QIAN ZHONG VS. XUE YE (FM-13-1461-04, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 2, 2018
• Docket: A-1904-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1904-16T1 Qian Zhong,

Plaintiff-Respondent,

v.

Xue Ye,

Defendant-Appellant. _________________________________

Submitted December 6, 2017 – Decided August 2, 2018

Before Judges Fuentes, Koblitz and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1461-04.

Cores & Associates, LLC, attorneys for appellant (Melanie Szuba Appleby, on the brief).

Qian Zhong, respondent pro se.

PER CURIAM

Plaintiff Qian Zhong and defendant Xue Ye were married in

1990, and had two children, Cathy, who was born in 1997,1 and Adam,

1 Cathy passed away in 2005. who was born in 2000.2 The Chancery Division, Family Part

dissolved the parties' marriage in a Final Judgment of Divorce

(JOD) entered on June 17, 2006. The JOD incorporated a

comprehensive Property Settlement Agreement (PSA) that the parties

negotiated with the assistance and advice of their respective

independent counsel. The PSA addressed all of the issues related

to the dissolution of the marital estate, awarded defendant

physical custody of the children and joint legal custody to both

parties, provided parenting time to plaintiff, and established

plaintiff's child support and alimony obligations. The PSA also

obligated plaintiff to provide and maintain health insurance

coverage to accommodate Adam's special needs related to his severe

neurological problems that restrict his mobility and require

constant personal attention.

The legal termination of the marriage did not assuage the

intensity of the rancorous relationship the parties continue to

have as parents. The parties have filed numerous post-judgment

motions before the Family Part and three appeals before this court.

See Qian Zhong v. Xue Ye, No. A-2480-10 (App. Div. Mar. 15, 2012);

Qian Zhong v. Xue Ye, No. A-0674-10 (App. Div. Mar. 15, 2012);

2 We use pseudonyms to refer to the children to protect their privacy and preserve the confidentiality of the information presented to the Family Part. R. 1:38-3(d).

2 A-1904-16T1 Qian Zhong v. Xue Ye, No. A-1429-09 (App. Div. Sept. 21, 2010).

Thus far, these legal determinations have not resolved the

underlying cause of the problems.

In this fourth appeal, defendant seeks review of an order

entered by the Family Part on November 29, 2016, denying her motion

to: (1) modify child support; (2) award her sole legal custody of

Adam; (3) compel plaintiff to reimburse her for expenses she

incurred as a result of plaintiff's decision not to exercise his

parenting time with Adam; and (4) compel plaintiff to provide

health insurance for Adam indefinitely. Defendant sought this

relief after learning plaintiff had relocated to China. The motion

judge decided defendant's motion based only on the parties'

conflicting certifications. The judge explained the basis of her

decision in a statement of reasons, which was later supplemented

by an Amplified Opinion submitted pursuant to Rule 2:5-1(b), after

defendant filed her Notice of Appeal. Based only on the parties'

conflicting certifications, the judge did not find a sufficient

change in circumstances to warrant any of the relief defendant

sought.

After reviewing the record developed before the Family Part,

we disagree with the motion judge's conclusion that plaintiff's

relocation to China does not constitute a significant change in

circumstances. Plaintiff's unilateral decision to relocate to

3 A-1904-16T1 China makes him unavailable to participate in Adam's life and

leaves defendant with the sole responsibility to provide the

emotional support and special care required by their severely

disabled son. Measured against the parenting time arrangement and

other matters related to Adam that the parties negotiated and

agreed to abide by in the PSA, plaintiff's relocation to China

constitutes a significant departure from these court-sanctioned

provisions.

We thus reverse the order denying defendant's motion and

remand the matter for the court to conduct a plenary hearing to

allow the parties to testify and develop a proper record from

which the judge can determine what changes are needed to

accommodate this new parenting arrangement. The judge should

order the parties to file updated Case Information Statements

(CIS) and consider permitting limited pre-hearing discovery

related to Adam's current and future needs. We leave it to the

discretion of the court to determine the form and scope of such

discovery. Before we address the merit of the arguments raised

by defendant, we will briefly describe the procedural journey that

preceded the order under review.

On July 25, 2016, defendant filed a pro se emergent Order to

Show Cause (OTSC) after she learned that plaintiff was planning

to relocate to China. Defendant sought an order from the Family

4 A-1904-16T1 Part to compel plaintiff to maintain insurance coverage for Adam

"indefinitely" and grant her sole custody of the child. Due to

his severe neurological limitations, Adam required the assistance

of a nurse during those times plaintiff did not exercise his right

to parenting time with his son. Defendant requested the court to

order plaintiff to reimburse her for the cost she allegedly

incurred to hire a nurse for this purpose from 2013 to 2016.

Defendant also petitioned the court to require plaintiff to

establish a "fund" to cover the cost of future derelictions of his

parenting time obligation.

On July 27, 2016, a Family Part judge granted defendant's

OTSC, in part. The judge granted defendant "full authority" to

act on Adam's behalf concerning "issues related to medical

treatment and medical insurance[.]" Toward that end, the judge

authorized defendant "to communicate directly with the insurance

company concerning all matters relating to [Adam's] medical

coverage in light of [plaintiff's] alleged departure to China[.]"

The court denied without prejudice the balance of defendant's

requests.

On August 2, 2016, the return date of the OTSC, a different

judge found defendant was not entitled to seek judicial

intervention under an OTSC because she did not meet the standard

for emergent relief under Crowe v. DeGioia, 90 N.J. 126 (1982).

5 A-1904-16T1 The judge noted that both parents had joint legal custody pursuant

to the PSA. Defendant had "access and privilege to all health

care information and medical insurance coverage regarding her son

. . . [including] the ability to make any claims or appeal any

coverage denials . . . ." The judge ordered that any further

request for relief of this nature should be made by motion

practice. On August 3, 2016, defendant filed a post-judgment

motion seeking the same relief that she requested in the OTSC.

From this point forward, the parties submitted lengthy,

conflicting certifications to the motion judge that retraced many

of the most contentious parts of their acrimonious post-judgment

interactions. The parties were both pro se. From his residence

in China, plaintiff submitted a certification dated October 1,

2016, contesting defendant's factual claims for relief. Plaintiff

also attached to his certification unauthenticated documents he

labeled "exhibits." Defendant submitted a reply certification

dated October 11, 2016, replete with factual allegations that

conflict with plaintiff's assertions. Both parties cited various

sections of the PSA that they claimed supported their legal

position before the court.

In an order prepared by the court, dated November 29, 2016,

the motion judge for the most part denied defendant any relief.

However, the judge granted defendant's request "to compel

6 A-1904-16T1 plaintiff to disclose [his] address, phone number, email address,

and fax number promptly after each change overseas . . . ." The

court also granted defendant's request "to serve each other via

email while plaintiff is living overseas . . . ."3 The judge made

clear, however, that this did not absolve the parties of their

obligation to "properly serve the other party" pursuant to Rule

1:5-2 and Rule 4:4-4.

In the Statement of Reasons attached to the order, the motion

judge explained the reasons for denying defendant's application

to compel plaintiff to reimburse her for the cost of nursing care

that she incurred when plaintiff did not appear for his parenting

time with Adam:

A custodial parent who seeks reimbursement for child support based on the premise[] that the non-custodial parent has failed to utilize his visitation time is routinely denied because money already paid was for the benefit of the child, and presumably used for the child. See J.S. v. L.S., 389 N.J. Super. 200-06 (App. Div. 2006).

The judge's assertion that the denial of defendant's

application under these circumstances is "routinely denied" is not

supported by the facts of J.S. or the compelling facts we confront

3 The actual wording of this particular section of the order contains a ministerial error that mixed up the parties designation in this litigation, giving plaintiff the relief intended for defendant. The judge corrected this error in her Amplified Opinion.

7 A-1904-16T1 here. In J.S., the defendant sought reimbursement of court-ordered

child support after a paternity test revealed he was not the

child's biological father. J.S., 389 N.J. Super. at 201-02. The

trial court granted the defendant's application to relieve him of

his obligation to pay child support, but denied his request to

compel the plaintiff to reimburse him for the child support he

previously paid. Id. at 203. In affirming the trial court's

decision, we held:

We are not persuaded by defendant's argument that he should be entitled to recoup his money from plaintiff either because of her deceit or because she has been unjustly enriched by her use of the money to care for her child. As the Court has explained, "[b]ecause the responsibility to support runs from parent to child, not parent to parent, the custodial parent was not 'unjustly enriched' by receiving sums and considering them [] payments for the support of their children." "Each parent has a responsibility to share the costs of providing for the child while [he or] she remains unemancipated."

[Id. at 205-206 (emphasis added) (first quoting Pascale v. Pascale, 140 N.J. 583, 592 (1995); then quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (1993)).]

The facts and underlying public policy that formed the basis

of our decision in J.S. stand in sharp contrast to the salient

facts of this case. Here, defendant seeks to enforce the

provisions in the PSA that expressly addresses the need for

plaintiff to honor his parenting time obligations to Adam and

8 A-1904-16T1 provides the precise remedy defendant seeks to enforce. Article

III, Section 3.2(c) of the PSA provides, in relevant part:

The [plaintiff] must make every effort to avoid the oversea[s] trip that interferes with his regular parenting obligation. The [plaintiff] will show proof of [the] necessity of an oversea[s] trip upon [defendant's] request . . . Within any 12-month period the number of interrupted parenting weekend oversea[s] trip[s] shall not exceed 4 times. The [plaintiff] shall not travel for two or more consecutive weekends due to the respite relief required by [defendant].

[(Emphasis added).]

Subsection 3.2(d) further provides, in relevant part:

It is agreed that if any party does not fulfill his/her obligation toward scheduled parenting time due to reason[s] other than their own sickness . . . the other party may ask for reimbursement for additional expenses related to the child care . . . these expenses may include but [are] not limited to childcare expenses at the market rate of a professional nurse.

In the certification dated October 11, 2016 that defendant

submitted to the Family Part in support of her motion, defendant

alleges that that plaintiff has not fulfilled his parenting time

obligation for the past nine months. She claims plaintiff's

dereliction has seriously affected her health and compromised her

financial situation. She averred:

9 A-1904-16T1 I really do not know how long I can last without a break. I have no money to advance in [Adam's] child care expenses during [p]laintiff['s] absent parenting obligations . . . [because] all private self[-]pay nurses must be paid at the end of each shift and private nurses [are] much cheaper than a nursing agency. Setting up an account [to] allow[] nurse[s] [to be] paid by [p]laintiff directly is the only option with him overseas. Otherwise, I have no money [to] pay, [and] [Adam] ultimately will be the one suffering when I have to sleep and cannot respond to his medical demands.

Defendant was also concerned about the possible collateral

consequences plaintiff's relocation to China may have on his

responsibility to provide health insurance coverage to Adam. In

her certification, defendant noted that under Article X, Section

10.5 of the PSA: "In the event the [plaintiff] does not have

medical insurance through his employment, he shall replace same

at his sole expense with a similar policy for the children

providing comparable coverage . . . ." Among the seventeen

enumerated requests for relief defendant listed in her July 25,

2016 pro se application, defendant specifically sought a court

order to compel plaintiff to continue his employment-related

insurance coverage for Adam or assume personal financial

responsibility for the child's medical needs in the event the

policy was no longer available.

10 A-1904-16T1 In the Amplified Opinion, the motion judge found, "while

[defendant's] certification tells a perhaps compelling story, she

points to no specific estimates or evaluations of what a temporary

caregiver would cost or any other examples. Regardless of this

substantive deficiency, again defendant failed to [satisfy] the

obligations as set forth in [Rule] 5:5-4(a)." However, the judge

also made clear that defendant's application was denied "without

prejudice."4

The motion judge's observation concerning defendant's failure

to provide an updated CIS as required by Rule 5:5-4(a) is correct.

However, under the prevailing circumstances, the court has a parens

patriae responsibility to Adam to ensure plaintiff's decision to

relocate to China does not adversely affect this special-needs

child's best interest. See Fawzy v. Fawzy, 199 N.J. 456, 474-75

(2009). In this light, we now turn to the relevant standard of

review.

To modify a custody order or a consensual agreement on

custody, courts follow the procedural framework outlined in Lepis

for modification motions. First, the court must determine if the

party seeking relief has made a prima facie showing of changed

4 Every decision made by the Family Part that involve the financial welfare of children is subject to revision or modification based on changed circumstances. See Lepis v. Lepis, 83 N.J. 139, 151 (1980).

11 A-1904-16T1 circumstances. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div.

2014). If the party makes this initial showing, she is "'entitled

to a plenary hearing as to disputed material facts regarding the

child's best interests, and whether those best interests are served

by modification of the existing custody order.'" Costa v. Costa,

440 N.J. Super. 1 (App. Div. 2015) (quoting R.K., 437 N.J. at 62-

63).

In assessing whether there are requisite changed

circumstances, the court must consider the circumstances that

existed when the court made the original determination. Sheehan

v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958). The

focus of every judicial determination about custody and parenting

time is "on the 'safety, happiness, physical, mental and moral

welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105

(App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536

(1956)). However, as a general rule, hotly contested cases

often turn on credibility determinations, which by their nature are impeded when the trial court cannot make first-hand observations of the witnesses. Additionally, the absence of live testimony obstructs the trial court's ability to obtain additional details that may be necessary to augment or clarify information contained in the documentary evidence, potentially impairing the judge's ability to make more detailed factual findings. In short, . . . submitting . . . documents in lieu of testimonial evidence, fails to allow the judge to resolve

12 A-1904-16T1 disputed issues or make credibility determinations.

[Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 353 (App. Div. 2016).]

Here, the motion judge must make a fact-sensitive assessment

of the impact plaintiff's relocation has had on his financial and

emotional responsibility to help Adam cope with his special needs.

The parties must submit updated CIS's to allow the judge to

determine whether modification of plaintiff's child support

obligation is warranted. Based on the evidence presented, the

judge must determine whether plaintiff is required to reimburse

defendant for expenses she incurred when plaintiff failed to honor

his parenting time obligations, pursuant to Subsections 3.2(c) and

(d) of the PSA.

Furthermore, because Adam has reached the age of majority,

the court may also consider whether it would be in his best

interest for the parties to establish a special needs trust. The

Supreme Court had the opportunity to address and clarify this

approach in J.B. v. W.B., 215 N.J. 305 (2013). Writing for a

unanimous Court, our colleague Judge Cuff explained some of the

benefits of this type of trust:

A special needs trust in conjunction with a thoughtful plan to gain eligibility and receipt of government benefits, including Medicaid, SSI, and Division of Developmental Disability (DDD) programs, permits a family

13 A-1904-16T1 to provide health care, income, housing, and vocational services for their disabled, dependent child. The redirection of a child support obligation from a parent to a trust designed to meet the present and future needs of the dependent, disabled child should not be considered exceptional or extraordinary relief, if such a plan is in the best interests of the unemancipated child.

[J.B., 215 N.J. at 329-339.]

If the circumstances warrant it, the court also has the

discretionary authority to appoint a guardian ad litem to represent

the best interests of the child. Id. at 332-33; R. 5:8B.

We thus reverse and remand for the court to conduct a plenary

hearing to enable defendant to testify and present evidence in

support of her request for relief. Plaintiff may petition the

Family Part judge to participate at this hearing remotely from

China, via some form of electronic, audio-visual arrangement. In

deciding whether to grant such a request, the judge must apply the

two-part test first established by this court thirty years ago in

Aqua Marine Prods., Inc. v. Pathe Comput. Control Systs. Corp.,

229 N.J. Super. 264, 275 (App. Div. 1988), and subsequently adopted

by our Supreme Court in State v. Santos, 210 N.J. 129, 141 (2012).

Reversed and remanded. We do not retain jurisdiction.

14 A-1904-16T1