"non-modifiable, non-reviewable and non-terminable for a period

of five (5) years," and states further:

Husband's alimony obligation is non- modifiable under any circumstance and Wife's entitlement thereto shall be guaranteed for the entirety of the five (5) year term of alimony. Similarly, New Jersey case law regarding cohabitation is inapplicable and Wife is free to cohabit. Based upon the foregoing, cohabitation is expressly permitted and shall not cause a review, modification, or termination of alimony.

In Paragraph 4.3, defendant expressly waived the right to

seek application or modification in the event plaintiff cohabited

"as defined by prevailing New Jersey law." Paragraph 4.4 states,

Subject to the foregoing, the Husband's obligation to pay alimony to the Wife shall only cease upon the death of either Party or the expiration of the term set forth in Paragraph [4.12].

Paragraph 4.6 of the MSA also included a mutual waiver of

the right to modify alimony during the limited duration term and

2 It is agreed that Paragraph 3.1 is erroneously referenced in Paragraphs 4.4 and 4.6 and that the correct reference is to Paragraph 4.1. 3 A-1904-14T2 an identification of possible changes in circumstances

anticipated by the parties:

Husband agrees and stipulates that he shall not apply for, nor be entitled to, a reduction or elimination of his alimony obligation during the entire five (5) year term of same. Similarly, wife agrees and stipulates that she shall not apply for, nor be entitled to an increase in the amount of alimony as set forth herein during said period. Both parties knowingly and voluntarily make this concession with the following circumstances in mind:

a. one or both parties [sic] incomes may increase;

b. one or both parties [sic] incomes may decrease;

c. one or both parties may cohabitate with a non-married individual of the opposite sex;

d. one or both parties may have children with another individual in the future;

e. one or both parties may retire.

Both parties acknowledge that they have been advised of the following cases and their progeny: Lepis v. Lepis, 83 N.J. 139 (1980), Gayet v. Gayet, 92 N.J. 149 (1982), Garlinger v. Garlinger, 137 N.J. Super. [56] (App. Div. 1975) and Konzelman v. Konzelman, 158 N.J. 185 (1999). Despite having been advised of same, parties hereby agree to be bound by the terms of this provisions as set forth above and affirm it is with full understanding that they make this permanent waiver of a modification of the alimony obligation herein. As such, the alimony obligation set forth in paragraph [4.1] herein shall remain and continue for at 4 A-1904-14T2 least a period of six (6) [sic] years in accordance with paragraph [4.1] above.

Notably, there is no reference anywhere in the MSA to the

consequence, if any, of plaintiff's remarriage. Defendant argued

that Paragraph 4.6(c) identified specific anticipated

circumstances and did not identify these as examples of

circumstances that were waived as would be the case if the

Paragraph contained the phrase, "including but not limited to."

He argued that because the Paragraph does not include any reference

to remarriage, the parties did not agree to a waiver of the right

to seek modification or termination in the event of plaintiff's

remarriage. Plaintiff countered that the Paragraph should be read

within the context of the entire Article on alimony, which provides

for only two circumstances for the termination of alimony: death

or the expiration of the alimony period.

The trial judge rejected defendant's interpretation of the

MSA and his request for a plenary hearing. The resulting order

provided, in pertinent part:

1. The Plaintiff's motion to enforce the MSA, is GRANTED in part. The MSA does not provide for the limited duration alimony to terminate as a result of the Plaintiff's remarriage.

2. Within thirty (30) days of this order, Defendant shall make current all spousal support payments. If Defendant fails to furnish payment within that time frame, the court will impose a sanction of $100 per day 5 A-1904-14T2 pursuant to its sanction power under R. 1:10- 3, and further issue a bench warrant upon written request by Plaintiff and notice to Defendant.

3. The Plaintiff's motion to compel the Defendant to pay his child support and arrears is GRANTED. Within thirty (30) days, the Defendant will bring current all child support arrears.

4. If Defendant fails to pay, then a judgment shall be entered in favor of Plaintiff, Alisa Forman, in the amount of the alimony arrears, against Defendant, Mark Forman. Plaintiff may record this Judgment as a statewide lien and pursue all remedies available thereafter as a judgment creditor.

5. Hereafter, Probation will issue a bench warrant upon two missed payments by the Defendant.

6. The Defendant's cross-motion to terminate his alimony obligation is DENIED. As set forth previously, the court finds that the parties' MSA creates a non-modifiable obligation for the Defendant to follow through on his obligations for the limited duration of the support.

7. The Defendant's request for reimbursement of alimony from the date of the Plaintiff's remarriage is DENIED.

. . . .

15. The Plaintiff's motion for counsel fees is GRANTED. In review of [her counsel's] certification, the court finds that a counsel fee award of $6580 is appropriate in this case.

16. The Defendant shall pay Plaintiff's counsel $6580 within sixty (60) days.

6 A-1904-14T2 In his appeal, defendant asks that we vacate the November

2014 order, specifically asking that we: terminate his alimony

obligation effective the date of plaintiff's remarriage; order the

reimbursement of all alimony payments made thereafter; vacate the

counsel fee award; reverse the sanctions and bench warrant

provision; and vacate any judgments entered by the court against

him for either alimony arrears or counsel fees. He argues he is

entitled to this relief because the trial judge erred in failing

to terminate his alimony obligation pursuant to Paragraph 4.6(c)

of the MSA and N.J.S.A. 2A:34-25; in compelling the payment of

sanctions, issuing a bench warrant and granting a judgment without

a plenary hearing or an ability-to-pay hearing; and in assessing

counsel fees against him as opposed to in his favor.

II.

Because this appeal concerns the interpretation of a

contract, the MSA, our review is de novo and the trial court's

interpretation is entitled to no special deference. Kieffer v.

Best Buy, 205 N.J. 213, 222-23 (2011).

In construing a contract, we "determine the intention of the

parties as disclosed by the language used, taken as an entirety."

Dontzin v. Myer, 301 N.J. Super. 501, 507 (App. Div. 1997)

(citation omitted). Parsing the parties' intent from the MSA is

7 A-1904-14T2 difficult because neither interpretation proffered by the parties

is patently unreasonable.

"Extrinsic evidence is admissible as an aid to understand the

significance of the contract language, but not to give effect to

an intent at variance with that language." Ibid. Interpretative

devices used to discover the parties' intent "include

consideration of the particular contractual provision, an overview

of all the terms, the circumstances leading up to the formation

of the contract, custom, usage, and the interpretation placed on

the disputed provision by the parties' conduct." Jacobs v. Great

Pac. Century Corp., 104 N.J. 580, 582 (1986) (quoting Kearny PBA

Local #21 v. Town of Kearny, 81 N.J. 208, 221 (1979)).

In Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v.

Lowenstein Sandler, P.C., we noted two principles that seem quite

relevant to the interpretation of the MSA here:

The first interpretative principle, as famously expressed by Judge Learned Hand, is that "[t]here is no surer way to misread any document than to read it literally . . . ." The second interpretive principle is that "[p]arties in New Jersey are . . . presumed to have contracted with reference to the existing law."

[365 N.J. Super. 241, 248 (App. Div. 2003) (alterations in original) (citations omitted).]

"The obligations of a contract long have been regarded as

including not only the express terms but also the contemporaneous 8 A-1904-14T2 state law pertaining to interpretation and enforcement." Chase

Manhattan Mortg. Corp. v. Heritage Square Ass'n, 325 N.J. Super.

42, 51 (Ch. Div. 1998) (quoting U.S. Tr. Co. v. New Jersey, 431

U.S. 1, 19 n.17, 97 S. Ct. 1505, 1516 n.17, 52 L. Ed. 2d 92, 108

n.17 (1977)), aff'd o.b., 325 N.J. Super. 1 (1999). The United

States Supreme Court "has said that 'the laws which subsist at the

time and place of the making of a contract . . . enter into and

form a part of it, as if they were expressly referred to or

incorporated in its terms.'" Ibid. (quoting U.S. Tr. Co., supra,

431 U.S. at 19 n.17, 97 S. Ct. at 1516 n.17, 52 L. Ed. 2d at 108

n.17). It is thus presumed "that contracting parties adopt the

terms of their bargain in reliance on the law in effect at the

time the agreement is reached." Ibid. (quoting U.S. Tr. Co.,

supra, 431 U.S. at 19 n.17, 97 S. Ct. at 1516 n.17, 52 L. Ed. 2d

at 108 n.17).

Prior to 1999, courts were authorized pursuant to N.J.S.A.

2A:34-25 to award two forms of alimony: permanent and

rehabilitative. The statute also called for the automatic

termination of "permanent alimony" upon remarriage. Our Supreme

Court described the public policy underlying that provision:

In enacting that basis or condition for discontinuing alimony, the Legislature articulated a public policy that the legal obligation of the supporting spouse is superseded and ends on the remarriage of the dependent spouse. In effect, the new marriage 9 A-1904-14T2 bond itself creates a change of circumstances that the Legislature deemed sufficiently fundamental and important to require the automatic termination of alimony. The legal obligation of post-divorce alimony is derived from the antecedent marriage; a new marriage supplants that obligation. Hence, remarriage justifies the termination of alimony without regard to the economic circumstances of the dependent spouse who has remarried.

[Konzelman v. Konzelman, 158 N.J. 185, 195 (1999) (citation omitted).]

The statute was amended in 1999 to "authorize[] the court to

award two additional types of alimony: (1) limited duration, which

would be awarded where economic assistance is necessary for a

limited time; and (2) reimbursement alimony, which will be awarded

to compensate the spouse who supported the other spouse while he

or she obtained an advanced education." Press Release, Office of

the Governor (Sept. 13, 1999) (press release on Governor Christie

Whitman's signing of S. 54, 208th Leg., 1998 Sess. (N.J. 1999), the

bill amending N.J.S.A. 2A:34-25). The Governor's press release

further noted that, under the amended statute,

[l]imited duration alimony, like permanent alimony under previous law, will terminate upon the remarriage of the receiving spouse. Reimbursement alimony, like rehabilitative alimony under previous law, will not terminate upon remarriage.

[Ibid.]

At the time the parties entered into the MSA, N.J.S.A. 2A:34-

25 stated that "permanent and limited duration shall terminate as 10 A-1904-14T2 of the date of remarriage." As was the case regarding permanent

alimony prior to the amendment, this represented "a public policy"

articulated by the Legislature "that the legal obligation of the

supporting spouse [to pay limited duration alimony] is superseded

and ends on the remarriage of the dependent spouse." Konzelman,

supra, 158 N.J. at 195. The effect of the amendment was, then,

to make the termination of limited duration alimony automatic upon

remarriage of the receiving spouse.

This legislative intent is further evinced in the statute's

requirement that "[a] former spouse . . . who remarries . . .

shall promptly so inform the spouse . . . paying . . . limited

duration alimony." N.J.S.A. 2A:34-25. The statute also authorizes

the court to require an alimony recipient who fails to give such

notice "to pay any reasonable attorney fees and court costs

incurred by the recipient's former spouse or partner as a result

of such non-compliance." Ibid.

The parties agreed to the terms of the MSA in 2012 and

unequivocally described the alimony as "limited duration alimony."

Because this was a matter of the parties' agreement rather than

an award by the court, we do not ascribe to them the Legislature's

characterization of the purpose of limited duration alimony – that

it applies to situations where economic assistance is necessary

for a limited time. But we do charge them with knowledge of the

11 A-1904-14T2 statutory provisions applicable to the term they chose to use to

characterize the alimony obligation. See Ravin, supra, 365 N.J.

Super. at 248.

Certainly, the parties could have agreed that the automatic

termination provision of N.J.S.A. 2A:34-25 would not apply to the

alimony obligation in the MSA. Although other potential

occurrences were identified and addressed, plaintiff's possible

remarriage was not among them. The statutory automatic termination

provision was neither acknowledged nor waived. Moreover, the

certifications they submitted in support of their motion and cross-

motion make no reference to this statutory provision.

We are thus left with: (1) a statutory automatic termination

provision that the parties are presumed to have had knowledge of

when they entered the MSA, and (2) conflicting certifications

regarding their intent as to whether plaintiff's remarriage would

terminate the limited duration alimony. We conclude that a

material factual dispute exists as to the parties' intent on this

issue and that a plenary hearing is required. See Palmieri v.

Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) ("Disputes of

material fact should not be resolved on the basis of certifications

nor in reliance upon ambiguous terms in a property settlement

agreement."); Harrington v. Harrington, 281 N.J. Super. 39, 47

(App. Div.) "[T]rial judges cannot resolve material factual

12 A-1904-14T2 disputes upon conflicting affidavits and certifications."),

certif. denied, 142 N.J. 455 (1995).

Therefore, we reverse and remand to the trial court to conduct

a plenary hearing within sixty days to determine what the parties'

intent was regarding the limited duration alimony provision in the

MSA and what their intent was regarding the application of the

automatic termination provision of N.J.S.A. 2A:34-25. In the

event the trial judge should find that the limited duration alimony

ended with plaintiff's remarriage, the plenary hearing should also

address defendant's claim for reimbursement. Pursuant to N.J.S.A.

2A:34-25, "any arrearages that have accrued prior to the date of

remarriage . . . shall not be vacated or annulled." Therefore,

any reimbursement would be limited to payments for obligations

that otherwise would have become due after her remarriage.

Additional issues that may be addressed on remand include the

award of counsel fees to plaintiff and the denial of counsel fees

to defendant. Defendant's obligation to pay his child support

obligation is unaffected.

Reversed and remanded. We do not retain jurisdiction.

13 A-1904-14T2