NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1240-19






                   Argued February 23, 2021 – Decided March 29, 2021

                   Before Judges Yannotti, Mawla and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Somerset County,
                   Docket No. FM-18-0573-18.

                   Jennifer R. Haythorn argued the cause for
                   appellant/cross-respondent (Pellettieri, Rabstein &
                   Altman, attorneys; John A. Hartmann, III, of counsel
                   and on the briefs; E. Elizabeth Sweetser, on the

                   Bonnie    C.    Frost    argued   the    cause    for
                   respondent/cross-appellant (Einhorn, Barbarito, Frost
            & Botwinick, PC, attorneys; Bonnie C. Frost, Matheu
            D. Nunn, and Jillian P. Freda, on the briefs).


      In this post-judgment matrimonial action, defendant Henry Mariana

appeals from a September 4, 2019 order: 1) denying his motion to compel

plaintiff Jennifer Mariana to pay certain tax liabilities related to the parties'

investment accounts and his request for attorneys' fees, and 2) granting

plaintiff's fee application. Defendant also appeals from the court's November

9, 2019 order denying his motion for reconsideration. Plaintiff cross-appeals

from that portion of the November 9, 2019 order which denied her application

for additional counsel fees associated with opposing defendant's motion for


      For the reasons that follow, we vacate the September 4, 2019 order and

the November 9, 2019 order, in part, and remand for a plenary hearing

concerning the proper interpretation of the parties' marital settlement

agreement (MSA). Specifically, we conclude additional development of the

record is necessary with respect to the parties' intent regarding their respective

responsibility for state and federal taxes associated with certain investment

accounts. We reject, however, plaintiff's cross-appeal and affirm the court's

decision denying her request for attorneys' fees.


      On December 11, 2018, the court issued a final judgment of divorce

which terminated the parties' nearly twenty-year marriage and incorporated the

terms of the MSA. The MSA, which the parties characterized as "fair, just,

adequate[,] and reasonable," awarded plaintiff $255,000 in lump sum alimony

and also addressed issues related to medical and life insurance, and the

equitable distribution of the marital property and retirement accounts.

      The parties acknowledged that the MSA was a final, negotiated, and

integrated agreement and its purpose was to resolve completely "all questions

regarding support and equitable distribution of the assets of the marriage . . . ."

Consistent with that goal, the MSA contained broad and mutual general


      Paragraph 14 addressed the division of five of the parties' investment

accounts, two of which—account numbers 3772 and 4052—are the subject of

this appeal. Paragraph 14 provided:

            The assets in the above-listed investments accounts
            shall be equally divided "in kind" between the parties
            to equalize the potential taxes and/or losses to each
            party. The parties shall work with their brokers and/or
            a mutually acceptable accountant to divide these
            investment accounts "in kind" within ten . . . days of
            the date of this [a]greement. The cost of the broker or

             mutually acceptable accountant, if any, shall be
             equally shared by the parties.

      In paragraph 25 both parties represented that:          1) there are no

outstanding debts in their joint names; 2) they have not incurred any debts or

obligations for which the other may be liable; and 3) if "either party has

incurred such debts or obligations, they shall be solely responsible for them

and, in the event that the other party is called upon to make any payment or

contribution towards the same, they shall indemnify and hold said party

harmless . . . ."

      Finally, the parties agreed to file separate 2018 state and federal income

tax returns and acknowledged in paragraph 38 that there may be tax

consequences associated with the equitable distribution of the marital property.

They also acknowledged they could "obtain independent tax advice from

qualified tax accountants or tax counsel" prior to executing the MSA.

      Approximately eight months before signing the MSA, defendant

exercised, with plaintiff's knowledge and consent, certain stock options

obtained from his prior employment. Believing that all required taxes were

withheld, defendant deposited the net proceeds in account number 4052 and

purchased mutual funds. The parties thereafter liquidated those investments

and distributed the funds in account number 4052, along with the remaining

accounts listed in paragraph 14, in accordance with the MSA.

       After defendant filed his 2018 state and federal tax returns, he was

advised that he was responsible for additional taxes because his investment

advisor under-withheld taxes related to his exercise of the options. Further,

account numbers 4052 and 3772 had untaxed dividends and capital gains. As a

result, defendant requested plaintiff pay him fifty percent of the assessed tax


       Plaintiff refused defendant's request and he accordingly filed an

application to compel plaintiff to pay her share of the tax liability or to permit

him to make an appropriate reduction in his remaining payment obligations

under the MSA. In support of his motion, defendant certified that "[p]laintiff

and [he] were both unaware that additional taxes and fees would be owed" on

exercising the stock options at the time of the division of the accounts in

paragraph 14. He specifically requested plaintiff pay him $143,909.39, which

allegedly represented her share of the tax liability related to the exercise of the

stock options and the 2018 dividends and capital gains on account numbers

4052 and 3772.

      Plaintiff opposed defendant's application and cross-moved to enforce the

terms of the parties' MSA.      In support, plaintiff certified that she did not

understand paragraph 14 to "require[ her] to share in the[] . . . taxes that

[defendant] incurred." She also certified that "[a]t no time when [she and

defendant] were negotiating [the MSA], did [d]efendant advise [her] or [her]

attorney that there would be additional taxes owed as a result of exercising the

. . . stock options."

      Plaintiff stated if she had known about "such a potential tax problem

. . . , it would have impacted [her] willingness to make other concessions" such

as her waiver of her right to challenge defendant's alleged improper transfer of

marital assets and her acceptance of a limited lump sum alimony award as

opposed to an open durational award. Finally, plaintiff requested $5,562.50 in

attorneys' fees and costs with regard to her cross-motion, which she supported

with a certification of services.

      After considering the parties' submissions and oral arguments, the court

issued a September 4, 2019 order that: 1) denied defendant's request that

plaintiff contribute to the under-withholding or untaxed income on dividends

and capital gains related to account numbers 4052 and 3772, 2) granted

plaintiff's request to enforce certain provisions of the MSA, 3) denied

defendant's request for attorneys' fees, and 4) awarded plaintiff $5000 in

attorneys' fees.

      In the court's corresponding written statement of reasons, it noted that

defendant was assessed additional state and federal taxes associated with

account numbers 4052 and 3772 "because most of the marital assets divided

were attached to his social security number . . . ."         The court explained,

however, that it could not determine based on the motion record precisely how

much of the disputed tax liability related to the parties' marital assets.

      Relying on paragraph 38 of the MSA, the court found that defendant

exercised the stock options "eight . . . months prior to the execution of the

MSA" and concluded "[d]efendant had ample time to explore all issues related

to tax consequences and to further negotiate based upon the anticipated tax

burden."   In this regard, the court explained that the MSA called for the

division of accounts "in-kind" and that defendant "should have known that

taxes would be assessed against him."

      The court reasoned that paragraph 14 did not include "language

associated with . . . allocating the tax burden" but instead called for the

division of funds after executing the options. The court found that because

paragraph 14 "called for the division of cash in an account, no tax would be

assessed to either party on that division and [p]laintiff did not agree to be

responsible for the tax associated with the exercise of the options eight . . .

months prior to the MSA execution." The court concluded that defendant was

precluded from seeking a modification of the MSA, as "[n]othing set forth by

[d]efendant was an unforeseeable consequence or should have been unknown

to him." With regard to counsel fees, the court found defendant breached the

terms of the MSA and awarded fees associated with plaintiff's enforcement


      Defendant moved for reconsideration and certified that he understood

paragraph 14 to require both parties to be "equally responsible for the capital

gains taxes and taxes on dividends emanating" from those accounts.             He

maintained that the parties' intent was memorialized in the language of

paragraph 14 that the investment accounts would be divided in kind in order t o

"equalize the potential taxes and/or losses to each party." He further argued

that at the time of MSA the parties did not know of the embedded 2018 tax

liability associated with their investment accounts.

      Plaintiff opposed the application and filed a cross-motion for attorneys'

fees associated with the reconsideration application.      As to the intent of

paragraph 14, she certified that contrary to defendant's understanding:

                Paragraph 14 is addressing the "in--kind" distribution
                of investments, so that both . . . [d]efendant and [she]
                would receive one half of all stocks and other
                investments when dividing the accounts. The purpose
                of having an "in-kind" distribution is to ensure that in
                the future [they] would have similar tax treatment for
                the income generated by those assets after the
                division. Paragraph 14 is contemplating future tax
                consequences associated with the division of these
                assets; that is precisely why the [MSA] says, "The
                assets in the above-listed investment[] accounts shall
                be equally divided 'in-kind' between the parties to
                equalize the potential taxes and/or losses to each

           In a November 8, 2019 order and accompanying written statement of

reasons, the court denied defendant's motion for reconsideration. The court

interpreted the phrase in paragraph 14 requiring the "assets . . . [to] be equally

divided 'in kind' between the parties to equalize the potential taxes and/or

losses to each party," to mean "that once the parties divide . . . the accounts,

any future sales of the assets would contemplate the future tax consequences

. . . ."

           Finally, the court rejected plaintiff's request for counsel fees and

concluded that despite its disagreement with defendant's arguments,

"[d]efendant did not file [the] motion in bad[ ]faith." This appeal followed.

           On appeal, defendant contends the court improperly interpreted the MSA

contrary to New Jersey law and erred in failing to require plaintiff to reimburse

him for fifty percent of the taxes assessed against him with respect to account

numbers 3772 and 4052. Specifically, he argues the court erred by: 1) failing

to "consider the MSA as a whole," 2) not "ascertain[ing] the parties' intent and

effectuat[ing] that intent," 3) failing to "consider ambiguit[ies]" in the MSA, 4)

"ignor[ing] that the record obviously evidenced ambiguity," 5) "inexplicably

constru[ing] paragraph 14 to mean 'future sales' of the assets divided in kind,"

6) finding paragraph 14 "clear and unambiguous" despite "ascrib[ing] a

meaning to [it] different than that of both [defendant] and [plaintiff]," and 7)

failing to hold a plenary hearing. 1 As noted, in her cross-appeal, plaintiff

contends the court erred in refusing to award her attorneys' fees associated

with her reconsideration application.


      We begin with an examination of the applicable legal principles. As the

issue before us involves the interpretation and construction of a contract, our

review is de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 


N.J. 366

, 378 (1995); Kaur v. Assured Lending Corp., 

405 N.J. Super. 468


  We note that defendant filed an application to supplement the record. We
deferred adjudication of the motion in order to consider the motion in the full
context of the arguments on appeal. We now grant the motion and conclude it
does not alter our decision.
474 (App. Div. 2009) (reviewing the enforcement of a settlement agreement de


         New Jersey has long espoused a policy favoring the use of consensual

agreements to resolve controversies, and "[s]ettlement of disputes, including

matrimonial disputes, is encouraged and highly valued in our system." Quinn

v. Quinn, 

225 N.J. 34

, 44 (2016) (citation omitted).        "An agreement that

resolves a matrimonial dispute is no less a contract than an agreement to

resolve a business dispute" and "is governed by basic contract principles."


at 45.

         "Among those principles are that courts should discern and implement

the intentions of the parties," and not "rewrite or revise an agreement when the

intent of the parties is clear."

Ibid. (citations omitted). “Thus,

when the intent

of the parties is plain and the language is clear and unambiguous, a court must

enforce the agreement as written, unless doing so would lead to an absurd


Ibid. (citation omitted). However,

"[t]o the extent that there is any

ambiguity in the expression of the terms of a settlement agreement, a hearing

may be necessary to discern the intent of the parties at the time the agreement

was entered and to implement that intent."

Ibid. (citing Pacifico v.


190 N.J. 258

, 267 (2007)).

      A contract is ambiguous if its terms are "susceptible to at least two

reasonable alternative interpretations." Nester v. O'Donnell, 

301 N.J. Super.


, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life & Cas. Ins.,

828 F. Supp. 275

, 283 (D.N.J. 1992)). When a contract is ambiguous in a

material respect, the parties must be given the opportunity to illuminate the

contract's meaning through the submission of extrinsic evidence. Conway v.

287 Corp. Ctr. Assocs., 

187 N.J. 259

, 268-70 (2006).

      We are constrained to remand the matter for a plenary hearing because

the parties' common intent with respect to the tax treatment of the accounts in

paragraph 14 is not readily discernable from the MSA. Further, the parties

submitted conflicting certifications regarding who bore responsibility for the

tax liability related to the accounts listed in paragraph 14.

      In this regard, plaintiff certified that the disputed language in paragraph

14 related to any future tax liability incurred as a result of the in-kind

distribution and did not address any retroactive tax liabilities. She further

maintained that in other provisions of the MSA, the parties clearly allocated

their respective responsibilities for taxes and similar liabilities and paragraph

14 contained no such explicit language. Finally, she argued that the MSA was

a negotiated and integrated contract and it would be unfair to require her to

pay the tax liability associated with accounts numbers 3772 and 4052 as she

forfeited the right to open-duration alimony and to challenge defendant's

alleged improper dissipation of marital assets.

      In his competing certification, defendant maintained that the language in

paragraph 14 clearly required the parties to be jointly responsible for

embedded taxes and the use of the word "potential" related to the parties' tax

liability, which at the time the parties' signed the MSA was unknown. He

agreed with plaintiff that other provisions in the MSA addressed the allocation

of tax liabilities but argued those provisions expressed the parties' intent to

share equally any associated tax liability related to the marital assets. He also

contended it would be inequitable to require him to distribute the gross

account values of the investment accounts under the circumstances.

      Defendant also disputed that plaintiff had a right to an open duration

alimony award as he was unemployed, and plaintiff was working. Finally, he

denied improperly dissipating marital assets.

      In the face of these competing certifications, the court resolved the

disagreement by interpreting the disputed language in paragraph 14 to apply

only to future tax liabilities, stating that "once the parties divide[d] 'in kind' the

accounts, any future sales of the assets would contemplate the future tax

consequences." In our view, a plenary hearing was required to resolve issues

regarding the parties' intent as to their respective responsibility for the taxes

related to the investment accounts in paragraph 14. We reach this conclusion

because the MSA is not clear and unambiguous on this point and is subject to

two different, reasonable interpretations each supported by the parties'

competing certifications. Indeed, the text of the MSA does not clearly limit

the parties' tax liabilities to "future sales" as the court concluded, or to "the

income generated by these assets after the division" as plaintiff certified.

      Finally, because the court's award of $5000 in attorneys' fees was based

in part on defendant's failure to comply with paragraph 14, we vacate that part

of the September 4, 2019 order awarding plaintiff counsel fees.           Any fee

request and award may be reconsidered, as appropriate, on remand.


      In her cross-appeal, plaintiff contends the court abused its discretion in

denying her request for counsel fees and costs associated with opposing

defendant's motion for reconsideration.        Specifically, plaintiff maintains

"[d]efendant has not acted in good faith" and "he is not complying with other

terms of the MSA unless and until the tax issues are resolved." Plaintiff also

relies on paragraph 40 of the MSA which allows for attorneys' fees and costs

"[s]hould either party fail to abide by the terms of [the MSA]." We are not

persuaded by these arguments.

      An award "of counsel fees is discretionary, and will not be reversed


upon a showing of an abuse of discretion." Barr v. Barr, 

418 N.J. Super. 18


46 (App. Div. 2011) (citation omitted). Rule 5:3-5(c) lists nine factors the

court must consider in making an award of counsel fees in a family action.


            [I]n awarding counsel fees, the court must consider
            whether the party requesting the fees is in financial
            need; whether the party against whom the fees are
            sought has the ability to pay; the good or bad faith of
            either party in pursuing or defending the action; the
            nature and extent of the services rendered; and the
            reasonableness of the fees.

            [Mani v. Mani, 

183 N.J. 70

, 94-95 (2005) (emphasis
            removed) (citations omitted).]

      Here, the court made a specific finding that defendant's motion for

reconsideration was not filed in bad faith. Further, there was no dispute in the

record that the parties were able to pay their respective counsel fees with

respect to the reconsideration application, each having received approximately

$2 million in marital assets, exclusive of retirement accounts. We are satisfied

that the court did not abuse its discretion in denying plaintiff's fee request.

      Affirmed in part, vacated in part, and remanded for further proceedings

consistent with this opinion. Nothing in our opinion should be interpreted as

an expression of our views of the outcome of the remanded proceedings. We

do not retain jurisdiction.


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