NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
In this post-judgment matrimonial case, defendant-mother appeals from the August 17, 2012 Family Part order denying her motion to compel plaintiff-father to contribute to private school tuition. We reverse and remand for further proceedings consistent with this opinion.
Both parties are dentists, married in 1990 and divorced in 2011. There were two children born of the marriage, daughters J.G., born in 1995, and C.G., born in 1998.1 The parties entered into a Marital Settlement Agreement (MSA) on June 6, 2011, the same date as their divorce. At that time, J.G. was completing her sophomore year at the Peddie School (Peddie), a private prep school, and C.G. was completing the seventh grade in public middle school. The MSA provided that $76,000 in Fidelity Mutual Funds would be used to pay the expenses for J.G.'s last two years at Peddie; the Funds were in defendant's name, but were apparently marital assets. The MSA did not address C.G.'s high school education.
While the MSA made no mention of C.G.'s high school education, it did provide that, subject to certain adjustments, "[t]he parties shall equally share [the] college tuition and expenses for the children not covered by the [identified] accounts, scholarships, work-study funds, stipends, or grants." The MSA further provided for an equal division of additional child-related expenses.
On June 1, 2012, defendant moved to compel plaintiff "to contribute 50% of the educational expenses relative to the enrollment of the parties' daughter [C.G.], at the Peddie School. . . ." In support of this application, defendant certified:
As with [J.G.], our younger daughter, [C.G.], has been accepted to the Peddie School and will begin classes in the fall of 2012. I went to Peddie, as well as my brothers, and I have found it to be an excellent educational institution. [J.G.] has thrived there as a student and I expect [C.G.] to do the same as she is an "A+" student and very involved in extracurricular activities. Plaintiff was supportive of and involved with the decision to send [C.G.] to Peddie. Plaintiff encouraged [C.G.] to visit Peddie and even accompanied her on a visit to the school. I believe that [p]laintiff was very proud that [C.G.] got accepted to Peddie and he submitted his share of the financial aid application to Peddie without protest. . . . In light of [p]laintiff's encouragement of [C.G.'s] attendance at Peddie, I have requested that [p]laintiff contribute to [C.G.'s] educational expenses at the school, but he has refused. Plaintiff is involved with both children's educations and attends their parent days and school sporting events. Plaintiff's refusal to contribute to [C.G.'s] educational costs in light of this involvement is inexplicable.
In opposition to defendant's motion, plaintiff certified that the
payment of [C.G.'s] tuition was on the table when we were negotiating the terms of the [MSA]. During the negotiation, I made myself clear to [d]efendant that I am willing to pay for [J.G.'s] tuition since she is already in school and since I did not want to interrupt her education. However, I refused to pay for [C.G.'s] tuition. . . . The terms of the [MSA] clearly reflects our resolution of this matter.
The motion judge accepted plaintiff's argument and denied defendant's motion:
The [c]ourt is denying [d]efendant's request to contribute to [C.G.'s] tuition at the Peddie School, as the [c]ourt is satisfied [plaintiff] did not consent to same. Further, the parties' [MSA] is a comprehensive, integrated agreement which fails to address this expense as an obligation of [p]laintiff. The [c]ourt gleans from the [MSA], it was not the intent of the parties to obligate [p]laintiff to pay these expenses and therefore it was not included in the [MSA]. Plaintiff denies consenting to the expense and certifies he told [d]efendant he would not contribute to it.
This appeal followed. Defendant's principal argument on appeal is that the court incorrectly concluded the MSA precluded consideration of whether defendant should contribute to C.G.'s private school expenses. We agree.
II.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006)). While we respect the Family Court's special expertise, we may exercise more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made").
We turn now to defendant's argument that the trial court's August 17, 2012 order incorrectly denied her motion to compel plaintiff to contribute to the cost of C.G.'s private school education. She asserts her income declined following the divorce, the MSA is silent regarding private school expenses for C.G., and the trial court failed to address prevailing case law for evaluating when a non-custodial parent should contribute to private school costs.
Trial courts retain jurisdiction to modify marital agreements on a showing of changed circumstances notwithstanding the existence of a MSA. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). "[T]he terms of such agreements should receive continued enforcement without modification only so long as they remain fair and equitable." Ibid. Moreover, "[t]he question is always what is in the best interests of the children no matter what the parties may have agreed to." Hallberg v. Hallberg, 113 N.J.Super. 205, 209 (App. Div. 1971).
The source of a court's authority to order a non-custodial parent to contribute to a child's private school education lies in N.J.S.A. 2A:34-23, which sets forth the factors that are relevant to a determination of child support. One of those factors is the "[n]eed and capacity of the child for education, including higher education[.]" N.J.S.A. 2A:34-23(a)(5). As our Supreme Court recognized over forty years ago,
[t]he concept of what is a necessary education has changed considerably in recent years. While a "common public school and high school education" may have been sufficient in an earlier time, see Ziesel v. Ziesel, 93 N.J. Eq. 153 (E. & A. 1921), the trend has been towards greater education. [Khalaf v. Khalaf, 58 N.J. 63, 71 (1971).]
In Hoefers v. Jones, 288 N.J.Super. 590 (Ch. Div. 1994), aff'd, 288 N.J.Super. 478 (App. Div. 1996), we adopted a fourteen-factor test to assist in the determination of whether a non-custodial parent should be required to contribute to private school tuition:
(1) Ability of non-custodial parent to pay.
(2) Past attendance of one or both parents at that or a similar private school.
(3) Whether children were attending private school pre or post divorce.
(4) Prior agreement of non-custodial parent to pay, to send children to private school.
(5) Religious background of the parties, their children.
(6) Are special educational, psychological and/or special needs of child met, advanced by such private schooling?
(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).
(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.
(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?
(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?
(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?
(12) Lack of present, past non-custodial parental involvement in children's education.
(13) Degree of involvement of custodial parent in children's education (is it extensive?).
(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?
[Id. at 611-12.]
If such a determination is supported by sufficient credible evidence in the record and is "reasonable under the circumstances," it will be upheld. Finger v. Zenn, 335 N.J.Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).
Here, the motion judge did not consider the Hoefers factors. The judge concluded that because the MSA obligated defendant to contribute only to college costs, not private school expenses, plaintiff's request was precluded. However, the lack of an express obligation does not prevent the court from considering a motion for private school contribution, and "[i]n the absence of specific language in the agreement, we will not infer any such limitation." Id. at 444.
Generally, the interpretation of contract terms "are decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J.Super. 78, 92 (App. Div. 2001). In other words, a court must first decide if an ambiguity exists. "An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations[.]" Nester v. O'Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F.Supp. 275, 282 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)). Therefore, in "interpreting a contract, a court must try to ascertain the intention of the parties as revealed by the language used, the situation of the parties, the attendant circumstances, and the objects the parties were striving to attain." Celanese Ltd. v. Essex Cnty Imp. Auth., 404 N.J.Super. 514, 528 (App. Div. 2009).
Where there is ambiguity as to the meaning of a contractual term, however, the Supreme Court has stated that:
we allow a thorough examination of extrinsic evidence in the interpretation of contracts. Such evidence may "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." Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979). "Semantics cannot be allowed to twist and distort [the words'] obvious meaning in the minds of the parties." [Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 307 (1953)]. Consequently, the words of the contract alone will not always control.
[Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269-70 (2006).]
These general contract principles apply to matrimonial settlement agreements, subject to equitable considerations. See Regan v. Regan, 246 N.J.Super. 473, 478-79 (Ch. Div. 1990) (construing the meaning of a divorce consent judgment "requires the court to evaluate the common intention of the parties"); see also Lepis v. Lepis, 83 N.J. 139, 145-48 (1980) (spousal agreements are enforceable to the extent their terms are "fair and equitable").
Here, the parties' MSA expressly addresses their obligation to support their children's college education, and J.G.'s high school education, but is silent as to C.G.'s high school education. After considering this matter without an evidentiary hearing, the judge construed the MSA as relieving plaintiff of any obligation to pay for C.G.'s tuition at Peddie, concluding "it was not the intent of the parties to obligate [p]laintiff to pay these expenses and therefore it was not included in the [MSA]."
The MSA on its face is susceptible to two reasonable alternative interpretations. The first, as plaintiff contends, is the parties intended to limit their obligation for educational costs to those expenses specified. The second interpretation, urged by defendant, is the MSA contains no mention of C.G. attending Peddie because it was executed well over a year before she would enter the ninth grade; thus, the MSA's silence on this issue merely reflects the parties' failure to reach an agreement on this issue.
We conclude the motion judge erred in deciding the issue based solely on the language of the MSA and the certifications of the parties. Here, the wording of the document is sufficiently ambiguous to require an evidentiary hearing, and we remand for that purpose. At a minimum, the record indicates the existence of a genuine issue regarding plaintiff's contention that defendant waived her right to seek contribution for C.G.'s private school tuition. A waiver is "the intentional relinquishment of a known right." Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J.Super. 338, 354 (App. Div.) (citing W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 152-53 (1958)), certif. denied, 179 N.J. 372 (2004). Certainly, neither the wording of the MSA nor the limited record provided support for a finding of waiver.
On remand the judge may properly evaluate and consider any parol evidence bearing on the parties' intended meaning and understanding. Also, the judge may explore the parties' course of conduct regarding C.G.'s admission into Peddie and plaintiff's involvement in that process.
If the court concludes defendant did not agree to waive her right to seek contribution for C.G.'s expenses in attending Peddie, the court will proceed to decide defendant's motion by applying the Hoefers factors to determine if plaintiff should be required to contribute to the cost of C.G. attending Peddie, and if so, the amount of the contribution. If, however, the court should find in plaintiff's favor on the issue of waiver, the court must address whether any conduct on the part of plaintiff or any evidence of defendant's alleged change in circumstances warrants modification of the parties' MSA. Lepis, supra, 83 N.J. at 148-49. If plaintiff's conduct is found to constitute such a change, then determination of defendant's motion would likewise require application of the Hoefers factors.
Reversed and remanded. We do not retain jurisdiction.
