NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 binding only 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-5344-14T4
MICHAEL CATCHPOLE,
Plaintiff-Respondent,
v.
HUI ZHANG,
Defendant-Appellant. ____________________________
Submitted December 14, 2016 – Decided August 9, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1130-12.
Shauger & Friedland, LLC, attorneys for appellant (Holly M. Friedland, on the brief).
Michael K. Fielo, attorney for respondent.
PER CURIAM
Defendant Hui Zhang appeals from several aspects of a June
18, 2015 judgment of divorce, which ended her five-and-a-half-
year marriage to plaintiff Michael Catchpole following a six-day
trial over custody, child support, equitable distribution and alimony. We affirm the judgment with one modification relating
to a restriction the judge imposed on future applications by
Zhang to relocate with the parties' only child to China.
We relate only the critical facts found by Judge Casale,
all of which are amply supported by the record. The parties
were married in February 2006. They have one child, a daughter,
who was five years old at the time of the divorce. Catchpole is
a thirty-eight-year-old, college educated, applications manager
at J.P. Morgan Chase. Zhang is a forty-one-year-old civil
engineer, employed by URS Corporation in Clifton. She was born
and raised in China, coming to the United States at age twenty-
six for graduate school. They met in 2004 and married in 2006.
Six months prior to their marriage, Catchpole purchased a home
for the couple in Upper Montclair, using $90,000 in savings and
$10,000 borrowed from his parents for the down payment.
The marriage was punctuated by several domestic violence
incidents, two of which are notable. In 2009, several weeks
after their daughter was born, Zhang slapped Catchpole several
times in the face and bit him in the back of the neck while he
was holding their daughter. She was charged with aggravated
assault. After being pressured by Zhang and her family,
Catchpole subsequently wrote to the prosecutor's office urging
it to drop the charges. That move, estranged Catchpole from his
2 A-5344-14T4 own family, whom he did not see from that time until after he
filed for divorce.
The other incident occurred the following year. Both
parties testified that Zhang became angry at Catchpole in June
2010, after he offered to videotape something for their
neighbors. Catchpole testified that Zhang cornered him in a
room and yelled at him for almost two hours, until he lost his
temper and punched her in the chest. Zhang went to the hospital
the following day, claiming chest pains and difficulty
breathing.
Although Zhang was not seriously injured, Catchpole
testified he was alarmed by his inability to control his anger
at her. He wrote a letter to Zhang telling her he was seeking
professional help, but if it was unsuccessful he would leave,
assuming all the expenses to allow her to continue living in
their home and would give her all the money in their accounts,
taking only his computer, laptop, tools and his car. That
letter became the basis of the consent order, which was central
to the dispute in this case.
The consent order was drafted by Zhang's attorney a year
before the filing of the complaint. Catchpole was
unrepresented. The order, which the judge found was revised
four times before the parties finally signed it in December
3 A-5344-14T4 2010, provided that in the event of divorce, Catchpole would
continue to pay the mortgage, taxes and homeowners insurance
until the mortgage was paid off or the house was sold. If the
parties decided to sell, all proceeds would be paid to Zhang.
The parties agreed to joint legal custody of their daughter,
with Zhang as the parent of primary residence and Catchpole to
have liberal parenting time. In addition to paying all tuition
costs, Catchpole would also pay $3000 a month in child support.
Both parties would retain their cars and Catchpole would get to
keep his computer and all his tools.
The consent order further provided that Zhang would receive
all the money in the parties' bank accounts, totaling
approximately $70,000, regardless of how the account was titled.
The order recited that the parties had freely entered into the
agreement after considering all circumstances, and that they
agreed to be bound by its terms. The judge found Catchpole
signed the agreement only after reading an email from Zhang's
attorney saying no court would ever enforce it.
Catchpole testified, and the judge found, that in addition
to using the 2010 domestic violence incident against Catchpole
to gain a financial advantage in the event of a divorce, Zhang
also used it to threaten Catchpole about custody of their
daughter. Specifically, the judge found Zhang repeatedly
4 A-5344-14T4 threatened Catchpole, using the hospital records from the time
he punched her, that she would return to China to escape his
violence, taking their daughter with her.
The divorce action began with Zhang attempting to enforce
the consent order pendente lite, and Catchpole opposing those
efforts and attempting to maximize his time with the parties'
daughter to inoculate himself against any attempt by Zhang to
remove the child to China. In accordance with the consent
order, the court required Catchpole to pay pendente lite child
support of $3000 per month, as well as the mortgage, taxes and
homeowners insurance of $2770, and to make a $35,000 cash
payment to Zhang, representing one half of the obligation he
undertook to give Zhang $70,000, representing all of the money
in the parties' accounts, in the event of divorce.
Catchpole had argued, unsuccessfully, that Zhang had
already removed $70,000 from the parties' accounts and was not
entitled to an additional $35,000, even if the court determined
to enforce the consent order, which he opposed on the grounds it
was inequitable and entered under duress. In addition to
ordering Catchpole to pay the sums required under the consent
order, the judge also required him to pay all of Zhang's
Schedule A and B expenses, another $1626 per month.
5 A-5344-14T4 Accordingly, Catchpole's monthly pendente lite obligation
totaled $7396.
When Zhang sought to enforce the financial terms of the
consent order, Catchpole cross-moved for parenting time and to
be designated the parent of primary residence. He claimed Zhang
refused him time with the parties' daughter and failed to
consult him on matters of her health and care. Catchpole argued
the only way to insure a stable co-parenting relationship and
prevent Zhang from taking the child out of New Jersey was to
make him their daughter's primary custodial parent. The court
denied his pendente lite request to be designated the parent of
primary residence, but provided him regular parenting time and
ordered that neither party should take the child out of New
Jersey absent consent or court order. Three months after entry
of that order, Zhang defied it by taking the child out of the
country on a cruise to Bermuda without Catchpole's knowledge.
Because of their dispute over custody, the parties retained
a joint custody evaluator, Mathias Hagovsky, Ph.D., to conduct a
best interests evaluation. At trial, Dr. Hagovsky testified he
found the toddler a happy and healthy three-year-old, who
enjoyed a strong and positive bond with both her parents. Based
on his observation and evaluation of the child and the parties,
and interviews with them, the child's pediatrician, daycare
6 A-5344-14T4 providers, and Catchpole's therapist, as well as notes of
Zhang's physician, Dr. Hagovsky pronounced both parties fit
parents.
The doctor testified that neither was perfect, Zhang was "a
little intense," "somewhat . . . compulsive[,] . . . very
concerned about many details about each situation," and
Catchpole was "panicked[,] . . . very concerned that if he
didn't get something very significant in terms of his time with
the child, she was going to China." Based on discussions with
Catchpole's therapist, who conducted several sessions with both
parties, and the doctor's own assessment, Dr. Hagovsky
determined the 2010 domestic violence incident was an anomaly,
and that Catchpole posed no threat to Zhang or their daughter.
Dr. Hagovsky testified that the child's best interests
would be served by continuing Zhang as the parent of primary
residence and increasing Catchpole's parenting time. He
rejected Zhang's desire for sole custody and Catchpole's wish to
serve as the child's primary custodian as serving their own
needs and not those of their daughter. He acknowledged
Catchpole's fear of Zhang removing the child to China, and
accepted Zhang's representation that she had put the thought
aside for the present. Dr. Hagovsky testified the child would
suffer psychological harm were she to be separated from
7 A-5344-14T4 Catchpole by relocating with Zhang to China, given the child's
age and strong attachment to her father.
Judge Casale found Dr. Hagovsky a well-qualified credible
witness, candid and unbiased. After a detailed consideration of
the testimony of the parties and the expert, considered within
the framework of N.J.S.A. 9:2-4, the judge wrote that "[t]he
decision as to who will be [the child's] primary residential
parent is more difficult than at first blush." Although having
no hesitation in finding Zhang "a good mother," the judge found
several examples "of how [Zhang] does not keep [Catchpole] in
the loop with regard to important decisions and violates her
duties as a joint legal custodian." The judge found her
testimony that she told Catchpole of her plans to take the child
out of the country two weeks in advance, "not credible," and
instead concluded she knowingly violated a court order she
thought "ridiculous."
The court noted that since Dr. Hagovsky's evaluation, Zhang
"continued to interfere with [Catchpole's] parenting time,
removed [the child] from the United States on vacation in
violation of a [c]ourt [o]rder, and has shown to be the less
credible witness on the custody issues by far." Nevertheless,
he agreed with Dr. Hagovsky's recommendation that consistency
8 A-5344-14T4 was important and that Zhang continue as the child's primary
residential parent.
The court expanded Catchpole's parenting time based on
Catchpole's strong relationship with the child and Zhang's
"continual interference with [his] parenting time in the past."
Addressing the concern expressed by Catchpole and Hagovsky about
Zhang's threat to remove the child to China, the court
"restrain[ed] [Zhang] from making any relocation application for
her to return to China with [the child] for at least five years"
and restrained both parents from taking the child out of the
country without consent or court approval. The court ordered
the child's passport to be held by the Finance Division of the
Superior Court.
Turning to the financial issues, the court first addressed
the enforceability of the consent order. The court found that
the agreement eventually embodied in the consent order was
initially Catchpole's idea in an effort to save the parties'
marriage. Although the court did not accept Catchpole's claim
that he signed the agreement under the duress of Zhang's threats
to take their daughter to China, it did find Catchpole signed it
based, at least in part, on Zhang's lawyer's opinion that it was
unenforceable. Relying on Segal v. Segal, 278 N.J. Super. 218,
222 (App. Div. 1994), that our courts will enforce marital
9 A-5344-14T4 agreements that are fair, just and reasonable but will set aside
those that are the product of overreaching, the court determined
that it would enforce those provisions it found fair and
equitable but would strike or modify those "terms which provided
for non-modifications of [Catchpole's] obligations, and
indefinite terms of [Catchpole's] obligations [which] are
unfair, inequitable, [and] secured by advice from [Zhang's]
counsel."
The court thus struck the obligation that Catchpole pay
Zhang child support of $3000 per month, based on changed
circumstances. When the agreement was signed, Catchpole was
earning $172,000. He subsequently lost his job, however. At
the time of the trial, Catchpole was earning a base salary of
$135,000 per year, plus a $15,000 bonus, less than the $172,000
he was earning when he signed the agreement. The judge imputed
another $10,000 to him, in light of some prior consulting work
but declined Zhang's request that Catchpole's income also
reflect his one-time $70,000 severance benefit and bonuses from
his prior employer. The court found Zhang's income to be
$70,000 per year.1 Based on Catchpole's 104 overnights and
1 Zhang contends this was error as her W-2 and tax returns showed she earned only $67,334.40. We find no error in the court "rounding up" the parties' incomes for purposes of calculating (continued)
10 A-5344-14T4 giving him credit for one-half of his $119.44 weekly health
insurance premium attributable to the parties' child, the court
calculated child support of $132 per week in accordance with the
Guidelines.
The court also struck as inequitable that provision of the
agreement making Catchpole responsible for all of their
daughter's tuition costs. The judge rejected Zhang's
expectations with regard to the funding of her daughter's
education as "ludicrous," noting that "[s]he has already decided
that [her daughter], a five-year-old child shall attend NYU,
without regard to [Catchpole's] wishes or [the child's] wishes
and abilities."
The judge determined there would be no requirement that the
parties' daughter attend a private elementary or secondary
school. Further, if the parties agreed to enroll the child in
private school, they would pay tuition in accordance with the
55%/45% ratio of their incomes, as they would for
extracurricular activities, childcare and unreimbursed medical
expenses. The court encouraged the parties to contribute to a
529 plan, but declined to require them to do so. He determined
(continued) child support because the effect, if any, would be negligible, as Zhang herself concedes.
11 A-5344-14T4 the parties' contributions to their daughter's college expenses,
"shall abide by the event, and shall be decided based upon
existing case law and statutory law" at the time the child
applies to college.
The court rejected Catchpole's claim that the marital
residence was a pre-marital asset and instead found it was
purchased in contemplation of marriage and subsequently titled
in both their names, thus making it a marital asset subject to
equitable distribution. The court, however, struck the term of
the consent order obligating Catchpole to maintain the residence
for Zhang and their daughter until the latter turned eighteen or
the mortgage was paid off. Finding that Catchpole "has paid
above and beyond his share of expenses for the marital
residence," the court concluded that to obligate him "to all
future payments on the mortgage until [their child] is
[eighteen] is simply inequitable and unfair." The judge
permitted Catchpole until September 1, 2015, to purchase Zhang's
interest in the residence. In the event he declined to do so,
the house was to be sold. The judge ordered Catchpole to
continue paying the mortgage, taxes and homeowner's insurance
through sale.
Applying the factors set forth in N.J.S.A. 2A:34-23.1, the
court determined that the parties should share equally in the
12 A-5344-14T4 equity of their marital residence, notwithstanding Zhang's
minimal financial contribution, and likewise split evenly the
value of the marital portion of their retirement accounts. The
court determined to enforce that provision of the consent order
requiring Catchpole to give Zhang the $70,000 in the parties'
bank accounts. The court noted that unlike the provisions of
the agreement it declined to enforce, the provision relating to
the bank accounts was a finite obligation of definite duration.
The judge found, however, that Zhang removed $70,000 from
the parties' accounts just after the parties separated and lied
to the court about it. The court also rejected Zhang's claims
that Catchpole had dissipated marital assets. Relying on the
detailed proofs of the parties' finances submitted by Catchpole,
the court found that Zhang had already taken what she was owed
pursuant to the consent order by the time the court ordered
Catchpole to pay her $35,000 pendente lite. Because Zhang had
already wiped out their accounts, there was no money left to
make that ordered payment, thus forcing Catchpole to borrow the
funds from his 401k account to give to Zhang. The judge
accordingly denied Zhang's request for a further payment of
$35,000 and instead directed that Catchpole receive a $35,000
credit against Zhang's equitable distribution award.
13 A-5344-14T4 Although the parties had been separated for three years at
the time of the trial, the judge noted "they [were] still
fighting as to the personalty." The judge rejected as not
credible Zhang's claim that Catchpole took $11,000 in jewelry
from the parties' home and rejected her claims for items of
personal property pre-dating the marriage as well as for half
the value of Catchpole's clothes. The court determined to allow
Zhang to keep the furniture and other items remaining in the
marital home and awarded Catchpole a $15,000 credit to equalize
the disproportionate distribution to Zhang.
Applying the factors in N.J.S.A. 2A:34-23, the court
determined Zhang was entitled to an award of alimony. Although
the marriage was short term, lasting only five and one-half
years, the court determined that limited duration alimony "of
greater than 50% of the marriage" was appropriate because of the
disparities in income. The court determined, based on the
fourteen statutory factors, that four years of limited duration
alimony of $2500 per month was reasonable, and indeed generous,
based on the evidence presented.
Taking into account the $2770 per month Catchpole had been
ordered to pay for the mortgage, taxes and insurance since
November 2011, however, the court determined that not only had
most of Catchpole's "alimony responsibility . . . already been
14 A-5344-14T4 fulfilled" by the time of trial, he was owed a credit of $1000
per month for twenty-four months for his overpayment of Zhang's
Schedule A and B expenses. Accordingly, the court ordered
Catchpole to continue to pay the mortgage, taxes and insurance
on the marital home until he either purchased Zhang's interest
by September 1, 2015, or the house was sold. The court ordered
Catchpole to thereafter pay Zhang $2500 a month in alimony from
the date of sale or buyout until November 1, 2015.
Finally, the judge denied the parties' request for counsel
fees. He found Catchpole's income was sufficient to permit him
to pay his own counsel fees, and that Zhang obtained
"significant cash" from the parties' bank accounts on their
separation and received $3000 a month in child support, a figure
"well above the child support guidelines" during the over three
years the divorce was pending. The judge further found Zhang
"acted in bad faith" with regard to her financial demands, and
that both parties "acted unreasonably" resulting in many pre-
trial motions and "excessive litigation," precluding an award of
fees to either.
Zhang appeals, contending the trial judge erred in
prohibiting her from filing an application to relocate to China
with the parties' child for five years, in failing to enforce
the parties' consent order, in calculating the parties' incomes
15 A-5344-14T4 for purposes of support, in awarding Catchpole a credit of
$15,000 for the contents of the marital residence, in
considering the payment of pendente lite support in setting
alimony and for awarding Catchpole credits for overpayment of
pendente lite support. She also contends she was denied due
process and the opportunity to present evidence with regard to
support credits and the removal of $70,000 from her personal
account, and that the trial judge was biased against her. With
the exception of the restriction imposed on her access to the
courts, which Catchpole agrees should be lifted, we reject her
arguments.
Judge Casale was the judge responsible for this case from
its filing in November 2011 through entry of the judgment of
divorce in 2015. He was extremely familiar with the matter
having decided the pendente lite motions and presided over the
six-day trial. When a Family Part judge has made findings of
fact after considering the testimony and documents the parties
have presented during a non-jury trial, the judge's findings are
"binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12
(1998) (citing Rova Farms Resort, Inc. v. Inv'r Ins. Co. of Am.,
65 N.J. 474, 484 (1974)).
16 A-5344-14T4 In addition to the respect we owe to "the family courts'
special jurisdiction and expertise in family matters," deference
is especially appropriate when the case turns, as this one did,
on questions of credibility. Id. at 412-13. "Because a trial
court 'hears the case, sees and observes the witnesses, [and]
hears them testify,' it has a better perspective than a
reviewing court in evaluating the veracity of witnesses." Id.
at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)
(internal quotation marks omitted)). Accordingly, we will not
reverse a trial judge's findings of fact unless they are "'so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice.'" Clark v. Clark, 429 N.J. Super. 61, 70
(App. Div. 2012) (quoting Rova Farms, supra, 65 N.J. at 484).
Zhang's central argument on appeal is that the trial
court's decision "is manifestly unsupported by and inconsistent
with the evidence presented." Having reviewed the record, we
disagree. The judge's calculation of the parties' incomes, the
credit awarded Catchpole for the contents of the marital
residence, his consideration of the payment of pendente lite
support in setting alimony and the credits awarded Catchpole for
overpayment of pendente lite support, are all well anchored in
the record.
17 A-5344-14T4 The court's decision to base Catchpole's income on what he
was being paid in his new job, instead of averaging the bonus
income no longer available to him from his prior position, was
reasonable and in accord with the Guidelines, as was the
decision to exclude his one-time severance payment as non-
recurring, sporadic income. See Child Support Guidelines,
Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to
R. 5:6A at www.gannlaw.com (2017). The court's calculation of
the $60 credit to Catchpole for the cost of health insurance for
the parties' daughter was likewise in accord with the
Guidelines, which direct that in the absence of proof of the
actual cost of adding the child to the policy, the parent's
total premium should be divided by the number of persons covered
by the policy. See ibid. As Catchpole pays $119.44 per week
for health insurance, and has only one child, the $60 credit was
calculated in accord with the Guidelines.2
Although the $15,000 credit to Catchpole for the contents
of the marital home is not subject to such a precise
calculation, its basis is nevertheless easily discerned. The
court reviewed the three personal property lists the parties
2 Although Zhang argues in her reply brief that the premium should have been divided by three, she does not explain the basis of that belief, and does not support it with a citation to the record.
18 A-5344-14T4 submitted, including Zhang's list of the items remaining in the
residence, which she estimated as having a value of $32,270.
Because the court determined that Zhang would retain the
entirety of the contents, a $15,000 credit to Catchpole is
reasonable and supported by the record. The court did not
believe Zhang's claim that Catchpole removed $11,000 in jewelry
from their home, and the items he took, largely consisting of
his car, computer and tools, were permitted by the consent
order.
We find no error in the court having considered that
Catchpole had already paid pendente lite support for three and a
half years in setting alimony in this five-and-a-half-year
marriage. Zhang does not dispute that the 2014 amendments to
the alimony statute, L. 2014, c. 42, § 1, apply here. The 2014
amendments added a new factor for courts to consider in
fashioning an alimony award, "[t]he nature, amount, and length
of pendente lite support paid." N.J.S.A. 2A:34-23b(13).
In considering Zhang's needs and all fourteen enumerated
factors of the alimony statute, the court determined that
continuing support payments through November 1, 2015 would
result in Catchpole having paid Zhang four years of support in a
five-and-a-half-year marriage. The court rejected Zhang's
19 A-5344-14T4 request for an additional six years of alimony, terming it
"unwarranted and inequitable."
The award of alimony is "broadly discretionary." Steneken
v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as
modified, 183 N.J. 290 (2005); see also N.J.S.A. 2A:34-23. We
will reverse a trial judge's decision concerning alimony only if
"the findings were mistaken or . . . the determination could not
reasonably have been reached on sufficient credible evidence
present in the record after considering all of the proofs as a
whole." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340,
354 (App. Div. 2009).
Measured by those standards, we cannot find the trial judge
abused his discretion in establishing this limited duration
award. Indeed, we note that were Zhang's argument accepted,
that the four-year award should have commenced with the entry of
the judgment, she would receive seven and a half years of
alimony in a five-and-a-half-year marriage, contrary to the
mandate of N.J.S.A. 2A:34-23c ("For any marriage or civil union
less than 20 years in duration, the total duration of alimony
shall not, except in exceptional circumstances, exceed the
length of the marriage or civil union.").
We likewise find no abuse of discretion in the judge's
award of credit to Catchpole for overpayment of pendente lite
20 A-5344-14T4 support. It is well established that pendente lite support
orders, which are almost always entered without a plenary
hearing, are subject to modification at trial. Mallamo v.
Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995); Jacobitti v.
Jacobitti, 263 N.J. Super. 608, 618 (App. Div. 1993), aff'd, 135
N.J. 571 (1994).
As previously noted, Catchpole was ordered to pay the
mortgage, taxes and insurance for the residence during the
pendency of the divorce in accordance with the parties' consent
order, a monthly sum of $2770. He was also ordered to pay all
of Zhang's remaining Schedule A and B expenses, another $1626
per month according to Zhang's case information statement. The
judge calculated that Catchpole paid "$1,000 per month more for
a two-year period than he was obligated to pay under the
[c]onsent [o]rder," in the form of "repairs, maintenance,
electric and gas, water and sewer, cable-TV, and various other
miscellaneous expenses." He thus awarded Catchpole a $24,000
credit against equitable distribution.
Ignoring the amounts listed in her own case information
statement, Zhang argues that Catchpole only testified that he
had been paying these expenses in his rebuttal case, and that he
"presented no documentation to support his claim." The record,
however, is replete with proof of these payments. Catchpole
21 A-5344-14T4 certified to the court in June 2013 that he had been paying the
"electric, gas, water, sewer and cable." Zhang likewise
confirmed Catchpole's payments in her own certifications filed
with the court in August and September 2013. Specifically,
Zhang acknowledged that Catchpole had abided by the court's
order from February 2012 "by paying all of the Schedule A and B
expenses," and objected to having to assume paying "for the
utilities, which are approximately $800 per month." Indeed,
Zhang contended that Catchpole "has paid for the utilities to
the home for more than [two] years and he must continue to do so
as it is the status quo."
Thus, in addition to the amounts in Zhang's own case
information statement relied on by the court, the record
reflects that Catchpole paid $270 more than the $2500 allotted
for alimony by paying the $2770 monthly expense for the
mortgage, taxes and insurance and another $800 in utilities. We
thus reject Zhang's assertion that the $24,000 credit is without
support in the record or was otherwise an abuse of discretion.
See Steneken, supra, 367 N.J. Super. at 434.
We also find no error in Judge Casale's decision to enforce
those provisions of the parties' pre-divorce consent order he
found fair and equitable and to strike or modify those he found
the product of overreach. "Settlement agreements in matrimonial
22 A-5344-14T4 matters, being 'essentially consensual and voluntary in
character, . . . [are] entitled to considerable weight with
respect to their validity and enforceability' in equity,
provided they are fair and just." Dolce v. Dolce, 383 N.J.
Super. 11, 20 (App. Div. 2006) (alteration and omission in
original) (quoting Petersen v. Petersen, 85 N.J. 638, 642
(1981)). The law, however, "grants particular leniency to
agreements made in the domestic arena, and likewise allows
judges greater discretion when interpreting such agreements.
Such discretion lies in the principle that although marital
agreements are contractual in nature, 'contract principles have
little place in the law of domestic relations.'" Guglielmo v.
Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992) (citation
omitted) (quoting Lepis v. Lepis, 83 N.J. 139, 148 (1980)). Our
Supreme Court has recently reaffirmed the Family Part's power to
reform a settlement agreement due to "'unconscionability, fraud,
or overreaching in the negotiations of the settlement.'" See
Quinn v. Quinn, 225 N.J. 34, 47 (2016) (quoting Miller v.
Miller, 160 N.J. 408, 419 (1999)).
As we have noted, Judge Casale was extremely familiar with
this matter, having handled it since its inception. As is
obvious from his detailed opinion, he immersed himself in the
proofs and considered all of the evidence adduced by the
23 A-5344-14T4 parties. He also made express credibility findings. He found
Catchpole "a credible witness, who was honest and forthright in
his testimony. He answered questions in a straightforward
manner, and when he could not recall a detail would simply
testify that he could not recall, and not lie or exaggerate as
to that particular issue." Zhang, in contrast, the judge found
"not a credible witness."
Although finding that the agreement that eventually became
the consent order was initially Catchpole's effort to salvage
his marriage, the judge was also convinced that Zhang's repeated
threats to return to China with the parties' daughter loomed
large over Catchpole. Thus while enforcing the provision
providing Zhang with $70,000, consisting of all the money in the
parties' accounts, he declined to enforce those provisions
imposing lifetime commitments for support. Having reviewed the
record and considered the parties' arguments, we find no error
in the judge's treatment of the consent order.
Zhang's arguments that the court erred in finding that she
received the $70,000 provided in the consent order at the time
of the separation and that she was denied due process and the
opportunity to present evidence on the issue are without merit.
Catchpole maintained from the first pendente lite motion in the
case that Zhang had removed $70,000 from the parties' accounts
24 A-5344-14T4 when he left the marital home. He testified on direct with
reference to Zhang's own bank statements that she withdrew
exactly $70,000 from her personal savings account several days
after he moved out. Zhang maintained from the first pendente
lite motion forward that the money in her account came from her
parents and other sources and was not funds of the marriage.
She did not provide proof of her assertions on the motion and
likewise presented no evidence on the point at trial. The
record supports the judge's conclusion that Zhang took the
monies she was entitled to under the consent order at the time
the parties separated and thus was not entitled to the $35,000
payment she received pendente lite, and that she had ample
opportunity to contest the issue at trial.
Zhang's remaining arguments, including that the trial judge
harbored a bias against her, are without sufficient merit to
warrant discussion in a written opinion. See R. 2:11-
3(e)(1)(E). That the judge found Zhang an unreliable witness
who repeatedly offered testimony the judge determined was not
credible does not equate to bias. See Strahan v. Strahan, 402
N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot be inferred
from adverse rulings against a party.").
Because Catchpole does not oppose Zhang's demand that the
restriction the judge imposed on future applications by Zhang to
25 A-5344-14T4 relocate with the parties' child to China be reversed, we have
no need to consider whether the restriction violated Zhang's
constitutional right to access to the courts. See Brown v.
Grabowski, 922 F.2d 1097, 1113 (3d Cir. 1990). We thus order a
limited remand for the purpose of excising that provision from
the judgment. We do not disturb the provision requiring the
court's custody of the child's passport. We agree with Zhang
that Catchpole's concession on this point does not entitle him
to any affirmative relief.
Affirmed as modified, and remanded for entry of a
conforming judgment. We do not retain jurisdiction.
26 A-5344-14T4