ALISA FORMAN VS. MARK FORMAN (FM-13-0785-11, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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