On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-403-01C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Plaintiff appeals from a Family Part order denying his motion for modification of the amount of alimony paid to defendant. The motion judge determined a provision in the parties' Property Settlement Agreement (PSA) precluded modification. Following our review of the record, we conclude the PSA does not clearly express such an intention, and the motion record presents a genuine and substantial factual dispute, requiring a plenary hearing to discern the parties' intent. Accordingly, we reverse and remand to the motion judge for a plenary hearing.
After a twenty-year marriage, the parties filed for divorce. On January 14, 2002, all collateral issues raised by the complaint and counterclaim were resolved and set forth in an oral settlement, which was recited on the record. Each party testified that he and she voluntarily accepted the settlement as fair and equitable. Without passing upon the fairness of the agreement's provisions, the court found the parties desired to be bound by its terms in lieu of proceeding to trial, granted the parties' requests for divorce, and incorporated the provisions of the parties' settlement into a dual final judgment of divorce (DFJOD).
Included in the oral stipulation were these comments regarding plaintiff's obligation to pay defendant alimony:
With respect to the alimony, the husband will pay to the wife the sum of $2,750 per week, as and for the support and maintenance of the wife. The alimony will continue until the happening of the following events:
One, 13-1/2 years from February 1, 2002; cohabitation with a person unrelated by blood or marriage for a period of 120 days; remarriage of the wife or death of the payor, death of the payee.
It is understood that the alimony payments will commence February 1, 2002, and that there will be direct payment by the husband to the wife for the alimony obligations.
If, in the event the alimony stops and the children are unemancipated, then the wife would have the ability to return to the court for an [o]rder by the [c]court for child support under the Child Support Guidelines.
The recital placed on the record did not stipulate a PSA would be prepared and submitted. Nevertheless, three months later, on April 25, 2002, the parties submitted a written DFJOD, which incorporated the terms of a formal PSA signed by each party. Because consideration of the arguments on appeal require interpretation of the terms of the PSA, we set forth the relevant provisions in detail.
Paragraph 1 of Article II of the PSA, entitled "Alimony," addressed the payment of alimony for a limited term as follows:
The [plaintiff] shall pay to the [defendant] as and for alimony, support and maintenance of the [defendant], the sum of $2,750.00 per week. It is agreed and understood between the parties that ...