October 3, 2008
JOHN R. MEDLEY, SR., PLAINTIFF-RESPONDENT,
EVELYN MEDLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FM-11-19476-88.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 22, 2008
Before Judges Reisner and Sapp-Peterson
Defendant Evelyn Medley appeals from an October 19, 2007 order denying her motion to reinstate the alimony obligation of her ex-husband, plaintiff John R. Medley, Sr., and for counsel fees. We affirm.
The record reflects the following undisputed facts. The parties were married in 1959 and were divorced on June 14, 1989. According to the final judgment of divorce, the parties agreed that plaintiff would pay defendant $200 per week in alimony; defendant concedes that this obligation was later reduced to $100 per week. In addition, plaintiff agreed to pay $100 per week in child support for the couple's then seventeen-year-old child "until her emancipation." He also agreed to pay half of the daughter's college expenses and her medical bills. Defendant was awarded the marital home.
On June 1, 2001, the parties both signed under oath an Application for Post-Disposition Hearing (settlement agreement). The settlement agreement recited that the couple had one child, born on March 15, 1972, and that they were requesting a hearing on their application for the following reasons:
MINOR NOW BEING OF AGE--CASE ORGINATED [sic] AS C/S PLA/NMR & DEF/NFR ARE SEEKING CONSENT ORDER FOR LUMP SUM PAYMENT OF $28,000 & CLOSING ALIMONY CASE.
On June 1, 2001, Judge LeWinn signed a document entitled "Consent Order Spousal Support," to which both parties had affixed their signatures. The consent order was also signed by a "Supervisor," presumably from the Family Part, since the document recited that the matter had "been brought to the attention of the Court through the Mercer County Family Case Management Office." The order provided that since "the parties [had] reached an agreement on the issue of SPOUSAL SUPPORT," the court was entering the following order:
THE DEFENDANT SHALL PAY THE PLAINTIFF A LUMP SUM OF $28,100 IN LIEU OF THE $100 MONTHLY PAYMENTS, THUS CLOSING THEIR CASE FOR CURRENT SPOUSAL SUPPORT, AS AGREED BETWEEN THE PARTIES AND SPECIFIED IN THE ATTACHED COMPLAINT.
More than six years later, on August 30, 2007, defendant filed a motion asking that the probation department "be ordered to resume collecting alimony from the Plaintiff . . . in the amount of $100.00 per week" plus arrears of $3900 as of September 1, 2007. In the motion, which was filed by her counsel, defendant did not contend that the $28,100 represented arrears that defendant owed as of June 2001. Rather, she claimed that the $28,100 had been a "pre-payment" of defendant's future obligations and that when it ran out, she could seek resumption of alimony.
In a certification in support of her motion, she contended that in June of 2001, plaintiff had "offered to make a lump sum payment of $28,100 to pre-pay his alimony obligation." She alleged that the "pre-payment" lasted "5.4 years" and had run out in "November of 2006." However, she provided no other proof to support this contention. Moreover, although defendant claimed that she counted on the alimony "to make ends meet," she neither contended nor provided evidence that she had made a demand in November 2006, or at any time prior to the filing of her August 2007 motion, that defendant resume paying alimony.
In opposition to the motion, plaintiff filed a pro se certification attesting that the parties had agreed that he would pay $28,100 in lieu of spousal support, that he had made the payment, and that the spousal support case had been closed. He attached his "customer's record copy" of a $28,100 money order payable to Evelyn Medley.
Defendant filed a reply certification stating that she had not agreed to the consent order "for purposes of forever waiving my right to alimony." She contended that when plaintiff made the payment he called me numerous times and told me that he would give me this money to give him some time off from paying. He said that he was tired of going down to the Probation Department every week and paying it . . .
So he wanted to prepay his alimony.
The remainder of defendant's certification consisted essentially of legal argument and, notably, again contained no statement that the allegedly penurious defendant had made any demand on plaintiff for the supposedly overdue alimony payments between November 2006 when the "prepayments" purportedly ran out, and August 2007, when she filed her motion.
In an oral statement of reasons placed on the record on October 19, 2007, Judge Mark Fleming concluded that the parties' 2001 settlement agreement and the resulting June 2001 consent order clearly provided for a final resolution of defendant's alimony claim in exchange for a lump sum of $28,100, that the settlement was binding on the parties, that plaintiff had paid the money, and that there were no material factual disputes warranting a testimonial hearing.
On this appeal, defendant presents the following points for our consideration:
POINT I: GIVEN THE AMBIGUITIES IN THE JUNE 1, 2001, ORDER AND THE UNCONTROVERTED ALLEGATIONS IN MS. MEDLEY'S CERTIFICATION, THE TRIAL COURT SHOULD HAVE DETERMINED THE INTENTIONS OF THE PARTIES BY WAY OF PLENARY HEARING.
POINT II: THE CONSENT ORDER OF THE PARTIES MUST BE SET ASIDE UNLESS THE PLAINTIFF/RESPONDENT CAN AFFIRMATIVELY DEMONSTRATE THAT HE HAS DEALT FAIRLY AND JUSTLY WITH THE DEFENDANT/APPELLANT.
POINT III: THE JUNE 1, 2001 ORDER WHICH MODIFIED ALIMONY WAS SET UNDER DOCKET NUMBER FD-11-486-89 HOWEVER, THE ORIGINAL ALIMONY PROVISION IS UNDER DOCKET NUMBER FM-19-476-88 AND THIS MISTAKE (I) ENHANCES THE AMBIGUITY OF THE ORDER AND (II) DICTATES THAT THE JUNE 1, 2001 ORDER HAS NO CONTROLLING AUTHORITY OR BEARING ON THE CESSATION OF ALIMONY SET FORTH UNDER DOCKET NUMBER FM-19-476-88.
Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.
Since this case was decided without a plenary hearing, we have reviewed the record de novo to determine whether there were material facts in dispute, and if not, whether the undisputed facts viewed in the light most favorable to defendant warranted judgment for plaintiff. See Prudential Prop. & Cas. Ins. Co., Inc. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Harrington v. Harrington, 281 N.J. Super. 39, 46-47 (App. Div.), certif. denied, 142 N.J. 455 (1995). Since a settlement is essentially a contract, we also bear in mind that a trial court's construction of a contract is a matter of law subject to our de novo review. See Fastenberg v. Prudential Ins. Co., 309 N.J. Super. 415, 420 (App. Div. 1998); Stonehurst at Freehold v. Freehold Twp., 139 N.J. Super. 311, 313 (Law Div. 1976).
Based on the record before us, we agree with Judge Fleming that defendant failed to raise a material factual dispute warranting an evidentiary hearing. We conclude, as did the motion judge, that taken in context the settlement agreement and the consent order are not ambiguous. See Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997). Rather, they clearly establish that the parties' daughter was emancipated and the parties desired to resolve the one remaining financial issue between them -- alimony -- through the payment of a lump sum. There is no allegation that plaintiff owed any alimony arrears, and the purpose of the payment, as recited in the settlement agreement and in the consent order, was to close the alimony case.
Even viewed in the light most favorable to her, defendant's contentions would defy credence by any "rational factfinder." See Brill, supra, 142 N.J. at 540. Put another way, "[n]o reasonable person would construe the agreement in the manner suggested by [defendant]." Bosshard v. Hackensack Univ. Med. Center, 345 N.J. Super. 78, 93 (App. Div. 2001). Neither the signed settlement nor the consent order makes any mention of a "prepayment." Moreover, defendant offers no explanation, beyond plaintiff's alleged desire to avoid going to Probation every week, as to why plaintiff (or anyone else) would hand over $28,100 in a lump sum as a five-year "prepayment" without demanding that the amount be reduced to its net present value. Defendant produced no evidence that plaintiff was sufficiently wealthy that the $28,100 would represent a minimal expenditure to him. And she did not even contend, much less produce evidence, that she acted in conformity with her alleged construction of the consent order by making a demand for resumption of alimony payments in November 2006 when she claims the pre-payment was exhausted.
Finally, defendant cites no case law to support her contention that the 2001 consent order was not valid because it purportedly was entered under the wrong docket number. Defendant's motion was properly denied.
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